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EXHIBIT 4.1
Draft
8/7/98
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ENRON INTERNATIONAL CPO, L.P.,
Issuer
ENRON INTERNATIONAL CPO, INC.,
Co-Issuer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
not in its individual capacity (except as expressly set
forth herein) but solely as Trustee
INDENTURE
Dated as of _________, 1998
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Enron International CPO, L.P.
Enron International CPO, Inc.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939;
Trust Indenture Indenture
Act Section Section
----------- -------
Section 310(a)(1) 6.10
(a)(2) 6.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.10
(b) 6.9, 6.11
Section 311(a) 6.16
(b) 6.16
Section 312(a) 10.6, 10.7
(b) 10.7
(c) 10.7
Section 313(a) 10.2(a)
(b) 10.2(a)
(c) 10.2(a)
(d) 10.2(b)
Section 314(a) 10.3
(a)(4) 7.5
(b) 1.4
(c)(1) 1.4
(c)(2) 1.4
(c)(3) Not Applicable
(d) 1.4
(e) 1.4
Section 315(a) 6.1
(b) 6.2
(c) 6.1
(d) 6.1
(e) 5.13
Section 316(a)(1)(A) 5.1
(a)(1)(B) 5.12
(a)(2) Not Applicable
(b) 5.6
(c) 2.7
Section 317(a)(1) 5.3
(a)(2) 5.2
(b) 7.3
Section 318(a) 1.3
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS....................................................................................2
Section 1.1. Definitions......................................................................2
Section 1.2. Rules of Interpretation..........................................................2
Section 1.3. Conflict with Trust Indenture Act................................................2
Section 1.4. Compliance with Certificates and Opinions........................................2
ARTICLE 2. THE NOTES......................................................................................3
Section 2.1. Forms Generally..................................................................3
Section 2.2. Authorized Amount; Class A Notes and Class B Notes Issuable in
Series; Note Interest Rate; Stated Maturity; Denominations.....................4
Section 2.3. Execution, Authentication, Delivery and Dating...................................5
Section 2.4. Registration, Transfer and Exchange of Notes; Dealings with Depositary...........6
Section 2.5. Mutilated, Defaced, Destroyed, Lost or Stolen Notes.............................10
Section 2.6. Payment of Principal and Interest; Rights Preserved.............................11
Section 2.7. Persons Deemed Owners...........................................................14
Section 2.8. Cancellation....................................................................14
Section 2.9. New Issuances; Class C Issuances................................................14
Section 2.10 Temporary Notes.................................................................17
Section 2.11. Parity of Notes within each Class; Ranking......................................17
ARTICLE 3. CONDITIONS PRECEDENT..........................................................................17
Section 3.1. Conditions to the Issuance of Notes on the Closing Date.........................17
Section 3.2. Conditions to the Issuance of Class A Notes After the Closing Date..............18
Section 3.3. Conditions to the Issuance of Class B Notes After the Closing Date..............18
Section 3.4. Conditions to the Issuance of Class C Notes After Closing Date..................18
ARTICLE 4. SATISFACTION AND DISCHARGE; DEFEASANCE........................................................19
Section 4.1. Satisfaction and Discharge of Indenture.........................................19
Section 4.2. Application of Trust Money......................................................20
Section 4.3. Repayment of Monies Held by Paying Agent........................................20
Section 4.4. Defeasance of Notes.............................................................20
Section 4.5. Conditions to Defeasance........................................................21
Section 4.6. Indemnification for U.S. Government Obligations.................................22
Section 4.7. Reinstatement...................................................................22
ARTICLE 5. EVENTS OF DEFAULT; REMEDIES...................................................................23
Section 5.1. Events of Default...............................................................23
Section 5.2. Collection of Indebtedness and Suits for Enforcement by Trustee.................24
Section 5.3. Remedies....................................................................... 25
Section 5.4. Trustee May Enforce Claims Without Possession of Notes..........................26
Section 5.5. Application of Money Collected..................................................26
Section 5.6. Limitation on Suits.............................................................26
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Section 5.7. Unconditional Rights of Noteholders to Receive Principal and Interest...........27
Section 5.8. Restoration of Rights and Remedies..............................................27
Section 5.9. Rights and Remedies Cumulative..................................................27
Section 5.10. Delay or Omission Not Waiver...................................................28
Section 5.11. Control by Noteholders.........................................................28
Section 5.12. Waiver of Past Defaults........................................................28
Section 5.13. Undertaking for Costs..........................................................29
Section 5.14. Waiver of Stay or Extension Laws...............................................29
Section 5.15. Action on the Notes............................................................29
Section 5.16. Inconsistency with Common Agreement and Intercreditor Agreement
and the Security Agreement...................................................30
Section 5.17. Actions to be taken by the Trustee under Intercreditor Agreement...............30
ARTICLE 6. THE TRUSTEE...................................................................................30
Section 6.1. Certain Duties and Responsibilities.............................................30
Section 6.2. Notice of Default...............................................................32
Section 6.3. Certain Rights of Trustee.......................................................32
Section 6.4. Authenticating Agents...........................................................34
Section 6.5. Not Responsible for Recitals or Issuance of Notes...............................34
Section 6.6. May Hold Notes..................................................................34
Section 6.7. Money Held in Trust.............................................................35
Section 6.8. Compensation and Reimbursement..................................................35
Section 6.9. Disqualification; Conflicting Interests.........................................36
Section 6.10. Corporate Trustee Required; Eligibility........................................36
Section 6.11. Resignation and Removal; Appointment of Successor..............................36
Section 6.12. Acceptance of Appointment by Successor.........................................37
Section 6.13. Merger, Conversion, Consolidation or Succession to Business
of Trustee...................................................................38
Section 6.14. Representations and Warranties of Chase Texas..................................38
Section 6.15. Collateral Trust Provisions....................................................39
Section 6.16. Preferential Collection of Claims Against Issuer...............................39
ARTICLE 7. COVENANTS.....................................................................................39
Section 7.1. Payment of Principal and Interest...............................................39
Section 7.2. Maintenance of Office or Agency.................................................40
Section 7.3. Money for Note Payments to be Held in Trust.....................................40
Section 7.4. Listing.........................................................................42
Section 7.5. Statement by Officers as to Default.............................................42
Section 7.6. Other Covenants of the Issuers..................................................42
ARTICLE 8. SUPPLEMENTAL INDENTURES; AMENDMENTS TO OTHER
FINANCING DOCUMENTS.........................................................................43
Section 8.1. Supplemental Indentures Without Consent of Noteholders..........................43
Section 8.2. Supplemental Indentures With Consent of Noteholders.............................44
Section 8.3. Execution of Supplemental Indentures............................................46
Section 8.4. Effect of Supplemental Indentures...............................................46
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Section 8.5. Conformity with Trust Indenture Act.............................................46
Section 8.6. Reference in Notes to Supplemental Indentures...................................46
Section 8.7. Amendments, Modifications, Waivers, etc. to Other Financing Documents...........46
ARTICLE 9. REDEMPTION OF NOTES...........................................................................47
Section 9.1. Redemption at the Option of the Issuers; Election to Redeem.....................47
Section 9.2. Notice to Trustee of Optional Redemption........................................47
Section 9.3. Notice of Mandatory Redemption or Maturity by the Trustee.......................47
Section 9.4. Mandatory Redemption............................................................48
Section 9.5. Notice to Trustee of Mandatory Redemption.......................................48
Section 9.6. Notice of Mandatory Redemption or Maturity by the Trustee.......................48
Section 9.7. Notes Payable on Redemption Date................................................49
Section 9.8. Pro Rata Application............................................................49
ARTICLE 10. ACCOUNTS, ACCOUNTINGS AND RELEASES...........................................................50
Section 10.1. Note Payment Account; Payment on the Notes.....................................50
Section 10.2. Reports by Trustee.............................................................50
Section 10.3. Reports by Issuer..............................................................51
Section 10.4. Accountings....................................................................51
Section 10.5. Reports to Rating Agencies.....................................................52
Section 10.6. Issuers to Furnish Trustee Names and Addresses of Holders......................53
Section 10.7. Preservation of Information; Communication to Holders..........................53
ARTICLE 11. APPLICATION OF MONIES........................................................................53
Section 11.1. Trust Accounts.................................................................53
ARTICLE 12. NOTEHOLDERS' RELATIONS.......................................................................54
Section 12.1. Subordination..................................................................54
Section 12.2. Standard of Conduct............................................................55
Section 12.3. Right to List of Holders.......................................................55
ARTICLE 13. MISCELLANEOUS................................................................................55
Section 13.1. Form of Documents Delivered to Trustee.........................................55
Section 13.2. Acts of Noteholders............................................................56
Section 13.3. Notices, etc., to Trustee, the Issuers, the Program Manager and
the Rating Agencies..........................................................57
Section 13.4. Notices and Reports to Noteholders; Waiver.....................................58
Section 13.5. Effect of Headings and Table of Contents.......................................59
Section 13.6. Successors and Assigns.........................................................59
Section 13.7. Separability...................................................................59
Section 13.8. Benefits of Indenture..........................................................59
Section 13.9. Legal Holidays.................................................................59
Section 13.10. Governing Law.................................................................59
Section 13.11. Execution of other Transaction Documents; Conflicts...........................60
Section 13.12. Counterparts..................................................................60
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Section 13.13. Incorporation of Certain Terms of the Common Agreement........................60
Section 13.14. Submission to Jurisdiction....................................................60
EXHIBITS
Exhibit A Form of Class A Fixed Rate Senior Note
Exhibit B Form of Class B Fixed Rate Subordinated Note
Exhibit C Form of Class C Fixed Rate Subordinated Note
Exhibit D Form of Certificated Note
Exhibit E Form of Supplemental Indenture
Exhibit F Form of Tax Certification
Exhibit G Form of Assignment of Class C Notes
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INDENTURE dated as of _________, 1998 among:
ENRON INTERNATIONAL CPO, L.P., a limited partnership organized and
existing under the laws of the State of Delaware (the "Issuer");
ENRON INTERNATIONAL CPO, INC., a corporation organized and existing under
the laws of the State of Delaware (the "Co-Issuer", and together with the
Issuer, the "Issuers"); and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, not in its individual
capacity (except as expressly set forth herein) but solely as trustee (in such
capacity, the "Trustee" and in its individual capacity, "Chase Texas").
W I T N E S S E T H:
WHEREAS, the Issuers have duly authorized the creation of their (i) Class
A Senior Notes due 2018 (the "Class A Notes"), up to the Maximum Class A
Principal Amount to be issued in one or more series, with the tenor and the
amount to be set forth in the Supplemental Indenture relating to each Series,
(ii) $__________ Class B Senior Subordinated Notes due 2018 to be issued in
one or more series (the "Class B Notes") and (iii) Class C Subordinated Notes
due 2018 (the "Class C Notes" and together with the Class A Notes and the Class
B Notes, the "Notes") up to an aggregate principal amount of $___________;
WHEREAS, the Trustee, the Liquidity Facility Agent (acting on behalf of
itself and the Liquidity Lenders) and the Backup Facility Agent (acting on
behalf of itself and the Backup Lenders), the Collateral Agent and the Issuers
are entering into a Common Agreement dated as of the date hereof which sets
forth, among other things, (i) common covenants of the Issuers in favor of the
Class A Noteholders, the Class B Noteholders, the Class C Noteholders, the
Collateral Agent, the Trustee, the Liquidity Lenders, the Backup Lenders and the
Hedge Counterparties and (ii) common Events of Default;
WHEREAS, the Issuers are entering into a Security Agreement dated as of
the date hereof with Chase Texas, as collateral agent (the "Collateral Agent")
pursuant to which the Issuer will grant to the Collateral Agent for the benefit
of the Secured Parties, a first priority security interest in and to the
Collateral and which sets forth, among other things, provisions authorizing and
directing the establishment of certain accounts for the purpose of collecting
and distributing Collateral Proceeds and certain other accounts;
WHEREAS, the Issuers, the Representatives and the Collateral Agent are
entering into an Intercreditor Agreement dated as of the date hereof which sets
forth, among other things, certain intercreditor provisions, including the
method of voting and decision making for the Secured Parties, the arrangements
applicable to joint consultations and actions in respect of approval rights and
waivers and the limitations on rights of enforcement upon default; and
WHEREAS, the Issuers have duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Notes and to provide for the
authentication and delivery thereof by the Trustee;
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NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, for and in
consideration of the premises and the covenants contained herein and in the
Common Agreement and the other Financing Documents and in consideration of the
purchases of the Notes by the Noteholders, it is mutually covenanted and agreed,
for the benefit of the parties hereto, as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Definitions.
For all purposes of this Indenture and any Supplemental
Indenture, except as otherwise expressly provided herein or in any Supplemental
Indenture hereto, or unless the context otherwise requires,
(a) capitalized terms used in this Indenture, its schedules and
exhibits have the meanings given in Appendix A to the Common Agreement;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(c) unless otherwise specified, section references are to the
applicable Sections in this Indenture.
Section 1.2. Rules of Interpretation.
Except as otherwise expressly provided herein, the rules of
interpretation set forth in Appendix A to the Common Agreement shall apply to
this Agreement.
Section 1.3. Conflict with Trust Indenture Act.
After the qualification of this Indenture under the Trust
Indenture Act, if any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
Section 1.4. Compliance with Certificates and Opinions.
Upon any application or request by the Issuer or the Co-Issuer to
the Trustee to take any action under any provision under this Indenture, the
Issuer or the Co-Issuer, as the case may be, shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officer's
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Certificate, if to be given by an Authorized Officer of the Issuer or the
Co-Issuer, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
ARTICLE 2
THE NOTES
Section 2.1. Forms Generally.
(a) The Notes and the Trustee's or Authenticating Agent's
certificate of authentication thereon (the "Certificate of Authentication")
shall be in substantially the forms required by this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon,
as may be consistent herewith, determined by the Authorized Officers of the
Issuers executing such notes as evidenced by their execution of such Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
(b) Notes of any Series or Class offered and sold under the
Securities Act shall be issued in the form of one or more Global Notes in fully
registered form without interest coupons, substantially in the form attached as
Exhibit A hereto, in the case of Class A Notes, and Exhibit B hereto, in the
case of Class B Notes (each, a "Global Note"), with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and such legends as may be applicable thereto, which shall be
deposited with the Trustee at its Corporate Trust Office, as custodian for DTC
and registered in the name of a nominee of DTC, duly executed by or on behalf of
the Issuers and authenticated by the Trustee or Authenticating Agent as
hereinafter provided. The Issuers in issuing the Notes may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee will indicate the "CUSIP"
numbers of the Notes in notices of redemption and related materials as a
convenience to Holders; provided that any such
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notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption and related materials.
(c) Notes of any Series or Class may also be issued under the
limited circumstances set forth in Section 2.4 in definitive fully registered
form without interest coupons, substantially in the form of the certificated
note attached as Exhibit D hereto (the "Certificated Notes) which shall be duly
executed by the Issuers and authenticated by the Trustee or the Authenticating
Agent as hereinafter provided.
(d) Notwithstanding anything else herein, Class C Notes may be
issued by the Issuers only as provided in Section 2.3(f) in definitive fully
registered form without interest coupons, and shall not constitute Certificated
Notes for purposes of this Indenture. Class C Notes shall be issued
substantially in the form attached as Exhibit C hereto and shall be subject to
the limitations on transfers set forth therein.
Section 2.2. Authorized Amount; Class A Notes and Class B Notes Issuable in
Series; Note Interest Rate; Stated Maturity; Denominations.
(a) The outstanding aggregate principal amount of each Class of
Notes that is authenticated and delivered under this Indenture at any time may
not exceed the amounts set forth below (excluding Notes issued upon registration
of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to
Section 2.4, 2.5, 8.6 or 9.1) and shall have the Stated Maturities set forth
below:
Principal Stated
Designation Amount Maturity
----------- ------ --------
Class A Notes Up to the Maximum [___] 2018
Class A Principal Amount
Class B Notes $[700,000,000] [___] 2018
Class C Notes Up to $125,000,000 [___] 2018
(b) The Class A Notes and Class B Notes may be issued in one or
more Series in accordance with Section 2.9. The Notes of each Class represent
the right to receive, to the extent necessary to make the required payments with
respect to the Notes of such Class at the times and in the amounts specified in
the Priority of Payments and the Priority of Acceleration Payments, and in this
Indenture or any related Supplemental Indenture (as the case may be), the
portion of the Collateral Proceeds allocable to Holders of such Class pursuant
to the Security Agreement, the Intercreditor Agreement and this Indenture or
such Supplemental Indenture (as the case may be).
(c) Interest on (i) the initial Series of Class A Notes issued
under this Indenture shall accrue at [__]% per annum, (ii) each Series of Class
A Notes issued subsequent to the initial series thereof shall accrue at the
respective Note Interest Rate specified in the Supplemental Indenture relating
to such Series, (iii) the initial Series of Class B Notes issued under this
Indenture shall accrue at ___% per annum, (iv) each Series of Class B Notes
issued in connection with a Class B Refinancing shall accrue at the rate
specified in the Supplemental Indenture relating thereto and (v) the Class C
Notes shall accrue at the Class C Note Interest
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Rate. The Notes shall accrue interest on the Outstanding Amounts of such Notes
(determined as of the first day of each Interest Accrual Period and after giving
effect to any payment of principal occurring on such day) from the Closing Date
(or, in the case of any Notes issued subsequent to the Closing Date, from the
date of issuance thereof) until the principal thereof has been paid in full and
will be payable quarterly in arrears on each Quarterly Payment Date. Interest on
the Notes and interest on Defaulted Interest in respect of such Notes will be
computed on the basis of a 360-day year of twelve 30-day months.
(d) The Notes shall be redeemable as provided in Article 9.
(e) Unless otherwise specified in the relevant Supplemental
Indenture, the Class A Notes and Class B Notes shall be issuable and
transferable in minimum denominations of $1,000 and integral multiples of $1,000
in excess thereof; provided, that any interest in a Global Note equal to or in
excess of the applicable minimum denomination at the time of issuance thereof
which ceases or fails to be such minimum or multiple as a result of the
repayment of principal pursuant to the Priority of Payments or Priority of
Acceleration Payments, as applicable, may be transferred in its entirety. The
Class C Notes shall be issuable in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The Depositary for the Global Notes shall
initially be DTC.
(f) The Notes shall be numbered, lettered or otherwise
distinguished in such manner as may be consistent herewith, determined by an
Authorized Officer of the Program Manager executing such Notes as evidenced by
its execution of such Notes.
Section 2.3. Execution, Authentication, Delivery and Dating.
(a) The Notes shall be executed on behalf of the Issuers by an
Authorized Officer of the Program Manager. The signatures of any such Authorized
Officer on the Notes may be manual or facsimile. As provided in the Management
Agreement, each of the Issuer and the Co-Issuer irrevocably (subject to
termination of the Management Agreement) appointed and designated the Program
Manager as its attorney-in-fact, acting through any Authorized Officer thereof,
to (inter alia) execute and deliver in its name and on its behalf any Note
issued hereunder.
(b) Notes bearing the manual or facsimile signatures of
individuals who were at any time the Authorized Officers of either of the
Issuers (or of the Program Manager as their attorney-in-fact) shall bind the
Issuer and/or the Co-Issuer (as the case may be), notwithstanding the fact that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of issuance of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuers may deliver Notes executed by or on
behalf of the Issuers to the Trustee or the Authenticating Agent for
authentication and the Trustee or the Authenticating Agent, upon Issuer Order,
shall authenticate and deliver such Notes as provided in this Indenture and not
otherwise.
(d) Each Note shall be dated the date of its authentication.
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(e) Notes issued upon transfer, exchange or replacement of other
Notes shall be issued in authorized denominations reflecting the original
aggregate principal amount of the Notes so transferred, exchanged or replaced,
but shall represent only the current Outstanding Amount of the Notes so
transferred, exchanged or replaced. In the event that any Note is divided into
more than one Note in accordance with this Article 2, the original principal
amount of such Note shall be proportionately divided among the Notes delivered
in exchange therefor and shall be deemed to be the original aggregate principal
amount of such subsequently issued Notes.
(f) The Issuers shall issue Class C Notes from time to time,
after the Closing Date, upon an exercise by Enron of its option to purchase or
cause to be purchased Class C Notes (i) pursuant to Section 2.1 of the Support
Agreement, to the Persons and in the amounts set forth in the Election Notice
delivered in connection therewith or (ii) pursuant to Sections 4.1(b) or 4.2 of
the Support Agreement, to the Persons and in the amounts set forth in the Final
Credit Support Notice delivered in connection therewith, in each case against
payment therefor. Upon any such issuance, the Issuers shall execute, and the
Trustee shall authenticate and deliver, to the intended Holder thereof, one or
more Class C Notes of any authorized denomination.
(g) No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
Certificate of Authentication, substantially in the form provided for herein,
executed by the Trustee or by the Authenticating Agent by the manual signature
of one of their Authorized Officers, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
Section 2.4. Registration, Transfer and Exchange of Notes; Dealings with
Depositary.
(a) The Trustee is hereby appointed as the Note Registrar and a
Transfer Agent with respect to the Class A Notes and Class B Notes. The Note
Registrar shall, on behalf of the Issuers, keep a register (the "Note Register")
at the Corporate Trust Office in which, subject to such reasonable regulations
as it may prescribe, the Note Registrar shall provide for the registration of
Class A Notes and Class B Notes and the registration of transfers of Class A
Notes and Class B Notes. The Issuer shall assume the duties of Note Registrar
and Transfer Agent with respect to the Class C Notes. Upon any resignation or
removal of the Trustee as Note Registrar with respect to the Class A Notes and
the Class B Notes, the Issuer shall promptly appoint a successor or, in the
absence of such appointment, assume the duties of Note Registrar with respect to
the Class A Notes and Class B Notes.
If a Person other than the Trustee is appointed by the Issuers as
Note Registrar, the Issuers will give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Register. The Trustee shall have the right to inspect the
Note Register at all reasonable times and to obtain copies thereof and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Note Registrar by an Authorized Officer thereof as to the names and
addresses of the Holders of the Notes, and the principal amounts and numbers of
such Notes.
The Issuer may appoint any co-transfer agent and co-registrar,
including, if and so long as any Series or Class is listed on the Luxembourg
Stock Exchange and such exchange shall
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so require, a co-transfer agent and co-registrar in Luxembourg. Any reference in
this Indenture to the Note Registrar shall include any co-transfer agent and
co-registrar unless the context requires otherwise.
Subject to this Section 2.4, upon surrender for registration of
transfer of any Notes at the office or agency of the Issuers to be maintained as
provided in Section 7.2, the Issuers shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denomination and of a like
aggregate principal amount.
The Issuers will notify the Trustee in writing of any Note
beneficially owned by or pledged to the Issuer, the Co-Issuer, Enron, the
Program Manager or any other obligor upon the Notes or any of their respective
Affiliates promptly upon its knowledge of the acquisition thereof or the
creation of such pledge.
At the option of a Holder, Notes may be exchanged for Notes (of
the same Series and Class) of authorized denominations of like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Note is surrendered for exchange, the Issuers shall execute
and the Trustee or Authenticating Agent shall authenticate and deliver the Notes
that the Noteholder making the exchange is entitled to receive.
All Notes issued and authenticated upon any registration of
transfer or exchange of Notes shall be the valid obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under this Indenture
and the other Financing Documents, as the Notes surrendered upon such
registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Issuers and the Note Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration
of transfer or exchange of Notes, but the Transfer Agent may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Issuers shall execute and deliver to the Trustee, Notes in
such amounts and at such times as are necessary to enable the Trustee to fulfill
its responsibilities under this Indenture, each Supplemental Indenture and the
Notes.
The Issuers shall not be required to (i) issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before any selection of Notes to be redeemed and ending at the
close of business on the day of the first publication in an Authorized Newspaper
of the relevant notice of redemption or, if there is no publication, the mailing
of the relevant notice of redemption, or (ii) register the transfer of or
exchange any Note so selected for redemption.
(b) Subject to the restrictions on transfer and exchange set
forth in this Section 2.4 and to any additional restrictions on transfer or
exchange specified in the Certificated Notes,
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the Noteholder of any Certificated Note may transfer or exchange the same in
whole or in part (in a principal amount equal to the minimum authorized
denomination or any authorized greater amount) by surrendering such Certificated
Note at the Corporate Trust Office or at the office of any Transfer Agent.
Following a proper request for transfer or exchange, the Trustee shall (provided
it has available in its possession an inventory of Certificated Notes and proper
transfer documentation has been provided), within five Business Days of such
request if made at such Corporate Trust Office, or within ten Business Days if
made at the office of a Transfer Agent (other than the Trustee), authenticate
and make available at such Corporate Trust Office or at the office of such
Transfer Agent, as the case may be, to the transferee (in the case of transfer)
or Noteholder (in the case of exchange) or send by first class mail (at the risk
of the transferee in the case of transfer or Noteholder in the case of exchange)
to such address as the transferee or Noteholder, as applicable, may request, a
Certificated Note or Notes, as the case may require, for a like aggregate
principal amount and in such authorized denomination or denominations as may be
requested. The presentation for transfer or exchange of any Certificated Note
shall not be valid unless made at the Corporate Trust Office (in the case of the
Class A Notes and Class B Notes) or at the office of a Transfer Agent by the
registered Noteholder in person, or by a duly authorized attorney-in-fact.
Beneficial interests in the Global Notes shall be exchangeable for Certificated
Notes only under the limited circumstances described in sub-paragraph (e) of
this Section 2.4. and shall not be valid unless made at the Corporate Trust
Office or at the office of a Transfer Agent by the registered Noteholder in
person, or by a duly authorized attorney-in-fact.
(c) Transfer, registration and exchange shall be permitted as
provided in this Section 2.4 without any charge to the Noteholder except for the
expenses of delivery (if any) not made by regular mail. Registration of the
transfer of a Note by the Trustee shall be deemed to be the acknowledgement of
such transfer on behalf of the Issuers.
(d) The Issuers may purchase, redeem, prepay or otherwise
acquire, directly or indirectly, any of the Outstanding Notes.
(e) Interests in a Global Note deposited with the Depositary
pursuant to Section 2.1 hereunder shall be transferred to the owners of such
interests as provided in clause (f) below in the form of Certificated Notes only
if such transfer otherwise complies with this Section 2.4 and the Depositary
notifies the Issuers that it is unwilling or unable to continue as Depositary
for the Notes or the Depositary ceases to be a "clearing agency" registered
under the Exchange Act and a successor Depositary is not appointed by the
Issuers within 90 days of such notice, in which event the Issuers will promptly
make available to the Trustee a reasonable supply of Certificated Notes in
definitive, fully registered form, without interest coupons.
(f) If interests in any Global Note are to be transferred to the
Beneficial Owners thereof in the form of Certificated Notes pursuant to Section
2.4(e), such Global Note shall be surrendered by the Depositary, or its
custodian on its behalf, to the Corporate Trust Office or to the Transfer Agent
located in the Borough of Manhattan, the City of New York, and the Trustee shall
authenticate and deliver without charge, upon such transfer of interests in such
Global Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations. The Certificated Notes transferred pursuant to this
Section 2.4 shall be executed, authenticated and delivered only in the
denominations specified in Section 2.2(e) and registered in such names as the
Depositary shall direct in writing.
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(g) For so long as one or more Global Notes are Outstanding:
(1) the Trustee and its directors, officers, employees
and agents may deal with the Depositary for all purposes (including
the making of distributions on, and the giving of notices with
respect to, the Global Notes);
(2) unless otherwise provided herein, the rights of
Beneficial Owners shall be exercised only through the Depositary and
shall be limited to those established by law and agreements between
such Beneficial Owners and the Depositary;
(3) for purposes of determining the identity of and
principal amount of Notes beneficially owned by a Beneficial Owner,
the records of the Depositary shall be conclusive evidence of such
identity and principal amount and the Issuers and the Trustee may
conclusively rely on such records when acting hereunder;
(4) the Depositary will make book-entry transfers among
the Depositary Participants of the Depositary and will receive and
transmit distributions of principal and interest on the Global Notes
to such Depositary Participants; and
(5) the Depositary Participants of the Depositary shall
have no rights under this Indenture or any other Financing Document
under or with respect to any of the Global Notes held on their
behalf by the Depositary, and the Depositary may be treated by the
Trustee and its agents, employees, officers and directors as the
absolute owner of the Global Notes for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the
Trustee or any agent of the Issuers or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and the Depositary Participants, the
operation of any customary practices governing the exercise of the rights of a
Holder of any Note.
(h) Notwithstanding anything contained herein to the contrary,
neither the Trustee nor the Note Registrar shall be responsible for ascertaining
whether any transfer complies with the registration provisions of or exemptions
from applicable state securities laws, ERISA, the Code or the Investment Company
Act; provided that if a certificate is specifically required by the express
terms of this Section 2.4 to be delivered to the Trustee by a purchaser or
transferee of a Note, the Trustee shall be under a duty to receive and examine
the same to determine whether it conforms on its face to the requirements of
this Indenture and shall promptly notify the party delivering the same if such
certificate does not conform.
(i) The provisions of this Section 2.4 (other than clauses (a),
(d) and (h)) shall not apply to the Class C Notes. No transfer or assignment of
a Class C Note shall be registered or effective and no such Note shall be
delivered to a transferee unless the following conditions are satisfied:
(1) the transferee of such Notes shall have delivered to the
Program Manager certification in the Form of Exhibit G, with relevant
tax forms duly completed and attached, that (A) either (x) such
transferee is a United States person as defined by the
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Code or (y) all income received by such transferee with respect to
such Note will be entitled to complete exemption from the
withholding of United States federal income tax (whether the Class C
Notes are treated as debt or partnership interests in the Issuer for
U.S. federal income tax purposes) and (B) either (x) such transferee
is not for United States federal income tax purposes a partnership,
grantor trust, S corporation or other pass-through entity or (y)
such transferee was not formed for the purpose of acquiring Class C
Notes, Support Notes or Interests in the Issuer and not more than
50% of the value of a beneficial owner's interest in such transferee
will be attributable to Class C Notes, Support Notes or Interests in
the Issuer held by such transferee;
(2) the transferee shall have represented that it will
do nothing that would cause the Issuer to become a publicly-traded
partnership taxable as a corporation; and
(3) the principal amount of Class C Notes transferred or
assigned to the transferee is an integral multiple of $10,000,000.
Section 2.5. Mutilated, Defaced, Destroyed, Lost or Stolen Notes.
If (a) any mutilated or defaced Note is surrendered to a Transfer
Agent, or if there shall be delivered to the Issuers, the Trustee and the
Transfer Agent evidence to their reasonable satisfaction of the destruction,
loss or theft of any Note, and (b) there is delivered to the Issuers, the
Transfer Agent and the Trustee such security or indemnity as may reasonably be
required by them to save each of them harmless then, in the absence of notice to
the Issuers, the Trustee or such Transfer Agent that such Note has been acquired
by a bona fide purchaser, the Issuers shall execute and, upon Issuer Request,
the Trustee shall authenticate and deliver, in lieu of any such mutilated,
defaced, destroyed, lost or stolen Note, a new Note of the same Series and Class
as such mutilated, defaced, destroyed, lost or stolen Note, of like tenor
(including the same date of issuance) and equal principal amount, registered in
the same manner, dated the date of its authentication, bearing interest from the
date to which interest has been paid on the mutilated, defaced, destroyed, lost
or stolen Note and bearing a number not contemporaneously outstanding.
If, after delivery of such new Note, a bona fide purchaser of the
predecessor Note presents for payment, transfer or exchange such predecessor
Note, the Issuer, the Co-Issuer, the Note Registrar and the Trustee shall be
entitled to demand return of such new Note from the Person to whom it was
delivered or any Person taking therefrom, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expense incurred by the Issuer, the Co-Issuer, the Trustee and the Note
Registrar in connection therewith.
In case any such mutilated, defaced, destroyed, lost or stolen
Note has become due and payable, the Issuers in their discretion may, instead of
issuing a new Note, pay such Note without requiring surrender thereof except
that any mutilated Note shall be surrendered.
Upon the issuance of any new Note under this Section 2.5, the
Issuers, the Trustee or any Transfer Agent may require the payment by the
registered holder thereof of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Note issued pursuant to this Section 2.5 in lieu of any
mutilated, defaced, destroyed, lost or stolen Note, shall constitute an original
additional contractual obligation of the Issuers and such new Note shall be
entitled, subject to the second paragraph of this Section 2.5, to all the
benefits of this Indenture.
The provisions of this Section 2.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, defaced, destroyed, lost or stolen
Notes.
Section 2.6. Payment of Principal and Interest; Rights Preserved.
(a) Each Series of Class A Notes and Class B Notes shall accrue
interest during each Interest Accrual Period at the applicable Note Interest
Rate specified in Section 2.2(c), in the case of the initial Series of Class A
Notes and Class B Notes issued under this Indenture, and in the case of any
subsequent Series of Class A Notes or Class B Notes, at the applicable Note
Interest Rate specified in the Supplemental Indenture for such Series. The Class
C Notes shall accrue interest during each Interest Accrual Period at the
applicable Note Interest Rate as specified in Section 2.2. Interest on each
Class of Notes shall be due and payable on each Quarterly Payment Date
immediately following the related Interest Accrual Period; provided that (i)
payment of interest on the Class B Notes (and premium, if any) and the Class C
Notes is subordinated to the payment on each Quarterly Payment Date or on any
date following an Acceleration, of the interest (but not premium) due and
payable on the Class A Notes of each Series (together with Defaulted Interest,
if any) and may be paid only in accordance with the Priority of Payments or the
Priority of Acceleration Payments, as applicable, (ii) payment of interest on
the Class C Notes is subordinated to the payment on each Quarterly Payment Date
or on any date following an Acceleration, of the interest (but not premium) due
and payable on the Class A Notes and the interest (but not premium) due and
payable on the Class B Notes (together with Defaulted Interest, if any) and may
be paid only in accordance with the Priority of Payments or the Priority of
Acceleration Payments, as applicable, and (iii) payments of interest on all
Notes are subordinated to the payment on each Quarterly Payment Date or on any
date following an Acceleration, of other amounts senior to such payments of
interest in accordance with the Priority of Payments or the Priority of
Acceleration Payments, as applicable.
So long as any Class A Notes are Outstanding, any interest due on
the aggregate outstanding principal of the Class B Notes which is not available
to be paid as a result of the operation of the Priority of Payments on any
Quarterly Payment Date (such interest, "Class B Deferred Interest") shall not be
considered "due and payable" for the purposes of Section 5.1(a) of the Common
Agreement (and the failure to pay such interest shall not be an Event of
Default, but may constitute a Deferral Event) until the Quarterly Payment Date
on which such interest is available to be paid in accordance with the Priority
of Payments or until the first Quarterly Payment Date on or after which the
Class A Notes are no longer Outstanding. Any Class B Deferred Interest shall be
added to the aggregate principal amount of the Class B Notes and interest shall
accrue on the aggregate principal amount of Class B Notes as so increased at the
Class B Deferral Interest Rate until (and including) the Interest Accrual Period
immediately preceding the Quarterly Payment Date on which all interest due and
payable on the Class B Notes as of such Quarterly Payment Date is paid in full
(without any deferral), and thereafter,
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interest shall accrue on the aggregate principal amount of the Class B Notes at
the Class B Note Interest Rate.
So long as any Class A Notes and Class B Notes are Outstanding,
any interest due on the Class C Notes which is not available to be paid as a
result of the operation of the Priority of Payments on any Quarterly Payment
Date (such interest, the "Class C Deferred Interest") shall not be considered
"due and payable" for the purposes of Section 5.1(a) of the Common Agreement
(and the failure to pay such interest shall not be an Event of Default) until
the Quarterly Payment Date on which such interest is available to be paid in
accordance with the Priority of Payments or until the first Quarterly Payment
Date on or after which the Class A Notes and the Class B Notes are no longer
Outstanding. Any Class C Deferred Interest shall be added to the aggregate
principal of the Class C Notes and interest shall accrue on the aggregate
principal amount as so increased at the Class C Note Interest Rate. Interest
will cease to accrue on each Note, or in the case of a partial repayment or
redemption, on such part, from the date of repayment or redemption or Stated
Maturity unless payment of principal is improperly withheld or unless Default is
otherwise made with respect to such payments. To the extent lawful and
enforceable, interest on any Defaulted Interest shall accrue at the applicable
Note Interest Rate until paid as provided herein.
(b) The principal of each Class A Note shall be due and payable
no later than the Stated Maturity thereof unless the unpaid principal of such
Note becomes due and payable at an earlier date by declaration of Acceleration,
call for redemption or otherwise. The principal of each Class B Note and each
Class C Note shall be due and payable no later than the Stated Maturity thereof
unless the unpaid principal of such Note becomes due and payable at an earlier
date by declaration of Acceleration, call for redemption or otherwise; provided,
except as otherwise provided in Article 9 and the Priority of Payments, the
payment of principal of the Class B Notes and the Class C Notes may only occur
after principal of the Class A Notes has been paid in full and is subordinated
to the payment on each Quarterly Payment Date or on any date following an
Acceleration, to the principal due and payable on the Class A Notes and other
amounts in accordance with the Priority of Payments or the Priority of
Acceleration Payments, as applicable; and any payment of principal of the Class
B Notes which is not paid, in accordance with the Priority of Payments, on any
Quarterly Payment Date, shall not be considered "due and payable" for purposes
of Section 5.1(b) of the Common Agreement until the Quarterly Payment Date on
which such principal may be paid in accordance with the Priority of Payments or,
if earlier, the Quarterly Payment Date on which all of the Class A Notes have
been paid in full; provided, further, except as provided in Article 9 and the
Priority of Payments, the payment of principal of the Class C Notes may only
occur after principal of the Class A Notes and Class B Notes has been paid in
full and is subordinated to the payment of the principal and interest due and
payable on the Class A Notes and Class B Notes and other amounts in accordance
with the Priority of Payments or the Priority of Acceleration Payments, as
applicable; and any payment of principal of the Class C Notes which is not paid,
in accordance with the Priority of Payments, on any Quarterly Payment Date shall
not be considered "due and payable" for purposes of Section 5.1(b) of the Common
Agreement until the Quarterly Payment Date on which such principal may be paid
in accordance with the Priority of Payments or, if earlier, the Quarterly
Payment Date on which all of the Class A Notes and Class B Notes have been paid
in full.
(c) Subject to the provisions of Sections 2.6(a) and (b) hereof,
the Holders of Notes as of the most recent Record Date shall be entitled to the
interest accrued and principal
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payable in accordance with Section 4.1 or 4.3 (as applicable) of the Security
Agreement. All such payments that are mailed or wired and returned to the Paying
Agent shall be held for payment as herein provided at the office or agency of
the Issuers to be maintained as provided in Section 7.2.
(d) Any Paying Agent may require certification acceptable to it
to enable the Issuers, the Trustee and any Paying Agent to determine their
duties and liabilities with respect to any taxes or other charges that they may
be required to deduct or withhold from payments in respect of such Note under
any present or future law or regulation of any taxing authority or to comply
with any reporting or other requirements under any such law or regulation.
(e) Payments in respect of principal and interest on the Notes
shall be payable by a Dollar check drawn on a bank in the U.S. or by wire
transfer in immediately available funds to a Dollar account maintained by a
Noteholder in accordance with wire transfer instructions received by any Paying
Agent on or before the Record Date; provided that any such wire transfer
instructions may indicate that they are applicable to all future payments until
such Noteholder informs the Paying Agent to the contrary.
(f) Payments of principal to Holders of the Notes of each Class
shall be made in the proportion that the Outstanding Amount of the Notes of such
Class registered in the name of each such Holder on such Record Date bears to
the Outstanding Amount of all Notes of such Class on such Record Date.
(g) All reductions in the principal amount of a Note (or one or
more predecessor Notes) effected by payments of principal made on any Quarterly
Payment Date or Redemption Date shall be binding upon all future Holders of such
Note and of any Note issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, whether or not such payment is noted on
such Note.
(h) Upon final payment due on the Maturity of a Note, the Holder
thereof shall present and surrender such Note at the Corporate Trust Office of
the Trustee or at the office of any Paying Agent on or prior to such Maturity;
provided, however, that if there is delivered to the Issuers and the Trustee
such security or indemnity as may be required by them to save each of them
harmless and an undertaking thereafter to surrender such Note, then, in the
absence of notice to the Issuers or the Trustee that the applicable Note has
been acquired by a bona fide purchaser, such final payment shall be made without
presentation or surrender. In the case where any final payment of principal and
interest is to be made on any Note (other than on the Stated Maturity thereof)
the Issuers or, upon Issuer Request, the Trustee, in the name and at the expense
of the Issuers shall, not more than 30 nor less than 10 days prior to the date
on which such payment is to be made, mail to the Persons entitled thereto at
their addresses appearing on the Note Register, a notice which shall state the
date on which such payment will be made, the amount of such payment per $100,000
initial principal amount of Notes and shall specify the place where such Notes
may be presented and surrendered for such payment.
(i) Subject to the foregoing provisions of this Section 2.6 and
the provisions of Sections 2.4 and 2.5, each Note delivered under this Indenture
and upon registration of transfer of or in exchange for or in lieu of any other
Note shall carry the rights of unpaid interest and principal that were carried
by such other Note.
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(j) For so long as Class A Notes or Class B Notes are listed on
the Luxembourg Stock Exchange, the Issuers, or upon the Issuer Request, the
Trustee, in the name and at the expense of the Issuers, shall notify the
Luxembourg Stock Exchange in the event that the Class A Notes or the Class B
Notes do not receive scheduled payments of principal or interest on any
Quarterly Payment Date.
Section 2.7. Persons Deemed Owners.
The Issuers, the Trustee and any agent of any of them may treat
the Person in whose name any Note is registered as the owner of such Note on the
Note Register on the applicable Record Date for the purpose of receiving
payments of principal and interest on such Note and on any other date for all
other purposes whatsoever (whether or not such Note is overdue), and neither the
Issuers nor the Trustee nor any agent of any of them shall be affected by notice
to the contrary; provided, however, that the Depositary, or its nominee, shall
be deemed the owner of the Global Notes, and owners of beneficial interest in
Global Notes will not be considered the owners of any Notes for the purpose of
receiving notices.
Section 2.8. Cancellation.
All Notes surrendered for payment, registration of transfer,
exchange or redemption, or deemed lost or stolen, shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, shall promptly be
canceled by it and may not be reissued or resold. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section 2.8, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be destroyed or held by the Trustee in
accordance with its standard retention policy unless the Issuers shall direct by
an Issuer Order that they be returned to it. Any Notes purchased by the Issuers
(or either of them) shall be immediately delivered to the Trustee for
cancellation.
Section 2.9. New Issuances; Class C Issuances.
(a) The Issuers may from time to time issue one or more new
Series of Class A Notes and, in connection with a Class B Refinancing, issue one
or more new Series of Class B Notes, in each case in accordance with the terms
of this Indenture (each, a "New Issuance"; the date of such issuance being the
"Subsequent Closing Date"). The Issuer may from time to time issue Class C Notes
in accordance with the terms of this Indenture and the Enron Support Agreement
(each, a "Class C Issuance"; the date of any such issuance being a "Class C
Issuance Date").
(b) On or before the Subsequent Closing Date relating to any new
Series of Class A Notes or Class B Notes, the parties hereto will execute and
deliver a Supplemental Indenture which will specify the Principal Terms of such
New Issuance. The terms of such Supplemental Indenture may modify or amend the
terms of this Indenture solely as applied to such new Series; except for any
such modification or amendment relating solely to such new Series, in the event
of any inconsistency between such Supplemental Indenture and this Indenture,
this Indenture shall prevail.
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The consummation of a New Issuance, the obligation of the Trustee
to execute and deliver a Supplemental Indenture hereto, and the obligation of
the Trustee or the Authenticating Agent to authenticate any Notes in connection
with a New Issuance, are subject to the satisfaction of the following
conditions:
(1) on or before the fifteenth Business Day immediately
preceding the Subsequent Closing Date, the Issuers shall have given
the Trustee and each Rating Agency notice of such issuance and the
related Subsequent Closing Date;
(2) the Issuers shall have delivered to the Trustee the
related Supplemental Indenture, in substantially the form of Exhibit
E and otherwise reasonably satisfactory to the Trustee, executed by
the Issuers;
(3) each of the conditions set forth in Section 3.2
shall have been satisfied with respect to an issuance of Class A
Notes; and each of the conditions set forth in Section 3.3 shall
have been satisfied with respect to an issuance of Class B Notes;
(4) each of the other conditions precedent specified in
the related Supplemental Indenture shall have been satisfied;
(5) the Issuers shall have delivered to the Trustee an
Officer's certificate of each of the Issuers (i) evidencing the
authorization by Board Resolution of the Issuer, and the Co-Issuer,
of the execution and delivery of the related Supplemental Indenture,
the execution, authentication and delivery of the Notes to be issued
and the execution and delivery of each other document to be executed
and delivered by the Issuers in connection with such issuance, (ii)
specifying the Principal Terms of the Notes to be executed,
authenticated and delivered and (iii) certifying that (x) the
attached copy of such Board Resolutions is a true and complete copy
thereof, (y) such Board Resolutions have not been rescinded and are
in full force and effect and (z) the Officers authorized to execute
and deliver such documents hold the offices and have the signatures
indicated thereon;
(6) the Issuers shall have delivered to the Trustee an
Officer's certificate stating that no Event of Default has occurred
and is continuing or would result from the issuance of the Notes
proposed to be issued; the issuance of the Notes applied for will
not result in a breach of any of the terms, conditions or provisions
or, or constitute a default under the organizational documents of
the Issuer, any indenture or other agreements or instrument to which
the Issuer is a party or by which it is bound, or any order of any
court or administrative agency entered in any Proceeding to which
the Issuer is a party or by which it may be bound or to which it may
be subject; and that all conditions precedent provided in this
Indenture relating to the execution, authentication and delivery of
the Notes proposed to be issued (including in Section 3.3) have been
complied with;
(7) the Issuers shall have delivered to the Trustee an
Opinion of Counsel to the effect that neither of the Issuers will be
required, as a result of the New Issuance, to be registered as an
investment company under the Investment Company Act;
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(8) the Issuers shall have delivered to the Trustee
copies of any other instrument or document, fully executed (as
applicable), necessary to consummate and perfect the grant of a
first priority security interest in favor of the Collateral Agent
for the benefit of the Secured Parties in all of the Issuer's right,
title and interest in and to the Collateral;
(9) the Issuers shall have delivered to the Trustee an
Opinion of Counsel as regards the Lien of the Collateral Agent on
the Collateral in substantially the form of that delivered to the
Collateral Agent on the Closing Date;
(10) the Issuers shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Class A Notes and the
Class B Notes will be debt for federal income tax purposes; and
(11) pursuant to the Management Agreement, the Program
Manager shall have certified to the Issuers that procedures have
been followed to ensure that no more than 50% of the debt
obligations held by the Issuer are principally secured by real
property [within the meaning of Code section 7701(i)].
Upon satisfaction of the above conditions, (i) the Trustee or the Authenticating
Agent, as the case may be, will authenticate the relevant Notes to be issued in
connection with such New Issuance, (ii) the Trustee will execute and deliver the
related Supplemental Indenture and will take the actions and execute the
documents specified in such Supplemental Indenture to be taken or executed in
connection with such issuance and (iii) to the extent not inconsistent with this
Indenture or any Supplemental Indenture, the Trustee will take the actions and
execute the documents authorized by the Issuers in the Board Resolutions
delivered pursuant to clause (5) above to be taken or executed in connection
with such issuance.
(c) On or before the Class C Issuance Date relating to any Class
C Notes, the parties hereto will execute and deliver a Supplemental Indenture
which will specify (i) the Class C Note Interest Rate with respect to such Class
C Notes and (ii) the principal amount of such Class C Notes. The consummation of
a Class C Issuance and the obligation of the Trustee or the Authenticating Agent
to authenticate any Class C Notes in connection with a Class C Issuance, are
subject to the satisfaction of the following conditions:
(1) on or before the fifth Business Day immediately preceding the
Class C Issuance Date, the Issuer shall have given the Trustee and each
Rating Agency notice of such issuance and of each purchaser;
(2) each of the conditions set forth in Section 3.4 shall have
been satisfied; and
(3) each purchaser of any Note shall have delivered to the
Trustee certification in the form of Exhibit F, with relevant tax forms
duly completed and attached, that (A) either (x) such purchaser is a
United States Person or (y) all income to be received by such purchaser
with respect to such Note (whether the Note is treated as a partnership
interest or an indebtedness of the Issuer for United States federal
income tax purposes) will be entitled to complete exemption from the
withholding of United States federal income tax; and (B) either (x) such
purchaser is not (for United States federal income tax
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purposes) a partnership, grantor trust, S corporation or other
pass-through entity or (y) such purchaser was not formed for the
purpose of acquiring Class C Notes, Support Notes or Interests and
no more than 50% of the value of a beneficial owner's interest in
such purchaser will be attributable to any Class C Notes, Support
Notes, Interests or other profit interest in the Issuer held by such
purchaser.
Upon satisfaction of the above conditions, the Trustee or the Authenticating
Agent, as the case may be, will, authenticate the relevant Class C Notes to be
issued in connection with such Class C Issuance.
(d) The Issuer shall pay all Transaction Expenses related to each
New Issuance from the proceeds of such New Issuance by allocating and crediting
to the Operating Account, on the relevant Subsequent Closing Date, an amount
equal to such Transaction Expenses, as determined by the Program Manager on
behalf of the Issuer, and apply the amounts so credited to the Operating Account
for payment of such expenses as they become due.
Section 2.10 Temporary Notes.
Pending preparation of definitive Notes, the Issuers may issue,
and, upon its written request, the Trustee shall authenticate, in lieu of
definitive Notes, one or more temporary printed or typewritten Notes in the form
recited in this Indenture, in any Authorized Denomination. Upon written request
of the Issuers, the Trustee shall authenticate definitive Notes in exchange for
and upon surrender of an equal principal amount of temporary Notes. Until so
exchanged, temporary Notes shall have the same rights, remedies and security
hereunder as definitive Notes.
Section 2.11. Parity of Notes within each Class; Ranking.
All Notes of a Class issued and Outstanding hereunder rank on a
parity with each other Note of such Class, and each Note shall be secured
equally and ratably by the Security Agreement with each other Note of such
Class, without preference, priority or distinction of any one thereof over any
other by reason of difference in time of issuance or otherwise, and each Note of
a Class shall be entitled to the same benefits and security in this Indenture
and the Security Agreement as each other Note of such Class.
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.1. Conditions to the Issuance of Notes on the Closing Date.
The Notes to be issued on the Closing Date may be executed by the
Issuers and delivered to the Trustee for authentication and thereupon the same
shall be authenticated and delivered by the Trustee (or an Authenticating Agent
on its behalf) upon Issuer Request, upon satisfaction of the conditions
precedent set forth in Article 8 of the Common Agreement.
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Section 3.2. Conditions to the Issuance of Class A Notes After the Closing
Date.
The issuance of any Series of Class A Notes on a Subsequent
Closing Date shall be subject to the satisfaction of the following conditions:
(i) the additional Class A Notes will have the same Stated
Maturity and the same terms, other than interest rate, as the Initial
Class A Notes;
(ii) after giving effect to any application of the proceeds
of such issuance, the sum of aggregate outstanding principal balance
of the Class A Notes and Class B Notes and the aggregate principal
amount of advances Allocated plus amounts drawn under the Backup
Facility does not exceed the Maximum Class A Principal Amount;
(iii) if such Class A Notes are issued after the Investment
Termination Date, the proceeds of such issuance shall be applied (A)
to reduce amounts Allocated or (B) to repay amounts drawn, under the
Backup Facility or (C) to redeem in accordance with Article 10 of the
Common Agreement all or a portion of Class A Notes, Class B Notes or
Class C Notes issued and outstanding,
(iv) the Liquidity Test is satisfied on such date,
(v) unless the proceeds of such issuance are used to reduce
amounts Allocated, or to repay amounts drawn, under the Backup
Facility, the Rating Condition and the Credit Support Tests are
satisfied on such date (after taking into account such issuance), and
(vi) no Default has occurred and is continuing on such date.
Section 3.3. Conditions to the Issuance of Class B Notes After the Closing
Date.
The issuance of any Class B Notes on any Quarterly Payment Date
on or after the fifth anniversary of the Closing Date in connection with a Class
B Refinancing shall be subject to the satisfaction of the following conditions:
(i) no Default has occurred and is continuing on such date;
and
(ii) the Rating Condition is satisfied after giving effect
to such Class B Refinancing.
Section 3.4. Conditions to the Issuance of Class C Notes After Closing Date.
The issuance of any Class C Notes on a date after the Closing
Date shall be subject to the satisfaction of the conditions set forth in the
Enron Support Agreement.
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ARTICLE 4
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and shall cease to be of
further effect with respect to the Notes except as to (i) rights of registration
of transfer and exchange, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Notes, (iii) rights of Noteholders to receive payments of
principal thereof and interest thereon as provided herein, (iv) the rights,
obligations and immunities of the Trustee hereunder and (v) the rights of
Noteholders as beneficiaries hereof with respect to the property deposited with
the Trustee and payable to all or any of them; and the Trustee, on demand of and
at the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(a) either:
(i) all Notes theretofore authenticated and delivered
(other than (A) Notes which have been mutilated, defaced, destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 2.5 and (B) Notes for whose payment Money has theretofore
irrevocably been deposited in trust and thereafter repaid to the Issuer
or discharged from such trust, as provided in Section 7.3) have been
delivered to the Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the Trustee
for cancellation (A) have become due and payable, or (B) will become
due and payable at their Stated Maturity within one year, or (C) are to
be called for redemption pursuant to Section 9.1 under an arrangement
satisfactory to the Trustee for the giving of notice of redemption by
the Issuers pursuant to Section 9.3 and the Issuer has irrevocably
deposited or caused to be deposited with the Trustee, in trust for such
purpose, Cash or noncallable direct obligations of the United States of
America, provided that such obligations are entitled to the full faith
and credit of the United States of America or are debt obligations
which are rated not less than "Aaa" by Moody's and not less than "AAA"
by Standard & Poor's in an amount sufficient, as verified by a firm of
Independent certified public accountants which are nationally
recognized, to pay and discharge the entire indebtedness on such Notes,
including any Premium, not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit
(in the case of Notes which have become due and payable), or to the
Stated Maturity or the Redemption Date, as the case may be; provided
that this subsection (ii) shall not apply if an election to act in
accordance with the provisions of Section 5.2 of the Security Agreement
shall have been made and not rescinded;
(b) the Issuers have paid or caused to be paid all other sums
payable hereunder and no other amounts will become due and payable by the Issuer
and under the other Financing Documents; and
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(c) the Issuers have delivered to the Trustee Officer's
certificates and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the rights and obligations of the Issuers, the Trustee, the Program Manager and,
if applicable, the Noteholders, as the case may be, under Sections 2.6, 4.2,
5.7, 5.15, 6.7, 6.8, 7.1 and 7.3 and Article 12 shall survive.
Section 4.2. Application of Trust Money.
All property deposited with the Trustee pursuant to this Article
4, including but not limited to money and U.S. Government Obligations deposited
pursuant to Section 4.5 hereof, held in trust and applied by it in accordance
with the provisions of the Notes and this Indenture, including, without
limitation, the Priority of Payments and the Priority of Acceleration Payments,
for the payment either directly or through any Paying Agent, as the Trustee may
determine, to the Person entitled thereto of the respective amounts in respect
of which such property has been deposited with the Trustee; but such property
need not be segregated from other funds except to the extent required herein or
required by law.
Section 4.3. Repayment of Monies Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture with respect to the Notes, all Monies then held by any Paying Agent
other than the Trustee under the provisions of this Indenture shall, upon demand
of the Issuers, be paid to the Trustee to be held and applied pursuant to
Section 7.3 and in accordance with the Priority of Payments or the Priority of
Acceleration Payments, as applicable (and as applicable to the Trustee and
Holders) and thereupon such Paying Agent shall be released from all further
liability with respect to such Monies.
Section 4.4. Defeasance of Notes.
(a) Subject to the provisions of Sections 4.4(b), 4.5 and 4.7
below, the Issuers at any time may terminate (i) all their obligations under
this Indenture and the Notes (a "Legal Defeasance") or (ii) their obligations
under any of its covenants, other than under Section 7.2 hereof and their
obligation to make payments on the Notes pursuant to Section 2.6 hereof (a
"Covenant Defeasance"). With respect to any Covenant Defeasance, except as
specified in clause (ii) of the preceding sentence, the remainder of this
Indenture and the Notes shall be unaffected thereby. The Issuers may exercise a
Legal Defeasance notwithstanding the prior exercise of a Covenant Defeasance. If
the Issuers exercise a Legal Defeasance, payment of the Notes may not be
accelerated due to an Event of Default. Upon satisfaction of the conditions set
forth herein and on demand of the Issuers, the Trustee (x) shall acknowledge in
writing the discharge of the obligations terminated by the Issuers, (y) shall
execute documents and deliver such instruments in writing as shall be required
to reconvey, release, assign and deliver to the Issuers any and all of the
Trustee's interest in the Collateral, the right, title and interest in and to
any and all rights conveyed, assigned or pledged to the Trustee or otherwise
subject to this Indenture and (z) shall turn over to the Issuers or to any such
person, body or authority as may be entitled to receive the same all balances
then held by it hereunder. Covenant Defeasance, as
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effected hereby, means that the Issuers may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth under any
of the covenants in this Indenture except as set forth hereinabove, whether
directly or indirectly by reason of any reference elsewhere herein to any such
covenant or to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 5.1 of
the Common Agreement.
(b) Notwithstanding Section 4.4(a) above, the obligations of the
Issuers pursuant to Sections 2.4, 2.5, 2.6, Articles 4 and 6 hereof and Section
1.22 of the Common Agreement shall survive until the Notes have been paid in
full.
Section 4.5. Conditions to Defeasance. Either the Legal Defeasance or the
Covenant Defeasance may be exercised by the Issuers only if:
(a) The Issuers shall have irrevocably deposited in trust with
the Trustee (i) Cash in an amount which, when added to any other moneys held by
the Trustee and available for such payment, would be sufficient to pay (A) the
principal of and interest on, all Notes issued hereunder and under any
Supplemental Indenture when due, whether on any Quarterly Payment Date or upon
redemption, Acceleration, or otherwise and (B) all other sums payable hereunder
and under any Supplemental Indenture, (ii) U.S. Government Obligations, (iii)
securities evidencing ownership interest in obligations or in specified portions
thereof (which shall consist of specified portions of the principal of or
interest on such obligations) of the character described in clause (ii) above
sufficient to make all of the payments specified in clause (i) above or (iv) any
combination of such Cash and such obligations (the "Obligations") specified in
(ii) or (iii) above when due, are or will be sufficient to make all the payments
specified in clause (i) above, and such deposit shall not cause the Trustee to
have a conflicting interest as defined in and for the purposes of the Trust
Indenture Act;
(b) The Issuers shall have delivered to the Trustee a certificate
from a nationally recognized firm of Independent accountants expressing their
opinion that the deposited Cash and/or the Obligations without any reinvestment
thereof will provide Cash at such times and in such amounts as will be
sufficient to pay principal of and interest on, all Outstanding Notes when due,
whether on any Quarterly Payment Date or upon redemption, Acceleration, or
otherwise;
(c) The Issuers shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) all preference periods applicable to the
defeasance trust have expired under any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally, (ii) the
defeasance trust resulting from the deposit does not constitute, or is qualified
as, a regulated investment company under the U.S. Investment Company Act of
1940, as amended and (iii) the Holders shall have a perfected security interest
under applicable law in the Obligations so deposited;
(d) No Event of Default shall have occurred and be continuing on
the date of such deposit or insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the 123rd
day after the date of deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
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(e) Such Legal Defeasance or Covenant Defeasance, as the case may
be, shall not result in a breach or violation of or constitute a Default under
this Indenture, or any other material agreement or instrument to which either
the Issuer or the Co-Issuer is a party or by which the Issuer or the Co-Issuer
is bound;
(f) In the case of a Legal Defeasance or a Covenant Defeasance,
as the case may be, the Issuers shall have delivered to the Trustee an Opinion
of Counsel confirming that (i) the Issuers have received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the date of
this Indenture there has been a change in the applicable United States Federal
income tax law, in case of either clause (i) or (ii) above to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders will
not recognize income, gain or loss for United States federal income tax purposes
as a result of such Legal Defeasance or Covenant Defeasance and will be subject
to United States federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance or
Covenant Defeasance had not occurred; and
(g) The Issuers shall have delivered to the Trustee an Officer's
Certificate and Opinion of Counsel, each stating that all conditions precedent
provided for relating to either the Legal Defeasance or the Covenant Defeasance,
as the case may be, have been complied with.
Neither the Obligations nor moneys deposited with the Trustee
pursuant to this section shall be substituted, withdrawn, reinvested or used for
any purpose other than, and shall be segregated and held in trust for, the
payment of the principal of and interest on the Notes.
Section 4.6. Indemnification for U.S. Government Obligations.
The Issuers shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 4.5 hereof or the principal and
interest received on such U.S. Government Obligations.
Section 4.7. Reinstatement
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 4.5 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuers'
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 4.5 hereof, until such
time as the Trustee or Paying Agent is permitted to apply all such Cash or U.S.
Government Obligations in accordance with Section 4.5 hereof; provided, however,
that, if the Issuer has made any payment of interest or principal on the Notes
because of the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the Noteholders to receive such payment from Cash or U.S.
Government Obligations held by the Trustee or Paying Agent.
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ARTICLE 5
EVENTS OF DEFAULT; REMEDIES
Section 5.1. Events of Default.
(a) If an Event of Default (as set forth in the Common Agreement)
has occurred and is continuing (other than an Event of Default specified in
paragraphs (h) or (i) of Section 5.1 of the Common Agreement), then, subject to
Article 3 of the Intercreditor Agreement, (i) the Trustee by notice to the
Issuers or (ii) the Holders of not less than (A) 25% of the Controlling Class in
the case of an Event of Default specified in paragraphs (a) or (b) of Section
5.1 of the Common Agreement and (B) 33% of the Controlling Class in all other
cases, by notice to the Issuers and the Trustee, may (A) declare the principal
of all the Notes to be immediately due and payable, and upon any such
declaration such principal, together with all accrued and unpaid interest
thereon, and other amounts payable hereunder, shall become immediately due and
payable and (B) terminate the Investment Period. If an Event of Default
specified in paragraphs (h) or (i) of Section 5.1 of the Common Agreement
occurs, (A) all unpaid principal, together with all accrued and unpaid interest
thereon, of all the Notes, and other amounts payable hereunder, shall
automatically become due and payable without any declaration or other act on the
part of the Trustee or any Noteholder and (B) the Investment Period shall
terminate.
(b) At any time after an Acceleration has been declared and
before a judgment or decree for payment of the Money due has been obtained by
the Trustee as hereinafter provided in this Article 5, 25% of the Controlling
Class, by written notice to the Issuers and the Trustee, may rescind and annul
such declaration and its consequences if:
(i) the Issuer or the Co-Issuer has paid or deposited with
the Trustee an amount sufficient to pay:
(A) all overdue installments of interest on and principal
of the Notes, and
(B) all unpaid expenses and unpaid taxes of the Trustee and
all other sums paid or advanced by the Trustee hereunder and the
reasonable compensation, disbursements and advances of the
Trustee, its agents and its counsel; and
(ii) the Trustee has determined that all Events of Default,
other than the nonpayment of the interest on or principal of Notes
that have become due solely as a result of such Acceleration, have
been cured and a Majority of the Controlling Class by written notice
to the Trustee has agreed with such determination (which agreement
shall not be unreasonably withheld) or waived as provided in Section
5.12.
No such rescission shall affect any subsequent Default or impair
any right consequent thereon.
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Section 5.2. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuers covenant that if a Default shall occur in respect of
the payment of any principal of or interest or other amounts owing on any Note
to the extent then due and payable pursuant to the terms hereof and the Priority
of Payments or the Priority of Acceleration Payments, as applicable, the Issuers
will, upon demand of the Trustee or any affected Noteholder, pay to the Trustee,
for the benefit of the Holder of such Note, the whole amount, if any, then due
and payable on such Note for principal and interest, with interest upon the
overdue principal and, to the extent that payments of such interest shall be
legally enforceable, upon overdue installments of interest, at the applicable
Note Interest Rate and, in addition thereto, 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 and
such Noteholder and their respective agents and counsel.
If the Issuer or the Co-Issuer fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may, subject to the Intercreditor Agreement, institute a
Proceeding for the collection of the sums so due and unpaid, and may, and shall,
upon the direction by a Majority of the Controlling Class, prosecute such
Proceeding to judgment or final decree, and may enforce the same against the
Issuers or any other obligor upon the Notes and collect the Monies adjudged or
decreed to be payable in the manner provided by law out of the Collateral or
other property of the Issuers.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion, but subject to the Intercreditor Agreement, proceed to
protect and enforce its rights and the rights of the Noteholders by such
appropriate Proceedings as the Trustee shall deem most effectual (if no
direction by a Majority of the Controlling Class is received by the Trustee) or
as the Trustee may be directed by a Majority of the Controlling Class, to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or any other Financing Document or in
aid of the exercise of any power granted herein or therein, or to enforce any
other proper remedy or legal or equitable right vested in the Trustee by this
Indenture, by any other Financing Document or by law.
In case there shall be pending Proceedings relative to the Issuer
or the Co-Issuer or any other obligor upon the Notes under the Bankruptcy Code
or any other applicable bankruptcy, insolvency or other similar law, or in case
a receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer, the Co-Issuer or such other obligor or its property,
or in case of any other comparable Proceedings relative to the Issuer, the
Co-Issuer or such other obligor upon the Notes, or the creditors or property of
the Issuer, the Co-Issuer or such other obligor, the Trustee, regardless of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and regardless of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 5.2, shall
be entitled and empowered, by intervention in such Proceedings or otherwise, to
take any and all actions authorized under the Trust Indenture Act. In
particular, the Trustee shall be authorized:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the Notes
upon direction by the Holders of
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such Notes, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee) and of the Noteholders allowed in any Proceedings relative
to the Issuer, the Co-Issuer or other obligor upon the Notes or to the creditors
or property of the Issuer, the Co-Issuer or such other obligor;
(b) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of the Notes, upon the direction of such Holders, in
any election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency Proceedings or person performing
similar functions in comparable Proceedings; and
(c) to collect and receive any Monies or other property payable
to or deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Noteholders and of the Trustee on behalf of
the Noteholders and the Trustee; and any trustee, receiver or liquidator,
custodian or other similar official is hereby authorized by each of the
Noteholders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the Noteholders, to pay to
the Trustee such amounts as shall be sufficient to cover reasonable compensation
to the Trustee, each predecessor Trustee and their respective agents, attorneys
and counsel, and all other reasonable expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Noteholder, any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such Proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any action or Proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the reasonable expenses,
disbursements and compensation of the Trustee, each predecessor Trustee and
their respective agents and attorneys and counsel, shall be for the ratable
benefit of the Holders of the Notes of each Class payable to the Holders in
accordance with the Priority of Payments or the Priority of Acceleration
Payments, as applicable.
In any Proceedings brought by the Trustee on behalf of the
Holders, the Trustee shall be held to represent all the Holders of the Notes.
Section 5.3. Remedies.
If an Event of Default shall have occurred and be continuing, and
the Notes have been declared due and payable and such declaration and its
consequences have not been
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rescinded and annulled, the Trustee, on behalf of the Noteholders, shall have
the rights provided thereto under the Security Agreement which rights will be
enforced by the Collateral Agent on behalf of all the Secured Parties in
accordance with the terms of the Security Agreement and subject to the
Intercreditor Agreement.
Section 5.4. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any Proceeding relating thereto, and any
such Proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall be applied as
set forth in Section 5.5.
Section 5.5. Application of Money Collected.
Any Money collected by the Trustee with respect to the Notes
pursuant to this Article 5 and any Money that may then be held or thereafter
received by the Trustee with respect to the Notes hereunder shall be applied,
subject to Section 12.1 hereof, Section 4.3 of the Security Agreement and
Section 3.1 of the Intercreditor Agreement, at the date or dates fixed by the
Trustee.
Section 5.6. Limitation on Suits.
Subject to Section 5.16, no Holder of any Note shall have any
right to institute any Proceedings, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written
notice of an Event of Default;
(b) except as otherwise provided in Section 5.7, a Majority of
the Controlling Class shall have made written request to the Trustee to
institute Proceedings in respect of such Event of Default in its own name as
Trustee hereunder and such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(c) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such Proceeding; and
(d) no direction inconsistent with such written request has been
given to the Trustee during such 30-day period by a Majority of the Controlling
Class;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes of the same Class or to obtain or to seek to obtain priority or
preference over any other Holders of the Notes of the same Class or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Notes of the same Class subject
to and in accordance
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with Section 12.1 of the Security Agreement, and the Priority of Payments or
Priority of Acceleration Payments, as applicable.
Section 5.7. Unconditional Rights of Noteholders to Receive Principal and
Interest.
(a) Notwithstanding any other provision in this Indenture but
subject to the terms of the Intercreditor Agreement, the Holder of any Class A
Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest and other amounts owing on such Note as
such principal, interest and other amounts become due and payable and, subject
to the provisions of Section 5.6, to institute proceedings for the enforcement
of any such payment, and such right shall not be impaired without the consent of
such Holder.
(b) Notwithstanding any other provision in this Indenture but
subject to the terms of the Intercreditor Agreement, the Holder of any Class B
Note or Class C Note shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest and other amounts owing on
such Class B Note or to receive payment of the principal of and interest and
other amounts owing on such Class C Note, as the case may be, as such principal
and/or interest become due and payable in accordance with Section 12.1, and the
Priority of Payments or the Priority of Acceleration Payments, as applicable.
Holders of Class B Notes shall have no right to institute proceedings for the
enforcement of any such payment until such time as no Class A Note remains
Outstanding, which right shall be subject to the provisions of Section 5.6 and
shall not be impaired without the consent of any such Holder. Holders of Class C
Notes shall have no right to institute proceedings for the enforcement of any
such payment until such time as no Class A Note or Class B Note remains
Outstanding, which right shall be subject to the provisions of Section 5.6, and
shall not be impaired without the consent of any such Holder.
Section 5.8. Restoration of Rights and Remedies.
If the Trustee or any Noteholder 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 Noteholder, then and in every such case the Issuers, the
Trustee and the Noteholder shall, 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
Noteholders shall continue as though no such Proceeding had been instituted.
Section 5.9. Rights and Remedies Cumulative.
Except as otherwise expressly provided in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing by law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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Section 5.10. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Noteholder to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article 5 or by law
to the Trustee or to the Noteholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Noteholders, as the
case may be.
Section 5.11. Control by Noteholders.
Notwithstanding any other provision of this Indenture, but
subject to the terms of the Intercreditor Agreement, a Majority of the
Controlling Class shall have the right to cause the institution of and direct
the time, method and place of conducting any Proceeding for any remedy available
to the Trustee for exercising any trust, right, remedy or power conferred on the
Trustee; provided that:
(a) such direction shall not conflict with any rule of law or
with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction; provided that, subject to
Section 6.1, the Trustee need not take any action that it determines might
involve it in liability (unless the Trustee has received satisfactory indemnity
against such liability as set forth below); and
(c) the Trustee shall have been provided with indemnity
satisfactory to it.
Section 5.12. Waiver of Past Defaults.
Subject to the Intercreditor Agreement, prior to the time a
judgment or decree for payment of the Money due has been obtained by the
Trustee, as provided in this Article 5, a Majority of the Controlling Class may
on behalf of the Holders of all the Notes waive any past Default and its
consequences, except a Default:
(a) in the payment of the principal of and Premium on any Note or
in the payment of interest on the Class A Notes or, after the Class A Notes have
been paid in full, the Class B Notes or, after the Class B Notes have been paid
in full, the Class C Notes; or
(b) in respect of a covenant or provision hereof that under
Section 8.2 cannot be modified or amended without the waiver or consent of the
Holder of each Outstanding Note affected thereby; or
(c) arising under Section 5.1(h) or 5.1(i) of the Common
Agreement.
In the case of any such waiver, the Issuers, the Trustee and the
Holders of the Notes shall be restored to their former positions and rights
hereunder, respectively, but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
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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, but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Section 5.13. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note
by its acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, as provided in
the Trust Indenture Act; provided that neither the provisions of this Section
5.13 nor the Trust Indenture Act shall apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than 10% in aggregate Outstanding Amount of the
Controlling Class, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of or interest or other amounts
owing on any Note on or after the Stated Maturity expressed in such Note (or, in
the case of redemption, on or after the applicable Redemption Date).
Section 5.14. Waiver of Stay or Extension Laws.
The Issuers covenant (to the extent that they may lawfully do so)
that they will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants, the performance of or any remedies under this Indenture; and the
Issuers (to the extent that they may lawfully do so) hereby expressly waive all
benefit or advantage of any such law, and covenant that they will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 5.15. Action on the Notes.
(a) The Trustee's right to seek and recover judgment on the Notes
or under this Indenture shall not be affected by the seeking or obtaining of or
application for any other relief under or with respect to this Indenture. None
of the rights or remedies of the Trustee or the Noteholders shall be impaired by
the recovery of any judgment by the Trustee against the Issuer or the Co-Issuer
or by the levy of any execution under such judgment upon any portion of the
Collateral or upon any of the assets of the Issuer or the Co-Issuer.
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(b) The Trustee is authorized to take all of the other actions
that it is permitted to take under any other Financing Document.
Section 5.16. Inconsistency with Common Agreement, Intercreditor Agreement and
Security Agreement.
Each Holder of a Note acknowledges that the Trustee has entered
into the Common Agreement and the Intercreditor Agreement on behalf of the
Holders of the Notes and all future Holders of the Notes. Notwithstanding
anything to the contrary expressed or implied herein, all rights, powers and
remedies available to the Trustee and the Holders of the Notes, and all future
Holders of the Notes, shall be subject to the Common Agreement, the
Intercreditor Agreement and the Security Agreement. In the event of any conflict
or inconsistency between the terms and provisions of this Indenture, the Common
Agreement, the Intercreditor Agreement and the Security Agreement, the terms of
the Common Agreement, the Intercreditor Agreement and the Security Agreement
shall govern and control.
Section 5.17. Actions to be taken by the Trustee under Intercreditor Agreement.
Notwithstanding any other provision contained herein to the
contrary, in the event that any consent, approval, waiver or other direction of
the Representatives, the Lenders or the Required Lenders is sought by the
Collateral Agent pursuant to the Intercreditor Agreement and the matter with
respect to which such consent, approval, waiver or direction is sought is a
matter that the Trustee is entitled to vote on under the Intercreditor
Agreement, the Trustee, promptly upon the receipt of notice from the Collateral
Agent describing the action to be voted on in accordance with the Intercreditor
Agreement, shall promptly notify the Noteholders thereof and of the Decision
Period (as defined in the Intercreditor Agreement) so as to allow the
Noteholders to direct the Trustee in accordance with Section 13.2 as to votes to
be cast by the Trustee in respect of such matter. The Trustee shall vote only in
accordance with instructions issued by the Noteholders at such meeting.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and in any other
Trustee Document, and no implied covenants or obligations shall be read
into this Indenture or any other Trustee Document 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
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this Indenture or any other Trustee Document; provided that in the case
of any such certificates or opinions which by any provision hereof or of
any other Trustee Document are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they substantially conform to the requirements
of this Indenture or such other Trustee Document and shall promptly, but
in any event within three Business Days in the case of an Officer's
certificate furnished by the Issuer and/or the Co-Issuer, notify the
party delivering the same if such certificate or opinion does not
conform. If a corrected form shall not have been delivered to the
Trustee within 15 days after such notice from the Trustee, the Trustee
shall so notify the Noteholders.
(b) In case an Event of Default known to the Trustee has occurred
and is continuing, the Trustee shall, prior to the receipt of directions, if
any, from 25% of the Controlling Class in the case of an Event of Default
specified in Sections 5.1(a) or 5.1(b) of the Common Agreement and 33% of the
Controlling Class in all other cases, exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(c) No provision of this Indenture or of any other Trustee
Document shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it shall be
proven that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Issuer, the Co-Issuer or the
Program Manager in accordance with this Indenture, or exercising any
trust or power conferred upon the Trustee, under this Indenture or any
other Financing Document;
(iv) no provision of this Indenture or any other Trustee
Document shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder or thereunder, or in the exercise of any of its rights
or powers contemplated hereunder or thereunder, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it (if the amount of such funds or risk or liability does not
exceed the amount payable to the Trustee pursuant to Article 4 of the
Security Agreement, the Trustee shall be deemed to be reasonably assured
of such repayment) unless such risk or liability relates to performance
of its ordinary services, including under Article 5, under this
Indenture or any other Trustee Document; and
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(v) the Trustee shall not be liable to the Noteholders
for any action taken or omitted by it at the direction of the Issuers,
the Program Manager and/or the Controlling Class under circumstances
in which such direction is required or permitted by the terms of this
Indenture or any other Trustee Document.
(d) For all purposes under this Indenture and each other Trustee
Document, the Trustee shall not be deemed to have notice or knowledge of any
Default unrelated to payment on the Notes unless a Trust Officer assigned to and
working in the Corporate Trust Office has actual knowledge thereof or unless
written notice of any event which is in fact such a Default is received by the
Trustee at the Corporate Trust Office and such notice references the Notes
generally, the Issuers or this Indenture. For purposes of determining the
Trustee's responsibility and liability hereunder, whenever reference is made in
this Indenture or any other Trustee Document to such a Default, such reference
shall be construed to refer only to such a Default of which the Trustee is
deemed to have notice as described in this Section 6.1.
(e) Whether or not therein expressly so provided, every provision
of this Indenture or any other Trustee Document relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.1.
Section 6.2. Notice of Default.
Promptly (and in no event later than two Business Days) after the
occurrence of any Event of Default known to the Trustee or after any declaration
of Acceleration has been made or delivered to the Trustee pursuant to the
Intercreditor Agreement, the Trustee, in accordance with the requirements under
the Trust Indenture Act, shall mail to all Holders of Notes, as their names and
addresses appear on the Note Register, and each Rating Agency, notice of all
Events of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
In addition, for so long as the Class A Notes or the Class B
Notes are listed on the Luxembourg Stock Exchange and so long as the rules of
such stock exchange so require, such notices to the Holders of such Class A
Notes and Class B Notes shall also be given by publication in an Authorized
Newspaper.
Section 6.3. Certain Rights of Trustee.
Except as otherwise provided in Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, note or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Issuer or the Co-Issuer
mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer
Order, as the case may be;
(c) whenever in the administration of this Indenture or any other
Trustee Document the Trustee shall deem it desirable that a matter be proved or
established prior to
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taking, suffering or omitting any action hereunder or thereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's certificate;
(d) as a condition to the taking or omitting of any action by it
hereunder or under any other Trustee Document, the Trustee may consult with
counsel and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise or to
honor any of the rights or powers vested in it by this Indenture or any other
Trustee Document at the request or direction of any of the Noteholders pursuant
to this Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might reasonably be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, note or
other paper documents, but the Trustee, in its discretion, may and, upon the
written direction of a Majority of the Controlling Class shall make such further
inquiry or investigation into such facts or matters as it may see fit or as it
shall be directed, and, the Trustee shall be entitled, on reasonable prior
notice to the Issuers and the Program Manager, to examine the books and records
of the Issuers and the Program Manager relating to the Notes, personally or by
agent or attorney at a time acceptable to the Issuers or the Program Manager in
their reasonable judgment during normal business hours; provided that the
Trustee shall, and shall cause its agents, to hold in confidence all such
information, except (i) to the extent disclosure may be required by law by any
regulatory authority and (ii) to the extent that the Trustee, in its sole
judgment, may determine that such disclosure is consistent with its obligations
hereunder;
(g) the Trustee may execute any of the trusts or powers hereunder
or under any other Trustee Document or perform any duties hereunder or
thereunder either directly or by or through agents or attorneys; provided that
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent (other than any Affiliate of the Trustee) appointed and
supervised, or attorney appointed, with due care by it hereunder or thereunder;
(h) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it reasonably and, after the occurrence and
during the continuance of an Event of Default, prudently believes to be
authorized or within its rights or powers hereunder;
(i) nothing herein shall be construed to imply an obligation on
the part of the Trustee to recalculate, evaluate or verify any report,
certificate or information received from the Issuer, the Co-Issuer or the
Program Manager (unless and except to the extent expressly required hereby); and
(j) the Trustee shall not be responsible or liable for any
inaccuracies in the records of any Custodian, Clearing Agency, Euroclear, Cedel
or other Securities Intermediary, or for the actions or omissions of any such
Person.
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Section 6.4. Authenticating Agents.
Upon the request of the Issuers, the Trustee shall, and if the
Trustee so chooses the Trustee may, appoint one or more Authenticating Agents
with power to act on its behalf and subject to its direction in the
authentication of Notes in connection with issuance, transfers and exchanges
under Sections 2.3, 2.4, 2.5 and 8.6, as fully to all intents and purposes as
though each such Authenticating Agent had been expressly authorized by those
Sections to authenticate such Notes. For all purposes of this Indenture, the
authentication of Notes by an Authenticating Agent pursuant to this Section 6.4
shall be deemed to be the authentication of Notes "by the Trustee".
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, without the execution or filing of any further act on the part of the
parties hereto or such Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and the Issuers. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and the Issuers. Upon receiving such
notice of resignation or upon such a termination, the Trustee shall promptly
appoint a successor Authenticating Agent and shall give written notice of such
appointment to the Issuers.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services, and reimbursement for its
reasonable expenses relating thereto and the Trustee shall be entitled to be
reimbursed for such payments, subject to Section 6.8. The provisions of Sections
2.8, 6.5 and 6.6 shall be applicable to any Authenticating Agent.
Section 6.5. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, other than the
Certificate of Authentication thereon, shall be taken as the statements of the
Issuers, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture (except as may be made with respect to the validity of the Trustee's
obligations hereunder), of the Collateral or of the Notes or of any other
Financing Document. The Trustee shall not be accountable for the use or
application by the Issuers of the Notes or the proceeds thereof or any Money
paid to the Issuers pursuant to the provisions hereof or of any other Financing
Document.
Section 6.6. May Hold Notes.
The Trustee, any Paying Agent, Note Registrar or any other agent
of the Issuers, in its individual or any other capacity, may become the owner or
pledgee of Notes and, may
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otherwise deal with the Issuers or any of their Affiliates, with the same rights
it would have if it were not Trustee, Paying Agent, Note Registrar or such other
agent.
Section 6.7. Money Held in Trust.
Money held by the Trustee hereunder shall be held in trust to the
extent required herein. The Trustee shall be under no liability for interest on
any Money received by it hereunder except as otherwise agreed upon with the
Issuers and except to the extent of income or other gain on investments which
are deposits in or certificates of deposit of the Trustee in its commercial
capacity and income or other gain actually received by the Trustee on Permitted
Investments.
Section 6.8. Compensation and Reimbursement.
(a) The Issuer agrees to pay the Trustee, on each Quarterly
Payment Date, reasonable compensation for all services rendered by it hereunder
and to reimburse and indemnify the Trustee in a timely manner as set forth in
Sections 1.21 and 1.22 of the Common Agreement.
(b) The Issuer shall cause the Collateral Agent to remit payment
for such fees and expenses to the Trustee in accordance with the Priority of
Payments or the Priority of Acceleration Payments, as applicable.
(c) The Trustee hereby agrees not to cause the filing of a
petition in bankruptcy against the Issuer or the Co-Issuer for the non-payment
to the Trustee of any amounts provided by this Section 6.8 until at least one
year and one day, or if longer the applicable preference period then in effect,
after the payment in full of all Notes issued under this Indenture.
(d) The amounts payable to the Trustee pursuant to Section 6.8(a)
shall be payable on any Quarterly Payment Date as provided in Section 4.1 of the
Security Agreement, and the Trustee shall have a Lien ranking senior to that of
the Noteholders upon all property and funds held or collected as part of the
Collateral (including funds deposited in the Note Payment Account) to secure
payment of amounts payable to the Trustee under this Section 6.8 not to exceed
such amount with respect to any Quarterly Payment Date; provided that the
Trustee shall not institute any proceeding for enforcement of such Lien except
in connection with an action pursuant to Section 5.3.
Fees applicable to periods shorter than a calendar quarter shall
be prorated based on the number of days within such period. The Trustee shall
receive amounts pursuant to this Section 6.8 and Section 4.1 of the Security
Agreement only to the extent that the payment thereof will not result in an
Event of Default and the failure to pay such amounts to the Trustee will not, by
itself, constitute an Event of Default. Subject to Section 6.11, the Trustee
shall continue to serve as Trustee under this Indenture notwithstanding the fact
that the Trustee shall not have received amounts due it hereunder. No direction
by a Majority of the Controlling Class shall affect the right of the Trustee to
collect amounts owed to it under this Indenture.
If on any date when a fee shall be payable to the Trustee
pursuant to this Indenture insufficient funds are available for the payment
thereof, any portion of a fee not so paid shall be
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deferred and payable on such later date on which a fee shall be payable and
sufficient funds are available therefor.
Section 6.9. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 6.10. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such, has
a combined capital and surplus of at least $[200,000,000], has long-term debt
rated at least "[A2]" by Moody's and "[A]" by Standard & Poor's and has an
office within the United States. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 6.10, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.10, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article 6.
Section 6.11. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.12.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuers, the Noteholders, the Program Manager and each Rating
Agency. Upon receiving such notice of resignation, the Issuers shall promptly
appoint a successor trustee or trustees by written instrument, in duplicate,
executed by an Authorized Officer of the Issuer, and an authorized Officer of
the Co-Issuer, one copy of which shall be delivered to the Trustee so resigning
and one copy to the successor trustee or trustees, together with a copy to each
Noteholder and the Program Manager; provided that such successor Trustee shall
be appointed only upon the written consent of a Majority of the Controlling
Class. If no successor trustee shall have been appointed and an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 90 days after the giving of such notice of resignation, the resigning
Trustee, or any Noteholder, on behalf of itself and all others similarly
situated, may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(c) The Trustee may be removed at any time by the Issuer or by a
Majority of the Controlling Class by an instrument delivered to the Trustee at
any time with or without cause.
(d) If at any time:
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(i) the Trustee shall fail to comply with Section 6.10
after written request therefor by the Issuer or by any Noteholder who
has been a bona fide Noteholder for at least six months;
(ii) the Trustee shall cease to be eligible under Section
6.10 and shall fail to resign after written request therefor by the
Issuer or by any Noteholder; or
(iii) the Trustee shall become incapable of acting or shall
be adjudged as bankrupt or insolvent or a receiver or liquidator of
the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case (subject to Section 6.11(a)), (A) the Issuers, by Issuer
Order, may remove the Trustee with respect to all Notes, or (B) subject to
Section 5.13, any Noteholder who has been a bona fide Noteholder for at least
six months may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Notes and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Trustee for any
reason, the Issuers, by Issuer Order, shall promptly appoint a successor Trustee
or Trustees. If the Issuers shall fail, at a time when no Event of Default shall
have occurred and be continuing, to appoint a successor Trustee within 60 days
after such resignation, removal or incapability or the occurrence of such
vacancy, a successor Trustee may be appointed by Act of the Holders of a
Majority of the Controlling Class delivered to the Issuers and the retiring
Trustee. The successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee and supersede any successor
Trustee proposed by the Issuers. If no successor Trustee shall have been so
appointed by the Issuers or such Holders and shall have accepted appointment in
the manner hereinafter provided, any Noteholder may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Issuers shall give prompt notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first class mail, postage prepaid, to
the Program Manager, each Rating Agency and to the Holders as their names and
addresses appear in the Note Register. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office. If the Issuers
fail to mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be given at
the expense of the Issuers.
Section 6.12. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuers, the Program Manager and the retiring
Trustee an instrument accepting such appointment. Upon delivery of the required
instruments, the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any other act, deed or conveyance,
shall become vested with all the rights, powers, trusts, duties and obligations
of the retiring Trustee; but, on request of the Issuers or a Majority of any
Class or the successor Trustee, such retiring Trustee shall, upon payment of its
charges then unpaid, execute and deliver
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an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and Money held by such retiring Trustee
hereunder, subject nevertheless to its Lien, if any, provided for in Section
6.8(d). Upon request of any such successor Trustee, the Issuers shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor shall be qualified and eligible under
this Article 6.
Section 6.13. Merger, Conversion, Consolidation or Succession to Business of
Trustee.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article 6, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any of the Notes have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
Section 6.14. Representations and Warranties of Chase Texas.
(a) Organization and Good Standing. Chase Texas has been duly
organized and is validly existing under the laws of the United States and has
the power to conduct its business and affairs as a trustee.
(b) Authorization; Binding Obligations. Chase Texas has the
corporate power and authority to perform the duties and obligations of the
Trustee under this Indenture and the other Trustee Documents. Chase Texas has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Indenture, and all of the documents required to be executed
by Chase Texas pursuant hereto. Upon execution and delivery by the Issuers, this
Indenture will constitute the legal, valid and binding obligation of Chase Texas
enforceable in accordance with its terms.
(c) Eligibility. Chase Texas is eligible under Section 6.10 to
serve as Trustee hereunder.
(d) No Conflict. Neither the execution, delivery and performance
of this Indenture or any other Trustee Document, nor the consummation of the
transactions contemplated hereby or thereby, (i) is prohibited by, or requires
Chase Texas to obtain any consent, authorization, approval or registration
under, any law, statute, rule, regulation, judgment, order, writ, injunction or
decree that is binding upon Chase Texas or any of its properties or assets, or
(ii) will violate any provision of, result in any default or acceleration of any
obligations under, result in the creation or imposition of any Lien pursuant to,
or require any consent under, any agreement to which Chase Texas is a party or
by which it or any of its property is bound.
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(e) No Proceedings. There are no proceedings pending, or to the
best knowledge of Chase Texas, threatened against Chase Texas before any
Federal, provincial or other governmental agency, authority, administrator or
regulatory body, arbitrator, court or other tribunal, foreign or domestic, that
could have a material adverse effect on any action taken or to be taken by Chase
Texas under this Indenture or any of the other Trustee Documents.
Section 6.15. Collateral Trust Provisions.
The Trustee and the Issuers hereby acknowledge and recognize the
appointment of Chase Texas (and its successors and assigns) as Collateral Agent
pursuant to the terms of the Intercreditor Agreement with the power to hold the
Collateral on behalf of the Secured Parties (including the Trustee for the
benefit of the Noteholders).
Section 6.16. Preferential Collection of Claims Against Issuer.
If and when the Trustee shall be or become a creditor, directly
or indirectly, secured or unsecured of the Issuer or the Co-Issuer (or any other
obligor upon the Notes), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Issuer or the
Co-Issuer (or any other such obligor).
ARTICLE 7
COVENANTS
Section 7.1. Payment of Principal and Interest.
The Issuers will duly and punctually pay the principal of and
interest and other amounts owing on the Notes, in accordance with the terms of
the Notes and this Indenture. Amounts properly deducted or withheld under the
Code or other applicable law by any Person from a payment to any Noteholder of
interest and/or principal and/or other amounts shall be considered as having
been paid by the Issuers to such Noteholder for all purposes of this Indenture.
The Trustee shall, unless prevented from doing so for reasons
beyond its reasonable control, give notice to each Noteholder of any such
requirement to deduct or withhold no later than 10 days prior to the date of the
payment from which amounts are required to be deducted or withheld; provided
that despite the failure of the Trustee to give such notice, amounts deducted or
withheld pursuant to applicable tax laws shall be considered as having been paid
by the Issuers as provided above.
For so long as the Class A Notes or the Class B Notes are listed
on the Luxembourg Stock Exchange, the Issuers, or upon Issuer Request, the
Trustee in the name and at the expense of the Issuers, will notify the
Luxembourg Stock Exchange in the event the Class A Notes or the Class B Notes do
not receive scheduled payments of principal or interest on any Quarterly Payment
Date.
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Section 7.2. Maintenance of Office or Agency.
The Issuers hereby appoint the Trustee as Paying Agent for the
payment of principal of and interest and other amounts owing on the Notes and
[LUXEMBOURG PAYING AGENT] as Offshore Paying Agent. The Issuers hereby appoint
the Trustee as the Issuers' agent where notices and demands to or upon the
Issuers in respect of the Notes or this Indenture may be served and where Notes
may be surrendered for registration of transfer or exchange; and for so long as
any Notes are listed on the Luxembourg Stock Exchange and the rules of such
exchange so require, the Issuers hereby appoint the Offshore Paying Agent as the
Issuers' agent where notices and demands to or upon the Issuers in respect of
any Class of Notes listed on the Luxembourg Stock Exchange may be served and
where such Notes may be surrendered for registration of transfer or exchange.
The Issuers may at any time and from time to time vary or
terminate the appointment of any such agent or appoint any additional agents for
any or all of such purposes; provided that the Issuers will maintain in Houston,
Texas an agency where notices and demands to or upon the Issuers in respect of
the Notes and this Indenture may be served and, subject to any laws or
regulations applicable thereto, and so long as any Notes are listed on the
Luxembourg Stock Exchange and the rules of such exchange so require, a Paying
Agent and an agent where such Notes may be surrendered for registration of
transfer or exchange having a specified office in Luxembourg; provided, further,
that no Paying Agent shall be appointed in a jurisdiction other than the United
States which subjects payments on the Notes to withholding tax. The Issuers
shall give prompt written notice to the Trustee, each Rating Agency and the
Noteholders of the appointment or termination of any such agent and of the
location and any change in the location of any such office or agency.
If at any time the Issuers shall fail to maintain any such
required office or agency in Houston, Texas or Luxembourg, or shall fail to
furnish the Trustee with the address thereof, presentations and surrenders may
be made (subject to the limitations described in the preceding paragraph) at and
notices and demands may be served on the Issuers, and Notes may be presented and
surrendered for payment to the appropriate Paying Agent for each Class of Notes
at its office (and the Issuers hereby appoint the same as its agent to receive
such respective presentations, surrenders, notices and demands).
Section 7.3. Money for Note Payments to be Held in Trust.
All payments of amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Note Payment Account shall
be made on behalf of the Issuers by the Trustee or a Paying Agent with respect
to payments on the Notes.
When the Issuers shall have a Paying Agent that is not also the
Note Registrar, they shall furnish, or cause the Note Registrar to furnish, no
later than the fifth calendar day after each Record Date a list, if necessary,
in such form as such Paying Agent may reasonably request, of the names and
addresses of the Holders and of the certificate numbers of individual Notes held
by each such Holder.
Whenever the Issuers shall have a Paying Agent other than the
Trustee, they shall, on or before the Quarterly Payment Date or Redemption Date,
as the case may be, direct the
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Trustee to deposit on such Quarterly Payment Date or Redemption Date with such
Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then
becoming due (to the extent funds are then available for such purpose in the
Note Payment Account), such sum to be held in trust for the benefit of the
Persons entitled thereto and (unless such Paying Agent is the Trustee) the
Issuers shall promptly notify the Trustee of its action or failure so to act.
Any Moneys deposited with a Paying Agent (other than the Trustee) in excess of
an amount sufficient to pay the amounts then becoming due on the Notes with
respect to which such deposit was made shall be paid over by such Paying Agent
to the Trustee for application in accordance with Article 10.
The initial Paying Agents shall be as set forth in Section 7.2.
Any additional or successor Paying Agents shall be appointed by Issuer Order
with written notice thereof to the Trustee[; provided that so long as the Class
A Notes or Class B Notes are rated by the Rating Agencies and with respect to
any additional or successor Paying Agent for the Notes, either (i) the Paying
Agent for the Notes has a rating of not less than "Aa3" or "P-1" by Moody's and
a rating of not less than "AA-" or "A-1+" by Standard & Poor's or (ii) each
Rating Agency confirms that employing such Paying Agent will not adversely
affect its ratings on the Class A Notes or the Class B Notes]. In the event that
such successor Paying Agent ceases to have a rating of at least "Aa3" or "P-1"
by Moody's and a rating of at least "AA-" or "A-1+" by Standard & Poor's and the
ratings on the Class A Notes and the Class B Notes have not been confirmed, the
Issuers shall promptly remove such Paying Agent and appoint a successor Paying
Agent. The Issuers shall not appoint any Paying Agent (other than an initial
Paying Agent) that is not, at the time of such appointment, a depository
institution or trust company subject to supervision and examination by federal
and/or state and/or national banking authorities. The Issuers shall cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee (and if the
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section 7.3, that such Paying Agent will:
(a) allocate all sums received for payment to the Holders of
Notes for which it acts as Paying Agent on each Quarterly Payment Date and
Redemption Date among such Holders in the proportion specified in the applicable
Note Valuation Report or Redemption Date Statement, in each case to the extent
permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due with
respect to the Notes for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Trustee, immediately resign
as a Paying Agent and forthwith pay to the Trustee all sums held by it for the
payment of Notes if at any time it ceases to meet the standards set forth above
required to be met by a Paying Agent at the time of its appointment;
(d) if such Paying Agent is not the Trustee, immediately give the
Trustee notice of any Default by the Issuer or Co-Issuer of which it becomes
aware in the making of any payment required to be made; and
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(e) if such Paying Agent is not the Trustee at any time during
the continuance of any such Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held by such Paying Agent for the
payment of the Notes.
The Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuers or by such Paying Agent for the payment of the Notes, such
sums to be held by the Trustee in trust for the benefit of the same Persons for
whom such sums were held by the Issuers or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such Money.
Except as otherwise required by applicable law, any Money
deposited with the Trustee in trust hereunder or with any Paying Agent for the
payment of the principal of or interest or any other amount owing on any Note
and remaining unclaimed for two years after such principal or interest or other
amount has become due and payable shall be paid to the Issuer on Issuer Request;
and the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Issuer or the Co-Issuer for payment of such amounts and all
liability of the Trustee or such Paying Agent with respect to such Money (but
only to the extent of the amounts so paid to the Issuers) shall thereupon cease.
The Trustee or such Paying Agent, before being required to make any such release
of payment, may, but shall not be required to, adopt and employ, at the expense
of the Issuers, any reasonable means of notification of such release of payment,
including, but not limited to, mailing notice of such release to Holders whose
Notes have been called but have not been surrendered for redemption or whose
right to or interest in Monies due and payable but not claimed is determinable
from the records of any Paying Agent, at the last address of record of each such
Holder.
Section 7.4. Listing.
In the case of any Class of Notes with respect to which the
Issuer Order specifies that such Notes are to be listed on any stock exchange,
the Issuer will use its best efforts to obtain and maintain the listing of such
Notes on such stock exchange.
Section 7.5. Statement by Officers as to Default.
The Issuer and the Co-Issuer will deliver to the Trustee an
Officer's certificate as required by Section 4.12 of the Common Agreement.
Section 7.6. Other Covenants of the Issuers.
The Issuers shall duly perform, observe and comply with each of
their obligations, covenants and agreements set forth in Article 3 of the Common
Agreement, all of which are hereby incorporated by reference, mutatis mutandis.
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ARTICLE 8
SUPPLEMENTAL INDENTURES;
AMENDMENTS TO OTHER FINANCING DOCUMENTS
Section 8.1. Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Holders of any Notes, but subject to
Section 4.2 of the Intercreditor Agreement, the Issuers, when authorized by
Board Resolutions, and the Trustee, at any time and from time to time, subject
to the requirements of this Section 8.1, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to establish the form and terms of Notes of any Series or
Class C Notes permitted by Sections 2.1 and 2.2 and in accordance with Section
2.9;
(b) to evidence the succession of another Person to the Issuer or
the Co-Issuer and the assumption by any such successor Person of the covenants
of the Issuer or the Co-Issuer herein and in the Notes;
(c) to add to the covenants of the Issuers or the Trustee for the
benefit of the Holders of all of the Notes or to surrender any right or power
herein conferred upon the Issuers;
(d) to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee, or add to the conditions, limitations or restrictions on
the authorized amount, terms and purposes of the issue, authentication and
delivery of the Notes;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Article 6; or
(f) to cure any ambiguity, to correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein or
to make any other provisions with respect to matters or questions arising under
this Indenture; provided such other provisions shall not adversely affect the
interest of the Holders in any material respect.
The Trustee is hereby authorized to join in the execution of any
such Supplemental 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 Supplemental Indenture which affects the
Trustee's own rights, duties, liabilities or indemnities under this Indenture or
otherwise, except to the extent required by law.
If any Class A or Class B Note is Outstanding, the Trustee shall
not enter into any such Supplemental Indenture if, as a result of such
Supplemental Indenture, the rating of any such Notes would be reduced or
withdrawn. At the cost of the Issuers, the Trustee shall provide to Moody's and
Standard & Poor's, for so long as any Class A or Class B Notes shall remain
Outstanding, and to all Holders of Notes, as their names and addresses appear on
the Note Registrar, a copy of any proposed Supplemental Indenture at least 10
days prior to the execution thereof by the Trustee, and, for so long as such
Notes are Outstanding, request written
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confirmation that each Rating Agency will not, as a result of such Supplemental
Indenture, cause the rating of any such Class of Notes to be reduced or
withdrawn, and, as soon as practicable after the execution by the Trustee and
the Issuers of any such Supplemental Indenture, provide to each Rating Agency
and to all Holders of Notes, as their names and addresses appear on the Note
Registrar, copy of the executed Supplemental Indenture.
Subject to clause (f) above of this Section 8.1, unless notified
by a Majority of any Class of Notes that such Class will be adversely affected,
the Trustee may determine whether or not the Holders would be adversely affected
by such change (after giving notice of such change to the Holders). Such
determination shall be conclusive and binding on all present and future Holders.
The Trustee shall not be liable for any such determination made in good faith
and in reliance in good faith upon an Opinion of Counsel delivered to the
Trustee.
Section 8.2. Supplemental Indentures With Consent of Noteholders.
With the consent of the Holders of not less than a Majority in
Outstanding Amount of each Class adversely affected thereby, by Act of said
Holders delivered to the Trustee and the Issuers, the Trustee and Issuers may,
subject to Section 4.2 of the Intercreditor Agreement and the requirements of
this Section 8.2, enter into one or more indentures supplemental hereto to add
any provisions to, or change in any manner or eliminate any of the provisions
of, this Indenture or modify in any manner the rights of the Holders of the
Notes of such Class under this Indenture; provided that notwithstanding anything
in this Indenture to the contrary, no such Supplemental Indenture shall, without
the consent of each Holder affected thereby:
(a) change the Stated Maturity of the principal of or the due
date of any installment of interest on or principal of any Note, reduce the
principal amount thereof or the Note Interest Rate thereon, or the Redemption
Price with respect thereto, or change the earliest date on which any Note may be
redeemed, or change any place where, or the coin or currency in which, any Note
or the principal thereof or interest thereon is payable;
(b) reduce the percentage of the Outstanding Amount of Holders of
Notes of each Class whose consent is required for the authorization of any
Supplemental Indenture or for any waiver of compliance with certain provisions
of this Indenture or certain Events of Default or their consequences provided
for in this Indenture or the other Financing Documents;
(c) modify any of the provisions of this Section, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(d) modify the definition of the terms "Outstanding", "Priority
of Payments" or "Priority of Acceleration Payments";
(e) reduce the permitted minimum denominations of any Class of
Notes;
(f) modify any of the provisions of this Indenture or the
Financing Documents in such a manner as to affect the calculation of the amount
of any payment of interest or Premium
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on or principal of any Note on any Quarterly Payment Date or to affect the
rights of the Holders of Notes to the benefit of any provisions for the
redemption of such Notes contained herein;
(g) change the provisions of this Indenture or any of the
Financing Documents relating to the application of proceeds of any Collateral to
the payment of principal of or interest on the Notes;
(h) impair the right to institute suit for the enforcement of any
payment of principal or interest on the Notes on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the applicable Redemption
Date);
(i) impair or adversely affect the Collateral except as otherwise
expressly permitted in the Financing Documents;
(j) permit the creation of any Lien ranking prior to or on a
parity with the Lien of the Security Documents with respect to any part of the
Collateral, or terminate such Lien on any Collateral subject to the Security
Documents except as otherwise expressly permitted therein, or deprive the Holder
of any Note of the security afforded by the Lien of the Security Documents; or
(k) modify any provision of this Section 8.2.
Not later than 15 Business Days prior to the execution of any
proposed Supplemental Indenture pursuant to this Section 8.2, the Trustee, at
the expense of the Issuers shall mail to the Noteholders and for so long as any
Class A Notes or Class B Notes are Outstanding, each Rating Agency, a copy of
such Supplemental Indenture, or a description of the substance thereof together
with a written notice reciting in substance the provisions of the next following
paragraph and the Issuers shall request each Rating Agency to determine and
certify to the Trustee and the Issuers whether, as a result of such Supplemental
Indenture, such Rating Agency would cause the rating of any such Class of Notes
to be reduced or withdrawn.
Unless notified by a Majority of any Class of Notes that such
Class will be adversely affected, the Trustee may determine whether or not the
Holders would be adversely affected by such change (after giving notice of such
change to the Holders). Such determination shall be conclusive and binding on
all present and future Holders. The Trustee shall not be liable for any such
determination made in good faith and in reliance in good faith upon an Opinion
of Counsel delivered to the Trustee.
It shall not be necessary for any Act of Noteholders under this
Section 8.2 to approve the particular form of any proposed Supplemental
Indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuers and the Trustee of
any Supplemental Indenture pursuant to this Section 8.2, the Trustee, at the
expense of the Issuers, shall mail to the Holders of the Notes, the Program
Manager, and, for so long as any Class A Notes or Class B Notes are outstanding,
each Rating Agency, a copy thereof. Any failure of the Trustee to publish or
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such Supplemental Indenture.
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Any Supplemental Indenture executed in accordance with the
provisions of Section 2.9 shall not be considered an amendment to this Indenture
for the purposes of this Section.
Section 8.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
Supplemental Indenture permitted by this Article 8 or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Sections 6.1 and 6.3) shall be fully protected in
relying in good faith upon an Opinion of Counsel stating that the execution of
such Supplemental Indenture is authorized or permitted by this Indenture and
that all conditions precedent thereto have been complied with. The Trustee may,
but shall not be obligated to, enter into any such Supplemental Indenture which
affects the Trustee's own rights, duties or indemnities under this Indenture or
otherwise. The Program Manager shall not be bound by any amendment to this
Indenture which imposes greater duties on the Program Manager unless the Program
Manager shall have consented thereto in writing.
Section 8.4. Effect of Supplemental Indentures.
Upon the execution of any Supplemental Indenture under this
Article 8, this Indenture shall be modified in accordance therewith, and such
Supplemental Indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes theretofore and thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 8.5. Conformity with Trust Indenture Act.
Every Supplemental Indenture executed pursuant to this Article 8
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 8.6. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
Supplemental Indenture pursuant to this Article 8 may, and if required by the
Trustee shall, bear a notation in form approved by the Trustee as to any matter
provided for in such Supplemental Indenture. If the Issuers shall so determine,
new Notes, so modified as conform in the opinion of the Trustee and the Issuers
to any such Supplemental Indenture, may be prepared and executed by the Issuers
and authenticated and delivered by the Trustee in exchange for Outstanding
Notes.
Section 8.7. Amendments, Modifications, Waivers, etc. to Other Financing
Documents.
In the event that under the terms of any Financing Document, the
consent of the Trustee on behalf of the Noteholders is required with respect to
any amendment, modification, waiver, supplement, or authorization of a breach or
proposed breach, with respect to such Financing Document, of a type described in
Section 8.1 with respect to this Indenture, the Trustee may in its discretion,
on the same terms and with the same effect as provided in Section 8.1, determine
to grant such consent. The Trustee shall not be liable for any such
determination made in good faith and on reliance upon an Opinion of Counsel
delivered to the Trustee. In the
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event that under the terms of any Financing Document a vote of all or any of the
Noteholders is required with respect to any amendment, modification, waiver,
supplement, or authorization of a breach or proposed breach not referred to in
the preceding sentence, the Trustee shall, in accordance with the directions
received from the Noteholders in accordance with Section 13.2 cast votes on
their behalf (individually and not as a whole).
ARTICLE 9
REDEMPTION OF NOTES
Section 9.1. Redemption at the Option of the Issuers; Election to Redeem.
The Notes will be subject to optional redemption as set forth in
Section 10.2 of the Common Agreement. No optional redemption shall be effective
until the Redemption Price has been paid in full.
Section 9.2. Notice to Trustee of Optional Redemption.
In the event of any redemption pursuant to Section 10.2 of the
Common Agreement, the Issuer shall, as soon as practicable upon knowledge
thereof, notify the Trustee of such Redemption Date, the applicable Record Date,
the principal amount of Notes to be redeemed on such Redemption Date and the
Redemption Price of such Notes in accordance with Section 10.2 of the Common
Agreement.
Section 9.3. Notice of Optional Redemption or Maturity by the Trustee.
Notice of redemption pursuant to Section 10.2 of the Common
Agreement shall be given by the Trustee by first class mail, postage prepaid,
mailed at least ten Business Days (but not more than thirty Business Days) prior
to the applicable Record Date to each Holder of Notes at such Holder's address
in the Note Register. In addition, the Trustee shall cause to be published in
the Authorized Newspaper the notice of redemption given pursuant to Section 10.2
of the Common Agreement at least ten Business Days (but not more than thirty
Business Days) prior to the applicable Record Date.
All notices of redemption shall state:
(a) the applicable Redemption Date;
(b) the applicable Record Date;
(c) the Redemption Price;
(d) the principal amount of each Class (and, in the case of Class
A Notes or Class B Notes, each Series) of Notes to be redeemed and that interest
on such principal amount of Notes shall cease to accrue on the date specified in
the notice;
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(e) the place or places where such Notes to be redeemed in whole
are to be surrendered for payment of the Redemption Price, which shall be the
office or agency of the Paying Agent to be maintained as provided in Section
7.2; and
(f) that the Issuers have the option to withdraw such redemption
notice up to the sixth Business Day prior to the Redemption Date.
The Issuers shall have the option to withdraw the notice of
redemption up to the sixth Business Day prior to the scheduled Redemption Date
by written notice to the Trustee.
At the cost of the Issuers, the Trustee shall give notice of any
withdrawal by publication once in an Authorized Newspaper or overnight courier
guaranteeing next day delivery, sent not later than the fourth Business Day
prior to the scheduled Redemption Date, to each Holder of Notes to be redeemed
at such Holder's address in the Note Register.
Notice of redemption shall be given by the Issuers or, at the
Issuers' request, by the Trustee in the name and at the expense of the Issuers.
Failure to give notice of redemption, or any defect therein, to any Holder of
any Note selected for redemption shall not impair or affect the validity of the
redemption of any other Notes.
Section 9.4. Mandatory Redemption.
The Notes will be subject to mandatory redemption as set forth in
Section 10.3 of the Common Agreement.
Section 9.5. Notice to Trustee of Mandatory Redemption.
In the event of any redemption pursuant to Section 10.3 of the
Common Agreement, the Issuer shall, as soon as practicable upon knowledge
thereof, notify the Trustee of such Redemption Date, the applicable Record Date,
the principal amount of Notes to be redeemed on such Redemption Date and the
Redemption Price of such Notes in accordance with Section 10.3 of the Common
Agreement.
Section 9.6. Notice of Mandatory Redemption or Maturity by the Trustee.
Notice of redemption pursuant to Section 10.3 of the Common
Agreement shall be given by the Issuer, or at the Issuer's request, by the
Trustee by first class mail, postage prepaid, mailed at least ten Business Days
(but not more than thirty Business Days) prior to the applicable Record Date to
each Holder of Notes at such Holder's address in the Note Register. In addition,
the Trustee shall cause to be published in the Authorized Newspaper the notice
of redemption given pursuant to Section 10.3 of the Common Agreement at least
ten Business Days (but not more than thirty Business Days) prior to the
applicable Record Date.
All notices of redemption shall state:
(a) the applicable Redemption Date;
(b) the applicable Record Date;
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(c) the amount of the redemption;
(d) the principal amount of each Class (and, in the case of Class
A Notes or Class B Notes, each Series) of Notes to be redeemed and that interest
on such principal amount of Notes shall cease to accrue on the date specified in
the notice; and
(e) the place or places where such Notes to be redeemed in whole
are to be surrendered for payment of the amount of such redemption, which shall
be the office or agency of the Paying Agent to be maintained as provided in
Section 7.2.
Notice of redemption shall be given by the Issuers or, at the
Issuers' request, by the Trustee in the name and at the expense of the Issuers.
Failure to give notice of redemption, or any defect therein, to any Holder of
any Note selected for redemption shall not impair or affect the validity of the
redemption of any other Notes.
Section 9.7. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after the Redemption Date
(unless the Issuers shall default in the payment of the Redemption Price and
accrued interest) such Notes shall cease to bear interest on the Redemption
Date. Upon final payment on a Note to be redeemed, the Holder shall present and
surrender such Note at the place specified in the notice of redemption on or
prior to such Redemption Date; provided that if there is delivered to the
Issuers and the Trustee such security or indemnity as may be required by them to
save each of them harmless and an undertaking thereafter to surrender such Note,
then, in the absence of notice to the Issuers or the Trustee that the applicable
Note has been acquired by a bona fide purchaser, such final payment shall be
made without presentation or surrender. Installments of interest on Notes of a
Class (and, in the case of Class A and/or Class B Notes, a Series) so to be
redeemed whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Notes, or one or more predecessor Notes,
registered as such at the close of business on the relevant Record Date
according to the terms and provisions of Section 2.6(e).
If any Note called for redemption shall not be paid upon
surrender thereof for redemption, the principal thereof shall, until paid, bear
interest from the Redemption Date at the applicable Note Interest Rate for each
successive Interest Accrual Period the Note remains Outstanding.
Section 9.8. Pro Rata Application.
All redemptions of Notes pursuant to this Article 9 shall be
allocated on a pro rata basis according to their respective Outstanding
principal amounts among all Outstanding Notes
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of a particular Class, without preference or priority of any kind among the
Notes of such Class (or any Series thereof).
ARTICLE 10
ACCOUNTS, ACCOUNTINGS AND RELEASES
Section 10.1. Note Payment Account; Payment on the Notes.
(a) The Trustee shall, prior to the Closing Date, establish a
single, segregated trust account which shall be designated as the Note Payment
Account, which shall be held in trust in the name of the Trustee for the benefit
of the Noteholders, and over which the Trustee shall have exclusive control and
the sole right of withdrawal into which the Trustee shall from time to time
deposit all payments received from the Collateral Agent in respect of payments
due to the Noteholders. The only permitted withdrawal from or application of
funds on deposit in, or otherwise to the credit of, the Note Payment Account
shall be to pay the interest, premium, if any, on and the principal of the Notes
in accordance with their terms and the provisions of this Indenture, each in
accordance with the Priority of Payments or the Priority of Acceleration
Payments, as applicable. The Trustee agrees to give the Issuers immediate notice
if the Note Payment Account or any funds on deposit therein, or otherwise to the
credit of the Note Payment Account, shall become subject to any writ, order,
judgment, warrant of attachment, execution or similar process. The Issuers shall
not have any legal, equitable or beneficial interest in the Note Payment
Account. The Note Payment Account shall remain at all times with a financial
institution [having a long-term debt rating of at least "Aa2" by Moody's and
"AA" by S&P].
(b) All monies or property collected or received by or on behalf
of the Trustee from the Collateral Agent on any Quarterly Payment Date or on any
date following an Acceleration pursuant to the Security Agreement shall be paid
out of the Note Payment Account on such date to the Noteholders in the order
specified in the Priority of Payments or the Priority of Acceleration Payments,
as applicable, and to the extent available.
(c) Any drawings under the Backup Facility or the Net Proceeds
from an issuance of Class A Notes or Class B Notes made, in each instance, for
the purpose of redeeming and/or refinancing Class A Notes, Class B Notes or
Class C Notes pursuant to Sections 10.2(a)(ii), 10.2(a)(iii) or 10.2(a)(iv) of
the Common Agreement and all monies or property collected or received by or on
behalf of the Trustee on any Redemption Date in connection with the redemption
of any Notes shall be credited to and paid out from the Note Payment Account to
the Holders of the Notes being so redeemed in accordance with and to the extent
provided in the Priority of Payments.
Section 10.2. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
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(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Notes are listed, with the Commission, with the Issuer and with the
Program Manager. The Issuer will notify the Trustee in accordance with Section
13.3 when any Notes are listed on any stock exchange.
(c) The Trustee shall supply in a timely fashion to the Issuers
and the Program Manager any information regularly maintained by the Trustee that
the Issuers or the Program Manager may from time to time reasonably request in
order to complete the Note Valuation Report or to provide any other information
reasonably available to the Trustee by reason of its acting as Trustee hereunder
and required to be provided by this Article 10 or to permit the Program Manager
to perform its obligations under the Management Agreement.
Section 10.3. Reports by Issuer.
The Issuer shall:
(a) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
the information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Issuer is not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and addresses
appear in the Note Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Issuer pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
Section 10.4. Accountings.
(a) Valuation Report. Not later than the Business Day immediately
following the Determination Date the Trustee shall provide the Program Manager
with any information necessary to complete the Valuation Report contemplated by
Section 6.1 of the Common Agreement. The Trustee shall deliver to each
Noteholder, upon written request therefor, at the address shown on the Note
Register, a copy of the Valuation Report and a copy of the statement
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prepared by a firm of Independent certified public accountants pursuant to
Section 6.2 of the Common Agreement promptly after receipt thereof from the
Program Manager.
(b) Quarterly Payment Date Instructions. Promptly following
completion of the Valuation Report and transfer of any amounts from the
Collection Account to the Note Payment Account pursuant to the Security
Agreement, the Issuers (or the Program Manager acting on behalf of the Issuers)
shall provide instructions to the Trustee to withdraw on the related Quarterly
Payment Date from the Note Payment Account and pay or transfer amounts set forth
in such report in the manner specified, and in accordance with the priorities
established, in Section 10.1(b).
(c) Redemption Date Instructions. Not less than five Business
Days after receiving an Issuer Request requesting information regarding a
redemption of the Notes of a Class as of a proposed Redemption Date set forth in
such Issuer Request, the Trustee shall provide the necessary information (to the
extent it is available to the Trustee) to the Program Manager, and the Program
Manager shall compute the following information and provide such information in
a statement (the "Redemption Date Statement") delivered to the Trustee:
(i) the Outstanding Amount of the Notes of the Class or
Classes to be redeemed as of such Redemption Date;
(ii) the amount of accrued interest due on such Notes as
of the last day of the Interest Accrual Period immediately preceding
such Redemption Date;
(iii) the Redemption Price of the Notes to be redeemed as
of such Redemption Date; and
(iv) the amount in the Collection Account available for
application to the redemption of such Notes.
(d) If the Trustee shall not have received any accounting
provided for in this Section 10.4 on the first Business Day after the date on
which such accounting is due to the Trustee, the Trustee shall use reasonable
efforts to cause such accounting to be made by the applicable Quarterly Payment
Date or Redemption Date and shall be reimbursed therefor in accordance with
Section 6.8 hereof.
Section 10.5. Reports to Rating Agencies.
In addition to the information and reports specifically required
to be provided to the Rating Agencies pursuant to the terms of this Indenture
and the other Financing Documents, the Issuers shall provide or procure to
provide the Rating Agencies with (a) all information or reports delivered to the
Trustee hereunder and (b) such additional information as the Rating Agencies may
from time to time reasonably request and the Issuers determine in their sole
discretion may be obtained and provided without unreasonable burden or expense.
The Issuers shall promptly notify the Trustee if the rating of any Class of
Notes has been, or it is known by the Issuers that such rating will be, changed
or withdrawn. Upon receipt of such notice, the Trustee, in the name and at the
expense of the Issuers, shall notify the Luxembourg Stock Exchange of any
reduction or withdrawal in the rating of any Class of Notes.
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Section 10.6. Issuers to Furnish Trustee Names and Addresses of Holders.
The Issuers will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than [15] days after each regular
Record Date, a list, is such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within [30] days after receipt of the Issuer of any such request, a list of
similar form and content as of a date not more than [15] days prior to the time
such list is furnished.
Section 10.7. Preservation of Information; Communication to Holders.
(a) The Trustee shall preserve, in as current a form as
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 10.6 and the names
and addresses of Holders received by the Trustee in its capacity as Note
Registrar or Paying Agent. The Trustee may destroy any list furnished to it as
provided in Section 10.6 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Notes, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
ARTICLE 11
APPLICATION OF MONIES
Section 11.1. Trust Accounts.
By Issuer Order, the Trustee shall invest all monies held by, or
deposited with, the Trustee in the Note Payment Account, in Eligible Investments
having stated maturities no later than the next Quarterly Payment Date. All
interest and other income from such investments shall be deposited in the Note
Payment Account, any gain realized from such investments shall be credited to
the Note Payment Account, and any loss resulting from such investments shall be
charged to the Note Payment Account. Chase Texas and/or its Affiliates may
receive compensation in connection with the investment of funds in Eligible
Investments, as specified by Issuer Order. The Trustee shall not in any way be
held liable by reason of any insufficiency of funds in the Note Payment Account
resulting from any loss relating to any such investment, except with respect to
investments in obligations of the Trustee in its commercial capacity or any
Affiliate thereof. To the extent not so invested in Eligible Investments as
herein provided, such Monies shall be deposited in one or more trust accounts,
maintained at a financial institution whose long-term rating is at least
"[Baa1]" by Moody's and at least "[BBB+]" by Standard & Poor's, to be held in
trust for the benefit of the Noteholders. To the extent Monies deposited in a
trust account exceed amounts insured by the Bank Insurance Fund or Savings
Association Insurance Fund administered by the Federal Deposit Insurance
Corporation, or any agencies
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succeeding to the insurance functions thereof, and are not fully collateralized
by direct obligations of the United States of America, the Trustee shall invest
such excess in Eligible Investments as provided above.
ARTICLE 12
NOTEHOLDERS' RELATIONS
Section 12.1. Subordination.
(a) Anything in this Indenture or the Notes or any other
Financing Document to the contrary notwithstanding, the Issuers and the Holders
of the Class B Notes and the Class C Notes agree for the benefit of the Holders
of the Class A Notes and the other Senior Secured Parties that the Class B Notes
and the Class C Notes and the Issuers' rights in and to the Collateral (the
"Subordinate Interests") shall be subordinate and junior to the Class A Notes
and the other Senior Secured Obligations to the extent and in the manner set
forth in Section 3.1 of the Intercreditor Agreement. If any Event of Default has
not been cured or waived and Acceleration occurs in accordance with Article 5,
including, without limitation, as a result of an Event of Default specified in
Section 5.1(h) or (i) of the Common Agreement, all principal of and interest on
the Class A Notes, and all other amounts owing hereunder to the Holders of the
Class A Notes, shall be paid in full in Cash before any further payment or
distribution is made to the Holders of the Subordinate Interests. The Holders of
the Class B Notes and the Holders of the Class C Notes agree, for the benefit of
the Holders of the Class A Notes, not to cause the filing of a petition in
bankruptcy against the Issuer or the Co-Issuer for failure to pay them amounts
due under the Class B Notes or the Class C Notes, respectively or hereunder
until the payment in full of the Class A Notes and not before one year and one
day have elapsed since such payment or, if longer, the applicable preference
period then in effect.
(b) Anything in this Indenture or the Notes or any other
Financing Document to the contrary notwithstanding, the Issuers and the Holders
of the Class C Notes agree for the benefit of the Holders of the Class B Notes
that the Class C Notes and the Issuers' rights in and to the Collateral (also,
"Subordinate Interests") shall be subordinate and junior to the Class B Notes to
the extent and in the manner set forth in this Indenture and the other Financing
Documents. If any Event of Default has not been cured or waived and Acceleration
occurs in accordance with Article 5, including, without limitation, as a result
of an Event of Default specified in Section 5.1(g) or (h) of the Common
Agreement, all principal of and interest on the Class B Notes, and all other
amounts owing hereunder to the Holders of Class B Notes, shall be paid in full
in Cash before any further payment or distribution is made on account of the
Subordinate Interests. The Holders of the Class C Notes agree, for the benefit
of the Holders of the Class B Notes, not to cause the filing of a petition in
bankruptcy against the Issuer or the Co-Issuer for failure to pay to them
amounts due under the Class C Notes or hereunder until the payment in full of
the Class B Notes and not before one year and one day have elapsed since such
payment or, if longer, the applicable preference period then in effect.
(c) In the event that notwithstanding the provisions of this
Indenture, any holder of any Subordinate Interests shall have received any
payment or distribution in respect of such Subordinate Interests contrary to the
provisions of this Indenture and the other Financing
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Documents, then, unless and until the Class A Notes and the other Senior Secured
Obligations or Class B Notes, as the case may be, and all other amounts owing
hereunder to the Holders thereof, shall have been paid in full in Cash, such
payment or distribution shall be received and held in trust for the benefit of,
and shall forthwith be paid over and delivered to, the Collateral Agent, which
shall pay and deliver the same to the Holders of Class A Notes and the other
Senior Secured Parties or Class B Notes, as the case may be, in accordance with
the Security Agreement.
(d) Each Holder of Subordinate Interests agrees with all Holders
of Class A Notes and all other Senior Secured Parties or of Class B Notes, as
the case may be, that such Holder of Subordinate Interests shall not demand,
accept, or receive any payment or distribution in respect of such Subordinate
Interests in violation of the provisions of this Indenture including, without
limitation, this Section 12.1; provided that after the Class A Notes and the
other Senior Secured Obligations or Class B Notes, as the case may be, and all
other amounts owing hereunder to the Holders thereof, have been paid in full in
Cash, the Holders of Subordinate Interests shall be fully subrogated to the
rights of the Holders of the Class A Notes and all other Senior Secured Parties
or Class B Notes, as the case may be. Nothing in this Section 12.1 shall affect
the obligation of the Issuers to pay Holders of Subordinate Interests.
Section 12.2. Standard of Conduct.
In exercising any of its or their voting rights, rights to direct
and consent or any other rights as a Noteholder under this Indenture, subject to
the terms and conditions of this Indenture, including, without limitation,
Article 5, a Noteholder or Noteholders shall not have any obligation or duty to
any Person or to consider or take into account the interests of any Person and
shall not be liable to any Person for any action taken by it or them or at its
or their direction or any failure by it or them to act or to direct that an
action be taken, without regard to whether such action or inaction benefits or
adversely affects any Noteholder, the Issuers or any other Person.
Section 12.3. Right to List of Holders.
The Issuers and any Beneficial Owner shall have the right, upon
five Business Days' prior notice to the Trustee, to inspect the Note Register.
ARTICLE 13
MISCELLANEOUS
Section 13.1. Form of Documents Delivered to Trustee.
In the case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an Authorized Officer of the
Issuer, the Co-Issuer or the Program Manager may be based, insofar as it relates
to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such Authorized Officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate of an Authorized Officer of the Issuer or the
Co-Issuer or the Program Manager or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, the Issuer, the Co-Issuer, the Program Manager or any other
Persons, stating that the information with respect to such factual matters is in
the possession of the Issuer, the Co-Issuer, the Program Manager or such other
Person, unless such Authorized Officer of the Issuer or the Co-Issuer or such
counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous. Any Opinion of Counsel may also be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Authorized Officer of the Issuer, the Co-Issuer or the
Program Manager, stating that the information with respect to such matters is in
the possession of the Issuer, the Co-Issuer or the Program Manager, unless such
counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous. Where any Person is required to make, give or
execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever in this Indenture it is provided that the absence of the
occurrence and continuation of a Default or Event of Default is a condition
precedent to the taking of any action by the Trustee at the request or direction
of the Issuer or the Co-Issuer, then notwithstanding that the satisfaction of
such condition is a condition precedent to the Issuer's or the Co-Issuer's
rights to make such request or direction, the Trustee shall be protected in
acting in accordance with such request or direction if it does not have
knowledge of the occurrence and continuation of such Default or Event of Default
as provided in Section 6.1(d).
Section 13.2. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the
Issuers. Such instrument or instruments (and the action or actions embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Issuers, if made in the manner provided in this Section 13.2.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Trustee deems
sufficient.
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(c) The principal amount and registered numbers of Notes held by
any Person, and the date of his holding the same, shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the Holder
(and any transferee thereof) of such Note and of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Issuers in
reliance thereon, whether or not notation of such action is made upon such Note.
Section 13.3. Notices, etc., to Trustee, the Issuers, the Program Manager and
the Rating Agencies.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Noteholder or by the Issuer or the
Co-Issuer shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to and mailed, by certified mail, return receipt
requested, hand delivered, sent by overnight courier service guaranteeing next
day delivery or by telecopy in legible form, to the Trustee addressed to it at
its Corporate Trust Office, telecopy no. ▇▇▇-▇▇▇-▇▇▇▇, Attention: Global Trust
Services - Enron International CPO, L.P., or at any other address previously
furnished in writing to the Issuers or Noteholder by the Trustee;
(b) the Issuers by the Trustee or by any Noteholder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, hand delivered,
sent by overnight courier service or by telecopy in legible form, to the Issuer
addressed to it at ____________________, Attention: _____________, telecopy no.
[____________], or at any other address previously furnished in writing to the
Trustee by the Issuer or the Co-Issuer, as the case may be;
(c) the Program Manager by the Issuers or the Trustee shall be
sufficient for every purpose hereunder if in writing and mailed, first class
postage prepaid, hand delivered, sent by overnight courier service or by
telecopy in legible form, to the Program Manager addressed to it at
_____________________, Attention: ____________, telecopy no. ________________,
or at any other address previously furnished in writing to the Issuers or the
Trustee by the Program Manager; or
(d) the Rating Agencies by the Issuers, the Program Manager or
the Trustee shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first class postage
prepaid, hand delivered, sent by overnight courier service or by telecopy in
legible form, addressed to ▇▇▇▇▇'▇ Investors Service, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: CBO/CLO Monitoring
and to Standard & Poor's, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Surveillance Group, telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇.
Delivery of any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents made as provided above will be
deemed effective: (i) if in
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writing and delivered in person or by overnight
courier service, on the date it is delivered; (ii) if sent by facsimile
transmission, on the date that transmission is received by the recipient in
legible form (it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the sender's
facsimile machine); and (iii) if sent by mail, on the date that mail is
delivered or its delivery is attempted; in each case, unless the date of that
delivery (or attempted delivery) or that receipt, as applicable, is not a
Business Day or that communication is delivered (or attempted) or received, as
applicable, after the close of business on a Business Day, in which case that
communication shall be deemed given and effective on the first following day
that is a Business Day.
Section 13.4. Notices and Reports to Noteholders; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for a report to Holders or for a notice to Holders of Notes
of any event,
(a) such report or notice shall be sufficiently given to Holders
of Notes if in writing and mailed, first class postage prepaid, to each Holder
of a Note affected by such event, at the address of such Holder as it appears in
the Note Register, not earlier than the earliest date and not later than the
latest date, prescribed for the giving of such report or notice; and
(b) such report or notice shall be in the English language.
Such reports or notices will be deemed to have been given on the
date of such mailing.
The Trustee will deliver to the Holder of any Class A or Class B
Note shown on the Note Register (or the Issuer will deliver to the Holder of any
Class C Note) any readily available information or notice requested to be so
delivered, at the expense of the Issuers. In addition, for so long as any Class
of Notes is listed on the Luxembourg Stock Exchange and so long as the rules of
such exchange so require, notices to the Holders of such Notes shall also be
given by publication in the Authorized Newspaper.
Neither the failure to mail any notice, nor any defect in any
notice so mailed, to any particular Holder of a Note shall affect the
sufficiency of such notice with respect to other Holders of Notes. In case by
reason of the suspension of regular mail service or by reason of any other cause
it shall be impracticable to give such notice by mail, then such notification to
Holders of Notes as shall be made with the approval of the Trustee (or, in the
case of Class C Notes, the Issuer) shall constitute a sufficient notification to
such Holders for every purpose hereunder.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Trustee
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In the event that, by reason of the suspension of the regular
mail service as a result of a strike, work stoppage or similar activity, it
shall be impractical to mail notice of any
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event to Noteholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 13.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 13.6. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuers
shall bind their respective successors and assigns, whether so expressed or not.
Except as expressly permitted by the Financing Documents, the Issuers may not
transfer any interest or obligation in or under this Indenture (whether by way
of security or otherwise).
Section 13.7. Separability.
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 13.8. Benefits of Indenture.
Nothing in this Indenture or in the Notes, expressed or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the Program Manager, the Noteholders and the Senior Secured Parties,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 13.9. Legal Holidays.
In the event that the date of any Quarterly Payment Date or
Redemption Date shall not be a Business Day, then notwithstanding any other
provision of the Notes or this Indenture, payment shall not be made on such
date, but shall be made on the next succeeding Business Day with the same force
and effect as if made on the nominal date of any such Quarterly Payment Date or
Redemption Date, as the case may be, and no interest shall accrue on such
payment for the period from and after any such nominal date.
Section 13.10. Governing Law.
THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS
OF LAW.
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Section 13.11. Execution of other Transaction Documents; Conflicts.
Simultaneously with the execution and delivery of this
Indenture, the Trustee shall enter into the Intercreditor Agreement and the
Common Agreement, on behalf of itself and all Holders of the Outstanding Notes
and all future Holders of any of the Notes. All rights, powers and remedies
available to the Trustee and the Holders of the Outstanding Notes, and all
future Holders of any of the Notes, with respect to the Collateral, or otherwise
pursuant to the Security Agreement, shall be subject to the Intercreditor
Agreement and the Common Agreement. In the event of any conflict or
inconsistency between the terms and provisions of this Indenture and the terms
and provisions of the Common Agreement, the Security Agreement and the
Intercreditor Agreement, the terms and provisions of the Common Agreement, the
Security Agreement and the Intercreditor Agreement shall govern and control.
Section 13.12. Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 13.13. Incorporation of Certain Terms of the Common Agreement.
Without in any way limiting the provisions of the Common
Agreement applicable to this Agreement, the provisions of Article 12 of the
Common Agreement is incorporated in this Agreement by reference, as if set out
in this Agreement in full, mutatis mutandis.
Section 13.14. Submission to Jurisdiction.
(a) Except as set forth in subsection (b), the Issuers hereby
irrevocably submit to the non-exclusive jurisdiction of any New York State or
federal court sitting in the Borough of Manhattan in The City of New York in any
action or proceeding arising out of or relating hereto or to the Notes, and the
Issuers hereby irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in such New York State or federal court.
The Issuers hereby irrevocably waive, to the fullest extent that they may
legally do so, any defense which they may now or hereafter have to the laying of
the venue of any such proceeding brought in such court and any claim that any
such proceeding brought in such court has been brought in an inconvenient forum
and to the maintenance of such action or proceeding. The Issuers irrevocably
consent to the service of any and all process in any action or proceeding by the
mailing or delivery of copies of such process to it at the address set forth in
Section 13.3. The Issuers agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Notwithstanding the
foregoing, no document filed, assertion made, or issue adjudicated in any court
or other arbitral proceeding shall have a collateral, judicial, or other
estoppel or res judicata effect on any arbitral proceeding that is subject to
Section 11.11 of the Management Agreement.
(b) The foregoing submission to jurisdiction is not intended to
and shall not apply to any claim, controversy, issue or accounting bearing on
Article 9 of the Enron Support Agreement except insofar as such claim,
controversy, issue or accounting arises in connection with a motion to confirm,
vacate, or modify an arbitration award rendered pursuant to Section 11.11 of the
Management Agreement.
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IN WITNESS WHEREOF, we have set our hands on this Indenture as of
the ____ day of ______, 1998.
ENRON INTERNATIONAL CPO, L.P.,
By: Enron CPO Holdings, Inc.,
its general partner
By:
--------------------------------------
Name:
Title:
ENRON INTERNATIONAL CPO, INC.,
By:
--------------------------------------
Name:
Title:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
not in its individual capacity (except
as expressly set forth herein) but
solely as Trustee
By:
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Name:
Title:
-61-