Exhibit 99.2
T3C
JAMBOREE LLC
$80,000,000
_____% CLASS A SENIOR SECURED NOTES DUE 2002
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INDENTURE
Dated as of , 1997
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IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
as TRUSTEE
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06,10.03
(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06,11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.09
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.11
316 (a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . . . .2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.04
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.15
317 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.08
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
i
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
ii
TABLE OF CONTENTS
PAGE
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE. . . . . . . . 1
1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. OTHER DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT . . . . . . . . . . 14
1.04. RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE II.
THE NOTES. . . . . . . . . . . . . . . . 15
2.01. FORM AND DATING . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.02. MATURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.03. AMORTIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.04. EXECUTION AND AUTHENTICATION. . . . . . . . . . . . . . . . . . . . . 15
2.05. REGISTRAR AND PAYING AGENT. . . . . . . . . . . . . . . . . . . . . . 16
2.06. PAYING AGENT TO HOLD MONEY IN TRUST . . . . . . . . . . . . . . . . . 16
2.07. LISTS OF HOLDERS OF THE NOTES . . . . . . . . . . . . . . . . . . . . 17
2.08. TRANSFER AND EXCHANGE . . . . . . . . . . . . . . . . . . . . . . . . 17
2.09. REPLACEMENT NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.10. OUTSTANDING NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.11. TREASURY NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.12 TEMPORARY NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.13 CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.14. DEFAULTED INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.15. RECORD DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.16. CUSIP NUMBER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE III.
REDEMPTION AND PURCHASE OF NOTES . . . . . . . . . . 20
3.01. REDEMPTION GENERALLY. . . . . . . . . . . . . . . . . . . . . . . . . 20
3.02. SELECTION OF NOTES TO BE REDEEMED . . . . . . . . . . . . . . . . . . 20
3.03. NOTICE OF REDEMPTION OR PURCHASE. . . . . . . . . . . . . . . . . . . 20
3.04. EFFECT OF NOTICE OR EXERCISE OF RIGHTS. . . . . . . . . . . . . . . . 22
3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE . . . . . . . . . . . . . . . 22
3.06. NOTES REDEEMED OR PURCHASED IN PART . . . . . . . . . . . . . . . . . 22
3.07. OPTIONAL REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.08. PURCHASE AT HOLDERS OPTION. . . . . . . . . . . . . . . . . . . . . . 23
3.09. COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE OF NOTES. . . . 25
3.10. REPAYMENT TO THE ISSUER . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV.
COVENANTS. . . . . . . . . . . . . . . . 25
4.01. PAYMENT OF PRINCIPAL AND INTEREST; PAYMENTS IN KIND . . . . . . . . . 25
i
4.02. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . . . . . . . . . 25
4.03. OFFICERS' AND ACCOUNTANTS' CERTIFICATES AS TO COMPLIANCE. . . . . . . 26
4.04. CONDUCT OF BUSINESS; MANAGEMENT; TITLE INSURANCE. . . . . . . . . . . 26
4.05. PAYMENT OF TAXES, ETC . . . . . . . . . . . . . . . . . . . . . . . . 27
4.06. PRESERVATION OF EXISTENCE, ETC. . . . . . . . . . . . . . . . . . . . 29
4.07. FINANCIAL STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 29
4.08. LIMITATION ON INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . 30
4.09. LIENS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.10. INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.11. LEASE OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.12. RESTRICTED PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.13. TRANSACTIONS WITH AFFILIATES. . . . . . . . . . . . . . . . . . . . . 33
4.14. NEW SUBSIDIARIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.15. RESERVE ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.16. REQUIRED INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.17. GENERAL INSURANCE REQUIREMENTS. . . . . . . . . . . . . . . . . . . . 35
4.18. DELIVERY OF INSURANCE POLICIES, PAYMENT OF PREMIUMS . . . . . . . . . 35
4.19. INDEMNIFICATION; SUBROGATION; WAIVER OF OFFSET. . . . . . . . . . . . 36
4.20. EVENT OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.21. INVESTMENT COMPANY ACT. . . . . . . . . . . . . . . . . . . . . . . . 39
4.22. STAY, EXTENSION AND USURY LAWS. . . . . . . . . . . . . . . . . . . . 39
ARTICLE V.
SUCCESSORS. . . . . . . . . . . . . . . . 39
5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS . . . . . . . . . . . . . . . 39
5.02. SUCCESSOR ENTITY SUBSTITUTED. . . . . . . . . . . . . . . . . . . . . 40
ARTICLE VI.
DEFAULTS AND REMEDIES. . . . . . . . . . . . . 40
6.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.02. ACCELERATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.03. OTHER REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.04. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . 42
6.05. DIRECTION BY HOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . 43
6.06. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. . . . . . . . . . . . . . . . . 43
6.08. COLLECTION SUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.09. PROOFS OF CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.10. PRIORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.11. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . . . . . . . . 45
6.12. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . . . . . . . . 45
ARTICLE VII.
THE TRUSTEE . . . . . . . . . . . . . . . 46
7.01. DUTIES OF THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 46
ii
7.02. RIGHTS OF THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 47
7.03. INDIVIDUAL RIGHTS OF THE TRUSTEE, THE COLLATERAL AGENT AND AGENTS . . 48
7.04. DISCLAIMER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.05. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.06. REPORTS BY THE TRUSTEE TO HOLDERS OF THE NOTES. . . . . . . . . . . . 49
7.07. COMPENSATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.08. REPLACEMENT OF THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 50
7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. . . . . . . . . . . . . . . . . . . 51
7.10. ELIGIBILITY; DISQUALIFICATION . . . . . . . . . . . . . . . . . . . . 51
7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER. . . . . . . . . 51
ARTICLE VIII.
DEFEASANCE. . . . . . . . . . . . . . . . 51
8.01. OPTION TO EFFECT DEFEASANCE . . . . . . . . . . . . . . . . . . . . . 51
8.02. DEFEASANCE AND DISCHARGE. . . . . . . . . . . . . . . . . . . . . . . 51
8.03. CONDITIONS TO DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . . 52
8.04. DEPOSITED MONEY AND GOVERNMENTAL SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . 53
8.05. REPAYMENT TO THE ISSUER . . . . . . . . . . . . . . . . . . . . . . . 53
8.06. REINSTATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER . . . . . . . . . . 54
9.01. WITHOUT CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . . . . . . 54
9.02. WITH CONSENT OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . 55
9.03. COMPLIANCE WITH TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . 56
9.04. REVOCATION AND EFFECT OF CONSENTS . . . . . . . . . . . . . . . . . . 56
9.05. NOTATION ON OR EXCHANGE OF NOTES. . . . . . . . . . . . . . . . . . . 57
9.06. THE TRUSTEE TO SIGN AMENDMENTS, ETC . . . . . . . . . . . . . . . . . 57
ARTICLE X.
COLLATERAL AND SECURITY . . . . . . . . . . . . 57
10.01. COLLATERAL DOCUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 57
10.02. RECORDING AND OPINIONS. . . . . . . . . . . . . . . . . . . . . . . . 58
10.03. RELEASE OF COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . 58
10.04. CERTIFICATES OF THE ISSUER. . . . . . . . . . . . . . . . . . . . . . 58
10.05. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE COLLATERAL AGENT UNDER THE
COLLATERAL DOCUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 59
10.06. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE COLLATERAL
DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.07. TERMINATION OF SECURITY INTEREST. . . . . . . . . . . . . . . . . . . 59
10.08. COLLATERAL AGENT'S DUTIES . . . . . . . . . . . . . . . . . . . . . . 59
10.09. HAZARDOUS MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.10. INSPECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.11. TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
iii
ARTICLE XI.
MISCELLANEOUS. . . . . . . . . . . . . . . 61
11.01. TRUST INDENTURE ACT CONTROLS. . . . . . . . . . . . . . . . . . . . . 61
11.02. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
11.03. COMMUNICATION BY THE HOLDERS WITH OTHER HOLDERS . . . . . . . . . . . 63
11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. . . . . . . . . . 63
11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION . . . . . . . . . . . . 64
11.06. RULES BY THE TRUSTEE AND AGENTS . . . . . . . . . . . . . . . . . . . 64
11.07. NO PERSONAL LIABILITY OF THE MEMBERS, OFFICERS,
EMPLOYEES AND EQUITYHOLDERS. . . . . . . . . . . . . . . . . . . . 64
11.08. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS . . . . . . . . . . . . 65
11.10. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
11.11. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
11.12. COUNTERPART ORIGINALS . . . . . . . . . . . . . . . . . . . . . . . . 65
11.13. TABLE OF CONTENTS, HEADINGS, ETC. . . . . . . . . . . . . . . . . . . 65
11.14. QUALIFICATION OF INDENTURE. . . . . . . . . . . . . . . . . . . . . . 65
11.15. SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . . . . . 66
11.16. THIRD PARTY BENEFICIARY . . . . . . . . . . . . . . . . . . . . . . . 66
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Deed of Trust
Exhibit C Form of Assignment of Rents and Leases
Exhibit D Form of Assignment of Contracts
Exhibit E Form of Pledge Agreement
Exhibit F Form of Reserve Account Agreement
Exhibit G Security Agreement
Exhibit H Form of Management and Leasing Agreement
Exhibit I Form of Collateral Agency Agreement
Exhibit J Form of Registration Rights Agreement
Exhibit K Form of Assignment of Deed of Trust
iv
This INDENTURE is dated as of ___________________, 1997, between
Jamboree LLC, a Delaware limited liability company (the "ISSUER"), and IBJ
▇▇▇▇▇▇▇▇ Bank & Trust Company, a New York banking corporation, as trustee (the
"TRUSTEE").
The Issuer and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Issuer's
[______%] Class A Senior Secured Notes due 2002 (the "Notes"):
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPROVED BUDGETS" shall have the meaning ascribed to that term in the
Management and Leasing Agreement.
"APPROVED RESERVES" means, collectively, the REIT Required Dividends
Reserve, the Debt Service Reserve, the Tenant Improvement Reserve and the
Incentive Management Fee Reserve.
"ASSIGNMENT OF CONTRACTS" means, at any time, the Assignment of
Contracts, in the form attached hereto as EXHIBIT D made by the Issuer in favor
of the Collateral Agent, as the same may be amended, modified, supplemented,
extended, renewed, restated or replaced from time to time in accordance with the
terms of such agreement at such time.
"ASSIGNMENT OF DEED OF TRUST" means, at any time, the Assignment of
Deed of Trust, Financing Statement and Security Agreement, in the form attached
hereto as EXHIBIT K made by Pacific Mutual Realty Finance, Inc. in favor of the
Collateral Agent, as the same may be amended, modified, supplemented, extended,
renewed, restated or replaced from time to time in accordance with the terms of
such agreement at such time.
"ASSIGNMENTS OF RENTS AND LEASES" means, at any time, the Amended and
Restated Assignment of Rents and Leases, in the form attached hereto as
EXHIBIT C made by the Issuer in favor of the Collateral Agent, as the same may
be amended, modified, supplemented, extended, renewed, restated or replaced in
accordance with the terms of such agreement at such time.
1
"AUTHORIZED MEMBER" means any Member that is authorized in accordance
with the terms of the governing documents of the limited liability company of
which it is a part to act on behalf of and make binding legal commitments for
such limited liability company.
"AVAILABLE CASH" means, as at any date of determination, all Cash and
Permitted Investments held by the Issuer or the Trustee.
"BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978, as amended,
and as codified in title II of the United States Code.
"BANKRUPTCY LAW" means the Bankruptcy Code or any similar federal or
state law for the relief of debtors.
"BOARD OF MEMBERS" means the Board of Members of the Issuer as set
forth in the Issuer's charter documents.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL EXPENDITURES" means, for any Person for any period, the
aggregate of all expenditures by such Person, except interest capitalized during
construction, during such period for property, plant or equipment, including,
without limitation, renewals, improvements, replacements and capitalized repairs
(but excluding repairs in the ordinary course), that would be reflected as
additions to property, plant or equipment on a balance sheet of such Person
prepared in accordance with GAAP and includes without limitation payments, other
than those attributable to interest, on capitalized leases and other
Indebtedness incurred to finance such property, plant and equipment. For the
purpose of this definition, the purchase price of equipment which is acquired
simultaneously with the trade-in of existing equipment owned by such Person or
with insurance proceeds shall be included in Capital Expenditures only to the
extent of the gross amount of such purchase price less the credit granted by the
seller of such equipment being traded in at such time or the amount of such
proceeds, as the case may be.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means any obligation that
is required to be classified and accounted for as a capital lease on the face of
a balance sheet of such Person prepared in accordance with GAAP; the amount of
such obligation shall be the capitalized amount thereof, determined in
accordance with GAAP; the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty; and such obligation shall be deemed secured by a Lien on any property
or assets to which such lease relates.
"CASH" means legal tender accepted in the United States of America for
the payment of public and private debts currently United States Dollars.
"CLASS B NOTES" means the ____% Senior Subordinated Secured Notes due
2002 of the Issuer.
2
"COLLATERAL" means all the assets of the Issuer including, but not
limited to, assets defined as "Collateral" or, in the case of the Deed of Trust,
the "Trust Estate" in the Collateral Documents.
"COLLATERAL AGENCY AGREEMENT" means, at any time, the Collateral
Agency Agreement between the Trustee and the Collateral Agent in the form
attached hereto as EXHIBIT I, as the same may be amended, supplemented,
extended, renewed, restated or replaced in accordance with the terms of such
agreement at such time.
"COLLATERAL AGENT" means the collective reference to IBJ ▇▇▇▇▇▇▇▇ Bank
& Trust Company, as collateral agent or such other collateral agent as may be
appointed from time to time pursuant to the Collateral Agency Agreement.
"COLLATERAL DOCUMENTS" means the Deed of Trust, the Assignment of
Rents and Leases, the Assignment of Contracts, the Assignment of Deed of Trust,
the Pledge Agreement, the Reserve Account Agreement, the Security Agreement and
the Collateral Agency Agreement together with all related filings, assignments,
instruments and deeds of trust, as such agreements, filings, assignments,
instruments and deeds of trust may from time to time be amended, supplemented or
otherwise modified in accordance with the terms of this Indenture and such
agreements.
"CONSOLIDATED NET WORTH" means, with respect to any Person, the
consolidated equity of the common equityholders of such Person and its
consolidated Subsidiaries determined on a consolidated basis in accordance with
GAAP.
"CONTINGENT OBLIGATION" means with reference to any Person, any direct
or indirect liability, contingent or otherwise, of such Person with respect to
any Indebtedness or contractual obligation (including dividend payment
obligations) of another Person, if the purpose or intent of such Person in
incurring the Contingent Obligation is to provide assurance to the obligee of
such Indebtedness or contractual obligation that such Indebtedness or
contractual obligation will be paid or discharged, or that any agreement
relating thereto will be complied with, or that any holder of such Indebtedness
or contractual obligation will be protected (in whole or in part) against loss
in respect thereof.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in SECTION 11.02 or such other address as to which the Trustee
may give notice to the Issuer.
"CWOP" means ▇▇▇▇ ▇▇▇▇▇▇▇▇ Operating Partnership, a Maryland general
partnership.
"CUSTODIAN" means any receiver, trustee or similar official under any
Bankruptcy Law.
"DEBT SERVICE" means, during any period of computation, the amount
obtained for such period by totalling the following amounts: (i) the principal
amount of all outstanding Notes and Class B Notes scheduled to become due and
payable by their terms in such period; and
3
(ii) the amount of interest that would be due and payable during such period on
the aggregate principal amount of Notes and Class B Notes outstanding in such
period.
"DEBT SERVICE RESERVE" means a reserve created by the Issuer for the
retention of amounts reasonably determined by the Issuer's Board of Members to
be necessary for the payment of any Projected Debt Service Shortfall in any
future period.
"DEED OF TRUST" means, at any time, the Amended and Restated Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing in the form
attached hereto as EXHIBIT B, made by the Issuer in favor of the Collateral
Agent, encumbering the Property, and any substitute, successor or additional
deed of trust securing the Obligations or any portion of such Obligations, at
such time.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEFAULT RATE" means the rate provided in the Notes for payment of
interest on overdue principal of and interest on the Notes.
"DEFAULTED INTEREST" means, at any time, the amount of overdue
interest on the Notes at such time.
"DISCLOSURE STATEMENT" means the Disclosure Statement in Support of
Debtor's Plan of Reorganization dated April [____], 1997.
"EFFECTIVE DATE" means the "Effective Date" as defined in the Plan.
"ENVIRONMENTAL LAWS" means all applicable federal, state and local
laws, statutes, rules, ordinances, judicial decisions, permits, licenses,
regulations and other governmental restrictions relating to pollution or the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), including, without limitation, laws,
statutes, rules, ordinances, judicial decisions, permits, licenses, regulations
and other governmental restrictions relating to emissions, discharges, releases
or threatened releases of Hazardous Substances, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Substances or the cleanup or other
remediation thereof.
"ENVIRONMENTAL LIABILITIES AND COSTS" means with reference to any
Person, all liabilities, obligations, responsibilities, liabilities resulting
from Remedial Actions, losses, damages, punitive damages, treble damages, costs
and expenses (including, without limitation, all reasonable fees, disbursements
and expenses of counsel, expert and consulting fees, and costs of investigation
and feasibility studies), fines, penalties and sanctions incurred as a result of
any claim or demand by any other Person, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
including, without limitation, any claim or demand arising under any
Environmental Law, or any order or agreement with any Governmental Authority or
other Person, and which relate to any environmental, health or safety condition,
or
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a Release or threatened Release, and result from the past, present or future
operations of such Person.
"ENVIRONMENTAL LIEN" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
"EVENT OF LOSS" means, with respect to any property or asset (tangible
or intangible, real or personal), any of the following: (A) any loss,
destruction or damage of such property or asset; (B) any actual condemnation,
seizure or taking by exercise of the power of eminent domain or otherwise of
such property or asset, or confiscation of such property or asset or the
requisition of the use of such property or asset; or (C) any settlement in lieu
of clause (B) above.
"EXCESS CASH FLOW AMOUNT" means for any period, an amount, determined
by the Board of Members, equal to all revenues and receipts in the form of Cash
or cash equivalents received by or on behalf of the Issuer generated by the
Property or from any source (other than interest paid on amounts on deposit in
any Approved Reserve, which interest shall be retained in such Approved
Reserve), during such period, minus the sum, without duplication, of (1) amounts
actually paid or retained in the REIT Required Dividends Reserve, up to the
aggregate amount of the REIT Required Dividends during such period, (2) interest
and regularly scheduled installments of principal actually paid during such
period under the terms of the Notes, (3) interest and regularly scheduled
installments of principal actually paid during such period under the terms of
the Class B Notes, (4) operating expenses of the Issuer with respect to the
Property actually paid in cash during such period in accordance with the
Approved Budgets, including, without limitation, amounts paid in cash by the
Issuer pursuant to the REA and/or Settlement Agreement, (5) Capital Expenditures
actually made in cash (net of any proceeds of any related financing with respect
to such Capital Expenditures) in accordance with the Approved Budgets during
such period, (6) amounts deposited during such period in the Operating
Disbursement Account to bring the aggregate amount held in that account up to an
amount deemed sufficient by the manager under the Management and Leasing
Agreement but not in excess of $500,000 plus expenses approved for the month
upcoming immediately after the end of such period plus other payments acquired
or approved in each case under and in accordance with the Management Agreement,
provided that the Issuer has granted a security interest in such account in
favor of the Collateral Agent in accordance with the Reserve Account Agreement,
(7) amounts actually paid or retained in the Tenant Improvement Reserve, up to
the aggregate amount of the cost of tenant improvements made or to be made
during such period and the immediately succeeding period to the extent
determined necessary by the Board of Members to make such tenant improvements
taking into account projected cash flows from and expenses of operations to the
extent the Issuer has granted a security interest in such reserve in favor of
the Trustee under the Reserve Account Agreement, (8) amounts actually paid or
retained in the Incentive Management Fee Reserve, up to the aggregate amount of
the Incentive Management Fees accruing during such period, to the extent the
Issuer has granted a security interest in such reserve in favor of the Trustee
under the Reserve Account Agreement, (9) amounts determined by the Board of
Members in its reasonable discretion to be necessary to fund any Projected Debt
Service Shortfall and retained in the Debt Service Reserve, up to the aggregate
amount of the Projected Debt Service Shortfall, to the extent the Issuer has
granted a security interest in such reserve in favor of the Trustee under the
Reserve Account Agreement and (10) reasonable
5
amounts actually paid in cash during such period in connection with litigation
to which the Issuer is a party (including, without limitation, reasonable
amounts paid out under any indemnity provided by the Issuer in connection
therewith).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"EXISTING RESERVE ACCOUNT" means an account established on or prior to
the date of this Agreement from which the Issuer is permitted to pay REIT
Required Dividends, tenant improvements, Debt Service, Capital Expenditures
required to comply with law and Capital Expenditures necessary (as reasonably
determined by the Issuer) to maintain the Improvements in a condition adequate
to attract desirable tenants (as reasonably determined by the Issuer) and in
which the Issuer shall have granted a security interest in favor of the
Collateral Agent in accordance with the Reserve Account Agreement.
"FISCAL QUARTER" means each of the four consecutive three-month
periods during any Fiscal Year, which begin January 1, April 1, July 1 and
October 1, respectively.
"FISCAL YEAR" means the Issuer's fiscal year ending December 31.
"GAAP" means generally accepted accounting principles in the United
States of America, as in effect from time to time, set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
Person as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GOVERNMENTAL SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, to the payment of which the full
faith and credit of the United States is pledged.
"HAZARDOUS SUBSTANCE" means any toxic or hazardous waste, pollutant,
or substance, including, without limitation, friable asbestos, PCBs, petroleum
products and* byproducts, substances defined or listed as: "hazardous
substances" in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 ("CERCLA") as amended, 42 U.S.C. Section 9601, ET SEQ.,
"hazardous materials" in the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1802, ET SEQ., "hazardous waste" in the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, ET SEQ., any chemical substance or mixture
regulated under the Toxic Substances Control Act, as amended, 15 U.S.C. Section
2601, ET SEQ., and any hazardous or toxic substance or pollutant regulated under
any other applicable federal, state or local Environmental Laws.
"HOLDER" means a Person in whose name a Note is registered.
6
"IMPOSITIONS" means, collectively, all real property taxes and
assessments, general and special, and all other taxes and assessments of any
kind or nature whatsoever, including, without limitation, nongovernmental levies
or assessments such as maintenance charges, levies or assessments or appurtenant
whole stock estate, which are assessed or imposed upon the Trust Estate, or
become due and payable, and which create, may create or appear to create a Lien
upon the Trust Estate, or any part thereof, or upon any person, property,
equipment or other facility used in the operation or maintenance of the Trust
Estate.
"IMPROVEMENTS" has the meaning assigned to such term in the Deed of
Trust.
"INCENTIVE MANAGEMENT FEE" shall have the meaning assigned to that
term in the Management and Leasing Agreement.
"INCENTIVE MANAGEMENT FEE RESERVE" means a reserve created by the
Issuer for retention of amounts needed to pay the Incentive Management Fees.
"INDEBTEDNESS" means with reference to any Person, without duplication
(a) all indebtedness of such Person for borrowed money (including, without
limitation, reimbursement and all other obligations with respect to surety
bonds, letters of credit, bankers' acceptances, whether or not matured) or for
the deferred purchase price of property, assets or services (other than normal
trade accounts payable incurred in the ordinary course of business), (b) all
obligations of such Person evidenced by notes, bonds, debentures or similar
instruments, (c) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (d) all Capitalized Lease Obligations of such Person,
(e) all Contingent Obligations of such Person, (f) all obligations of such
Person under interest rate contracts, (g) all indebtedness of the type referred
to in clause (a), (b), (c), (d), (e) or (f) above secured by (or for which the
holder of such indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien against property or an interest in property owned by
such Person, even though such Person has not assumed or become liable for the
payment of such indebtedness, the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured and (h) in the case of the Issuer, the Notes.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
judgment of the Issuer's Board of Members, (i) qualified to perform the task for
which it has been engaged and (ii) disinterested and independent with respect to
the Issuer and all of its Affiliates.
"INSURANCE SCHEDULE" has the meaning set forth in SECTION 4.16.
"INTERESTS" means shares of capital stock, beneficial, limited
liability company or partnership interests, participations or other equivalents
(regardless of how designated) of or in any Person, whether voting or non-
voting.
7
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute.
"INVESTMENT" means any advance, loan, extension of credit or capital
contribution to, or purchase of any stocks, bonds, notes, debentures or other
securities of, or interest in, any Person, any purchase of any interest in Real
Estate, any commitment or other obligation, whether contingent or absolute, to
do any of the foregoing, which commitment or other obligation does not
constitute a Contingent Obligation. Capital Expenditures shall not constitute
Investments.
"ISSUE DATE" means the date of first issuance of the Notes under this
Indenture.
"LEASE" means each underlying lease of Real Estate.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, New York, or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
"LIENS" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrances, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a capitalized lease obligation, any financing lease
having substantially the same economic effect as any of the foregoing, the
filing, under the Uniform Commercial Code or comparable law of any jurisdiction,
of any financing statement naming the owner of the assets to which such ▇▇▇▇
relates as debtor, and any agreement to ▇▇▇▇▇ ▇ ▇▇▇▇.
"MANAGEMENT AND LEASING AGREEMENT" means, at any time, the Management
and Leasing Agreement in the form attached hereto as EXHIBIT H, as the same may
be amended, supplemented, extended, renewed or replaced in accordance with the
terms of such agreement at such time.
"MATERIAL ADVERSE CHANGE" means a material adverse change in any of
(a) the financial condition, business, operations, results of operations or the
aggregate fair market value of the properties of the Issuer, (b) the legality,
validity or enforceability of this Indenture or the Collateral Documents,
(c) the perfection or priority of the Liens granted pursuant to this Indenture
or the Collateral Documents caused by the action or lack of action of the
Issuer, (d) the ability of the Issuer to pay any installment due under the Notes
or to perform its obligations under this Indenture or the Plan or the ability of
the Issuer to perform its obligations under the Collateral Documents, or (e) the
rights and remedies of the Holders, the Trustee or the Collateral Agent under
this Indenture or the Collateral Documents.
"MATERIAL ADVERSE EFFECT" means an effect that would result in a
Material Adverse Change.
8
"MEMBER" generally means a member of a limited liability company, and,
unless the context otherwise requires, a member of the Issuer.
"NET LOSS PROCEEDS" means the aggregate cash proceeds received by the
Issuer in respect of any Event of Loss, including, without limitation, insurance
proceeds and proceeds from condemnation awards or damages awarded by any
judgment, net of the direct costs in recovery of such Net Loss Proceeds
(including, without limitation, legal, accounting, appraisal and insurance
adjuster fees) and any taxes paid or payable as a result thereof.
"NOTES" means the notes described above issued under this Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation (including security documents) governing any Indebtedness.
"OFFICER" means, with respect to any Person, any Authorized Member,
the Chairman of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Issuer by two Officers of the Issuer, each of whom must be Authorized Members or
one of whom must be the President or an Executive Vice President, and the other
must be the Treasurer, an Assistant Treasurer, the Controller, the Secretary, an
Assistant Secretary or a Vice President of the Issuer.
"OPERATING DISBURSEMENT ACCOUNT" shall have the meaning ascribed to
that term in the Management and Leasing Agreement.
"OPERATIVE DOCUMENTS" means this Indenture, the Notes, the Collateral
Documents and the Registration Rights Agreement.
"OPINION OF COUNSEL" means an opinion from legal counsel (including at
the option of the Trustee and/or the Collateral Agent, local legal counsel in
each state where the relevant Collateral is located) who is reasonably
acceptable to the Trustee and/or the Collateral Agent, as applicable.
"PAYING AGENT" shall mean a Person to whom the Notes may be presented
for payment of principal, premium, if any, and interest.
"PERMITTED INVESTMENTS" means, collectively, (a) any United States
Government or United States agency obligations, if such obligations are backed
by the full faith and credit of the United States Government or shares of a
money market mutual fund registered under the Investment Company Act of 1940, as
amended, the principal of which is invested solely in such United States
Government or agency obligations, (b) commercial paper having a rating of A1/P1
or better, and (c) certificates of deposit, overnight bank deposits and banker
acceptances of any commercial bank having combined capital and surplus of at
least $200,000,000; PROVIDED that the term or maturity for such Permitted
Investments shall not exceed ninety (90) days with respect
9
to the REIT Required Dividends Reserve, one year with respect to the Incentive
Management Fee Reserve and one hundred eighty (180) days with respect to all
other reserves, in each case from the date of purchase, deposit or acquisition.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, entity, association, joint-stock company,
trust or unincorporated organization (including any subdivision or ongoing
business of any such entity or substantially all of the assets of any such
entity, subdivision or business).
"PLAN" means the Plan of Reorganization in the Chapter 11 case of CWOP
confirmed by the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇, United States Bankruptcy Judge, in Case
No. SA-97-14512 JR, by order entered [__________ ____], 1997, as such plan is
amended prior to the Effective Date.
"PLEDGE AGREEMENT" means, at any time, the Pledge and Security
Agreement between CWOP and the Collateral Agent in the form attached hereto as
EXHIBIT E, with respect to the pledge of the membership interests of the Issuer
held by CWOP, as the same may be amended, supplemented, extended, renewed,
restated or replaced in accordance with the terms of such agreement at such
time.
"PREFERRED INTERESTS", as applied to the Interests of any Person,
means Interests of any class or classes (however designated) that are preferred
as to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over
Interests of any other class of such Person.
"PROJECTED DEBT SERVICE SHORTFALL" means, with respect to any period,
the amount (if any) by which the cash flows of the Issuer projected to be
available for the payment of Debt Service in such period are less than the
amount of Debt Service projected for such period. The Projected Debt Service
Shortfall for any period shall be reasonably determined by the Issuer's Board of
Members on the basis of and consistent with the Approved Budgets of the Issuer,
the definition of "Excess Cash Flow Amount" contained herein, and the income,
expense, cash flow and other financial projections for the Issuer contained in
the Plan.
"PROPERTY" means the Real Estate described on SCHEDULE 1 hereto.
"PURCHASE EVENT" means the occurrence of a Triggering Event or the
existence, at the end of a Fiscal Year, of an Excess Cash Flow Amount.
"PURCHASE EVENT NOTICE" means a notice given to a Holder in accordance
with SECTION 3.03 with respect to a Purchase Event.
"REA" means that certain Construction, Operation and Reciprocal
Easement Agreement, dated as of July 26, 1985, by and between CWOP and ▇▇▇▇
▇▇▇▇▇▇▇▇ Development Limited Partnership as duly recorded in the official
records of Orange County, California on July 30, 1985, as Instrument No. 85-
279768.
10
"REAL ESTATE" means any interest in all plots, pieces or parcels of
land owned in any capacity, whether as a joint venturer, participant, partner or
otherwise, or in which the Issuer may have a security interest, or leased as at
the date hereof or acquired or leased after the Effective Date by the Issuer
together with all of the buildings and other improvements now or hereafter
erected on the Real Estate, and any fixtures appurtenant thereto.
"REDEMPTION NOTICE" means a notice given to a Holder in accordance
with SECTION 3.03 with respect to a redemption of Notes pursuant to
SECTION 3.07.
"REGISTRAR" shall mean a Person to whom the Notes may be presented for
registration of transfer or for exchange.
"REGISTRATION RIGHTS AGREEMENT" means, at any time, the Registration
Rights Agreement between the Issuer and certain Holders in the form of EXHIBIT
J, as the same may be amended, supplemented, extended, renewed, restated or
replaced in accordance with the terms of such agreement at such time.
"REGULATIONS" means the regulations promulgated by the SEC under the
Securities Exchange Act of 1934, as amended.
"REIT" means Jamboree Offices REIT, Inc., a Maryland corporation.
"REIT REQUIRED DIVIDENDS" means all amounts that the REIT is required
to distribute to its shareholders in order to retain its status as a real estate
investment trust under the Internal Revenue Code as determined by the REIT's
independent certified public accountants.
"REIT REQUIRED DIVIDENDS RESERVE" means a reserve created by the
Issuer for the retention of amounts needed to pay REIT Required Dividends.
"RELEASE" means with reference to any Person, any release, spill,
emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration into the indoor or outdoor environment or into or out of
any property owned by such Person, including, without limitation, the movement
of Hazardous Substances through or in the air, soil, surface water, ground water
or other property.
"REMEDIAL ACTION" means all actions required to (a) clean up, remove,
treat or in any other way address Hazardous Substances in the indoor or outdoor
environment, (b) prevent the Release or threat of Release or minimize the
further Release of Hazardous Substances so they do not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment, or (c) perform pre-remedial studies and investigations and post-
remedial monitoring and care.
"REPRESENTATIVE" means the indenture trustee or other trustee, agent
or representative, if any, for an issue of Senior Indebtedness.
"REQUIRED HOLDERS" means the Holders of 51% in principal amount of the
Notes outstanding on the date of determination.
11
"RESERVE ACCOUNT AGREEMENT" means, at any time, the Reserve Account
Agreement among the Issuer, the Collateral Agent and the depositary, in the form
attached hereto as EXHIBIT F, as the same may be amended, supplemented,
extended, renewed, restated or replaced in accordance with the terms of such
agreement at such time.
"RESPONSIBLE OFFICER" when used with respect to the Trustee or the
Collateral Agent, means any trust officer, financial services officer or vice
president within the Corporate Trust Office of the Trustee or of the Collateral
Agent (or any successor group of the Trustee or the Collateral Agent) or any
other officer of the Trustee or the Collateral Agent customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SECURITY AGREEMENT" means, at any time, the Security Agreement in the
form attached hereto as EXHIBIT G, made by the Issuer in favor of the Collateral
Agent, as the same may be amended, supplemented, extended, renewed or replaced
in accordance with the terms of such agreement at such time.
"SETTLEMENT AGREEMENT" means that certain Settlement Agreement, dated
as of April 1, 1995, by and among CWOP, Winthrop California Investors Limited
Partnership, Winthrop California Management Limited Partnership, Crow Irvine #1,
Crow Irvine #2, ▇▇▇▇ ▇▇▇▇▇▇▇▇ Development Limited Partnership and Crow Orange
County Management Company, Inc.
"SUBSIDIARY" means with respect to any Person, any corporation,
partnership or other business entity of which an aggregate of 50% or more of the
outstanding Interests having ordinary voting power to elect a majority of the
board of directors, managers, trustees or other controlling Persons is, at the
time, directly or indirectly, owned by such Person and/or one or more
Subsidiaries of such Person (irrespective of whether, at the time, Interests of
any other class or classes of such entity shall have or might have voting power
by reason of the happening of any contingency).
"TENANT IMPROVEMENT RESERVE" means a reserve for tenant improvements
and leasing commissions, that are anticipated to be paid during any particular
calendar year, in each case, as set forth in the Approved Budgets (as defined in
the Management and Leasing Agreement) and in which the Issuer shall have granted
a security interest in favor of the Collateral Agent in accordance with the
Reserve Account Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA.
12
"TRIGGERING EVENT" means and shall be deemed to have occurred upon
(i) the sale, transfer, conveyance or hypothecation of the Property or
Improvements, or any material portion of the Property or Improvements or
interest therein, whether voluntary, involuntary, by operation of law or
otherwise, the execution of any installment land sale contract or similar
instrument affecting all or a material portion of the Property or Improvements
or, except in the ordinary course of business, the lease of all or substantially
all of the Property or Improvements, in one or in a series of transactions, to
any "person" or "group" (as such terms are used in or defined in
Section 13(d)(3) of the Exchange Act), (ii) an event or series of events
(whether a stock purchase, merger, consolidation or other business combination
or otherwise) as a result of which (a) the REIT owns less than 51% of the
combined voting power of the then outstanding securities of the Issuer
ordinarily (and apart from rights accruing after the happening of a contingency)
having the right to vote in the election of Members or to control the Issuer's
actions with respect to the Trust Estate or (b) the Issuer's existence ceases or
(iii) the aggregation of Excess Loss Proceeds in excess of $8,000,000.
"TRUST ESTATE" has the meaning assigned to that term in the Deed of
Trust.
"TRUSTEE" means the party named as such in the introductory paragraph
of this Indenture until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Acceptance" . . . . . . . . . . . . . . . . . . . . 3.04
"Class B Liens" . . . . . . . . . . . . . . . . . . . 4.09(v)
"Defeasance . . . . . . . . . . . . . . . . . . . . . 8.02
"Hazardous Materials Claims". . . . . . . . . . . . . 10.09(d)
"Impound" . . . . . . . . . . . . . . . . . . . . . . 4.05(g)
"Indemnified Parties" . . . . . . . . . . . . . . . . 4.19
"Event of Default" . . . . . . . . . . . . . . . . . 6.01
"Excess Amount Notes" . . . . . . . . . . . . . . . . 3.04
"Excess Notes Notice" . . . . . . . . . . . . . . . . 3.04
"Foreclosure Action" . . . . . . . . . . . . . . . . 7.02
"Original Purchase Notice" . . . . . . . . . . . . . 3.08(d)
"Rejection Notice" . . . . . . . . . . . . . . . . . 3.03(j)
"Registrar" . . . . . . . . . . . . . . . . . . . . . 2.05
13
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes means the Issuer and any permitted successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
deemed by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) references to articles, sections (or subdivisions of
sections), exhibits, annexes or schedules are to this Indenture unless
explicitly stated otherwise.
14
ARTICLE II.
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A hereto, the terms of which are
incorporated in and made a part of this Indenture. The Notes may have
notations, legends or endorsements approved as to form by the Issuer and
required by law, stock exchange rule, agreements to which the Issuer is subject
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be issuable only in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture, and to the extent
applicable, the Issuer and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound by them.
SECTION 2.02. MATURITY.
The Issuer promises to pay on or before March 27, 2002, the unpaid
principal amount of the Notes together with interest on the terms and conditions
set forth in this Indenture and the Notes.
SECTION 2.03. AMORTIZATION.
The principal of the Notes shall be payable on the dates and in the
amounts set forth in the Notes.
SECTION 2.04. EXECUTION AND AUTHENTICATION.
An Officer of the Issuer shall sign the Notes for the Issuer by manual
or facsimile signature. The Issuer's seal shall be reproduced on the Notes and
may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time the Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of an authorized signatory of the Trustee. The signature of an authorized
signatory of the Trustee shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuer set forth in an
Officers' Certificate, authenticate Notes for original issue of up to the
aggregate principal amount stated in paragraph 4 of the Notes. The aggregate
principal amount of Notes outstanding at any time shall not exceed the amount
set forth herein.
The Trustee may appoint an authenticating agent acceptable to the
Issuer to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may
15
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent shall have the same rights as an Agent has
pursuant to this Indenture to deal, and the same protections on its dealings,
with the Issuer or an Affiliate of the Issuer.
SECTION 2.05. REGISTRAR AND PAYING AGENT.
The Issuer shall maintain or cause to be maintained (i) an office or
agency where Notes may be presented for registration of transfer or for exchange
(including any co-registrar, the "REGISTRAR") and an office or agency where
Notes may be presented for payment ("PAYING AGENT"). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Issuer may
appoint one or more co-registrars and one or more additional paying agents. The
term "PAYING AGENT" includes any additional paying agent. The Issuer may change
any Paying Agent, Registrar or co-registrar upon thirty (30) days' prior notice
to the Trustee. The Issuer shall notify the Trustee and the Trustee shall
notify the Holders of the Notes of the name and address of any Agent not a party
to this Indenture. The Issuer may act as Paying Agent, Registrar or
co-registrar. The Issuer shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the provisions
of the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Issuer shall notify the Trustee of the name and
address of any such Agent. If the Issuer fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such, and shall be entitled to appropriate compensation in accordance with
SECTION 7.07.
The Issuer initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuer shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders of the Notes or the Trustee all money held by the Paying Agent for
the payment of principal of and interest on the Notes regardless of its source,
and shall notify the Trustee of any Default by the Issuer (or any other obligor
on the Notes or any other Person) in making any such payment. While any such
Default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee and to account to the Trustee for any funds disbursed. The
Issuer at any time may require a Paying Agent to pay all money held by it to the
Trustee and to account to the Trustee for any funds disbursed. Upon payment
over to the Trustee, the Paying Agent (if other than the Issuer) shall have no
further liability for the funds disbursed to the Trustee. If the Issuer acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders of the Notes all money held by it as Paying Agent and
shall promptly notify the Trustee of any failure to do so.
16
SECTION 2.07. LISTS OF HOLDERS OF THE NOTES.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of the Notes and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as
the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Holders of the
Notes, including the aggregate principal amount of the Notes held by each of
such Holders, and the Issuer shall otherwise comply with TIA Section 312(a).
SECTION 2.08. TRANSFER AND EXCHANGE.
When Notes are presented to the Registrar with a request to register
the transfer or to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met; PROVIDED, HOWEVER, that any Note
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar and the Trustee duty executed by the Holder of
such Note or by his attorney duly authorized in writing. To permit
registrations of transfer and exchanges, the Issuer shall issue and the Trustee
shall authenticate Notes at the Registrar's request, subject to such rules as
the Trustee may reasonably require.
Neither the Issuer nor the Registrar shall be required to (i) issue,
register the transfer of or exchange Notes during a period beginning at the
opening of business on a Business Day 15 days before the day of any selection of
Notes for redemption under SECTION 3.02 and ending at the close of business on
the date of selection or register the transfer of or exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
No service charge shall be made to any Holder of a Note for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Issuer may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to SECTION 2.12, 3.06 OR 9.05, which shall be paid by the
Issuer).
Prior to due presentment to the Registrar for registration of the
transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of, premium, if any, and
interest on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and neither the Trustee, any Agent nor the Issuer shall be
affected by notice to the contrary.
SECTION 2.09. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Issuer and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Issuer shall
17
issue and the Trustee, upon the written order of the Issuer set forth in an
Officers' Certificate, shall authenticate a replacement Note if the Trustee's
requirements for replacements of Notes are met. If required by the Trustee or
the Issuer in connection with any loss, theft or destruction of a Note, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent or
any authenticating agent from any loss which any of them may suffer if a Note is
replaced; PROVIDED, HOWEVER, that any institutional Holder may satisfy such
requirement for an indemnity bond by delivering its unsecured indemnity
agreement. Each of the Issuer and the Trustee may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Issuer and
shall be entitled to the benefits of this Indenture.
SECTION 2.10. OUTSTANDING NOTES.
Subject to SECTION 8.02, the Notes outstanding at any time are all the
Notes authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation and those described in this SECTION 2.10 as not
outstanding.
If a Note is replaced pursuant to SECTION 2.09, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of and interest on any Note is considered paid
under SECTION 4.01, it ceases to be outstanding and interest on it ceases to
accrue.
Subject to SECTION 2.11, a Note does not cease to be outstanding
because the Issuer or an Affiliate of the Issuer holds the Note.
SECTION 2.11. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuer shall be considered as though not outstanding, except that for purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which a Responsible Officer knows to be
so owned shall be so considered. The Issuer shall advise the Trustee in writing
of all Notes held by the Issuer upon the Trustee's written notification that
such advice is necessary for the Trustee to determine the requisite principal
amount of Notes outstanding in connection with any direction, waiver, consent,
amendment or other action under this Indenture. Notwithstanding the foregoing,
Notes that are to be acquired by the Issuer pursuant to an exchange offer,
tender offer or other agreement shall not be deemed to be owned by the Issuer,
until legal title to such Notes passes to the Issuer.
18
SECTION 2.12. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Issuer may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Issuer and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, the Issuer shall prepare and the Trustee, upon receipt of
the written order of the Issuer set forth in an Officers' Certificate, shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.13. CANCELLATION.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy cancelled Notes
(subject to the record retention requirement of the Exchange Act), unless the
Issuer directs cancelled Notes to be returned to it. The Issuer may not issue
new Notes to replace Notes that it has redeemed or paid or that have been
delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Issuer, unless by a written order, signed by two Officers of the Issuer, the
Issuer shall direct that cancelled Notes be returned to it.
SECTION 2.14. DEFAULTED INTEREST.
If the Issuer defaults in a payment of interest on the Notes, it shall
pay the Defaulted Interest in any lawful manner plus, to the extent lawful,
interest payable on the Defaulted Interest, to the Persons who are Holders of
the Notes on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five Business Days prior to
the next payment date, in each case at the Default Rate. The Issuer shall fix
or cause to be fixed each such special record date and payment date, and shall,
promptly thereafter, notify the Trustee of any such date. At least 15 days
before the special record date, the Issuer (or the Trustee, in the name of and
at the expense of the Issuer) shall mail to Holders of the Notes a notice that
states the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.15. RECORD DATE.
The record date for purposes of determining the identity of Holders of
the Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.16. CUSIP NUMBER.
The Issuer in issuing the Notes may use a "CUSIP" number and, if it
does so, it shall notify the Trustee and the Trustee, after receiving such
notice, shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; PROVIDED, HOWEVER, that any
19
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Notes and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Issuer will promptly notify the Trustee of any change in the CUSIP
number.
ARTICLE III.
REDEMPTION AND PURCHASE OF NOTES
SECTION 3.01. REDEMPTION GENERALLY.
If either (a) the Issuer elects to redeem Notes pursuant to the
redemption provisions of SECTION 3.07 or a Purchase Event occurs in accordance
with SECTION 3.08, the Issuer shall furnish to the Trustee and to each of the
Holders, within the time periods set forth in such Sections, written notice
setting forth the items required in SECTION 3.03 and, to the Trustee, an
Officers' Certificate as to compliance by the Issuer with the requirements of
this Article III with respect to the subject redemption or purchase delivered
not later than the redemption or purchase date.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed among the Holders of the Notes in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed, or, if the Notes are not so listed, on a pro rata
basis, by lot or in accordance with any other method the Trustee considers fair
and appropriate (and in such manner as complies with applicable legal and stock
exchange requirements, if any), provided that no Notes of $1,000 or less shall
be redeemed in part. In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided herein, not
less than thirty (30) nor more than sixty (60) days prior to the redemption date
by the Trustee from the outstanding Notes not previously called for purchase or
redemption.
The Trustee shall promptly notify the Issuer in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount of such Notes to be redeemed. Notes and
portions of them selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION OR PURCHASE.
Within the time periods set forth in SECTION 3.07 OR 3.08, as
applicable, the Issuer shall mail or cause to be mailed, by first class mail,
postage prepaid, at its registered address, (a) a Redemption Notice to each
Holder whose Notes are to be redeemed pursuant to SECTION 3.07, and (b) a
Purchase Event Notice to each Holder pursuant to SECTION 3.08.
20
The Redemption Notice or Purchase Event Notice shall identify the
Notes to be redeemed pursuant to SECTION 3.07 or state the principal amount as
to which a Purchase Event has occurred and shall state:
(a) the redemption or purchase date;
(b) the redemption or purchase price;
(c) the principal amount to be redeemed pursuant to SECTION 3.07
or as to which a Purchase Event has occurred of any Note and, in the case
of a redemption or purchase in part, that after the redemption date or
purchase date upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed or unpurchased portion shall be issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption or delivered for purchase
must be surrendered to the Paying Agent to collect the redemption or
purchase price;
(f) that, unless the Issuer defaults in depositing such
redemption or purchase payment, interest on Notes redeemed or purchased
ceases to accrue on and after the redemption or purchase date, and that if
a Note is redeemed or purchased on or after an interest record date but on
or prior to the related interest payment date, then accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered
at the close of business on such record date;
(g) the section of this Indenture pursuant to which the Notes
are being redeemed or as to which a Purchase Event has occurred;
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes;
(i) in the case of a Purchase Event, the procedures the Holder
must follow to exercise rights under SECTION 3.08 and, in the case of a
purchase pursuant to SECTION 3.08(b), that, to the extent the Holder would
like Notes in excess of its pro-rata portion of the Excess Cash Flow Amount
to be purchased, that such Holder should provide notice to the Issuer not
later than the close of business three (3) Business Days prior to the
purchase date specifying the maximum principal amount of Notes that such
Holder elects to make available for purchase in accordance with
SECTION 3.08(b); and
(j) in the case of a Purchase Event, that such Holder will be
deemed to have made an election to have the maximum principal amount of its
Notes (excluding Excess Amount Notes) purchased pursuant to SECTION 3.08
unless such Holder delivers, not later than the close of business three (3)
Business Days prior to the purchase date, notice to the Issuer that such
Holder elects not to exercise its rights under SECTION 3.08 in whole or in
part ("REJECTION NOTICE").
21
At the Issuer's written request, the Trustee shall give the Redemption
Notice or Purchase Notice in the Issuer's name and at the Issuer's expense.
SECTION 3.04. EFFECT OF NOTICE OR EXERCISE OF RIGHTS.
Once a Redemption Notice is mailed in accordance with SECTION 3.03,
Notes called for redemption pursuant to SECTION 3.07 shall become due and
payable on the redemption date at the redemption price. Once a Purchase Event
Notice is mailed, the Notes with respect to which a Holder either (a) delivers a
notice pursuant to SECTION 3.08(d) that such Holder elects to exercise its
rights under SECTION 3.08, or (b) fails to deliver a Rejection Notice indicating
that such Holder elects not to exercise its rights under SECTION 3.08 (each an
"ACCEPTANCE"), in either case prior to the close of business on a date that is
three (3) Business Days prior to the purchase date, shall become due and payable
on the purchase date at the purchase price in a principal amount up to such
▇▇▇▇▇▇'s pro rata share of the Excess Cash Flow Amount. In the case of a
purchase pursuant to SECTION 3.08(b), to the extent a Holder delivers notice
("EXCESS NOTES NOTICE") not later than the close of business three (3) Business
Days prior to the purchase date that it would like Notes in a principal amount
in excess of its pro-rata portion of the Excess Cash Flow Amount ("EXCESS AMOUNT
NOTES") to be purchased pursuant to SECTION 3.03(i), a portion of the Excess
Amount Notes shall become due and payable on such purchase date equal to such
Holder's pro-rata share (based on the aggregate Excess Amount Notes identified
by all Holders who have delivered Excess Notes Notices) of the aggregate
principal amount of all Notes as to which other Holders have delivered Rejection
Notices.
Unless the Issuer defaults in making the redemption or purchase
payment, on and after the redemption date or purchase date, as appropriate,
interest shall cease to accrue on the Notes or the portions of Notes redeemed or
purchased. If a Note is redeemed or purchased on or after an interest record
date but on or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid on such interest payment date to the Person in
whose name such Note was registered at the close of business on such record
date. If any Note called for redemption or for which an Acceptance has occurred
shall not be so paid upon surrender for redemption or purchase, interest shall
be paid on the unpaid principal, from the redemption date or purchase date, as
appropriate, until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes. Notes called for redemption or delivered for purchase must be
surrendered to the Paying Agent to collect the redemption or purchase price.
SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or prior to one Business Day before any redemption or purchase
date, the Issuer shall deposit with the Trustee or with the Paying Agent United
States dollars in same day funds sufficient to pay the redemption or purchase
price of and accrued interest on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent shall promptly return to the Issuer any
money deposited with the Trustee or the Paying Agent by the Issuer in excess of
the amounts necessary to pay the redemption or purchase price of, and accrued
interest on, all Notes to be redeemed or purchased.
SECTION 1.036. NOTES REDEEMED OR PURCHASED IN PART.
22
Upon surrender of a Note that is redeemed or purchased in part, the
Issuer shall issue and upon written order of the Issuer the Trustee shall
authenticate for the Holder of the Notes at the expense of the Issuer a new Note
equal in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
The Issuer shall have the option to redeem the Notes, in whole or in
part, upon not less than thirty (30) nor more than sixty (60) days' notice,
during the periods set forth below at a redemption price (expressed as a
percentage of par) set forth opposite such periods, PLUS accrued and unpaid
interest, if any, on such Notes to the applicable redemption date:
PERIOD PERCENTAGE
------ ----------
Issue Date through March 27, 2000: 102.00%
March 28, 2000 through September 27, 2001: 101.00%
thereafter: 100.00%
SECTION 3.08. PURCHASE AT HOLDERS OPTION.
(a) Except as set forth in this SECTION 3.08, the Issuer shall
not be required to make mandatory redemption payments, sinking fund payments or
mandatory purchases with respect to the Notes prior to maturity.
(b) No later than one hundred twenty (120) days after the end of
each Fiscal Year commencing with the Fiscal Year ending December 31, 1997, the
Issuer shall, at the option of each Holder, purchase the maximum principal
amount of the Notes (in integral multiples of $1,000), that may be purchased
with 100% of the Excess Cash Flow Amount for such Fiscal Year, at a purchase
price in Cash equal to 100% of the principal amount of such Notes plus accrued
and unpaid interest thereon to the date of purchase. Any such purchase shall be
made on a pro-rata basis as described in SECTION 3.04. The Issuer shall provide
the written notice required by SECTION 3.03 to the Trustee and to each Holder
(and to beneficial owners as required by applicable law, including, without
limitation, Rule 13e-4 of the Regulations) no later than ninety (90) days after
the end of each Fiscal Year.
(c) Within ninety (90) days after the occurrence of a Triggering
Event, the Issuer shall, at the option of each Holder, purchase all of the
outstanding Notes, at a purchase price in Cash equal to 100% of the principal
amount of all outstanding Notes plus accrued and unpaid interest thereon to the
date of purchase. The Issuer shall provide the written notice required by
SECTION 3.03 to the Trustee and to each Holder (and to beneficial owners as
required by applicable law, including, without limitation, Rule 13e-4 of the
Regulations) no later than five (5) days after the occurrence of the Triggering
Event.
(d) A Holder may exercise its rights specified in
SECTION 3.08(b) OR (c) by delivery of a written notice ("ORIGINAL PURCHASE
NOTICE") to the Trustee or to the office or agency referred to in SECTION 4.02
at any time prior to the close of business on a date that is three (3) Business
Days prior to the purchase date, stating:
23
(1) the certificate number or numbers of the Note or Notes
that the Holder elects to have purchased and will deliver to be purchased;
and
(2) the portion of the principal amount of the Notes that
the Holder elects to have purchased and will deliver to be purchased, which
portion must be $1,000 or an integral multiple thereof.
Failure to deliver an Original Purchase Notice pursuant to this
SECTION 3.08(d) prior to the close of business on the date that is three (3)
Business Days prior to the purchase date shall be deemed to be an exercise by
the Holder of its rights under this SECTION 3.08 with respect to all Notes with
respect to which a Purchase Event has occurred (other than Excess Amount Notes)
held by such Holder on such date. Any Holder who does not desire to have all or
a portion of its Notes purchased as a result of the occurrence of a Purchase
Event shall be required to deliver a Rejection Notice.
Any purchase by the Issuer contemplated pursuant to the
provisions of this SECTION 3.08 shall be consummated upon delivery of the
consideration to be received by the Holder to such Holder, promptly following
the later of the purchase date and the time of delivery of the Note. The
Issuer's obligation to purchase Notes pursuant to SECTION 3.08(b) shall extend
only to an aggregate principal amount of Notes that, together with all accrued
and unpaid interest thereon as of the purchase date, is equal to the Excess Cash
Flow Amount, and any Notes tendered in excess of that amount will be returned to
the Holders who tendered such Notes.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Trustee, or to the office or agency referred to in
SECTION 4.02, the Original Purchase Notice, shall have the right to withdraw
such Original Purchase Notice at any time prior to the close of business on the
third Business Day preceding the purchase date by delivery of a written notice
of withdrawal to the Trustee or to such office or agency specifying:
(1) the certificate number or numbers of the Note or Notes in
respect of which such notice of withdrawal is being submitted;
(2) the principal amount of the Note or Notes with respect to
which such notice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Note or Notes which
remain subject to the Original Purchase Notice, and which has been or will
be delivered to be purchased by the Issuer.
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SECTION 3.09. COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE OF
NOTES.
In connection with any purchase of Notes under SECTION 3.08, the
Issuer shall (i) comply with Rule 13e-4 of the Regulations, if applicable,
(ii) file the related Schedule 13E-4 (or any successor schedule, form or report)
under the Exchange Act, if applicable, and (iii) otherwise comply with all
Federal and state securities laws regulating the purchase of the Notes
(including positions of the SEC under applicable no-action letters) so as to
permit the rights and obligations under SECTION 3.08 to be exercised at the time
and in the manner specified in this Article III.
SECTION 3.10. REPAYMENT TO THE ISSUER.
The Trustee or the Paying Agent, as applicable, shall promptly return
to the Issuer any cash, together with interest thereon, if any, held by it for
the payment of the purchase price of the Notes that remains unclaimed as
provided in SECTION 8.05(b); PROVIDED, HOWEVER, that to the extent that the
aggregate amount of cash deposited by the Issuer pursuant to SECTION 3.05
exceeds the aggregate purchase price of the Notes or portions thereof to be
purchased, together with accrued interest thereon, then promptly after the
purchase date (but in no event later than five (5) Business Days after the
purchase date), the Trustee or the Paying Agent, as applicable, shall return any
such excess to the Issuer together with accrued interest thereon.
ARTICLE IV.
COVENANTS
SECTION 4.01. PAYMENT OF PRINCIPAL AND INTEREST; PAYMENTS IN KIND.
The Issuer shall pay the principal of and interest on the Notes in
accordance with the terms of, and on the dates set forth in, this Indenture and
the Notes. During the period from the Effective Day until March 27, 2001, the
Issuer, at its option, may pay interest on the Notes by delivery of additional
Notes in accordance with the terms and on the dates set forth in the Notes.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer shall maintain or cause to be maintained in the Borough of
Manhattan, City of New York, an office or agency where Notes may be presented
for registration of transfer or exchange of Notes and where notices and demands
to or upon the Issuer in respect of the Notes and this Indenture may be served.
The Issuer will give prompt written notice to the Trustee of any change in the
location of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and, in such event, the
Trustee shall act as the Issuer's agent to receive all such presentations,
notices and demands.
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The Issuer may also from time to time designate one or more other
offices or agencies (in or outside the City of New York) where the Notes may be
presented for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain an office or agency
in the City of New York, for the purposes set forth in SECTION 2.05 and for such
other purposes. The Issuer will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 4.03. OFFICERS' AND ACCOUNTANTS' CERTIFICATES AS TO COMPLIANCE.
To the extent not otherwise required pursuant to SECTION 4.07, the
Issuer shall deliver to the Trustee, within ninety (90) days after the end of
each Fiscal Year commencing with the 1997 Fiscal Year, an Officers' Certificate
stating that in the course of the performance by each signer of such signer's
duties as an Officer of the Issuer such signer would normally have knowledge of
the Issuer's compliance with the covenants contained in each of the covenants
and conditions applicable to the Issuer set forth in this Indenture, stating
whether or not such signer has knowledge of any Default in such compliance (such
compliance having been determined without regard to any period of grace or
requirement of notice provided under this Indenture) and, if so, specifying each
such Default of which such signer has knowledge and the nature thereof and what
action the Issuer proposes to take in connection with such Default. For
purposes of this SECTION 4.03, one of the signatories of such Officers'
Certificate shall be an Authorized Member or one of the principal executive
officer, the principal financial officer or the principal accounting officer of
the Issuer.
The Issuer will also deliver to the Trustee the certificates of
accountants required pursuant to SECTION 4.07.
SECTION 4.04. CONDUCT OF BUSINESS; MANAGEMENT; TITLE INSURANCE.
(a) Subject to the terms and conditions of this Indenture the
Issuer shall (i) conduct its business in a manner consistent with the terms
and provisions of the Plan and this Indenture; (ii) use its reasonable
efforts, in the ordinary course, to preserve its business and the
associated goodwill; and (iii) preserve all registered patents, trademarks,
trade names, copyrights and service marks that are material to its business
as presently conducted and as proposed to be conducted.
(b) At the request of the Collateral Agent, the Issuer shall
execute a certificate in form satisfactory to the Collateral Agent listing
the trade-names or fictitious business names under which the Issuer intends
to operate the Trust Estate or any business located thereon and
representing and warranting that the Issuer does business under no other
trade names or fictitious business names. The Issuer shall promptly notify
the Collateral Agent in writing of any change in said trade names or
fictitious business names, and will, upon request of the Collateral Agent,
execute any additional financing statements and other certificates
necessary to reflect the change in trade names or fictitious business
names.
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(c) The Issuer shall execute and at all times maintain in full
force and effect management contracts to provide for property management
and leasing of the Trust Estate on terms and conditions, at any time that
such agreements are with CWOP or any of its Affiliates, no less favorable
to the Issuer than the terms and conditions set forth in the Management and
Leasing Agreement.
(d) The Issuer shall at all times maintain title insurance
coverage on the Trust Estate in an amount not less than the aggregate
principal amount of the Notes, insuring, as of the date and time the Deed
of Trust is recorded, that fee title to the Property is vested in the
Issuer, and that the lien of the Deed of Trust is a valid first priority
Lien on the Trust Estate, subject only to the Liens permitted pursuant to
SECTION 4.09 and containing CLTA endorsements nos. 100, 104.6, 116, 116.1,
119.2, a non-imputation endorsement and such other endorsements as the
Collateral Agent may request.
SECTION 4.05. PAYMENT OF TAXES, ETC.
(a) The Issuer shall pay and discharge before the same shall
become delinquent, all lawful claims, taxes, assessments and governmental
charges or levies, imposed upon the Issuer or the Issuer's property except
when contested in good faith, by proper proceedings promptly instituted and
diligently conducted, and when adequate reserves therefor have been
established on the books of the Issuer in conformity with GAAP.
(b) In connection with this Indenture, the Issuer shall comply
with all withholding and reporting requirements imposed by federal, state
and local tax authorities and all distributions under this Indenture shall
be subject to such withholding and reporting requirements.
(c) Without limiting clause (a) of this SECTION 4.05, the Issuer
shall pay, or cause to be paid at least ten (10) days prior to delinquency,
all Impositions; PROVIDED, HOWEVER, that if, by law any such Imposition is
payable, or may at the option of the taxpayer be paid, in installments, the
Issuer may pay the same or cause it to be paid, together with any accrued
interest on the unpaid balance of such Imposition, in installments as the
same become due and before any fine, penalty, interest or cost may be added
to such Impositions for the nonpayment of any such installment and
interest.
(d) If at any time after the date of this Indenture there shall
be assessed or imposed (i) a tax or assessment on the Trust Estate in lieu
of or in addition to the Impositions payable by the Issuer pursuant to
SECTION 4.05(c), or (ii) a license fee, tax or assessment imposed on the
Holders and measured by or based in whole or in part upon the amount of the
outstanding Obligations of the Issuer secured by any of the Collateral
Documents, then all such taxes, assessments or fees shall be deemed to be
included within the term "Impositions" and the Issuer shall pay and
discharge the same as herein provided with respect to the payment of
Impositions. Anything to the contrary in this Indenture notwithstanding,
the Issuer shall have no obligation to pay any franchise, estate,
inheritance, income, excess profits or similar tax levied on the Holders or
on interest or
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other income received by the Holders comprising a portion of or in
connection with the Obligations of the Issuer under any Operative
Documents.
(e) Subject to the provisions of SECTION 4.05(f) and upon
request by the Collateral Agent, the Issuer shall deliver to the Collateral
Agent, within ten (10) days prior to the date upon which any such
Imposition is due and payable by the Issuer, evidence of payment of such
Imposition and within sixty (60) days after the date upon which any such
Imposition is due and payable by the Issuer, official receipts of the
appropriate taxing authority, or other proof satisfactory to the Collateral
Agent, evidencing the payment thereof.
(f) The Issuer shall have the right before any delinquency
occurs to contest or object to the amount or validity of any such
Imposition by appropriate proceedings, but this shall not be deemed or
construed in any way as relieving, modifying or extending the Issuer's
covenant to pay any such Imposition at the time and in the manner provided
in this SECTION 4.05, unless the Issuer has given prior written notice to
the Collateral Agent of the Issuer's intent to so contest or object to an
Imposition, and unless (i) the proceedings to be initiated by the Issuer
shall conclusively operate to prevent the sale of the Trust Estate, or any
part thereof, to satisfy such Imposition prior to final determination of
such proceedings; or (ii) the Issuer shall furnish a good and sufficient
bond, surety or other undertaking as may be required or permitted by law to
accomplish a stay of any such sale.
(g) At any time after an Event of Default has occurred, then
upon request by the Collateral Agent, the Issuer shall pay to the
Collateral Agent an initial cash reserve in an amount adequate to pay all
Impositions for the ensuing tax fiscal year and shall thereafter continue
to deposit with the Collateral Agent, in monthly installments, an amount
equal to one-twelfth (1/12) of the sum of the annual Impositions reasonably
estimated by the Collateral Agent, for the purpose of paying the
installment of Impositions next due on the Trust Estate (funds deposited
for this purpose shall hereinafter be referred to as "IMPOUNDS"). In such
event the Issuer further agrees to cause all bills, statements or other
documents relating to Impositions to be sent or mailed directly to the
Collateral Agent. Upon receipt of such bills, statements or other
documents, and provided the Issuer has deposited sufficient Impounds with
the Collateral Agent pursuant to this SECTION 4.05(g), the Collateral Agent
shall promptly pay such amounts as may be due thereunder out of the
Impounds so deposited with the Collateral Agent. If at any time and for
any reason the Impounds deposited with the Collateral Agent are or will be
insufficient to pay such amounts as may then or subsequently be due, the
Collateral Agent may notify the Issuer and upon such notice the Issuer
shall deposit immediately an amount equal to such deficiency with the
Collateral Agent. Notwithstanding the foregoing, nothing contained herein
shall cause any of the Holders to be deemed a Collateral Agent of said
funds or to be obligated to pay any amounts in excess of the amount of
funds deposited with the Collateral Agent pursuant to this SECTION 4.05(g).
To the extent permitted by law, the Collateral Agent may commingle Impounds
with its own funds and shall not be obligated to pay or allow any interest
on any Impounds held by the Collateral Agent pending disbursement or
application hereunder. The Collateral Agent may reserve for future payment
of Impositions such portion of the Impounds as the
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Collateral Agent may in its absolute discretion deem proper. Upon any
Event of Default under any of the Collateral Documents, the Collateral
Agent may apply the balance of the Impounds upon any indebtedness or
obligation secured hereby in such order as the Collateral Agent may
determine, notwithstanding that said indebtedness or the performance of
said obligation may not yet be due according to the terms thereof. Should
the Issuer fail to deposit with the Collateral Agent (exclusive of that
portion of said payments which has been applied by the Collateral Agent
upon any indebtedness or obligation secured hereby) sums sufficient to
fully pay such Impositions at least ten (10) days before delinquency
thereof, the Collateral Agent may, at the Collateral Agent's election, but
without any obligation so to do, advance any amounts required to make up
the deficiency, which advances, if any, shall be secured by the Collateral
and shall be repayable to the Collateral Agent as provided in the Operative
Documents. Should any default or event of default occur or exist on the
part of the Issuer in the payment or performance of any of the Issuer's
Obligations under the terms of the Collateral Documents, the Collateral
Agent may, at any time at the Collateral Agent's option, apply any sums or
amounts in its hands received as rents or income of the Trust Estate or
otherwise, to any Indebtedness or Obligation of the Issuer secured by the
Collateral in such manner and order as the Collateral Agent may elect,
notwithstanding said Indebtedness or the performance of said Obligation may
not yet be due according to the terms thereof. The receipt, use or
application of any such Impounds paid by the Issuer to the Collateral Agent
in accordance with this SECTION 4.05 shall not be construed to affect the
maturity of any Indebtedness secured by the Collateral Documents or any of
the rights or powers of the Holders or the Collateral Agent under the terms
of the Operative Documents or any of the Obligations of the Issuer or any
guarantor under the Operative Documents.
(h) The Issuer shall not suffer, permit or initiate the joint
assessment of any real and personal property which may constitute all or a
portion of the Trust Estate or suffer, permit or initiate any other
procedure whereby the Lien of the real property taxes and the Lien of the
personal property taxes shall be assessed, levied or charged to the Trust
Estate as a single Lien.
(i) If requested by the Collateral Agent, the Issuer shall cause
to be furnished to the Collateral Agent a tax reporting service covering
the Trust Estate of a type, duration and with a company satisfactory to the
Collateral Agent.
SECTION 4.06. PRESERVATION OF EXISTENCE, ETC.
The Issuer shall preserve and maintain its existence, rights and
franchises, except as permitted under Article V, if the failure to so preserve
or maintain, either individually or in the aggregate, would cause a Material
Adverse Effect.
SECTION 4.07. FINANCIAL STATEMENTS.
The Issuer shall furnish to the Trustee and the Holders in the case of
clauses (a) through (c) below, and to any prospective purchaser of the Notes in
the case of clause (d) below:
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(a) as soon as practicable and in any event within fifteen (15)
days after the end of each month, detailed balance sheets as of the end of
such month and an income statement and statement of cash flows for the
Issuer for such month and for the period from the beginning of the current
Fiscal Year to the end of such month, all in reasonable detail and
accompanied by an Officers' Certificate to the effect that such statements
fairly present in all material respects the financial condition of the
Issuer as at the dates indicated and the results of its operations and cash
flows for the periods indicated, subject to changes resulting from audit
and normal year-end adjustment;
(b) (i) as soon as possible and in any case within thirty (30) days
after the end of each Fiscal Quarter with respect to quarterly reports and
within sixty (60) days after each Fiscal Year with respect to annual
reports, copies of the quarterly and annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) that the
Issuer files or proposes to file with the SEC pursuant to Sections 13(a)
and 13(c) or 15(d) of the Exchange Act and, (ii) at any time the Issuer is
not subject to Section 13(a) and 13(c) or 15(d) of the Exchange Act and the
Issuer would be entitled not to file such reports, information and other
documents with the SEC, the Issuer shall nonetheless furnish to the Trustee
and to the Holders, on the same timely basis, such reports, information and
other documents as the Issuer would be required to file with the SEC as if
the Issuer were so subject to the requirements of such Sections 13(a) and
13(c) or 15(d) of the Exchange Act; and
(c) at the same time as the Issuer delivers the information,
documents and other reports required to be filed under SECTION 4.07(a)
or (b) an Officers' Certificate setting forth the calculation for the
period then ended or at the period end, as applicable, of Available Cash
and, after the end of each Fiscal Year, Excess Cash Flow Amount, and
deferred and capitalized interest for such Fiscal Year; and
(d) upon the request of the Required Holders, to any prospective
purchaser of any Notes, all information that may be required to be
delivered to such purchaser to enable any Holder to sell to such purchaser
its Notes without registration under the Securities Act within the
limitations of the exemption provided by (a) Rule 144A under the Securities
Act, as such rule may be amended as of such time, or (b) any similar rule
or regulation hereafter adopted by the SEC, subject, in each case, to
receipt of an appropriate confidentiality agreement from such prospective
purchasers in form and substance reasonably satisfactory to the Issuer
(with appropriate exceptions to permit resale).
SECTION 4.08. LIMITATION ON INVESTMENTS.
The Issuer shall not directly or indirectly, make any Investment from
and after the Effective Date except Investments approved by the Board of Members
of Available Cash in Permitted Investments.
SECTION 4.09. LIENS, ETC.
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(a) The Issuer shall not create or suffer to exist any Lien upon
or with respect to any of its properties, whether owned by the Issuer as at
the Effective Date or thereafter acquired, or assign any right to receive
income, except:
(i) Liens directly or indirectly created in favor of
the Trustee or the Collateral Agent for the benefit of the Holders
pursuant to this Indenture, the Plan and the Collateral Documents;
(ii) Liens arising by operation of law in favor of
materialmen, mechanics, warehousemen, carriers, lessors or other
similar Persons incurred by the Issuer in the ordinary course of
business which secure its obligations to such Person; PROVIDED,
HOWEVER, that the Issuer (A) is not in default in respect of such
payment obligation to such Person or (B) is in default with respect to
such payment obligation but is, in good faith and by appropriate
proceedings, diligently contesting such obligation and adequate
provision is made for the payment thereof in accordance with GAAP and
such default, either individually or in the aggregate, would not cause
a Material Adverse Effect; PROVIDED FURTHER, that the Issuer has
obtained a title insurance endorsement insuring against losses arising
therewith or has bonded within a reasonable time after becoming aware
of the existence of such Lien;
(iii) Liens (excluding Environmental Liens) securing
taxes, assessments or governmental charges or levies; PROVIDED,
HOWEVER, that the Issuer is performing on its obligations under the
Plan with respect to any payment obligation with respect thereto and
(A) is not in default in respect of such payment obligation or
(B) is in default in respect of such payment obligation but is in good
faith and by appropriate proceedings diligently contesting such
obligation and adequate provision is made for the payment thereof and
such default, either individually or in the aggregate, would not cause
a Material Adverse Effect;
(iv) zoning restrictions, easements, encroachments,
licenses, reservations, restrictions on the use of real property or
minor irregularities incident thereto that do not cause, individually
or in the aggregate, a Material Adverse Effect;
(v) Existing Encumbrances (as defined in the Deed of
Trust), including, without limitation, Liens (the "CLASS B LIENS") in
favor of the holders of the Class B Notes and any renewal, extension
or refunding of the Indebtedness represented by the Class B Notes that
does not increase the assets subject to such Liens; provided that such
Class B Liens are and shall remain junior and subordinate to the Liens
described in clause (i) above to at least the same extent as the Class
B Notes are subordinate to the Notes as of the Effective Date and
pursuant to the same or more stringent terms;
(vi) Leases of space in the Improvements (and related
agreements and instruments) entered into in the ordinary course of
business;
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(vii) UCC-1 financing statements filed with respect to
tenant-owned fixtures and tenant-owned improvements; or
(viii) Liens on assets acquired with the Indebtedness
permitted under SECTION 4.10(f).
(b) the Issuer shall pay or cause to be paid:
(i) When due, all encumbrances (including any debt
secured by deed of trust), ground rents, Liens, and/or charges, with
interest, on the Trust Estate, or any part thereof, and all costs,
fees and expenses related thereto.
(ii) When due, all charges for utilities or services
servicing any portion of or all of the Trust Estate, including, but
not limited to, electricity, gas, water and sewer.
If the Issuer shall fail to remove and discharge any Lien that is not permitted
by the terms above, then, in addition to any other right or remedy of the
Collateral Agent, the Collateral Agent may, but shall not be obligated to,
discharge the same, either by paying the amount claimed to be due, or by
procuring the discharge of such Lien by depositing in a court a bond or the
amount claimed or otherwise giving security for such claim, or by procuring such
discharge in such manner as is or may be prescribed by law. The Issuer shall,
promptly following receipt of a written demand therefor by the Collateral Agent,
pay to the Collateral Agent an amount equal to all costs and expenses incurred
by the Collateral Agent in connection with the exercise by the Collateral Agent
of the foregoing right to discharge any such Lien together with interest thereon
from the date of such expenditure at the Default Rate.
SECTION 4.10. INDEBTEDNESS.
The Issuer shall not, directly or indirectly, incur, create, assume or
suffer to exist or otherwise in any manner become or remain liable with respect
to any Indebtedness, except:
(a) Indebtedness represented by the Notes and the Class B Notes;
(b) Contingent Obligations constituting endorsements for
collection or deposit in the ordinary course of business of the Issuer;
(c) current liabilities in respect of (i) covenants, conditions
and restrictions constituting a Lien permitted under SECTION 4.09,
(ii) taxes, assessments and governmental charges or levies incurred, or
(iii) claims for labor, materials, inventory, services, supplies and
rentals incurred, or for goods or services purchased, in the ordinary
course of business;
(d) Indebtedness arising under any performance bond
reimbursement obligation entered into in the ordinary course of business of
the Issuer;
32
(e) unimpaired indemnification claims under the limited
liability company agreement of the Issuer,
(f) Indebtedness incurred to finance the purchase price of
property; PROVIDED, HOWEVER, that such Indebtedness shall be non-recourse
to the Issuer and shall be secured by no asset of the Issuer other than the
property acquired; and
(g) additional unsecured Indebtedness of the Issuer; PROVIDED,
HOWEVER, that (i) such Indebtedness shall be expressly junior and
subordinate to the Notes pursuant to terms that are more stringent and
(ii) the interest rate payable in respect of such Indebtedness shall be a
fair market rate for Indebtedness incurred on comparable terms and
conditions.
SECTION 4.11. LEASE OBLIGATIONS.
(a) The Issuer shall not create or suffer to exist any
obligations as lessee for the rental or hire of real or personal property
in connection with any sale and leaseback transaction, or for the rental or
hire of real or personal property of any kind under other leases or
agreements to lease having an original term of one year or more that would
cause the direct or contingent liabilities of the Issuer in respect of all
such obligations to be increased by more than $250,000 payable in any
period of 12 consecutive months over the amount existing on the Effective
Date.
(b) The Issuer shall not become or remain liable as lessee or
guarantor or other surety with respect to any lease, whether an operating
lease or a capitalized lease, of any property (whether real or personal or
mixed), whether owned as at the Effective Date or acquired thereafter, that
the Issuer has sold or transferred as of the Effective Date or thereafter.
SECTION 4.12. RESTRICTED PAYMENTS.
The Issuer shall not (i) declare or make any dividend payment or other
distribution of assets, properties, Cash, rights, obligations or securities on
account of or in respect of any of its Interests or any Preferred Interests
which may be issued by the Issuer except REIT Required Dividends; PROVIDED,
HOWEVER, that the Issuer shall in no event declare or make any such dividend
payment or other distribution (other than REIT Required Dividends) if a Default
or Event of Default has occurred and is continuing, or (ii) purchase, redeem or
otherwise acquire for value any Interests or any Preferred Interests of the
Issuer, whether outstanding on the Effective Date or thereafter issued and
outstanding.
SECTION 4.13. TRANSACTIONS WITH AFFILIATES.
The Issuer shall not: (a) make any Investment in an Affiliate of the
Issuer; (b) transfer, sell, lease, assign or otherwise dispose of any assets to
any Affiliate of the Issuer; (c) merge into or consolidate with or purchase or
acquire assets from any Affiliate of the Issuer; (d) repay any Indebtedness to
any Affiliate of the Issuer (except under existing retirement or deferred
compensation plans); or (e) enter into any other transaction directly or
indirectly with
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or for the benefit of any Affiliate of the Issuer (including, without
limitation, guaranties and assumptions of obligations of any such Affiliate)
except for (i) transactions in the ordinary course of business, set forth in
writing, on a basis no less favorable to the Issuer than would be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate of
the Issuer, PROVIDED that any transaction or series of related transactions
pursuant to which the Issuer or an Affiliate of the Issuer shall receive or
render value exceeding one hundred thousand dollars ($100,000), shall not be
permitted unless, prior to consummation thereof, the Issuer shall have received
an opinion of an Independent Financial Advisor, that such transaction or series
of related transactions is on terms that are fair, from a financial point of
view, to the Issuer, (ii) payment of salaries and other employee compensation
and benefits to officers of the Issuer or its Members as may reasonably be
adjusted over time but in no event to be adjusted by more than 10% annually in
the aggregate, (iii) payment or reimbursement of out-of-pocket expenses of the
Issuer and its Members with respect to operations of the Issuer and (iv) any
transaction required or otherwise permitted by the Plan, this Indenture or the
Management and Leasing Agreement.
SECTION 4.14. NEW SUBSIDIARIES.
The Issuer shall not incorporate or otherwise organize any Subsidiary
after the Effective Date.
SECTION 4.15. RESERVE ACCOUNTS.
(a) The Issuer may, from time to time and at any time except
during the continuation of an Event of Default, withdraw amounts from the
Operating Disbursements Account, the Approved Reserves and all other
reserves or accounts created in accordance with the Management and Leasing
Agreement to pay the costs and expenses for which such reserves and
accounts were created. The Issuer shall not be permitted to make any such
withdrawals during the continuance of an Event of Default without the
written consent of the Trustee.
(b) To the extent that amounts then available from cash flow
from operations of the Issuer and amounts in the Operating Disbursements
Account, the Approved Reserves and all other reserves or accounts created
in accordance with the Management and Leasing Agreement are not sufficient
to pay such costs, the Issuer shall be permitted to withdraw funds from the
Existing Reserve Account from time to time and at any time except during
the continuance of an Event of Default to pay the costs of tenant
improvements, REIT Required Dividends, Debt Service, Capital Expenditures
required to comply with law and Capital Expenditures reasonably necessary
(as reasonably determined by the Board of Members) to maintain the
Improvements in a condition adequate to attract desirable tenants (as
reasonably determined by the Issuer).
SECTION 4.16. REQUIRED INSURANCE.
The Issuer (or its authorized agent) shall procure and maintain or
shall cause to be procured and maintained continuously in effect until repayment
and performance of all Obligations of the Issuer under the Operative Documents,
those policies of insurance in form and amounts as set forth on Schedule 5
attached to the Management and Leasing Agreement (the
34
"INSURANCE SCHEDULE"). All original policies, or certificates thereof, and
endorsements and renewals thereof shall be delivered to and retained by the
Collateral Agent unless the Collateral Agent waives this requirement in writing.
All policies shall expressly protect or recognize Holders' interest as required
by the Collateral Agent. Notwithstanding the policies of insurance set forth in
the Insurance Schedule, the Collateral Agent shall have the right to require the
Issuer to provide or cause to be provided the insurance coverage described as
follows:
(i) Rental value (or comparable business interruption)
insurance insuring against the same perils as set forth in the
Insurance Schedule in an amount of not less than 100% of one year's
rental value of the Property. "Rental value" as used herein is
defined as the sum of (a) the total anticipated gross rental income
from tenant occupancy of the Improvements as furnished and equipped by
Issuer, (b) the amount of all charges which are the legal obligation
of tenants and which due to interruption of the tenancy are the
obligation of Issuer, and (c) the fair rental value of any portion of
the Improvements which is occupied by Issuer.
(ii) If customarily included in all risk of direct
physical loss insurance and if requested by the Collateral Agent,
flood insurance on the Improvements in the event that such insurance
is available pursuant to the Flood Disaster Protection Act of 1973 or
other applicable legislation. If such insurance is available pursuant
to such legislation, the Collateral Agent shall have the right to
require that the Issuer secure flood insurance up to the amounts set
forth in the Insurance Schedule, even if such exceeds the amount
available under the Flood Disaster Protection Act of 1973.
(iii) Earthquake insurance against damage or loss, in an
amount and with a deductible consistent with the commercial real
estate practice existing at the time the insurance is issued and in
the place where the Property is located if available on commercially
reasonable terms.
SECTION 4.17. GENERAL INSURANCE REQUIREMENTS.
All policies required by SECTION 4.16 shall (a) be issued by companies
with a Best's Insurance Guide rating of at least B+ and duly qualified and
authorized to do such business in the State of California, (b) provide that it
cannot be modified or cancelled without thirty (30) days', prior written notice
to the Collateral Agent, (c) shall name the Trustee as an additional insured and
(d) shall provide for severability of interests.
SECTION 4.18. DELIVERY OF INSURANCE POLICIES, PAYMENT OF PREMIUMS.
(a) At the Collateral Agent's option, all policies of insurance
shall either have attached thereto a lender's loss payable endorsement for
the benefit of the Holders in form reasonably satisfactory to the
Collateral Agent or shall name the Holders as additional insureds. At
least thirty (30) days prior to the expiration of each required policy, the
Issuer shall deliver to the Collateral Agent evidence reasonably
satisfactory to the Collateral Agent of the payment of premium and the
renewal or replacement of such
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policy continuing insurance in the form as required by SECTION 4.16 or any
of the Operative Documents. All such policies shall contain a provision
that, notwithstanding any contrary agreement between the Issuer and the
insurance company, such policies will not be cancelled, allowed to lapse
without renewal, surrendered or materially amended, which term shall
include any reduction in the scope or limits of coverage, without at least
thirty (30) days' prior written notice to, and the consent of, the
Collateral Agent.
(b) In the event the Issuer fails to provide, maintain, keep in
force or deliver to the Collateral Agent the policies of insurance required
by SECTION 4.16 or by any of the Operative Documents, the Collateral Agent
may (but shall have no obligation to) procure such insurance or single-
interest insurance for such risks covering Holders' interest, and the
Issuer will pay all premiums thereon promptly upon demand by the Collateral
Agent, and until such payment is made by the Issuer, the amount of all such
premiums shall bear interest at the Default Rate.
(c) At any time after an Event of Default has occurred and while
such Event of Default is continuing, then upon request by the Collateral
Agent, the Issuer shall deposit with the Collateral Agent in monthly
installments an amount equal to one-twelfth (1/12) of the estimated
aggregate annual insurance premiums on all policies of insurance required
by SECTION 4.16 or any of the Operative Documents. In such event the
Issuer further agrees to cause all bills, statements or other documents
relating to the foregoing insurance premiums to be sent or mailed directly
to the Collateral Agent. Upon receipt of such bills, statements or other
documents evidencing that a premium for a required policy is then payable,
and providing the Issuer has deposited sufficient funds with the Collateral
Agent pursuant to this SECTION 4.18, the Collateral Agent shall promptly
pay such amounts as may be due thereunder out of the funds so deposited
with the Collateral Agent. If at any time and for any reason the funds
deposited with the Collateral Agent are or will be insufficient to pay such
amounts as may be then or subsequently due, the Collateral Agent shall
notify the Issuer and the Issuer shall immediately deposit an amount equal
to such deficiency with the Collateral Agent. Notwithstanding the
foregoing, nothing contained herein shall cause Holders to be deemed a
trustee of said funds or to be obligated to pay any amounts in excess of
the amount of funds deposited with the Collateral Agent pursuant to this
SECTION 4.18, nor shall anything contained herein modify the obligation of
the Issuer set forth in this Indenture or any other Operative Document to
maintain and keep such insurance in force at all times. To the extent
permitted by law, the Collateral Agent may commingle said reserve with its
own funds and the Issuer shall be entitled to no interest thereon.
SECTION 4.19. INDEMNIFICATION; SUBROGATION; WAIVER OF OFFSET.
(a) The Issuer shall indemnify, protect, hold harmless and
defend the Trustee, the Holders, the Collateral Agent, the trustee under
the Deed of Trust and their respective directors, officers, employees,
shareholders, members, assigns, representatives or agents (the "INDEMNIFIED
PARTIES") from and against any and all Environmental Liabilities and Costs,
losses, liabilities, suits, obligations, fines, damages, judgments,
penalties, claims, charges, costs and expenses (including attorneys' fees
and disbursements) which may be imposed on, incurred or paid by or asserted
against any of
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the Indemnified Parties by reason or on account of, or in connection with,
(i) acceptance or administration of its duties under this Indenture and the
other Operative Documents without negligence or bad faith on its part,
including, but not limited to, the costs and expenses of enforcing this
Indenture (including this SECTION 4.19) or any other Operative Document
against the Issuer or any other Person and defending itself against any
claim (whether asserted by the Issuer or a Holder or any other Person) or
liability in connection with the exercise of any of its powers or the
discharge of any of its duties under this Indenture or the other Operative
Documents and all Environmental Liabilities and Costs, (ii) any willful
misconduct of the Issuer or any Default or Event of Default, (iii) the
construction, reconstruction or alteration of the Trust Estate, (iv) any
negligence of the Issuer or any negligence or willful misconduct of any
lessee or sublessee of the Trust Estate, or any of their respective agents,
contractors, subcontractors, servants, employees, licensees or invitees, or
(v) any accident, injury, death or damage to any person or property
occurring in, on or about the Trust Estate or any street, driveway,
sidewalk, curb or passageway adjacent thereto, except for the willful
misconduct or gross negligence of the indemnified Party. The indemnity in
subsection (i) includes, without limitation, all costs of removal, Remedial
Action of any kind, and disposal of Hazardous Substances (whether or not
such Hazardous Substances may be legally allowed to remain in the Real
Estate if removal or remediation is prudent), after a foreclosure, the cost
of determining whether the Real Estate that was the subject of the
foreclosure is in compliance with, and free of all Environmental
Liabilities and Cost under, and causing such Real Estate to be in
compliance with, and free of all Environmental Liabilities and Cost under,
all applicable Environmental Laws, and the reasonable attorneys' and
consultants' fees, expenses and court costs relating thereto of each of the
Indemnified Parties.
Any amount payable to any of the Indemnified Parties under this
SECTION 4.19 shall be due and payable within ten (10) days after demand
therefor and receipt by the Issuer of a statement from any of the
Indemnified Parties setting forth in reasonable detail the amount claimed
and the basis therefor. The Issuer's obligations under this SECTION 4.19
shall survive the repayment or any other satisfaction of the Notes and
shall not be affected by the absence or unavailability of insurance
covering the same or by the failure or refusal of any insurance carrier to
perform any obligation on its part under any such policy of insurance. If
any claim, action or proceeding is made or brought against any of the
Indemnified Parties that is subject to the indemnity set forth in this
SECTION 4.19, the Issuer shall resist or defend against the same, if
necessary in the name of such Indemnified Parties (as applicable), by
attorneys for the Issuer's insurance carrier (if the same is covered by
insurance) approved by such Indemnified Parties (as applicable) or
otherwise by attorneys retained by the Issuer and approved by the such
Indemnified Parties (as applicable). Notwithstanding the foregoing, any of
the Indemnified Parties, in their discretion, if any of them disapprove of
the attorneys provided by the Issuer or the Issuer's insurance carrier, may
engage their own attorneys to resist or defend, or assist therein, and the
Issuer shall pay the fees and disbursements of said attorneys. The Issuer
need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
(b) The Issuer waives any and all right to claim or recover
against the Indemnified Parties, their officers, employees, agents and
representatives, for loss of or
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damage to the Issuer, the Trust Estate, the Issuer's property or the
property of others under the Issuer's control from any cause insured
against or required to be insured against by the provisions of this
Indenture or the Deed of Trust.
(c) The Obligations of the Issuer under any Operative Document
shall in no way be released, discharged or otherwise affected (except as
expressly provided herein) by reason of: (a) any damage to or destruction
of or any condemnation or similar taking of the Trust Estate or any part
thereof; (b) any restriction or prevention of or interference by any third
party with any use of the Trust Estate or any part thereof; (c) any title
defect or encumbrance or any eviction from the Trust Estate or any part
thereof by title paramount or otherwise; (d) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other
like proceeding relating to the Holders or any guarantor of any secured
Obligation of the Issuer under any Operative Document, or any action taken
with respect to the Deed of Trust by any trustee or receiver of the
Holders, or by any court, in any such proceeding; (e) any claim which the
Issuer has or might have against the Holders; (f) any default or failure on
the part of the Holders to perform or comply with any of the terms of any
Operative Document or of any other agreement with the Issuer; or (g) any
other occurrence whatsoever, whether similar or dissimilar to the
foregoing; whether or not the Issuer shall have notice or knowledge of any
of the foregoing. Except as expressly provided herein, the Issuer waives
all rights now or hereafter conferred by statute or otherwise to any
abatement, suspension, deferment, diminution or reduction of any sum
secured by any Collateral Document and payable by the Issuer.
SECTION 4.20. EVENT OF LOSS.
(a) Promptly after any Event of Loss with respect to Collateral
with a fair market value (or replacement cost, if greater) equal to or less than
one million dollars ($1,000,000), the Issuer shall apply the Net Loss Proceeds
from such Event of Loss to the rebuilding, repair, replacement or construction
of improvements to the Property.
(b) Promptly after any Event of Loss with respect to Collateral
with a fair market value (or replacement cost, if greater) in excess of one
million dollars ($1,000,000), the Issuer shall apply the Net Loss Proceeds from
such Event of Loss to the rebuilding, repair, replacement or construction of
improvements to the Property; PROVIDED that:
(i) no Default or Event of Default exists or is
continuing;
(ii) the Issuer delivers to the Collateral Agent and the
Trustee within thirty (30) days of such Event of Loss a written
opinion from a reputable architect that the Property, in substantially
the same condition and with substantially the same facilities as
existed prior to such Event of Loss, can be rebuilt, repaired,
replaced or constructed within one hundred eighty (180) days of such
Event of Loss;
(iii) the Issuer delivers to the Collateral Agent and the
Trustee an Officers' Certificate certifying that the Issuer has
available Net Loss Proceeds
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or cash on hand to complete such rebuilding, repair, replacement or
construction; and
(iv) the aggregate Net Loss Proceeds is less than
$8,000,000. Any Net Loss Proceeds from an Event of Loss that are not
reinvested or are not permitted to be reinvested as provided in this
Section 4.20 will be deemed "EXCESS LOSS PROCEEDS."
SECTION 4.21. INVESTMENT COMPANY ACT.
The Issuer shall not become an investment company subject to
registration under the Investment Company Act of 1940, as amended.
SECTION 4.22. STAY, EXTENSION AND USURY LAWS.
The Issuer covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Issuer (to the extent it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power in this Indenture granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE V.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
The Issuer shall not consolidate or merge with or into (whether or not
the Issuer is the surviving entity), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions to, another Person (other than the REIT) unless
(a) the Issuer is the surviving entity, or the Person formed by or surviving any
such consolidation or merger (if other than the Issuer) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia, (b) the Person formed by or
surviving any such consolidation or merger (if other than the Issuer), or the
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made, assumes, pursuant to a supplemental indenture
and appropriate collateral documents in forms reasonably satisfactory to the
Trustee, all of the Obligations of the Issuer under the Operative Documents,
(c) immediately before and immediately after giving effect to such transaction
no Default or Event of Default exists, (d) the Issuer or the Person formed by or
surviving any such consolidation or merger, or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made after
giving pro forma effect thereto as of the end of the most recently completed
Fiscal Quarter shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Issuer immediately preceding the transaction
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and (e) the Issuer shall have delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture comply with the Indenture.
If, upon any consolidation or merger, or upon any sale, assignment,
transfer or lease, as provided in the preceding paragraph, any material property
of the Trust Estate, owned immediately prior thereto, would thereupon become
subject to any Lien securing any indebtedness for borrowed money of, or
guaranteed by, such other Person, the Issuer, prior to such consolidation,
merger, sale, assignment, transfer or lease, will secure the due and punctual
payment of the principal of, and premium, if any, and interest on the Notes then
outstanding equally and ratably with (or, at the option of the Issuer, prior to)
the Indebtedness secured by such ▇▇▇▇.
SECTION 5.02. SUCCESSOR ENTITY SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Issuer in
accordance with SECTION 5.01, the successor entity formed by such consolidation
or into or with which the Issuer is merged or to which such sale, lease,
conveyance or other disposition is made shall succeed to, and be substituted for
(so that from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture and the
Collateral Documents referring to the Issuer shall refer instead to the
successor entity and not to the Issuer), and may exercise every right and power
of the Issuer under this Indenture and the Collateral Documents with the same
effect as if such successor Person has been named as the Issuer, herein and
therein, and the Issuer will be discharged from all obligations under this
Indenture, the Notes and the Collateral Documents.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following events (whatever the reason for such event)
constitutes an "EVENT OF DEFAULT":
(a) The Issuer shall fail to make any payment in respect of
principal of or premium on the Notes when the same becomes due and payable
and such failure continues for a period of five (5) Business Days after the
due date of such payment, or the Issuer shall fail to make any payment when
due of interest on the Notes and such failure continues for a period of ten
(10) days after the due date of such payment; or
(b) Either (i) the information provided by CWOP or any of its
Affiliates and contained in the Disclosure Statement with respect to CWOP's
business, financial condition and results of operations (other than the
financial projections contained therein), taken on the basis of the
Disclosure Statement as a whole, or (ii) the Collateral Documents shall
prove to contain, as of their respective dates, any untrue statement of a
40
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances in which they were
made, not misleading; or
(c) The Issuer shall fail to perform or observe (i) any term,
covenant or agreement contained in Article IV or Article V or (ii) any
other term, covenant or agreement contained in this Indenture, the Plan or
the Collateral Documents, if such failure under this clause (ii) shall
remain unremedied for 30 days after the earlier of the date on which
written notice thereof shall have been given to the Issuer by the Trustee
or the Holders; or
(d) The Issuer shall fail, after any applicable grace period, to
pay any principal of or premium, if any, or interest on the Class B Notes
or any of its other Indebtedness, in an amount exceeding $200,000
(excluding the Notes), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise); or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Indebtedness, if the
effect of such event or condition is to accelerate the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof; or
(e) The Issuer shall generally not pay its debts as such debts
become due except such debts that are the subject of a good faith dispute,
or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors, or any
proceeding shall be instituted by or against the Issuer seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee or other similar official
for it or for any substantial part of its property and, in the case of any
such proceedings instituted against the Issuer (but not instituted by it),
either such proceedings shall remain undismissed or unstayed for a period
of thirty (30) days or any of the actions sought in such proceedings shall
occur, or the Issuer shall take any action to authorize any of the actions
set forth above in this clause (e); or
(f) Any judgment or order for the payment of money in excess of
$100,000 shall be rendered against the Issuer and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order, or (ii) there shall be any period of thirty (30) consecutive days
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) This Indenture or the Collateral Documents shall, for any
reason, cease to create a valid Lien on Collateral having a value of
$100,000 or more purported to be covered thereby, or such Lien shall cease
to have the priority Lien status initially granted and be a perfected Lien
as to Collateral having a value of $100,000 or more; or
(h) The Issuer shall fail to pay any Imposition prior to
delinquency or, if the Issuer is prohibited by law from paying such
Imposition, the Issuer shall fail to pay
41
such Imposition within one hundred eighty (180) days of the Issuer's
receipt of notice of such prohibition; or
(i) The Issuer shall fail to perform its obligations under the
Plan.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in
SECTION 6.01(e)) occurs and is continuing, the Trustee by notice to the Issuer
may, or upon written notice from the Holders of not less than 25% in principal
amount of the Notes outstanding on the date of determination shall, or such
Holders by written notice to the Issuer and the Trustee may, declare all the
Notes to be due and payable immediately and upon such declaration, the principal
of, premium, if any, and interest on the Notes shall be due and payable
immediately. If an Event of Default specified in SECTION 6.01(e) occurs, such
an amount shall IPSO FACTO become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. Holders of
not less than 25% in principal amount of the Notes outstanding on the date of
determination, by written notice to the Trustee, may on behalf of all of the
Holders rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee and/or
the Collateral Agent, as applicable, may pursue any available remedy (under this
Indenture, the Collateral Documents or otherwise) to collect the payment of
principal and interest on the Notes or to enforce the performance of any
provision of the Notes, this indenture or the Collateral Documents.
The Trustee or the Collateral Agent may maintain a proceeding even if
it does not possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee, the Collateral Agent or any
Holder of a Note in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of not less than 25% in principal amount of the Notes
outstanding on the date of determination by written notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences under this Indenture, except a continuing Default
or Event of Default in the payment of the principal of or interest on the Notes.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture and the Collateral Documents; but no such waiver shall extend
to any subsequent or other Default or Event of Default.
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SECTION 6.05. DIRECTION BY HOLDERS.
The Holders of not less than 25% in principal amount of the Notes
outstanding on the date of determination may direct the time, method and place
of conducting any proceeding for exercising any remedy available to the Trustee
and/or the Collateral Agent or exercising any trust or power conferred on it or
them. The Trustee and/or the Collateral Agent, however, may refuse to follow
any direction that conflicts with the law, this Indenture or the Collateral
Documents, that the Trustee and/or the Collateral Agent determines may be unduly
prejudicial to the rights of other Holders or that may involve the Trustee
and/or the Collateral Agent in personal liability.
SECTION 6.06. LIMITATION ON SUITSA.
Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder of a Note gives to the Trustee and the Collateral
Agent written notice of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Notes outstanding on the date of determination make a written request to
the Trustee and the Collateral Agent to pursue the remedy;
(c) such Holder of a Note or Holders offer and, if requested,
provide to the Trustee and the Collateral Agent an indemnity satisfactory
to the Trustee and the Collateral Agent against any loss, liability or
expense;
(d) the Trustee and the Collateral Agent do not comply with the
request within 60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(e) during such 60-day period the Holders of not less than 25%
in principal amount of the Notes outstanding on the date of determination
do not give the Trustee and the Collateral Agent a direction inconsistent
with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal and interest on the Note,
on or after the respective due dates expressed in the Note, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder, except that no Holder
shall have the right to institute any such suit if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would under
applicable law result in the
43
surrender, impairment, waiver or loss of the Liens pursuant to the Collateral
Documents upon any property subject to such Liens.
SECTION 6.08. COLLECTION SUIT.
If an Event of Default specified in SECTION 6.01(a) occurs and is
continuing, the Trustee and/or the Collateral Agent are authorized to recover
judgment in its own name and as trustee of an express trust against the Issuer
for, and the Issuer agrees to pay, the whole amount of principal of and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, the Collateral Agent and
their respective agents and counsel.
SECTION 6.09. PROOFS OF CLAIM.
The Trustee and/or the Collateral Agent are authorized 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 Trustee and the Collateral Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, the Collateral Agent, and their respective agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to the
Issuer (or any other obligor upon the Notes), the Issuer's creditors or the
Issuer's property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such
claims, and any custodian in any such judicial proceeding is hereby authorized
by each Holder of a Note to make such payments to the Trustee and the Collateral
Agent, and in the event that the Trustee and the Collateral Agent shall consent
to the making of such payments directly to the Holders of the Notes, to pay to
the Trustee and the Collateral Agent any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, the
Collateral Agent, and their respective agents and counsel, and any other amounts
due the Trustee and the Collateral Agent under SECTION 7.07. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, the Collateral Agent, or their respective agents and counsel, and
any other amounts due the Trustee and the Collateral Agent under SECTION 7.07
out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties which
the Holders of the Notes may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee or the
Collateral Agent to authorize or consent to or accept or adopt on behalf of any
Holder of a Note any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder of a Note thereof,
or to authorize the Trustee or the Collateral Agent to vote in respect of the
claim of any Holder of a Note in any such proceeding; PROVIDED that the Trustee
may be a member of a creditors' or similar committee.
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SECTION 6.10. PRIORITIES.
If the Trustee or the Collateral Agent collects any money pursuant to
this Article VI, it shall pay out the money in the following order:
FIRST: to the Trustee, the Collateral Agent and their respective
agents and attorneys for amounts due under SECTION 7.07, including payment
of all compensation, expense and liabilities incurred, and all advances
made, by the Trustee and/or the Collateral Agent and the costs and expenses
of collection;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, respectively;
THIRD: without duplication, to Holders for any other Obligations of
the Issuer owing to the Holders under this Indenture, the Notes or the
Collateral Documents; and
FOURTH: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this SECTION 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee and/or the Collateral Agent for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee or a suit by a Holder pursuant to SECTION 6.06.
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Issuer, the
Trustee and the Holders will, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holder will continue
as though no such proceeding had been instituted.
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ARTICLE VII.
THE TRUSTEE
SECTION 7.01. DUTIES OF THE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and the other Collateral Documents, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the Collateral
Documents and the Trustee undertakes to perform only those duties that
are specifically set forth to be performed by it in this Indenture and
the Collateral Documents and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee, and conforming to the
requirements of this Indenture and the Collateral Documents. The
Trustee, however, shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture and the Collateral Documents, if any.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this SECTION 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to SECTION 6.05.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b) and (c) of this SECTION 7.01.
46
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any financial liability if the
Trustee reasonably believes that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
The Trustee shall be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such
Holder shall have offered to the Trustee reasonable security and indemnity
satisfactory to it against any loss, liability or expense.
(f) Neither the Trustee nor any Paying Agent shall be liable for
interest on any money received by it except as the Trustee or such Paying
Agent may agree in writing with the Issuer. Money held in trust by the
Trustee or a Paying Agent need not be segregated from other funds except to
the extent required by law.
(g) Each of the Trustee and the Collateral Agent, in their
respective capacities as such, shall not be liable for actions or failures
to act with respect to the obligations of the other under any of the
Operative Documents.
SECTION 7.02. RIGHTS OF THE TRUSTEE.
(a) Each of the Trustee and the Collateral Agent may
conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. Except as otherwise
provided in any Operative Document, neither the Trustee nor the Collateral
Agent need investigate any fact or matter stated in the document; but the
Trustee, in its sole discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records, and premises of the
Issuer, personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate, an Opinion of Counsel, approval of
Required Holders or any combination thereof. Neither the Trustee nor the
Collateral Agent shall be liable for any action it takes or omits to take
in good faith in reliance on such Officers' Certificate, Opinion of Counsel
or approval of Required Holders.
(c) Each of the Trustee and the Collateral Agent may act through
its attorneys and agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) Neither the Trustee nor the Collateral Agent shall be liable
for any action it takes or omits to take in good faith which it believes to
be authorized or within its rights or powers conferred upon it by this
Indenture or the Collateral Documents.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Issuer shall be
sufficient if signed by an Officer of the Issuer.
47
(f) Without limitation and notwithstanding any other provision
in any Operative Document, neither the Trustee nor the Collateral Agent
shall be required to take any action regarding any Real Estate, including,
without limitation, foreclosure or other action (collectively, a
"FORECLOSURE ACTION"), which could result in the Trustee or the Collateral
Agent, as applicable, being deemed to be an "operator" under CERCLA (as
defined in the definition of "HAZARDOUS SUBSTANCE"), if in the reasonable
judgment of the Trustee or the Collateral Agent, as applicable, by taking
such action it would incur unacceptable Environmental Liability or Cost,
and (ii) each of the Trustee and the Collateral Agent shall have the right,
prior to taking any Foreclosure Action with respect to any Real Estate, to
obtain a "Phase One" or other environmental report concerning such Real
Estate prepared by a consultant of its choice and to be reimbursed for the
reasonable cost thereof pursuant to SECTION 7.07, if, in its reasonable
judgment, such report is necessary in order to assess the matters described
in clause (i) of this SECTION 7.02(f). In making an evaluation described
under clause (i) of the preceding sentence, the Trustee or the Collateral
Agent, as applicable, shall assess its potential liability as compared to
the indemnity available pursuant to SECTION 7.07, or from any Holder
pursuant to SECTION 7.01(e).
SECTION 7.03. INDIVIDUAL RIGHTS OF THE TRUSTEE, THE COLLATERAL AGENT AND
AGENTS.
Each of the Trustee and the Collateral Agent in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Issuer or any Affiliate of the Issuer with the same rights it would
have if it were not the Trustee or the Collateral Agent, as applicable. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to SECTIONS 7.10 AND 7.11, as specified therein, of this Indenture.
SECTION 7.04. DISCLAIMER.
Neither the Trustee nor the Collateral Agent shall be responsible for
and neither makes any representation as to the validity or adequacy of this
Indenture, the Notes, or the Collateral Documents, neither shall be accountable
for the Issuer's use of the proceeds from the Notes or any money paid to the
Issuer or upon the Issuer's direction under any provision of this Indenture or
the other Operative Documents, neither shall be responsible for the use or
application of any money received by any Paying Agent other than itself, and
neither shall be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication. Neither the Trustee nor the Collateral Agent makes any
representation as to the validity, value or condition of any property covered or
intended to be covered by the Lien of the Collateral Documents or any part
thereof or as to the title of the Issuer to such property or as to the security
afforded by the Collateral Documents or hereby.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known or deemed known to a Responsible Officer of the Trustee and/or the
Collateral Agent, the Trustee and/or the Collateral Agent shall promptly notify
the other, and the Trustee shall mail to Holders
48
a notice of the Default or Event of Default within thirty (30) days after
obtaining knowledge thereof. Notwithstanding anything contained in TIA Section
315(b) to the contrary, the Trustee shall not withhold any such notice.
SECTION 7.06. REPORTS BY THE TRUSTEE TO HOLDERS OF THE NOTES.
Within sixty (60) days after each January 1 beginning with the
January 1 following the Issue Date, the Trustee shall mail to the Holders of the
Notes a brief report dated as of such reporting date that complies with TIA
Section 313(a) (but if no event described in TIA Section 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee shall, within 90 days thereof, and in compliance with
TIA Section 313(b), notify the Holders of the Notes in the event of (1) the
release, or release and substitution, of any collateral pursuant to
SECTION 10.03 OR 10.04 (and the consideration therefor, if any) the fair value
of which equals or exceeds 10% of the principal amount of the Notes outstanding
at the time of such release or (2) the character and amount of any advances made
by it since the date of the last report transmitted pursuant to TIA Section
313(a) (or if no such report has yet been so transmitted, since the Effective
Date), for the reimbursement of which it may claim a Lien or charge higher than
that of the Notes, the aggregate amount of which at any time exceeds 10% of the
principal amount of the Notes outstanding at such time. The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders shall
be mailed to the Issuer and filed with the SEC and each stock exchange, if any,
on which the Notes are listed, in accordance with TIA 313(d). The Issuer shall
promptly notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.07. COMPENSATION.
The Issuer shall pay to each of the Trustee and the Collateral Agent
from time to time reasonable compensation for its acceptance of this Indenture
and for services provided under the Operative Documents. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse each of the Trustee and the
Collateral Agent promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the agents and counsel of each of the Trustee and
the Collateral Agent.
The obligations of the Issuer under this SECTION 7.07 AND SECTION
4.19(a) shall survive the satisfaction and discharge of this Indenture.
To secure the Issuer's payment obligations in this SECTION 7.07 AND
SECTION 4.19(a), each of the Trustee, the Collateral Agent, any Paying Agent and
each Indemnified Person shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, the Collateral Agent or any Paying
Agent, as applicable, except money or property held in trust to pay principal
and interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
49
When the Trustee or the Collateral Agent incurs expenses or renders
services after an Event of Default specified in SECTION 6.01(e) occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are to constitute expenses of administration under
any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF THE TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Issuer. The Required Holders may
remove the Trustee by so notifying the Trustee and the Issuer in writing. The
Issuer may remove the Trustee if:
(a) the Trustee fails to comply with SECTION 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Required
Holders may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuer.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with SECTION 7.10, any Holder of a Note
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of such
succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee provided
all sums owing to the retiring Trustee hereunder have been paid and subject to
the Lien provided for in SECTION 7.07. Notwithstanding replacement of the
Trustee pursuant to this Section, the Issuer's obligations under SECTION 7.07
shall continue for
50
the benefit of the retiring Trustee with respect to expenses and liability
incurred by it prior to such replacement.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business (including the trust
created by this Indenture) to, another corporation, the successor corporation or
association without any further act shall be the successor Trustee; PROVIDED
that such corporation is otherwise eligible to be the successor under this
Indenture.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trust powers, shall be subject to supervision or examination by federal or state
authority and shall have a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII.
DEFEASANCE
SECTION 8.01. OPTION TO EFFECT DEFEASANCE.
The Issuer may elect to have SECTION 8.02 be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article VIII and delivery of an Officers' Certificate setting forth a resolution
of the Board of Members making such election.
SECTION 8.02. DEFEASANCE AND DISCHARGE.
Upon the Issuer's exercise under SECTION 8.01 of the option applicable
to this SECTION 8.02, the Issuer shall be deemed to have been discharged from
its obligations with respect to all outstanding Notes on the date the conditions
set forth below (including SECTION 8.03) are satisfied (hereinafter,
"DEFEASANCE"). For this purpose, such Defeasance means that the Issuer shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes
51
of SECTION 8.04 and the other Sections of this Indenture referred to in
(a) and (b) of this SECTION 8.02, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Issuer, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in SECTION 8.03, and as
more fully set forth in such Section, payments in respect of the principal of
and interest on such Notes when such payments are due, (b) the Issuer's
obligations with respect to such Notes under SECTIONS 2.06, 2.08, 2.09, 2.12 AND
4.02, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Issuer's obligations in connection therewith, and (d) this
Article VIII.
SECTION 8.03. CONDITIONS TO DEFEASANCE.
The following shall be the conditions to the application of
SECTION 8.02 to the outstanding Notes:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (i) Cash in
an amount or (ii) non-callable Governmental Securities which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment under the Notes, Cash in an amount, or (iii)
a combination thereof, in such amounts, as will be sufficient to pay and
discharge and which shall be applied by the Trustee (or other qualifying
trustee) (A) the principal of and interest on the outstanding Notes on the
stated maturity or on the applicable redemption date, as the case may be,
and (B) any mandatory sinking fund payments or analogous payments
applicable to the outstanding Notes on the day on which such payments are
due and payable in accordance with the terms of this indenture and of such
Notes; PROVIDED that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such noncallable Governmental
Securities to said payments with respect to the Notes;
(b) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit;
(c) such Defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other material
agreement or material instrument to which the Issuer is a party or by which
the Issuer is bound;
(d) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Issuer pursuant to its
election under SECTION 8.02 was not made by the Issuer with the intent of
preferring the Holders over other creditors of the Issuer or with the
intent of defeating, hindering, delaying or defrauding creditors of the
Issuer or others;
(e) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to
52
the Defeasance under SECTION 8.02 have been complied with as contemplated
by this SECTION 8.03;
(f) the Issuer shall have delivered to the Trustee an Opinion of
Counsel confirming that, subject to customary assumptions and exclusions,
(A) the Company has received from, or there has been published by, the
United States Internal Revenue Service a ruling or (B) since the Effective
Date, there has been a change in the applicable federal income tax law, in
either case to the effect that the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a
result of such Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such Defeasance had not occurred; and
(g) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that, as of the date of such opinion and subject to
the customary assumptions and exclusions, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally under
any applicable United States or state law and that the Trustee has a
perfected security interest in such trust for the ratable benefit of the
Holders.
SECTION 8.04. DEPOSITED MONEY AND GOVERNMENTAL SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to SECTION 8.05, all money and Governmental Securities
(including the proceeds thereof) deposited with the Trustee pursuant to
SECTION 8.03 in respect of the outstanding Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.03 or the principal, premium, if any,
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
SECTION 8.05. REPAYMENT TO THE ISSUER.
(a) Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon the request of the Issuer any money or Governmental Securities held by
it as provided in SECTION 8.03 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent Defeasance.
53
(b) Any money deposited with the Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the principal of or
interest on any Note and remaining unclaimed for two years after such principal
or interest has become due and payable shall be paid to the Issuer on its
request or (if then held by the Issuer) shall be discharged from such trust; and
the Holder of such Note shall thereafter, as a general unsecured creditor, look
only to the Issuer for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer,
as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Issuer cause to be published once, in the "New York Times"
and "The Wall Street Journal" (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance
of money then remaining will be repaid to the Issuer.
SECTION 8.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Cash or
Governmental Securities in accordance with SECTION 8.02, as the case may be, by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Issuer's obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to SECTION 8.02 until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with SECTION 8.02, as the case may be; PROVIDED, HOWEVER, that, if
the Issuer makes any payment of principal or interest on any Note following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
Notwithstanding SECTION 9.02, the Issuer and the Trustee may amend or
supplement this Indenture, the Notes and any other Operative Document without
the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for (i) the assumption of the Issuer's
obligations to the Holders of the Notes in the case of a merger or
consolidation pursuant to Article V, and (ii) certain amendments to the
Collateral Documents expressly called for therein pursuant to
SECTION 10.01;
(d) to execute and deliver any documents necessary or
appropriate to release Liens on any Collateral as permitted by
SECTION 10.03 OR 10.04;
54
(e) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not materially
adversely affect the legal rights hereunder of any Holder of the Notes;
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or
(g) to evidence or effect the pledge of additional or substitute
assets or property as collateral.
Upon the request of the Issuer accompanied by a resolution of the
Board of Members of the Issuer authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in SECTION 9.06, the Trustee shall join with the Issuer in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such amended or supplemental Indenture that affects
the Trustee's own rights, duties or immunities under this Indenture, the
Collateral Documents or otherwise. The Issuer shall give the Holders, with a
copy to the Trustee, notice of the effectiveness of any amendment under this
SECTION 9.01 briefly describing the amendment or supplement.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to SECTION 6.07, the Issuer and the Trustee may amend or
supplement this Indenture, the Notes, or any amended or supplemental Indenture
with the written consent of the Required Holders (including consents obtained in
connection with a tender offer or exchange offer for the Notes), and, subject to
SECTION 6.07, any existing Default or Event of Default and its consequences or
compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of not less than 25% in principal amount of the Notes
outstanding on the date of determination (including consents obtained in
connection with a tender offer or exchange offer for the Notes). The Issuer and
the Trustee may, with the consent of Holders of 66 2/3% in principal amount of
each of the Notes and the Class B Notes, respectively, outstanding on the date
of determination, directly or indirectly release Liens on all or substantially
all of the Collateral except in connection with a Triggering Event. The Issuer
and the Trustee may, with the consent of Holders of the principal amount of
Notes whose Holders must consent to an amendment, supplement or waiver, reduce
such principal amount with respect to such amendment, supplement or waiver.
Upon the request of the Issuer accompanied by a resolution the Board
of Members of the Issuer authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Required Holders as aforesaid,
and upon receipt by the Trustee of the documents described in SECTION 9.06, the
Trustee shall join with the Issuer in the execution of such amended or
supplemental Indenture, but the Trustee shall not be obligated to enter into any
such amended or supplemental Indenture that affects the Trustee's own rights,
duties or immunities under this Indenture, the Collateral Documents or
otherwise. After an amendment, supplement or waiver under this Section becomes
55
effective, the Issuer shall mail to the Holders affected thereby a notice of the
effectiveness of any amendment under this SECTION 9.02 briefly describing the
amendment, supplement or waiver.
Notwithstanding the provisions of this SECTION 9.02, without the
consent of each Holder affected, an amendment or waiver may not (with respect to
any Notes held by a nonconsenting Holder):
(a) reduce the principal of or change the fixed maturity of any
Note or reduce the redemption price of the Notes;
(b) reduce the rate of or change the time for payment of
interest on any Note;
(c) waive a Default or Event of Default in the payment of
principal of or interest on the Notes (except a rescission of acceleration
of the Notes by the Required Holders and a waiver of the payment default
that resulted from such acceleration);
(d) make any Note payable in money other than that stated in the
Notes;
(e) make any change in SECTIONS 6.04, 6.07 OR 9.02 (this
sentence only); or
(f) waive a redemption payment with respect to any Note.
It shall not be necessary for the consent of the Holders under this
SECTION 9.02 to approve the particular form of any proposed amendment,
supplement, or waiver, but it shall be sufficient if such consent approves the
substance thereof.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting ▇▇▇▇▇▇'s Note, even if notation of the consent is not
made on any Note. Any such Holder of a Note or subsequent Holder of a Note,
however, may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the Trustee receives written notice that
the waiver, supplement or amendment becomes effective (or such later date as may
be required by law or stock exchange rule). An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every Holder
of a Note.
The Issuer may fix a record date for determining which Holders must
consent to such amendment, supplement or waiver. If the Issuer fixes a record
date, the record date shall be fixed at (i) the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to SEC-
56
TION 2.07 or (ii) such other date as the Issuer shall designate. If a record
date is fixed, then, notwithstanding the immediately preceding paragraph, those
Persons who were Holders of a Note at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such amendment
or waiver or to revolve any consent previously given, whether or not such
Persons continue to be Holders after such record date. No consent shall be
valid or binding for more than 90 days after such record date unless consents
from Holders in the principal amount required under this Indenture for such
amendment or waiver to be effective shall also have been given and not revoked
their consent within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Holder of a Note, unless it is of the type described in SECTION 9.02 in which
case, the amendment or waiver shall bind each Holder of a Note who has consented
to it and every Holder of a Note that evidences the same Indebtedness as the
consenting Holder's Note.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuer in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. THE TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Issuer may not sign an amendment or supplemental Indenture until its Board
of Members approves it. In signing or refusing to sign such amendment or
supplemental Indenture, the Trustee shall be entitled to receive, if requested,
an indemnity reasonably satisfactory to it and to receive and, subject to
SECTION 7.01, shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that such amendment or
supplemental Indenture is authorized or permitted by this Indenture, that it is
not inconsistent herewith, and that it will be valid and binding upon the Issuer
in accordance with its terms.
ARTICLE X.
COLLATERAL AND SECURITY
SECTION 10.01. COLLATERAL DOCUMENTS.
The due and punctual payment of the principal of and interest on the
Notes when and as the same shall be due and payable, whether on an interest
payment date or a principal amortization date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest (to the extent permitted by law), if any, on the Notes and
performance of all other obligations of the Issuer to the Holders, the Trustee
or the Collateral
57
Agent under this Indenture, the Collateral Documents and the Notes, according to
the terms hereunder or thereunder, shall be secured as provided in the
Collateral Documents. Each Holder, by its acceptance thereof, consents and
agrees to the terms of the Collateral Documents (including, without limitation,
the provisions providing for foreclosure and release of Collateral) as the same
may be in effect or may be amended from time to time in accordance with its
terms and authorizes and directs the Collateral Agent to enter into the
Collateral Documents and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Issuer shall deliver to the Trustee
copies of all Collateral Documents, and, subject to the provisions of the
Collateral Documents, shall do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions of the
Collateral Documents, to assure and confirm to the Trustee the security interest
in the Collateral contemplated hereby, by the Collateral Documents or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and the Notes secured hereby,
according to the intent and purposes herein expressed. The Issuer shall take
upon request of the Trustee, any and all actions reasonably required to cause
the Collateral Documents to create and maintain, as security for the Obligations
of the Issuer under the Operative Documents, a valid and enforceable perfected
first priority Lien in and on all of the Collateral, in favor of the Collateral
Agent for the benefit of the Trustee, the Collateral Agent and the Holders,
(a) superior to and prior to the rights of all third Persons, and (b) subject to
no Liens other than the Liens permitted under SECTION 4.09.
SECTION 10.02. RECORDING AND OPINIONS.
The Issuer shall furnish to the Trustee, promptly following the
execution and delivery of this Indenture, and annually thereafter to the extent
required by Section 314(b) of the TIA, an Opinion of Counsel either (i) stating
that in the opinion of such counsel all action has been taken with respect to
the recording, registering and filing of this Indenture, the Mortgages, the
Assignments of Leases, the Collateral Assignments of Mortgages, the Collateral
Assignments of Leases and Uniform Commercial Code financing statements necessary
to make effective and perfect the Lien intended to be created by the Collateral
Documents, and reciting with respect to the security interests in the
Collateral, the details of such action, or (ii) stating that, in the opinion of
such counsel, no such action is necessary to make such Lien effective.
SECTION 10.03. RELEASE OF COLLATERAL.
No Collateral shall be released from the Lien and security interest
created by the Collateral Documents pursuant to the provisions of the Collateral
Documents or this Indenture without the prior written consent of the Trustee and
the Required Holders.
SECTION 10.04. CERTIFICATES OF THE ISSUER.
The Issuer shall furnish to the Trustee and the Collateral Agent,
prior to each proposed release of Collateral pursuant to the Collateral
Documents or this Indenture, (i) all documents required by TIA Section 314(d)
and (ii) an Opinion of Counsel to the effect that such accompanying documents
constitute all documents required by TIA Section 314(d). The Trustee may, to
the extent permitted by SECTIONS 7.01 AND 7.02, accept as conclusive evidence of
compliance
58
with the foregoing provisions the appropriate statements contained in such
documents and such Opinion of Counsel.
SECTION 10.05. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE COLLATERAL AGENT
UNDER THE COLLATERAL DOCUMENTS.
Subject to the provisions of SECTIONS 7.01 AND 7.02, the Trustee may,
in its sole discretion and without the consent of the Holders, on behalf of the
Holders, direct the Collateral Agent to take all actions it deems necessary or
appropriate in order to (a) enforce any of the terms of the Collateral Documents
and (b) collect and receive any and all amounts payable in respect of the
Obligations of the Issuer under any of the Operative Documents. The Trustee and
the Collateral Agent shall have power to institute and maintain such suits and
proceedings and enter into such agreements as either may deem expedient to
prevent any impairment of the Collateral by any acts that may be unlawful or in
violation of the Collateral Documents or this Indenture, and such suits,
proceedings and agreements as the Trustee or the Collateral Agent may deem
expedient to preserve or protect its interests and the interest of the Holders
in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Trustee, the Collateral Agent or the Holders).
SECTION 10.06. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
COLLATERAL DOCUMENTS.
The Trustee shall cause the Collateral Agent to deliver to the Trustee
and the Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Collateral Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Collateral Documents.
SECTION 10.07. TERMINATION OF SECURITY INTEREST.
Upon the full and final payment of all Obligations of the Issuer under
all of the Operative Documents (including an effective defeasance pursuant to
SECTION 8.02), the Trustee shall, at the request of the Issuer, release (or
permit the Collateral Agent to release) the Liens pursuant to this Indenture.
If the Trustee or Paying Agent is unable to apply any Cash or Governmental
Securities in accordance with SECTION 8.02 by reason of any order or judgment of
any court or Governmental Authority enjoining, restraining or otherwise
prohibiting such application, then the Trustee shall cause the Collateral Agent
to cause the Liens to be revived and reinstated as though no deposit had
occurred pursuant to SECTION 8.02 until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with SECTION 8.02.
SECTION 10.08. COLLATERAL AGENT'S DUTIES.
The Collateral Agent, acting in its capacity as such, shall have only
such duties with respect to the Collateral as are set forth in the Collateral
Documents.
59
SECTION 10.09. HAZARDOUS MATERIALS.
(a) ENVIRONMENTAL COMPLIANCE. The Issuer shall keep and
maintain (and cause all tenants to keep and maintain) the Trust Estate,
including, without limitation, the groundwater on, under or in the vicinity
of the Trust Estate, in compliance with, and free of material liabilities
under, and shall not cause or permit the Trust Estate to be in material
violation of, or subject to conditions forming the basis for material
liability under, any Environmental Laws.
(b) RESTRICTIONS ON USE. The Issuer shall not (and shall take
all reasonable efforts to assure that all of its tenants shall not) use,
generate, manufacture, treat, handle, refine, produce, process, store,
discharge, release, dispose of or allow to exist on, under or about the
Trust Estate any Hazardous Substance except (i) in the ordinary course of
business and in de minimis amounts, and (ii) otherwise in compliance with,
and not reasonably likely to lead to liability under, Environmental Laws.
Furthermore, the Issuer shall not allow to exist on, under or about the
Trust Estate, any underground storage tanks or underground deposits.
(c) ACCESS. The Trustee shall be entitled, at any reasonable
time, to enter upon and inspect the Trust Estate and take any other actions
it reasonably deems necessary to confirm the Issuer's compliance with the
obligations and agreements set forth in this SECTION 10.09.
(d) NOTICE TO THE HOLDERS. The Issuer promptly shall advise the
Trustee, the Collateral Agent and the Holders in writing of (a) any and all
enforcement, clean up, removal, mitigation or other governmental or
regulatory actions instituted or threatened in writing pursuant to any
Environmental Laws affecting the Trust Estate; (b) all claims made or
threatened in writing by any third party against the Holders, the Issuer or
the Trust Estate relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Substance (the
matters set forth in clauses (a) and (b) above are hereinafter referred to
as "Hazardous Materials Claims"); (c) the Issuer's discovery of any
occurrence or condition on any real property adjoining or in the vicinity
of the Trust Estate that could cause the Trust Estate or any part thereof
to be classified as "border-zone property" under the provisions of
California Health and Safety Code Section 25220, ET SEQ., or any regulation
adopted in accordance therewith or which may support a similar claim or
cause of action under the Environmental Laws; and (d) the Issuer's
discovery of any occurrence or condition on the Trust Estate or any real
property adjoining or in the vicinity of the Trust Estate which could
subject the Issuer or the Trust Estate to any restrictions on ownership,
occupancy, transferability or use of the Trust Estate under any
Environmental Laws. The Holders shall have the right to join and
participate in, as a party if it so elects, any settlements, remedial
actions, legal proceedings or actions initiated in connection with any
Hazardous Materials Claims and to have its reasonable attorneys' fees in
connection therewith paid by the Issuer.
60
SECTION 10.10. INSPECTIONS.
The Issuer will permit representatives of the Trustee and/or the
Collateral Agent to visit and inspect the properties of the Issuer, including,
without limitation, the Trust Estate, and to examine and make extracts from its
books and records, and to discuss its affairs, finances and accounts with its
officers and employees and its independent accountants, all at reasonable times
and as often as may be reasonably requested; provided that the rights granted
under this SECTION 10.10 shall be (i) exercised only to the extent reasonably
related in good faith to the protection of any interests, rights or remedies of
the Trustee under or in respect of the Collateral Documents and (ii) subject to
any law, regulation or order to which the Issuer is subject, or any indenture,
agreement or other instrument to which the Issuer is party, which prohibits the
disclosure of non-public information.
SECTION 10.11. TITLE.
The Issuer has good and marketable title to the Trust Estate subject
to no Lien, charge or encumbrance except such as are listed as exceptions to
title in the title policy or policies insuring the Lien of the Deed of Trust
issued by a title company or companies acceptable to the Trustee. The Deed of
Trust is and will remain a valid and enforceable Lien on the Trust Estate
subject only to the exceptions referred to above. The Issuer has full power and
lawful authority to grant, assign, transfer and mortgage its interest in the
Trust Estate in the manner and form done or intended by the Deed of Trust. The
Issuer will preserve its interest in and title to the Trust Estate and will
forever warrant and defend the same to the trustee under the Deed of Trust and
the Trustee and will forever warrant and defend the validity and priority of the
Lien created by the Deed of Trust against the claims of all persons and parties
whomsoever. The Issuer shall pay all costs, fees and expenses, including costs
of evidence of title and the fees of the trustee under the Deed of Trust or the
Trustee and attorney's fees, paid or incurred by the trustee under the Deed of
Trust or the Trustee in connection with the enforcement of their rights under
the Deed of Trust or in any action or proceeding threatened or commenced in
which the trustee under the Deed of Trust or the Trustee may appear or be made a
party, whether or not pursued to final judgement, and in any exercise of the
power of sale contained herein, whether or not such sale is actually
consummated. The Issuer shall promptly and completely observe, perform, and
discharge each and every obligation, covenant and agreement affecting the Trust
Estate whether the same is prior and superior or subject and subordinate to the
Lien created by the Deed of Trust.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
61
SECTION 11.02. NOTICES.
Any notice or communication by the Issuer or the Trustee to any other
party hereto is duly given if in writing and delivered in person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
party's address:
If to the Issuer:
Jamboree LLC
c/o Oaktree Capital Management, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (213) 694-
Attention:
with copies to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-5735
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
and to:
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier Nos.: (▇▇▇) ▇▇▇-▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Trustee:
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
with a copy to:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
Two Renaissance Square
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
62
The Issuer or the Trustee, by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to the Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
Acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder of a Note or any defect in
it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuer mails a notice or communication to the Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY THE HOLDERS WITH OTHER HOLDERS.
The Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture, the Notes and the
Collateral Documents. The Trustee shall act in accordance with TIA Section
312(b) with respect to such communications. The Issuer, the Trustee, the
Collateral Agent, the Registrar and anyone else shall have the protection of TIA
Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuer to the Trustee to take
any action under this Indenture, the Issuer shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in SECTION 11.05) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in SECTION 11.05) stating that, in the opinion of such counsel, all such
conditions precedent and covenants provided for in this Indenture relating
to the proposed action have been satisfied.
63
SECTIOIN 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to respect to compliance with
a condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 11.06. RULES BY THE TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
the Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. NO PERSONAL LIABILITY OF THE MEMBERS, OFFICERS, EMPLOYEES
AND EQUITYHOLDERS.
No officer, employee or equityholder (or directors, officers or
employees of such equityholders or their equityholders) of the Issuer, as such,
shall have any liability for any obligations of the Issuer under the Notes, the
Indenture or the Collateral Documents, or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of the Notes
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
SECTION 11.08. GOVERNING LAW.
The internal law of the State of New York shall govern and be used to
construe this Indenture and the Notes without regard to principles of conflicts
of law.
64
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture and the Notes may not be used to interpret another
indenture, loan or debt agreement of the Issuer. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture. This writing
constitutes the entire agreement of the parties with respect to the subject
matter hereof. Unless expressly otherwise indicated herein, an action or
transaction permitted by one provision hereof must nonetheless comply with all
other applicable provisions hereof, and any action or transaction not permitted
by any provision of this Indenture will not be permitted regardless of whether
any other provisions hereof might permit such action or transaction.
SECTION 11.10. SUCCESSORS.
All agreements of the Issuer in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 11.14. QUALIFICATION OF INDENTURE.
The Issuer shall qualify this Indenture under the TIA and shall pay
all costs and expenses (including attorneys' fees for the Issuer, the Trustee
and the Holders of the Securities) incurred in connection therewith, including,
but not limited to, costs and expenses of qualification of the Indenture and the
Notes and printing this Indenture and the Notes. In connection with any such
qualification of this Indenture under the TIA, the Trustee shall be entitled to
receive from the Issuer any such Officers' Certificates, Opinions of Counsel or
other documentation as it may reasonably request.
65
SECTION 11.15. SATISFACTION AND DISCHARGE.
Upon the indefeasible payment in full of all Obligations of the Issuer
under all of the Operative Documents, the Issuer shall be released from all its
obligations under this Indenture and under the Notes and this Indenture shall
cease to be of further effect.
SECTION 11.16. THIRD PARTY BENEFICIARY.
The Issuer and the Trustee hereby expressly agree and acknowledge that
the Collateral Agent is intended to be an express third party beneficiary of
this Indenture and the Collateral Agent shall be entitled to exercise any and
all rights and remedies afforded third-party beneficiaries under the laws of the
relevant jurisdiction.
[Signatures on following page]
66
SIGNATURES
Dated as of , 1997 JAMBOREE, LLC
------------
By:
-------------------------------------
Attest: Name:
Title:
----------------------------------
Name:
Title:
Dated as of ____________, 1997 IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST
COMPANY, as Trustee
Attest:
By:
------------------------------ ------------------------------------
Name: Name:
Title: Title:
67
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT BE
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE PROPOSED TRANSACTION DOES
NOT REQUIRE REGISTRATION OR QUALIFICATION UNDER FEDERAL OR STATE SECURITIES
LAWS, OR UNLESS THE PROPOSED TRANSACTION IS REGISTERED OR QUALIFIED AS REQUIRED.
[Face of Note]
________% Class A Senior Secured Note due 2002
No.____ $_____________
Jamboree LLC promises to pay to _____________________________ or its registered
assigns the outstanding principal balance on March 27, 2002. The Interest
Payment Dates shall be monthly on the first day of each month, commencing
_____________, 1997. Interest may be paid through the issuance of additional
Notes until March 27, 1998. The record dates for determining Holders entitled
to receive payments of interest on the Notes shall be the fifteenth day of each
prior month (whether or not a Business Day).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: Jamboree LLC
-----------------------------
(SEAL)
By:
--------------------------------
This is one of the Notes
referred to in the within
mentioned Indenture:
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Signatory
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-1
[Back of Note]
______% Class A Senior Secured Note due 2002
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. PRINCIPAL AND INTEREST. Jamboree LLC, a Delaware limited
liability company (the "ISSUER"), promises to pay interest on the outstanding
principal amount of this Note at the rate and in the manner specified below.
Interest shall accrue at ______% per annum and shall be payable monthly in
arrears on the first day of each month, commencing _____________, 1997 or if any
such day is not a Business Day on the next succeeding Business Day (each an
"INTEREST PAYMENT DATE") to the Holders of record of the Notes at the close of
business on the fifteenth day of the immediately preceding month, whether or not
a Business Day; PROVIDED, HOWEVER, that during the period from the date hereof
until March 27, 1998, the Issuer, at its option, may deliver on any Interest
Payment Date additional Notes (valued at 100% of the principal amount thereof)
to the Holder of this Note, in lieu of cash, in satisfaction of all or part of
the interest payment then due on this Note in accordance with the terms of the
Indenture. Notwithstanding the foregoing, additional Notes delivered in
satisfaction of any interest payment then due on this Note shall be issuable
only in denominations of $1000 and any integral multiple thereof, with the
remainder of any such interest payable in cash. Interest shall be computed on
the basis of a 360-day year consisting of twelve 30-day months. Interest shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from _____________, 1997. The Issuer shall pay interest
on overdue principal at a rate equal to 3% per annum in excess of the interest
rate on the Notes to the extent lawful; and it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) at the
same rate to the extent lawful. The Issuer shall, on each Interest Payment Date
beginning March 28, 1999, pay an installment of the principal of this Note to
the Person who is the registered Holder of this Note at the close of business on
each such Interest Payment Date in the amount of $________ multiplied by the
principal amount of this Note divided by the aggregate principal amount of all
the Notes outstanding on each such date.
2. METHOD OF PAYMENT. The Issuer shall pay interest on (except
defaulted interest) the outstanding principal amount of the Notes and principal
of the Notes to the Persons who are registered Holders at the close of business
on the record date next preceding the Interest Payment Date, even if such Notes
are cancelled after such record date and on or before such Interest Payment
Date. All payments under this Note shall be applied first to interest due and
payable on this Note and then to the reduction of the unpaid principal amount of
this Note. The Paying Agent shall keep a record of all payments of principal of
this Note, which record, absent manifest error, shall be conclusive for all
purposes under the Notes and the Indenture. At any time a Note is reissued,
replaced or exchanged pursuant to the terms of the Notes or the Indenture, the
principal amount of the new Note shall be reduced to reflect any such payments
made to the date of such reissue, replacement or exchange. The Issuer shall pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. The Notes shall be
payable both as to principal and interest at the office or agency of the
A-2
Issuer maintained for such purpose within the City of New York, or, at the
option of a Holder, payment of interest may be made by check mailed to such the
Holder at its address set forth in the register of the Holders or by wire to an
account designated by such the Holder. Unless otherwise designated by the
Issuer, the Issuer's office or agency in New York shall be the office or agency
of the Trustee maintained for such a purpose.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee shall act as
Paying Agent and Registrar. The Issuer may change any Paying Agent, Registrar
or co-registrar upon thirty (30) days prior written notice to the Trustee. The
Issuer may act in any such capacity.
4. INDENTURE. The Issuer issued the Notes under an Indenture, dated
as of _____________, 1997 (the "INDENTURE"), between the Issuer and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. Sections 77aaa-77bbbb), as in effect on the Issue Date. The
Notes are subject to all such terms, and the Holders are referred to the
Indenture and such act for a statement of such terms. The terms of the
Indenture shall govern any inconsistencies between the Indenture and the Notes.
The Notes are secured obligations of the Issuer limited to $80,000,000 in
aggregate principal amount.
5. OPTIONAL REDEMPTION. The Issuer shall have the option to redeem
the Notes, in whole or in part, upon not less than 30 nor more than 60 days'
notice, during the periods set forth below at a redemption price equal to the
percentage of par set forth opposite such periods PLUS accrued and unpaid
interest thereon to the applicable redemption date:
PERIOD PERCENTAGE
------ ----------
Issue Date through
March 27, 2000: 102.00%
March 28, 2000
through September 27, 2001: 101.00%
thereafter: 100.00%
6. PURCHASE AT HOLDERS OPTION. Except as set forth under
SECTION 3.08 of the Indenture and this paragraph 6, the Issuer shall not be
required to make mandatory redemption payments, sinking fund payments or
mandatory purchases with respect to the Notes prior to maturity. No later than
120 days after the end of each Fiscal Year commencing with the Fiscal Year
ending December 31, 1997, the Issuer shall, at the option of each Holder,
purchase the maximum principal amount of the Notes that may be purchased with
100% of the Excess Cash Flow Amount for such Fiscal Year, at a purchase price in
Cash equal to 100% of the principal amount of such Notes to be purchased plus
accrued and unpaid interest thereon to the date of purchase on a pro-rata basis
as described in SECTION 3.04 of the Indenture. Within 90 days after the
occurrence of a Triggering Event, the Issuer shall, at the option of each
Holder, purchase all of the outstanding Notes, at a purchase price in Cash equal
to 100% of the principal amount of all outstanding Notes plus accrued and unpaid
interest thereon to the date of purchase. The Issuer shall provide the written
notice required under SECTION 3.08 no later than 120 days after the end of each
Fiscal Year or 5 days after the occurrence of each Triggering Event. A Holder
may exercise its rights specified in SECTION 3.08 of the Indenture and this
paragraph 6 by delivery of
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an Original Purchase Notice to the Trustee or to the office or agency of the
Issuer specified in the Indenture at any time prior to the close of business on
a date that is 3 Business Days prior to the purchase date as set forth in
SECTION 3.08(d) of the Indenture. Failure to deliver such Original Purchase
Notice prior to the close of business on the date that is 3 Business Days prior
to the purchase date shall be deemed to be an exercise by such Holder of its
rights under SECTION 3.08 of the Indenture and this paragraph 6 with respect to
all Notes with respect to which a Purchase Event has occurred (other than Excess
Amount Notes) held by such Holder on such date. Any Holder who does not desire
to have all or a portion of its Notes purchased as a result of the occurrence of
a Purchase Event shall be required to deliver a Rejection Notice. Any Holder
delivering such Original Purchase Notice shall have the right to withdraw such
Original Purchase Notice at any time prior to the close of business on the third
Business Day immediately preceding the purchase date by delivery of a written
notice of withdrawal to the Trustee or to the office or agency of the Issuer
specified in the Indenture in accordance with SECTION 3.08(d) of the Indenture.
7. NOTICE OF REDEMPTION OR PURCHASE. Notice of redemption or of the
occurrence of a Purchase Event shall be mailed within the time period noted in
paragraphs 5 and 6 to each Holder whose Notes are to be redeemed or as to which
a Purchase Event has occurred at its registered address. Notes may be redeemed
or purchased in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed or purchased. On and after the
redemption or purchase date, interest ceases to accrue on Notes or portions of
them redeemed or purchased.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder
of a Note, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any Note
or portion of a Note selected for redemption except the unredeemed portion of
any such Note. Also, it need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed.
9. PERSONS DEEMED OWNERS. Prior to due presentment to the Registrar
for registration of the transfer of this Note, the Trustee, any Agent and the
Issuer may deem and treat the Person in whose name this Note is registered as
its absolute owner for the purpose of receiving payment of principal of and
interest on this Note and for all other purposes whatsoever, whether or not this
Note is overdue, and neither the Trustee, any Agent nor the Issuer shall be
affected by notice to the contrary.
10. AMENDMENTS, SUPPLEMENT AND WAIVERS. Subject to certain
exceptions, the Indenture, Notes or any amended or supplemental Indenture may be
amended or supplemented with the written consent of the Required Holders, and
any existing Default or Event of Default and its consequences or compliance with
any provision of the Indenture or the Notes may be waived with the consent of
the Holders of not less than 25% in principal amount of the Notes outstanding on
the date of determination. Without the consent of any Holder, the Operative
Documents may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to
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provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Issuer's obligations to the Holders
in the case of a merger or consolidation, to make certain amendments to the
Collateral Documents, to execute and deliver any documents necessary or
appropriate to release Liens on any Collateral as permitted by SECTION 10.03 OR
10.04 of the Indenture, to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not materially
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act. The Issuer and
the Trustee may, with the consent of Holders of 66 2/3% in principal amount of
each of the Notes and the Class B Notes, respectively, outstanding on the date
of determination directly or indirectly release Liens on all or substantially
all of the Collateral except in connection with a Triggering Event. The Issuer
and the Trustee may, with the consent of Holders of the principal amount of
Notes whose Holders must consent to an amendment, supplement or waiver, reduce
such principal amount with respect to such amendment, supplement or waiver.
11. DEFAULTS AND REMEDIES. Events of Default include, without
limitation, the following events: the Issuer shall fail to make any payment in
respect of principal of or premium on the Notes when the same becomes due and
payable and such failure continues for a period of 5 Business Days after the due
date of such payment or the Issuer shall fail to make any payment when due of
interest on the Notes and such failure continues for a period of 10 days after
the due date of such payment; or either the information provided by CWOP or any
of its Affiliates and contained in the Disclosure Statement with respect to
CWOP's business, financial condition and results of operations (other than the
financial projections contained therein), taken on the basis of the Disclosure
Statement as a whole, or the Collateral Documents shall prove to contain, as of
their respective dates, any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not
misleading, in light of the circumstances in which they were made; or the Issuer
fails to perform or observe (i) any term, covenant or agreement contained in
Article IV or Article V of the Indenture or (ii) any other term, covenant or
agreement contained in the Indenture, the Plan or the Collateral Documents, if
such failure under this clause (ii) shall remain unremedied for 30 days after
the earlier of the date on which written notice thereof shall have been given to
the Issuer by the Trustee or the Holders; or the Issuer shall fail, after any
applicable grace period, to pay any principal of or premium, if any, or interest
on the Class B Notes or any of its other Indebtedness in an amount exceeding
$200,000 (excluding the Notes), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
or any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness, if the effect of such event or
condition is to accelerate the maturity of such Indebtedness, or any such
Indebtedness shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), prior to the stated
maturity thereof; or the Issuer shall generally not pay its debts as such debts
become due except such debts that are the subject of a good faith dispute, or
shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors, or any proceeding shall be
instituted by or against the Issuer seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or for any substantial part of its
property and, in the case of any such proceedings
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instituted against the Issuer (but not instituted by it), either such
proceedings shall remain undismissed or unstayed for a period of 30 days or any
of the actions sought in such proceedings shall occur, or the Issuer shall take
any action to authorize any of the foregoing actions; or any judgment or order
for the payment of money in excess of $100,000 shall be rendered against the
Issuer either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order, or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; the
Indenture or the Collateral Documents shall, for any reason, cease to create a
valid Lien on Collateral having a value of $100,000 or more purported to be
covered thereby, or such Lien shall cease to have the priority Lien status
initially granted and be a perfected Lien as to Collateral having a value of
$100,000 or more; or the Issuer shall fail to pay any Imposition prior to
delinquency or, if the Issuer is prohibited by law from paying such Imposition,
the Issuer shall fail to pay such Imposition within 180 days of the Issuer's
receipt of notice of such prohibition; or the Issuer shall fail to perform its
obligations under the Plan. If any Event of Default (other than Event of
Default specified in SECTION 6.01(e) of the Indenture) occurs and is continuing,
the Trustee may or the Holders of not less than 25% in principal amount of the
Notes outstanding on the date of determination may or may cause the Trustee to
declare all the Notes to be due and payable immediately. Upon the occurrence of
an Event of Default described in SECTION 6.01(e) (with respect to certain events
such as bankruptcy and insolvency) of the Indenture, such an amount will IPSO
FACTO become immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder. Such Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, the Holders of not less than 25% in principal amount of the Notes
outstanding on the date of determination may direct the time, method, and place
of conducting any proceeding for exercising any remedy available to the Trustee
and/or the Collateral Agent or exercising any trust or power conferred on it or
them. Such Holders, by written notice to the Trustee, may on behalf of the
Holders of all of the Notes waive any existing Default or Event of Default and
its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Notes.
12. TRUSTEE DEALINGS WITH ISSUER. The Trustee under the Indenture,
in its individual or other capacity, may make loans to, accept deposits from,
and perform services for the Issuer or its Affiliates, and may otherwise deal
with the Issuer or its Affiliates, as if it were not the Trustee; however, if
the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the SEC for permission to continue as the Trustee or
resign.
13. NO PERSONAL LIABILITIES OF TRUSTEES, OFFICERS, EMPLOYEES AND
EQUITYHOLDERS. No officer, employee or equityholder (or directors, officers or
employees of such equity holders or their equityholders) of the Issuer, as such,
shall have any liability for any obligations of the Issuer under the Notes, the
Indenture or the Collateral Documents or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of the Notes
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
14. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
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15. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
16. CUSIP NUMBER. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures ("CUSIP"), the Issuer
has caused CUSIP numbers to be printed on the Notes and has requested the
Trustee to use CUSIP numbers in notices of redemption as a convenience to the
Holders. No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
17. COLLATERAL DOCUMENTS. As provided in the Indenture and the
Collateral Documents, and subject to certain limitations set forth therein, the
Obligations of the Issuer under the Operative Documents are secured by the
Collateral as provided in the Collateral Documents. Each Holder, by accepting a
Note, agrees to be bound by all terms and provisions of the Collateral
Documents, as the same may be amended from time to time. The Liens created
under the Collateral Documents shall be released upon the terms and subject to
the conditions set forth in the Indenture and the Collateral Documents.
18. SUCCESSOR ENTITY. When a successor Person assumes all the
obligations of its predecessor under the Operative Documents, the predecessor
Person shall be released from such Obligations.
The Issuer will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture or the Collateral Documents. Request
may be made to:
Jamboree LLC
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Attention:
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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(print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
agent to transfer this Note on the books of the Issuer. The Agent may
substitute another to act for him.
Date:
----------------------
Your Signature:
-----------------------------------
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee:
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ORIGINAL PURCHASE NOTICE
The undersigned Holder elects to have this Note purchased by the
Issuer pursuant to Section 3.08 of the Indenture. The certificate number of
this Note is:
The portion of the principal amount of this Note (including the principal amount
of this Note in excess of the Holder's pro-rata portion of the Excess Cash Flow
Amount that the Holder would like to be purchased) that the Holder will deliver
to be purchased, which portion must be $1,000 or an integral multiple of $1,000,
is $_________.
Date: Your Signature:
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(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:
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