Exhibit 4.2
EXECUTION VERSION
MGE POWER ELM ROAD, LLC
______________________________________
COLLATERAL TRUST INDENTURE, SECURITY
AND ASSIGNMENT AGREEMENT
______________________________________
Dated as of February 3, 2010
TABLE OF CONTENTS
SECTION
HEADING
PAGE
ARTICLE 1
DEFINED TER MS
2
Section 1.1.
Special Definitions
2
Section 1.2
Interpretation
7
ARTICLE 2
GRANTING CLAUSE
7
ARTICLE 3
RECEIPT, DISTRIBUTION AND APPLICATION OF PAYMENTS
11
Section 3.1.
Application of Payments when No Payment Event Exists
11
Section 3.2.
Payments During Existence of a Payment Event
11
Section 3.3.
Amounts Held by Trustee
13
Section 3.4.
Allocation of Payments
13
Section 3.5.
Method of Payment to Secured Parties; Trustee as Payment Agent
13
Section 3.6.
Method of Payment to Issuer
14
Section 3.7.
Payments for Which No Application Is Otherwise Provided
14
Section 3.8.
Release of Funds to the Issuer; Indemnity Reimbursement Obligations
14
ARTICLE 4
EVIDENCE OF SECURED PARTIES
15
Section 4.1.
Execution by Secured Parties or Agents
15
Section 4.2.
Future Holders Bound
15
Section 4.3.
Secured Party Register
15
Section 4.4.
Debt Service Payments
16
ARTICLE 5
COVENANTS AND REPRESENTATIONS OF THE ISSUER
16
Section 5.1.
Recordation; Further Assurances
16
Section 5.2.
Priority of Liens
17
Section 5.3.
Opinion Regarding Perfection
17
Section 5.4.
Obligations and Terms Respecting the Facility Lease Agreements
17
Section 5.5.
After-Acquired Property
18
Section 5.6.
Books and Records
18
Section 5.7.
Issuer Information
18
Section 5.8.
Collateral, Security Documents, Liens
18
ARTICLE 6
REMEDIES UPON DEFAULT
19
Section 6.1.
Default Remedies
19
Section 6.2.
Other Enforcement Rights
19
Section 6.3.
Trustee Action Directed by Required Secured Parties; Revocation of
&nb sp; Direction; Discretionary Actions by Trustee 21
Section 6.4.
Effect of Sale, Etc
21
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Section 6.5.
Restoration of Rights and Remedies
22
Section 6.6.
Application of Sale Proceeds and Deficiency
22
Section 6.7.
Cumulative Remedies
22
Section 6.8.
Limitations on Suits
23
Section 6.9.
Suits for Principal and Interest
23
Section 6.10.
Waiver by the Issuer
24
Section 6.11.
Sharing
25
Section 6.12.
Fees and Expenses
26
ARTICLE 7
THE TRUSTEE
26
Section 7.1.
Grant of Authority; Acceptance of Appointment; Duties and Responsibilities of the Trustee 26
Section ;7.2.
Trustee’s Compensation and Indemnification
28
Section 7.3.
Certain Rights of the Trustee
29
Section 7.4.
Showings Deemed Necessary by the Trustee
31
Section 7.5.
Status of Monies Received
32
Section 7.6.
Resignation of the Trustee
32
Section 7.7.
Removal of the Trustee
32
Section 7.8.
Successor Trustee
32
Section 7.9.
Appointment of Successor Trustee
33
Section 7.10.
Merger or Consolidation of Trustee
33
Section 7.11.
Acceptance of Appointment by Successor Trustee
33
Section 7.12.
Conveyance upon Request of Successor Trustee
34
Section 7.13.
Co-Trustees and Additional Trustees
34
Section 7.14.
Trustee’s Representations and Warranties
35
ARTICLE 8
AMENDMENTS AND WAIVERS
36
Section 8.1.
Supplemental Indentures Without Secured Parties’ Consent
36
Section 8.2.
Amendments and Waivers With Secured Parties’ Consent
36
Section 8.3.
Notice of Amendment or Waiver
37
Section 8.4.
Solicitation of Secured Parties
37
Section 8.5.
Opinion of Counsel Conclusive as to as to Amendments and Waivers
37
Section 8.6.
Effect of Amendments and Waivers
38
Section 8.7.
Amendm ents to Recorded Documents and Instruments
38
ARTICLE 9
SATISFACTION AND DISCHARGE; UNCLAIMED MONIES
38
Section 9.1.
Satisfaction and Discharge of Agreement
38
Section 9.2.
Return of Unclaimed Monies
39
ARTICLE 10
MISCELLANEOUS
39
Section 10.1.
Successors and Assigns
39
Section 10.2.
Partial Invalidity
40
Section 10.3.
Communications
40
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Section 10.4.
Governing Law; Submission to Jurisdiction
41
Section 10.5.
Counterparts
41
Section 10.6.
Headings, Etc.; Gender
41
Section 10.7.
Amendments
41
Section 10.8.
Benefits of Agreement Restricted to Parties
41
Section 10.9.
Waiver of Notice
41
Section 10.10.
Joinder
42
Section 10.11.
Additional Financing Statements
42
Section 10.12.
Directly or Indirectly
42
Section 10.13.
Exhibits, Annexes and Section s
42
Section 10.14.
Officers’ Certificate and Opinions of Counsel; Statements to be Contained Therein 42
Section 10.15.
No Oral Agreements
43
Section 10.16.
Exculpation Provisions
43
Section 10.17.
Trustee Not Engaging in a Trade or Business
44
Section 10.18.
Non-Recourse
44
Section 10.19.
Jurisdiction and Process; Waiver of Jury Trial
44
Signature
46
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ANNEX A — Form of Joinder to Indenture
SCHEDULE 5.8 — Security Interest Filings and Recordings
EXHIBIT A — Legal Description of Elm Road Site
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COLLATERAL TRUST INDENTURE, SECURITY
AND ASSIGNMENT AGREEMENT
THIS COLLATERAL TRUST INDENTURE, SECURITY AND ASSIGNMENT AGREEMENT (this “Indenture”), dated as of February 3, 2010, is made by and among MGE POWER ELM ROAD, LLC, a Wisconsin limited liability company (the “Issuer”), the Secured Parties from time to time party hereto and U.S. Bank National Association, a national banking association, as collateral trustee on behalf of the Secured Parties (the “Trustee”). Capitalized terms used in this Indenture have the meanings ascribed to them in Article 1 (unless elsewhere defined herein).
RECITALS:
WHEREAS, the Issuer owns an undivided interest in each of the Unit 1 Fac ility and the Unit 2 Facility as evidenced by, and subject to the terms of, the Ownership Agreements;
WHEREAS, pursuant to the Facility Lease Agreements, the Issuer has leased to MGE its interest in each of the Unit 1 Facility and the Unit 2 Facility;
WHEREAS, the Issuer has entered into the Note Purchase Agreement dated as of even date herewith (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”) with the several Purchasers named in Schedule A thereto (together with their permitted successors and assigns, the “Initial Holders”) pursuant to which the Issuer is, among other things, selling to the Initial Holders and the Initial Holders are purcha sing from the Issuer, the Series A Notes;
WHEREAS, the Issuer will use the proceeds from the sale and the issuance of the Series A Notes to finance or refinance the Issuer’s portion of the cost of the development and construction of the Facilities, including repaying its parent, MGE Power LLC, a portion of the outstanding principal balance of, and the accrued but unpaid interest, on the Intercompany Loans, evidenced by the Intercompany Note;
WHEREAS, pursuant to Section 10.1(b) of the Note Purchase Agreement, the Issuer may incur additional Indebtedness to finance any remaining development and construction costs related to the Facilities, which additional Indebtedness may be in the form of (i) the issuance of Additional Notes to Add itional Purchasers under the terms of the Note Purchase Agreement or (ii) other loans and other extensions of credit made by, or notes or other Indebtedness (collectively, the “Other Secured Loans”) issued to, one or more bank lenders or other financial institutions (each such lender or other financial institution is referred to herein as an “Other Secured Lender”, and collectively, all such Persons are the “Other Secured Lenders”, and, together with the Initial Holders and Additional Purchasers, the “Secured Parties”);
WHEREAS, pursuant to Section 10.10 of this Indenture, any such Additional Purchasers or Other Secured Lenders wishing to obtain rights in the Collateral and otherwise to be entitled to the benefits of this Indenture and the other Security Documents is required to enter into a Joinder to this Indenture;
WHEREAS, to secure the Issuer’s obligations with respect to the Series A Notes and Additional Notes or Other Secured Loans, if any, the Secured Parties are requiring that (i) the Issuer enter into this Indenture pursuant to which the Issuer will, among other things, collaterally assign in favor of the Trustee all of its right, title and interest in the Facility Lease Agreements (collectively, the “Lease Documents”) and the Collection Account and appoint the Trustee as collateral trustee for and on behalf of the Secured Parties, all as more specifically set forth herein, (ii) MGE en ter into the Consent in order to consent to and acknowledge the rights of the Trustee and the Secured Parties in the Lease Documents granted to them pursuant to the Security Documents and (iii) MGE Power LLC enter into the Subordination Agreement pursuant to which MGE Power LLC will agree to subordinate the payment of the Intercompany Loans to the payment of the Secured Obligations, all as described therein; and
WHEREAS, the Trustee has agreed to act as the collateral trustee under this Indenture and the other Security Documents on behalf of the Secured Parties in accordance with the terms and provisions of this Indenture.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Issuer, the Trustee and the Secured Parties agree as follows:
Section 1.1.
“Additional Notes” has the meaning ascribed to such term in the Note Purchase Agreement.
“Additional Purchaser” has the meaning ascribed to such term in the Note Purchase Agreement.
“Additional Secured Party” means an Additional Purchaser or an Other Secured Lender executing a Joinder.
“Affiliate” has the meaning ascribed to such term in the Note Purchase Agreement.
“Bankruptcy Code” has the meaning ascribed to such term in the Note Purchase Agreement.
“Business Day” has the meaning ascribed to such term in the Note Purchase Agreement.
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“Collateral” has the meaning ascribed to such term in Article 2.
“Collection Account” means account no. 136061000 held in the name of the Trustee at U.S. Bank Association entitled “MGE Power Elm Road, LLC Collection Account”.
“Cons ent” means, collectively, (i) that certain Consent Agreement dated as of even date herewith entered into by and among MGE, the Issuer and the Trustee on behalf of the Secured Parties and (ii) any further consent agreement entered into by and among MGE, the Issuer and the Trustee on behalf of the Secured Parties in connection with the issuance of any Additional Notes or the making of any Other Secured Loans (any such consent agreement being in the form of the Consent Agreement referred to in the preceding clause (i) with such modifications as provided for in Section 7 of such Consent Agreement).
“Debt Portion of Basic Rent” means the portion of any amount of Basic Rent (as such term is defined in the Facility Lease Agreements) that is equal to the sum of (i) the aggregate amount of principal and interest and other amounts payable under the Secured Obligations plus (ii) any amounts payable to the T rustee with respect to its fees and expenses for its services under this Indenture, in each case, due and payable at the time such payment of Basic Rent is paid, provided, if in any month, Basic Rent is paid before the Payment Date occurring during such month, all such amounts due and payable on such Payment Date.
“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.
“Default Rate” means, with respect any of the Notes, Additional Notes or Other Secured Debt, the applicable default rate to be paid or associated with such indebtedness.
“Early Termination” has the meaning ascribed to such term in the Note Purchase Agreement.
“Elm Road Site” has the meaning ascribed to such term in the Note Purchase Agreement.
“Event of Default” means an “Event of Default” as such term is defined in the Note Purchase Agreement and any “Event of Default” for purposes of, and as defined in, the documents executed in connection with the Other Secured Loans.
“Event of Total Loss” has the meaning ascribed to such term in the Note Purchase Agreement.
“Excepted Liens” has the meaning ascribed to such term in the Note Purchase Agreement.
“Facility” and “Facilities” each has the meaning ascribed to such term in the Note Purchase Agreement.
“Facility Interest” and “Facility Interests” each has the meaning ascribed to such term in
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the Note Purchase Agreement.
“Facility Lease Agreement” and “Facility Lease Agreements” each has the meaning ascribed to such term in the Note Purchase Agreement.
“Financing Documents” (i) with respect to the Notes, has the meaning ascribed to such term in the Note Purchase Agreement and (ii) with respect to the Other Secured Loans, means all documents and agreements designated as “Financing Documents” with respect to such Other Secured Loans.
“Governmental Authority” has the meaning ascribed to such term in the Note Purchase Agreement.
“Governmental Requirement(s)” has the meaning ascribed to such term in the Note Purchase Agreement.
“Holder” means a holder of Note s issued pursuant to the Note Purchase Agreement including any Note Supplement.
“Indebtedness” has the meaning ascribed to such term in the Note Purchase Agreement.
“Indemnified Party” has the meaning ascribed to such term in the Note Purchase Agreement.
“Indenture” has the meaning ascribed to such term in the Preamble.
“Initial Holder” has the meaning ascribed to such term in the Preamble.
“Intercompany Loans” has the meaning ascribed to such term in the Note Purchase Agre ement.
“Intercompany Note” has the meaning ascribed to such term in the Note Purchase Agreement.
“Issuer” has the meaning ascribed to such term in the Preamble.
“Joinder” means a joinder to this Indenture (substantially in the form of Annex A) executed and delivered by any Additional Purchaser or Other Secured Lender.
“Lease Documents” has the meaning ascribed to such term in the Recitals.
“Lien” has the meaning ascribed to such term in the Note Purchase Agreement.
“Majority Holders” has the meaning ascribed to such term in the Note Purchase Agreement.
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“Maturity Date” has the meaning ascribed to such term in the Note Purchase Agreement.
“MGE” means Madison Gas and Electric Company, a Wisconsin corporation.
“Note Purchase Agreement” has the meaning ascribed to such term in the Recitals.
“Notes” has the meaning ascribed to such term in the Note Purchase Agreement.
“Note Supplement” has the meaning ascribed to such term in the Note Purchase Agreement.
“Other Secured Lender” and “Other Secured Lenders” each has the meaning ascribed to such term in the Recitals.
“Other Secured Loan Agreement” has the meaning ascribed to such term in Article 2.
“Other Secured Loans” has the meaning ascribed to such term in the Recitals.
“Ownership Agreements” has the meaning ascribed to such term in the Note Purchase Agreement.
“Parent” means MGE Energy, Inc., a Wisconsin corporation.
“Parent Undertaking” has the meaning ascribed to such term in the Note Purchase Agreement.
“Payment Date” means (i) with respect to the Series A Notes, the 25th day of each month in each year, commencing on February 25, 2010 and continuing through the Maturity Date for the Series A Notes, (ii) with respect to any Additional Notes, the date on which interest, principal and/or f ees are due and payable with respect to such Additional Notes, (iii) with respect to the Other Secured Loans, the date on which interest, principal and/or fees are due and payable with respect to such Other Secured Loans, and (iv) with respect to each of the Notes and Other Secured Loans, the date (if any) set for prepayment of such Indebtedness in the applicable Financing Documents as a result of the occurrence of a Payment Event due to an Event of Total Loss or an Early Termination.
“Payment Event” has the meaning ascribed to such term in the Note Purchase Agreement.
“Permitted Investments” has the meaning ascribed to such term in the Note Purchase Agreement.
“Person” has the meaning a scribed to such term in the Note Purchase Agreement.
“Predesignated Trustees” means Wilmington Trust Corporation, State Street Corporation, Wells Fargo Corporate Trust, JPMorgan Chase Bank, N.A., Bank of New York or U.S. Bancorp, including any affiliate of such Person providing institutional trust services and for so long as any
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such Person meets the criteria set forth in Section 7.8.
“Property” or 7;Properties” has the meaning ascribed to such term in the Note Purchase Agreement.
“Purchaser” has the meaning ascribed to such term in the Note Purchase Agreement.
“Required Lenders” means, at any time, those Other Secured Lenders having at least fifty-one percent (51%) in aggregate principal amount of all Other Secured Loans outstanding at such time.
“Required Secured Parties” means, the Majority Holders; provided that if any Other Secured Loans shall be outstanding, the “Required Secured Parties” means: (a) the Majority Holders and (b) the Required Lenders, each voting as a separate class, so that both the Majority Holders and the Required Lenders must collectively authorize any action to be taken or direction to be given; provided that if at any time the aggregate principal amount of the Other Secured Loans, or the aggregate outstanding principal amount of the Notes, represents more than 80% of the sum of the aggregate principal amount of the Other Secured Loans and the Notes taken together, “Required Secured Parties” means Secured Parties, considered as a single class, holding at least fifty-one percent (51%) of the sum of (i) the principal amount of the Other Secured Loans plus (ii) the outstanding principal amount of the Notes.
“Responsible Officer” has the meaning ascribed to such term in the Note Purchase Agreement.
“Responsible Trust Officer” means any vice president, trust officer or corporate tr ust officer, in each case employed in the corporate trust department of the Trustee.
“Secured Obligations” has the meaning ascribed to such term in Article 2.
“Secured Parties” has the meaning given to such term in the Recitals.
“Security Documents” means this Indenture, the Consent, the Subordination Agreement, the Parent Undertaking and any and all other agreements and documents now or hereafter creating, evidencing or confirming any Lien securing the Secured Obligations.
“Series A Notes” has the meaning ascribed to such term in the Note Purchase Agreement.
“Subordination Agreement” has the meaning ascribed to such term in the Note Purchase Agreement.
“Trustee” has the meaning ascribed to such term in the Preamble.
“UCC” means the Uniform Commercial Code as in effect in the various relevant States pursuant to the relevant Financing Documents from time to time; provided that all references herein to specific sections or subsections of the UCC are references to such sections or
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subsections, as the case may be, of the Uniform Commercial Code as in effect in such states on the date hereof.
“Unit 1 Facility” has the meaning ascribed to such term in the Note Purchase Agreement.
“Unit 1 Facility Lease Agreement” has the meaning ascribed to such term in the Note Purchase Agreement.
“Unit 2 Facility” has the meaning ascribed to such term in the Note Purchase Agreement.
“Unit 2 Facility Lease Agreement” has the m eaning ascribed to such term in the Note Purchase Agreement.
Section 1.2
ARTICLE 2
To secure the full and punctual payment and performance when d ue, whether at stated maturity, by acceleration or otherwise, of (i) any and all principal, interest (including any default interest and whether arising before or after the filing of a petition in bankruptcy), make-whole amount, breakage costs and other premium, fees, expenses and other indebtedness, obligations and liabilities of the Issuer to the Holders of the Notes issued from time to time under the terms of the Note Purchase Agreement (including any Note Supplement thereto) and under or in connection with or evidenced by the Financing Documents to which the Issuer is a party, in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy), due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, (ii) any and all principal, interest (including any default interest and whether arising before or after the filing of a petition in bankruptcy), breakage costs and other premiu m, reimbursement obligations, fees, expenses and other indebtedness, obligations and liabilities of the Issuer to any Other Secured Lender (or any agent, trustee or other representative appointed in connection therewith) under or in connection with or evidenced
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by any credit, loan, purchase, reimbursement or other agreement with any Other Secured Lender (or any agent, trustee or other representative appointed in connection therewith) (an “Other Secured Loan Agreement”), in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy), due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, and (iii) any and all expenses and charges, legal or otherwise, suffered or incurred by any Secured Party and the Trustee in collecting or enforcing any of such indebtedness, obligations and liabilities or in realizing on or protecting or preserving any security therefor, including the lien and security interests granted in accordance with the Security Documents to which the Issuer is a party (all such principal, interest (including default interest), make-whole amount, breakage costs and other premium, indebtedness, obligations, liabilities, expenses and charges described in clauses (i) through (iii), inclusive, above being referred to herein as the “Secured Obligations”), all for the benefit of the Secured Parties, and for the uses and purposes and subject to the terms and provisions hereof, and in consideration of the premises and of the covenants herein contained, the Issuer does her eby sell, convey, warrant, mortgage, assign, pledge and grant a first priority security interest to the Trustee, its successors in trust and assigns, on behalf of the Secured Parties, in all right, title and interest of the Issuer in and to the following described properties, rights, title, interests, contracts and privileges and the proceeds thereof, whether now owned or existing or hereafter created, acquired or arising (which collectively, including all property hereafter specifically subjected to the lien of this Indenture, being herein called the “Collateral”):
(1)
the Unit 1 Facility Lease Agreement, including (A) all amounts of Basic Rent, Renewal Rent, Supplemental Rent and all other payments of any kind due to Issuer for or with respect to or arising under or in connecti on with the Unit 1 Facility Lease Agreement, including Termination Value, Condemnation Award, Loss Proceeds, Purchase Price under Sections 2.4(b) or 2.5(b) thereof, Fair Market Value purchase price under Section 12.3 thereof and any amounts under Section 11.2(c)(ii), Section 13.2(c), Article 17 and Article 18 thereof (all such capitalized terms in this clause (A) having the respective meanings specified in the Unit 1 Facility Lease Agreement); (B) all rights, powers, privileges, options and other benefits of the Issuer under or with respect to the Unit 1 Facility Lease Agreement; (C) any right to restitution from MGE, any further sublessee or any other Person in respect of any determination of invalidity of the Unit 1 Facility Lease Agreement; (D) all damages resulting from breach or termination of the Unit 1 Facility Lease Agreement, or arising from bankruptcy, insolvency or similar proceedings involving any party to the Unit 1 Facility Lease Agreement; and (E) any amendments, supplements, modificatio ns, extensions, renewals and replacements of the Unit 1 Facility Lease Agreement;
(2)
the Unit 2 Facility Lease Agreement, including (A) all amounts of Basic Rent, Renewal Rent, Supplemental Rent and all other payments of any kind due to Issuer for or with respect to or arising under or in connection with the Unit 2 Facility Lease Agreement, including Termination Value, Condemnation Award, Loss Proceeds, Purchase Price under Sections 2.4(b) or 2.5(b) thereof, Fair Market Value purchase price under Section 12.3 thereof and any amounts under Section 11.2(c)(ii), Section 13.2(c), Article 17 and Article 18 thereof (all such capitalized terms in this clause (A) having the
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respective meanings specified in the Unit 2 Facility Lease Agreement); (B) all rights, powers, privileges, options and other benefits of the Issuer under or with respect to the Unit 2 Facility Lease Agreement; (C) any right to restitution from MGE, any further sublessee or any other Person in respect of any determination of invalidity of the Unit 2 Facility Lease Agreement; (D) all damages resulting from breach or termination of the Unit 2 Facility Lease Agreement, or arising from bankruptcy, insolvency or similar proceedings involving any party to the Unit 2 Facility Lease Agreement; and (E) any amendments, supplements, modifications, extensions, renewals and replacements of the Unit 2 Facility Lease Agreement;
(3)
all moneys and securities now or hereafter paid or deposited or required to be paid or deposited to or with the Trustee by or for the account of the Issuer pursuant to the terms of the Financing Documents and held or required to be held by the Trustee hereunder (including any such moneys and securities from time to time deposited and held in the Collection Account);
(4)
supporting evidence and documents relating, in each case, to any of the above-described property, including, disks, tapes and related electronic data processing media, a nd all rights of Issuer to retrieve the same from third parties; and
(5)
all proceeds and products of the foregoing of whatever kind and nature, including all claims against third parties with respect to such Collateral;
all terms which are used in the immediately preceding subparagraphs (1) through (5), inclusive, of this Article 2 shall, except as otherwise noted, have the respective meanings as defined in the UCC of the State of New York as in effect from time to time, unless this Indenture shall otherwise specifically provide.
Concurrently with the delivery hereof, the Issuer is delivering, or is causing to be delivered, to the Trustee to hold in trust for the ratable benefit of the Secured Parties, and the Trustee does hereby declare that it holds as collateral trustee in trust for the ratable benefit of the Secured Parties, (a) the original executed counterparts of the Facility Lease Agreements to which a chattel paper receipt is attached, (b) the Consent, (c) the Subordination Agreement and (d) the Parent Undertaking.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the Collateral unto the Trustee, its successors and assigns, in trust and for the benefit and security of Secured Parties from time to time for the uses and purposes and subject to the terms and provisions set forth in this Indenture.
The Trustee hereby acknowledges and declares that it is holding the Collateral as Trustee for the ratable benefit of all of the Secured Parties in accordance with the terms of this Indenture.
It is expressly agreed that anything herein contained to the contrary notwithstanding, the Issuer shall remain liable under the Lease Documents to perform all of the obligations assumed
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by it thereunder, all in accordance with and pursuant to the terms and provisions thereof, a nd the Trustee and the Secured Parties shall have no obligation or liability under any thereof by reason of or arising out of the assignment hereunder or any assignment under any other Security Document, nor shall the Trustee or the Secured Parties be required or obligated in any manner, except as herein expressly provided, to perform or fulfill any obligations of the Issuer under or pursuant to any of the Lease Documents, to make any payment, or to make any inquiry as to the nature or sufficiency of any payment received by it, or to present or file any claim or take any action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times. The Issuer hereby ratifies and confirms its obligations under the Lease Documents.
Subject to the terms and conditions hereof, the Issuer does hereby irrevocably constitute and appoint the Trustee the true and lawful attorney of the Issuer (which appointment is coupled with an interest) with full power (in the name of the Issuer or otherwise) following any Event of Default to ask, require, demand and receive any and all moneys and claims for moneys due and to become due under or arising out of the Lease Documents and all other property which now or hereafter constitutes part of the Collateral, to endorse any checks or other instruments or orders in connection therewith and to file any claims or to take any action or to institute any proceedings which the Trustee may deem to be necessary or advisable. Pursuant to the Consent, MGE has agreed to make all payments of (i) during such time as Section 3.1 is operative, the Debt Portion of Basic Rent under the Facility Lease Agreements, and (ii) during such time as Section 3.2 is operative, all payments under the Facility Lease Agreements, in each case, directly to the Collection Account for the benefit of the Trustee on behalf of t he Secured Parties, for application as provided in this Indenture.
The Issuer agrees that at any time and from time to time, upon the written request of the Trustee, the Issuer, at its own cost and expense, will promptly and duly execute and deliver or cause to be duly executed and delivered any and all such further instruments and documents necessary for the Trustee and the Secured Parties to obtain the full benefits of the assignment hereunder and any assignment under any other Security Document and of the rights and powers herein and therein granted. To the extent that the Unit 1 Facility and the Unit 2 Facility are improvements to real property, and thus the Facility Lease Agreements may represent leases of interests in real property, this Indenture may be recorded with the Register of Deeds for Milwaukee County, Wisconsin, and Racine County, Wisconsin, to provide notice of the collateral assignment o f Facility Lease Agreements under sec. 708.11(2), Wis. Stats. The Unit 1 Facility and Unit 2 Facility are located on the land described on Exhibit A, which is the Elm Road Site. The Collateral does not include any interest in the Elm Road Site, except for Issuer's collateral assignment of its rights under the Facility Lease Agreements to the Trustee, its successors in trust and assigns.
Upon the written instructions of the Trustee or a Secured Party, as the case may be, the Issuer, at its cost and expense, will execute and file or record any financing statement (and any continuation statement with respect to any such financing statement) or any other document necessary for, the Trustee and the Secured Parties to obtain the full benefits of the Lien of this Indenture and the other Security Documents as specified in such instruction.
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The Issuer does hereby warrant and represent that it has not sold, assigned or pledged and hereby covenants that it will not sell, assign or pledge, any of its estate, right, title or interest hereby assigned or assigned pursuant to any other Security Document, to anyone other than to the Trustee for the benefit of the Secured Parties.
ARTICLE 3
RECEIPT, DISTRIBUTION AND APPLICATION OF PAYMENTS
Section 3.1.
first, the amount required to reimburse the Trustee for any unpaid fees for its services under this Indenture and to reimburse the Trustee for any reasonable expenses (including reasonable attorneys’ fees) not previously reimbursed shall be distributed to the Trustee;
second, the accrued unpaid interest due and payable on the Secured Obligations on such Payment Date, allocated among such Secured Obligations pursuant to Section 3.4, shall be distributed to the holders thereof;
third, the required repayments of principal du e and payable on the Secured Obligations on such Payment Date, allocated among such Secured Obligations pursuant to Section 3.4, shall be distributed to the holders thereof;
fourth, subject to Section 3.8(b) and so long as the Trustee has timely received, and sent, a copy of any notice required to be delivered to the Trustee and sent by the Trustee thereunder, the amount required to reimburse any holders of Secured Obligations or any Indemnified Party for any indemnity obligation of the Issuer hereunder or other losses incurred by them (to the extent specifically made reimbursable hereunder and not previously reimbursed) or other amounts then due to them in accordance with the terms of the Financing Documents, shall be distributed as provided in such notice; and
fifth, the balance, if any, of such payments shall b e distributed to the Issuer pursuant to written instruction received by the Trustee from the Issuer from time to time.
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Section 3.2.
first, so much of such monies, payments or amounts as shall be requir ed to reimburse the Trustee for its fees and the costs and expenses of foreclosure, realization or suit, if any, and the retaking, holding, preparing for sale or other disposition of the Collateral and, to the extent permitted by applicable law, the reasonable attorneys’ fees and legal expenses incurred by the Trustee shall be distributed to the Trustee;
second, so much of such monies, payments or amounts remaining as shall be required to reimburse the holders of the Secured Obligations for all theretofore unreimbursed payments paid by the then existing or prior holders of Secured Obligations pursuant to any indemnity furnished to the Trustee in respect of the Trustee’s performance hereunder or under any of the other Financing Documents shall be distributed to such holders ratably, without priority of one over the other, in the proportion that the amount of each such unreimbursed payment of each such holder of a Secured Obligation bears to the aggregate amount of all such unreimbursed payments by all such holders of Secured Obligations;
third, so much of such monies, payments or amounts remaining as shall be required to pay the accrued and unpaid interest on the unpaid principal balance of the Secured Obligations, allocated among such Secured Obligations pursuant to Section 3.4, shall be distributed to the holders thereof;
fourth, so much of such monies, payments or amounts remaining as shall be required to pay the unpaid principal balance of the Secured Obligations to the extent such principal amount is then due or has been declared or otherwise becomes due, plus any make-whole amount, breakage costs or other premium due thereon, allocated among such Secured Obligations pursuant to Section 3.4, shall be distributed to the holders thereof;
fifth, subject to Section 3.8(b) and so long as the Trustee has timely received, and, sent, a copy of any notice required to be delivered to the Trustee and sent by the Trustee thereunder, the amount required to reimburse any holders of Secured Obligations
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or any Indemnified Party for any indemnity obligation of the Issuer hereunder or other losses incurred by them (to the extent specifically made reimbursable hereunder and not previously reimbursed) or other amounts then due t o them in accordance with the terms of the Financing Documents, shall be distributed as provided in such notice, or if there are insufficient funds remaining in the Collection Account for such distribution, such remaining amounts shall be distributed, ratably, without priority of one such holder over another in the proportion that the amount then owed to such holder bears to the aggregate amount of all such obligations which are then due and payable; and
sixth, the balance, if any, of such monies, payments or amounts after all Secured Obligations have been fully, finally and indefeasibly paid in cash when due or declared due in accordance with the Financing Documents, shall be distributed to the Issuer or its assigns or as otherwise may be required by law; provided that any such monies, payments or amounts shall be distributed to the Issuer at any time that the requirements of Section 3.8(a) have been sati sfied.
Section 3.3.
Section 3 .4.
Section 3.5.
Method of Payment to Secured Parties; Trustee as Payment Agent. (a) The principal of, any make-whole amount, breakage costs or other premium and interest on, each Secured Obligation and all other amounts payable to the holders of the Secured Obligations pursuant to the Financing Documents will be payable by th e Issuer (and, provided and to the
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extent the Trustee has received such funds from the Issuer, by the Trustee) at the office of the Trustee which has been designated as the payment agent of the Issuer in subparagraph (b) of this Section 3.5, in immediately available funds, prior to 12:00 p.m. New York, New York time, on the due date thereof. Notwithstanding the foregoing or any provision in any Financing Document to the contrary, the Trustee will pay, if so requested in writing by a holder of Secured Obligations, all amounts payable by the Trustee hereunder to such holder, by wire transfer of imm ediately available funds to an account maintained by such holder with any other bank located in the United States. The Trustee acknowledges that the payment instructions given in Schedule A to the Note Purchase Agreement with respect to the Series A Notes or in a Note Supplement with respect to the Additional Notes or in a similar writing with respect to the Other Secured Loans constitute the written notice required by the preceding sentence to make all payments on such Secured Obligations as provided therein. The Trustee shall institute the transfer of such funds prior to 2:00 p.m. New York, New York time on such due date in accordance with this Section if it has received funds prior to 12:00 p.m. New York, New York time. If the Trustee fails to so institute the transfer of such funds by 2:00 p.m. New York, New York time because it did not receive such funds prior to 12:00 p.m. New York, New York time and such funds are not received by the holders of the Secured Obligations prior to t he end of such due date, the only obligation of the Trustee hereunder as a result of such failure shall be to give the Issuer notice of its failure to receive such funds prior to 12:00 p.m. New York, New York time within one (1) Business Day thereof and the Issuer agrees to compensate the holders of the Secured Obligations for the loss of the use of such funds, at a rate of interest equal to the Default Rate.
(b) So long as any of the Secured Obligations remain outstanding, the Issuer will maintain a single agency where the Secured Obligations may be presented for payment, The Issuer hereby designates the principal corporate trust office of the Trustee as its agency for such purpose, and the Trustee hereby accepts such designation. The Issuer will give to the Trustee and the Secured Parties prior written notice of any change of location of any such agency, which shall be loca ted in the United States; provided such agency shall not be changed without the prior written consent of the Required Secured Parties. In case the Issuer shall fail to maintain such agency or shall fail to give such notices of any change of the location thereof, presentations and demands for payment may be made and notice may be served at the address specified for the Issuer in or pursuant to Section 10.3.
Section 3.6.
Section 3.7.
Payments for Which No Application Is Otherwise Provided . Any payments rightfully received by the Trustee for which no provision as to the application thereof is made elsewhere in this Indenture or in any other Financing Document to which the Trustee is a party, shall be deposited in the Collection Account and distributed by the Trustee (a) to the extent received or realized at any time prior to the payment in full of all Secured Obligations, in the
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order of priority specified in Sections 3.1 or 3.2, as appropriate, and (b) to the extent received or realized at any time after payment in full of all such Secured Obligations to the Issuer or as the Issuer may request.
Section 3.8.
(b)
In the event any holder of Secured Obliga tions or any Indemnified Party determines that it has a claim for reimbursement to be paid under clause fourth of Sections 3.1 or clause fifth of Section 3.2 on any Payment Date, such holder or Indemnified Party shall so notify the Trustee in writing not less than ten (10) Business Days prior to such Payment Date, which notice shall include a certification by such holder or Indemnified Party that such reimbursement is due and owing under the Financing Documents, together with a description of the basis for such reimbursement including the reference to the Financing Document and section thereof under which such reimbursement is due. Upon receipt of such notice, the Trustee shall send a complete copy thereof to the Issuer and each holder of Secured Obligations.
ARTICLE 4
EVIDENCE OF RIGHTS OF SEC URED PARTIES
Section 4.1.
Section 4.2.
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exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee or the Issuer in pursuanc e of such action irrespective of whether or not any notation in regard thereto is made upon such Secured Obligation.
Section 4.3.
Secured Party Register. The Issuer shall furnish to the Trustee at such times as the Trustee may request in writing a list of the names and addresses of each Holder and Other Secured Lender and the aggregate principal amount of the Secured Obligations held by each such Secured Party, in such form and as of such date as the Trustee may reasonably require. The Trustee shall keep at its designated corporate trust office an updated register for the payment of the Secured Obligations pursuant to Article 3 and for purposes of providing notices required hereby pursuant to Section 10.3. It is acknowledged that the Issuer will maintain its own separate register for purposes of registration and registration of transfers of the Secured Obligations (copies of which shall be promptly provided to the Trustee and, in any event, within 10 Business Days of any such registration or registration of transfer). The name and address of each Secured Party, each transfer thereof and the name and address of each transferee of Secured Obligations shall be registered in such register together with the amount of principal and interest outstanding or due with respect to such Secured Obligations. The names and addresses of the Initial Holders are set forth in Schedule A to the Note Purchase Agreement (a copy of which has been provided to the Trustee). Prior to due presentment for registration of transfer, the Person in whose name any Secured Obligation shall be registered shall be deemed and treated as the owner thereof for all purposes hereof, and the Trustee shall not be affected by any notice or knowledge to t he contrary. The Trustee shall give to the Issuer and any Secured Party promptly upon written request therefor, a complete and correct copy of the names and addresses of all registered Secured Parties. The Trustee shall provide the Issuer access (during its business hours) to review and inspect the register in respect of the Secured Obligations.
Section 4.4.
Debt Service Payments At the time each Secured Party becomes party to this Indenture, such Secured Party shall confirm the amount of principal and interest that is scheduled to become due on the respective payment dates. The amount of the debt service payments owed to the Initial Holders is set forth in Section 8.1 of the Note Purchase Agreement, and interest is due and payable in accordance wi th the terms of the Series A Notes.
ARTICLE 5
COVENANTS AND REPRESENTATIONS OF THE ISSUER
Section 5.1.
Recordation; Further Assurances. The Issuer, at its sole expense, will execute, acknowledge, deliver, record and file, or will cause to be executed, acknowledged, delivered, recorded or filed, (i) the Security Documents, the Lease Documents, any related UCC financing statements and all such further instruments, deeds, conveyances, mortgages, supplemental indentures, transfers, financing statements an d continuation statements in such manner and in such places as may be required by Governmental Requirements in order to create, perfect, protect and preserve the rights and the
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Lien of the Trustee in the Collateral and (ii) all such further instruments, deeds, conveyances, mortgages, supplemental indentures, transfers, financing statements and continuation statements as the Trustee may reasonably require, at the direction of the Required Secured Parties, for the better granting, bargaining, selling, remising, releasing, confirming, conveying, warranting, assigning, transferring, mortgaging, pledging, d elivering and setting over to the Trustee of the Collateral, or as may be required in order to transfer to any successor trustee or trustees the estate, powers, instruments and funds held in trust hereunder. Without limiting the foregoing, the Issuer hereby authorizes the Trustee to file any financing statements and continuation statements and to execute and file and/or record any other document on the Issuer’s behalf with respect to all or any part of the Collateral to maintain the Lien of the Security Documents described herein. The Issuer will pay or cause to be paid all filing, registration and recording taxes and fees incident to any filing, registration and recording hereunder, and all reasonable expenses with respect to the preparation, execution and acknowledgment of the Security Documents, and of any instrument of further assurance, and all federal or state stamp taxes and other material taxes, duties, imposts, assessments and charges arising out of or in connection with the executi on and delivery of this Indenture and such instrument of further assurance.
Section 5.2.
Priority of Liens. The Issuer recognizes and agrees that the security interests and other Liens in the Collateral securing each of the Secured Obligations shall be first priority perfected security interests and Liens, subject only to Excepted Liens, and shall rank pari passu with the security interests and other Liens in the Collateral securing each other Secured Obligation, regardless of the time, order, method or manner of attachment, identity of secured party, filing or perfection of any and all of such security interests or other Liens.
Section 5.3.
Opinion Regarding Perfection. The Issuer agrees that it shall furnish to the Trustee, between June 30, 2014 and December 31, 2014, and at five year intervals thereafter, between June 30 and December 31 of the applicable year, an opinion of counsel to the Issuer stating that, in the opinion of such counsel, all actions (if any be required) have been taken with respect to the recording, filing, registering, re-recording, refiling and re-registering of the UCC financing statements, the Security Documents and the Lease Documents as are necessary under the law of the State in which the Issuer is organized or the Collateral is located, as applicable, or under other applicable law to maintain the Lien of the Security Documents in the Collateral (including, without limitation, to the extent provided for therein and herein on a ny Property acquired by the Issuer after the Closing Date), and to fully preserve and protect the rights hereunder, under the Security Documents for the benefit of the Trustee in respect of the Liens and the Collateral and reciting the details of such action (if any), and stating that, in the opinion of such counsel, based upon the facts and circumstances existing at the time such opinion is rendered, no additional action is, or will become during the twelve (12) months following the date of such opinion, necessary for such purpose, or, if any such additional action is necessary, what such action is and when it must be taken.
Section 5.4.
Obligations and Terms Respecting the Facility Lease Agreements. (a) The Issuer acknowledges that MGE has agreed in the Consent to deliver or remit (i) during
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such time as Section 3.1 is operative, the Debt Portion of Basic Rent under the Facility Lease Agreements, and (ii) during such time as Section 3.2 is operative, all payments now or hereafter due and payable to or receivable by the Issuer under the Facility Lease Agreements, in each case, into the Collection Account. All such payments received by the Trustee shall be applied in the manner provided in Article 3. The Issuer shall, in the event the Issuer shall receive any proceeds or revenues with respect to the Collateral tha t are required by the provisions of this Indenture to be paid to, or received by, the Trustee, including any insurance proceeds, immediately pay over such proceeds or revenues to the Trustee.
(b)
This Indenture shall be good and valid against the Issuer or those claiming by, under or through the Issuer, from the date hereof and this Indenture shall continue to be operative during any proceeding taken to realize on the Collateral or otherwise enforce this Indenture. In the event of any realization on the Collateral which shall result in a deficiency, this Indenture shall stand as security during the redemption period for the payment of such deficiency. The Trustee shall be permitted, to the fullest extent permitted by applicable law to exercise remedies under any Security Document separately from remedies exercised against other portions of the Collateral pursuant to the terms hereto.
Section 5.5.
After-Acquired Property. To the fullest extent permitted by applicable Law, any and all Property described or referred to in the Granting Clauses of Article 2 which is hereafter acquired shall ipso facto, and without any further conveyance, assignment or act on the part of the Issuer, become and be subject to the lien of the Security Documents as fully and completely as though specifically described therein, but nothing in this Section 5.5 contained shall be deemed to modify or change the obligations of the Issuer hereunder. In the event that any of the Lease Documents shall be amended, restated, replaced or supplemented, such Lease Document as so amended, restated, replaced or supplemented shall continue to be subject to the provisions of the Security Documents without the necessity of any further act by any of the parties hereto.
Section 5.6.
Section 5.7.
Issuer Information. (a) The Issuer’s organizational registration number is M060299.
(b)
As of the date hereof, the Issuer’s chief executive office is at, and the Issuer keeps its books and records at, 133 South Blair Street, Madison, Wisconsin 53703 (the “Issuer Office”); and, as of the date hereof, the Issuer has no other executive offices or places of business except the Issuer Office and the Elm Road Site. The Issuer shall maintain its chief executive office at, and shall keep its books and records at, the Issuer Office or at such other location or locations as may be specified from time to time in written notice to the Trustee in
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accordance with Section 10.3.
(c)
The Issuer’s legal name and jurisdiction of organization is correctly set forth in the preamble to this Indenture.
(d)
The Issuer has not transacted business at any time during the immediately preceding five-year period, and does not currently transact business, in each case under any other legal names or trade names.
Section 5.8.
ARTICLE 6
Section 6.1.
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permitted by law or in equity.
Section 6.2.
(b)
In case there shall be pending any case or proceedings for the bankruptcy, reorganization, liquidation, proposal or arrangement of the Issuer under the Bankruptcy Code or any other applicable law or in connection with the inso lvency of the Issuer, or in case a custodian, receiver or trustee shall have been appointed for the Issuer, or in case of any other similar proceedings in respect of the Issuer, the Trustee shall have the right (and, if so directed in writing by the Required Secured Parties, the obligation) to file such proof of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of the Secured Obligations allowed in any such judicial proceedings relative to the Issuer and, irrespective of whether the principal of all of the Secured Obligations shall then be due and payable as therein expressed, by proceedings for the prepayment thereof, by declaration or otherwise, the Trustee shall be entitled and empowered to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Secured Obligations, any make-whole amount, breakage costs or other premium and any other sum or sums owing thereon or pursuant theret o or pursuant hereto, and to collect and receive any other Property payable or deliverable on any such claim, and to distribute the same as provided in Section 3.2; and any receiver, custodian, assignee or trustee in bankruptcy, trustee or debtor in reorganization or trustee or debtor in any proceedings for the adoption of an arrangement is hereby authorized by each holder of Secured Obligations, by the acceptance of the Secured Obligations held by it, to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the holders of the Secured Obligations, to pay to the Trustee any amount due it for compensation and expenses, including reasonable attorneys’ fees, incurred by it up to the date of such distribution; provided, however, that nothing herein contained shall be deemed to authorize or empower the Trustee to consent to accept or adopt, on behalf of any holder of the Secured Obligations, any plan of reorganization or readjustmen t of the Issuer affecting the Secured Obligations or the rights of any holder thereof, or to authorize or empower the Trustee to vote in respect of the claim of any holder in any such proceedings.
(c)
The Issuer hereby irrevocably appoints the Trustee as the Issuer’s attorney-in-fact and proxy, with full authority in the place and stead of the Issuer and in the name of the Issuer or otherwise, from time to time during the continuance of an Event of Default in the Trustee’s discretion, to take any action and to execute any instrument which the Trustee may deem necessary or advisable to accomplish the purposes of this Indenture and the other Security Documents, including: (i) to ask, demand, collect, sue for, recover, compound, receive and give
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acquittance and receipts for monies due and to become due under or in respect of any of the Collateral; and (ii) to file any claims or take any action or institute any proceedings which the Trustee may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce the rights of the Trustee with respect to any of the Collateral. Without limiting the generality of the foregoing and whether or not an Event of Default shall have occurred and be continuing, the Trustee shall have the right to receive, collect and endorse all checks made payable to the Issuer or the Issuer’s orde r representing payments under the Facility Lease Agreements or any of the other Lease Documents.
(d)
If the Issuer fails (beyond any applicable grace period or cure period) to perform any act or to take any action which hereunder or under any other Security Document to which it is a party the Issuer is required to perform or take, or to pay (beyond any applicable grace period or cure period) any money which hereunder or under any other Security Document the Issuer is required to pay, the Trustee, in the Issuer’s name or in its own name, may (but shall not be obligated to), following notice to the Issuer, perform or cause to be performed such act or take such action or pay such money, and any expenses so incurred by the Trustee, and any money so paid by the Trustee, shall be a demand obl igation owing by the Issuer and shall bear interest from the date of making such payment until paid at the Default Rate and shall become an obligation secured by the Security Documents and by any other instrument securing the obligations secured thereby. Upon making any such payment, the Trustee shall be subrogated to all of the rights of the Person receiving such payment, which rights will be held by the Trustee to secure the obligations secured by the Security Documents and the other Financing Documents.
Section 6.3.
Trustee Action Directed by Required Secured Parties; Revocation of Direction; Discretionary Actions by Trustee. (a) The Required Secured Parties, by an instrument or instruments in writing executed and delivered to the Tru stee, and providing for the indemnity required under Section 7.3(f), may direct, and at all times shall have such right to so direct, the method and place of conducting the proceedings to be taken in connection with the enforcement of the terms and conditions hereof and of the other Security Documents (and, subject to the discretionary rights of the Trustee pursuant to subparagraph (c) of this Section 6.3, the Trustee may only carry out such enforcement after having received such direction); provided, however, that such direction shall be in accordance with the provisions of law and of this Indenture and such other Security Documents.
(b)
The Required Secured Parties may at any time revoke or alter, by written instruction to the Trustee, all or any part of any written direction previously delivered to the Trustee by the Required Secured Parties.
(c)
The Trustee may act, if any Event of Default has occurred and is continuing or under any other circumstance where action is reasonably required before any necessary instructions may be received in accordance with this Indenture, to the extent it deems necessary and without instruction from the Required Secured Parties, in order to
(i)
protect the Collateral,
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(ii)
instruct or give any notice to the Issuer, or
(iii)
otherwise promote and protect the interests of the Secured Parties;
provided, however, the Trustee shall not be responsible or liable in any way to any o f the Secured Parties for its failure to take any action pursuant to this subparagraph (c). For purposes of clarification, the Trustee’s obligations under Section 7.1(g) shall not be considered discretionary action that is subject to the terms of this subparagraph (c).
Section 6.4.
(b)
The receipt by the Trustee, or by any Person authorized under any judicial proceedings to make any such sale, of the proceeds of any such sale shall be a sufficient discharge to any purchaser of the Collateral, or of any part thereof, sold as aforesaid; and no such purchaser shall be bound to see to the application of such proceeds, or be bound to inquire as to the authorization, necessity or pro priety of any such sale. In the event that, at any such sale, any holder of Secured Obligations is the successful purchaser, it may, in paying the purchase price, turn in any of its promissory notes evidencing the Secured Obligations in lieu of cash in the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon, and if the cash amounts so payable thereon shall be less than the amount due therein, said promissory notes shall be returned to the holder or holders thereof after a notation of each partial prepayment shall have been made thereon.
Section 6.5.
Section 6.6.
Application of Sale Proceeds and Deficiency. The proceeds of any exercise of rights with respect to the Collateral, or any part thereof, and the proceeds and the avails of any
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remedy hereunder shall be paid to and applied as described in Section 3.2. In the event that at any time and from time to time the payments under the Facility Lease Agreements then collected by the Trustee and the proceeds of any sale, collection or realization of or upon the Collateral by the Trustee are insufficient to pay all the obligations secured by the Security Documents when due, the Issuer shall be liable for the deficiency, together with interest thereon as provided in the governing Financing Documents or (if no interest is so provided) at such other rate as shall be fixed by applicable law, together with the costs of collection and the reasonable fees and disbursements of any counsel for the Trustee or any holder of the Secured Obligations to collect such deficiency.
Section 6.7.
Section 6.8.
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(30) days after such written request shall have been received by it; and (d) during such 30-day period, the Required Secured Parties shall not have given the Trustee a direction inconsistent with the written request. Such notification, request, offer of indemnity, refusal or failure and absence of inconsistent direction are hereby declared, in every case, to be conditions precedent to the exercise by any holder of a Secured Obligation of any remedy hereunder; it being understood and intended that no one or more holders of Secured Obligations shall have any right in any manner whatever by its or their action to enforce any right under this Indenture or any other Security Document, except in the manner herein provided, and that all judicial proceedings to enforce any provision of this Indenture or any other Security Document shall be instituted, had and maintained in the manner herein or in any other Security Document provided and for the equal and proportionate benefit of all holders of the Secured Obligations.
Section 6.9.
Secti on 6.10.
(b)
The Issuer by becoming a party to any Security Document (to the extent that it may lawfully do so) hereby covenants that it will not at any time insist upon or plead, or in any manner claim or take the benefit or advantage of, any stay, valuation, appraisal, redemption or extension law now or at any time hereafter in force which, but for this waiver, might be applicable to any sale made under any judgment, order or decree based on any of the Secured Obligations or this Indenture or any other Security Document; and the Issuer by becoming a party to any Security Document (to the extent it may lawfully do so) hereby expressly waives
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and relinquishes all benefit and advantage of any and all such laws and hereby covenants that it will not hinder, delay or impede the execution of any power in any Security Document granted and delegated to the Trustee, but that it will suffer and permit the execution of every such power as though no such law or laws had been made or enacted.
(c)
The Issuer waives any right to require the Trustee or the holders of the Secured Obligations to proceed against any other Person, or to exhaust any Collateral or other security for the obligations secured by the Security Documents and the other Financing Documents and the other instruments securing the obligations secured thereby, or to have any other Person joined with the Issuer in any suit arising out of such obligations or the Financing Documents, or to pursue any other remedy in the Trustee’s or such holders’ power. The Issuer further waives any and all notice of acceptance of this Indenture by any other Person directly or indirectly liable for such obligations from time to time. The Issuer further waives any defense arising by reason of any disability or other defense of any other Person or by reason of the cessation from any cause whatsoever of the liability of any other Person liable for the obligations secured by the Security Documents and the other Financing Documents and the other instruments securing the obligations secured thereby. Until all of such obligations shall have been paid in full, the Issuer shall have no right to subrogation and the Issuer waives the right to enforce any remedy which the Trustee or the holders of the Secured Obligations have or may hereafter have against any other Person l iable for such obligations, and the Issuer waives any benefit of any right to participate in any security whatsoever now or hereafter held by the Trustee or the holders of the Secured Obligations. The Issuer authorizes the Trustee and the holders of the Secured Obligations, without notice or demand and without any reservation of rights against the Issuer and without affecting the Issuer’s liability hereunder or on the obligations secured by the Security Documents and the other instruments securing the obligations secured thereby, from time to time to (a) take or hold any Property other than the Collateral from any other Person as security for such obligations, and exchange, enforce, waive and release any or all of such Property, (b) apply such Property and direct the order or manner of sale thereof as the Trustee and the Required Secured Parties may in their discretion determine and (c) renew, extend for any period, accelerate, modify, compromise, settle or release any of the obligations of any ot her Person in respect of the obligations secured by the Security Documents and the other instruments securing the obligations secured thereby.
Section 6.11.
Sharing.
(a)
Remittance of Proceeds. If
(i)
an Event of Default shall have occurred and be continuing, and
(ii)
a Secured Party shall obtain any payment of proceeds of the Collateral other than through a distribution from the Trustee pursuant to the terms hereof,
then such Secured Party shall, promptly after receipt thereof, notify the Trustee in writing and remit such payment to the Trustee. The Trustee shall, promptly after receipt of such payment, disburse the amount so remitted to it as provided in Section 3.2, in the order of priority set forth therein. Any such payment shall not be deemed to have satisfied any obligations in respect of
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which it was originally received by such Secured Party but rather shall be deemed to have satisfied, to the extent of the amount of such proceeds, the obligations of the Issuer to which such proceeds are applied as provided for in Section 3.2.
(b)
Setoffs, Counterclaims, etc. If
(i)
an Event of Default shall have occurred and be continuing, and
(ii)
a Secured Party shall obtain any amounts through the exercise of a right of banker’s lien, setoff or counterclaim against the Issuer (including any ordinary course application of account balances (by way of set-off, pre-authorized withdrawals, account consolidation or otherwise) to reduce any outstanding principal and to permanently reduce any commitment availability under any Secured Obligation that is in the nature of revolving credit),
then such Secured Party shall, promptly after receipt thereof, notify the Trustee in writing and remit such amounts to the Trustee. The Trustee sh all, promptly after receipt of such amounts, disburse the amounts so remitted to it as provided in Section 3.2, in the order of priority set forth therein. Any such amounts shall not be deemed to have satisfied any obligations in respect of which it was originally received by such Secured Party but rather shall be deemed to have satisfied, to the extent of such amounts, the obligations of the Issuer to which such proceeds are applied as provided for in Section 3.2.
(c)
Return of Proceeds. If any Secured Party that has remitted proceeds of Collateral or other amounts to the Trustee pursuant to any one or more of Section 6.11(a) or Section 6.11(b) shall thereafter be required to repay such proceeds or such other amounts to the original payor or obligee thereof, such Secured Party s hall (i) notify the Trustee in writing of the same and (ii) have a Lien on the Collateral, prior to the Lien securing the Secured Obligations (except the Lien in favor of the Trustee pursuant hereto), securing the repayment of the proceeds so remitted to the Trustee (less any portion thereof distributed to such Secured Party pursuant to Section 3.2), provided that, upon written request by such Secured Party to the Trustee, the Trustee shall request the Person to whom such proceeds were disbursed to remit such proceeds to the Trustee and such Person shall promptly comply with such request. The failure of the Trustee to make any such request notwithstanding, each Person to whom such proceeds were disbursed shall be and remain obligated to remit such proceeds to the Trustee.
(d)
Sharing of Collateral. Except as otherwise provided in Section 6.11(a) through Section 6.11(c), inclusive, if any Secured Party shall obtain any Property as security for the payment of any Secured Obligation (or as security for the guaranty of any such Secured Obligation) held by it, such Secured Party shall promptly thereafter take such actions as shall be necessary to transfer such property to the Trustee to be held as part of the Collateral, and the Trustee shall apply the proceeds from the disposition of any such Property as provided in Section 3.2, in the order of priority set forth therein.
Section 6.12.
Fees and Expenses. If the Issuer fails to pay when due any amount hereunder or under an y other Financing Document, or
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fails to comply with any other provision of any Financing Document in any material respect, the Issuer will pay to the Trustee and each of the Secured Parties, to the extent permitted by applicable law, such further amounts as shall be sufficient to cover the reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by the Trustee or the Secured Parties (pursuant to their respective rights under this Indenture to exercise remedies in respect of the Collateral) in collecting any such sums or in otherwise analyzing, evalua ting, protecting, asserting, defending or enforcing any of their rights as set forth in any Financing Document. Without limiting the generality of the foregoing, the Issuer will pay to the Trustee or the Secured Parties (pursuant to their respective rights under this Indenture to exercise remedies in respect of the Collateral) all reasonable out-of-pocket fees and expenses (including court costs and reasonable attorneys’ fees and expenses) of, or incident to, the enforcement of any of the provisions hereof and all other charges due against the Collateral, including taxes, assessments or Liens upon the Collateral and any reasonable out-of-pocket fees and expenses, including transfer or other taxes, arising in connection with any sale, transfer or other disposition of the Collateral (other than taxes determined by reference to the income of the Trustee or any Secured Party). Such fees and expenses shall be payable on demand together with interest thereon at the Default Rate applicable thereto and the Issuer’s obligation hereunder to pay such expenses shall be treated as a Secured Obligation hereunder.
ARTICLE 7
Section 7.1.
(b)
Subject to Section 7.1(c):
(i)
the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)
the Trustee may conclusively rely, in good faith, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture or the other Security Documents to which it is a party; but in the case of any such
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certificates or opinions which by any provision hereof 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 conform to the requirements of this Indenture.
(c)
In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture for the benefit of the holders of the Secured Obligations, 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 its own affairs.
(d)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own gross negligence or its own willful misconduct, or the inaccuracy of any of its representations or warranties made in Section 7.14, except that:
(i)
if the Trustee is a banking corporation, trust company, or banking association, the Trustee shall not be liable for any error of judgment made in good faith by an officer, emp loyee or representative of the Trustee unless it shall be proved that the Trustee was grossly negligent in ascertaining pertinent facts; and
(ii)
the Trustee shall not be liable to the holder of a Secured Obligation with respect to any action taken or omitted to be taken by it, in good faith after an Event of Default shall exist in accordance with the direction of the Required Secured Parties relating to the method and place of conducting any proceeding for any remedy available to the Trustee.
(e)
No provision of this Indenture 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 in the exercise of any of its rights or powers, 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.
(f)
Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.1.
(g)
The Trustee shall give to each holder of Secured Obligations written notice of each and every Default or Event of Default of which one of its Responsible Trust Officers has actual knowledge within three (3) Business Days of obtaining such actual knowledge.
Section 7.2.
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will pay or reimburse the Trustee promptly (and in any event within thirty (30) days after receipt of any invoice or other statement or notice) for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its coun sel and its agents) except any such expense, disbursement or advance as may arise from its gross negligence or bad faith or willful misconduct. Subject to subparagraph (c) of this Section 7.3, the Trustee agrees that it shall have no right against any holder of Secured Obligations for the payment of compensation for its services hereunder or any expenses or disbursements incurred in connection with the exercise and performance of its powers and duties hereunder or any indemnification against liability, which it may incur in the exercise and performance of such powers and duties but on the contrary, shall look solely to the Issuer for such payment and indemnification and that it shall have no Lien on or security interest in the Collateral as security for such compensation, expenses, disbursements and indemnification except to the extent provided for in Section 3.2.
(b)
The Issuer shall indemnify and hold harmless the Trustee and each of its officers, directors, employees, investment advisors, affiliates and agents (collectively referred to in this subparagraph (b) as the “Indemnified Persons”) from and against, and reimburse each Indemnified Person for, any and all claims, demands, liabilities, losses, damages, judgments, penalties, out of pocket costs, fees and expenses (including reasonable attorneys’ fees and costs incurred in the investigation, defense and settlement of claims), but not taxes determined by reference to the income of the Trustee (all such items are referred to in this subparagraph (b), collectively, as “Losses”) which may be imposed upon, asserted against, or incurred or paid by any such Indemnified Person by reason of, on account of, or in connection with:
(i)
any bodily injury, death or property damage occurring in or upon or in connection with the use, possession, maintenance, management or operation of the Collateral through any cause whatsoever;
(ii)
any act performed or omitted to be performed under this Indenture or any of the other Security Documents (or other Financing Document to the extent related to the Security Documents) by any such Indemnified Person; or
(iii)
any transaction, suit, action or proceeding arising out of or in any way connected with this Indenture, any other Security Document or the Collateral.
The obligations and liability of the Issuer under this Section 7.2(b) shall survive the foreclosure of, and realization upon, the Collateral and the payment in full of the Secured Obligations and any payment, release or discharge hereof and any or all security interests and Liens in the Collateral, and the resignation or removal of the Trustee. The Issuer shall not be obligated to indemnify any Indemnified Person in respect of any of the foregoing matters if the liability of such Indemnified Person arose out of such Indemnified Person’s gross negligence or willful misconduct. Each Indemnified Person shall, within thirty (30) Business Days after its receipt of written notice of the commencement of any action against it in respect of which indemnity may be sought under this Section 7.2(b), notify the Issuer in writing of such commencement. Unless in such Indemnified Person’s reasonable judgment a conflict of interest between itself and the
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Issuer may exist in respect of such claim, such Indemnified Person, upon (i) written acknowledgement by the Issuer that it will pay any Loss in respect of such claim (subject to the negligence and willful misconduct qualifications set forth above) and (ii) reasonable evidence (including insurance) of its ability to pay such Loss, will permit the Issuer to assume the defense of such claim, with counsel reasonably satisfactory to such Indemnified Person; and if such defense is so assumed, the Issuer shall not enter into any settlement without the consent of such Indemnified Person if such settlement attributes liability to such Indemnified Person (which shall not be unreasonably withheld, conditioned or delayed) and, under the circumstances contemplated hereinabove, the Issuer shall not be subject to any liability for any settlement made without its consent (which shall not be unreasonably withheld, conditioned or delayed).
(c)
To the extent not paid by the Issuer or reimbursed pursuant to Section 3.2, each Secured Party severally agrees to indemnify and hold harmless the Trustee (to the extent not reimbursed or paid by the Issuer as provide d herein), pro rata according to the outstanding principal amount of the Secured Obligations held by such Secured Party from time to time, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, fees, costs, expenses or disbursements incurred by the Trustee acting in accordance with the written direction of the Required Secured Parties; provided that no Secured Party shall be required to indemnify the Trustee hereunder to the extent that any claim for indemnification is caused by the gross negligence or willful misconduct of the Trustee.
(d)
The provisions of this Section 7.2 shall survive the resignation or removal of the Trustee and the termination of this Indenture.
Section 7.3.
(b)
Except to the extent expressly provided in Section 7.14, the Trustee does not make any representation, or warranty as to the validity, sufficiency or enforceability of this Indenture, the Security Documents or any other Financing Document or as to the title, operation, merchantability or fitness for use or purpose, value, compliance with specifications, condition, design, quantity, durability or otherwise with respect to any of the Collateral or any substitute therefor. The Trustee shall not be accountable to anyone for the use or application of any of the Secured Obligations or the proceeds thereof or for the use or application of any Collateral or the proceeds thereof which shall be released from the Lien and security interest in favor of the Trustee held in trust under the terms hereof, in accordance with the provisions of this Indenture
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or the Security Documents.
(c)
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, bond, note or other paper or document believed by it, in good faith, to be genuine and to have been signed or presented by the proper party or parties.
(d)
Any request, direction or authorization by the Issuer shall be sufficiently evidenced by a request, direction or authorization in writing, delivered to the Trustee, and signed in the name of such party by a Responsible Officer of the Issuer; and any resolution of the board of directors of the Issuer or any committee thereof (or equivalent evidence of approval and authorization of action) shall be sufficiently evidenced by a copy of such resolution certified by a R esponsible Officer to have been duly adopted and to be in full force and effect on the date of such authentication, and delivered to the Trustee.
(e)
The Trustee may consult with counsel, appraisers, engineers, accountants and other skilled persons to be selected by the Trustee, and the written advice or opinion of any thereof shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(f)
The Trustee shall not be under any obligation to take any action to protect, preserve or enforce any rights or interests in the Collateral or to take any action towards the execution or enforcement of the trusts hereunder or otherwise hereunder, whether on its own motion or on the request of any other Person, if it shall have notified the holders of the Secured Obligations that the same, in the opinion of the Trustee, may involve pecuniary loss, liability or expense, unless the Issuer or one or more holders of Secured Obligations shall offer and furnish reasonable security or indemnity reasonably satisfactory to the Trustee against pecuniary loss, liability and expense to the Trustee (it being acknowledged by the Trustee that the indemnity provided in Section 7.2(c) is satisfactory to the Trustee).
(g)
The Trustee shall not be b ound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note or other paper or document, unless requested in writing to do so by the Required Secured Parties. The Trustee shall have no duty to review any financial statement provided to it hereunder.
(h)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care.
(i)
The Trustee shall have no obligation to exercise any discretion in the performance of its obligations hereunder and shall only be required to act upon the express written instructions of the Issuer or the holders of the Secured Obligations, as the case may be. If any provision of this Indenture imposes any obligation or determination to be taken or made by the Trustee and such provision does not expressly state who shall instruct or advise the Trustee, then
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such instru ction or advice shall be required to be provided to the Trustee by the Required Secured Parties and the Trustee shall promptly request such instructions from the holders of the Secured Obligations.
(j)
IF THE ISSUER DOES NOT PROVIDE THE TRUSTEE WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THE FINANCING DOCUMENTS, THE TRUSTEE MAY PURCHASE INSURANCE AT THE ISSUER’S EXPENSE TO PROTECT THE TRUSTEE’S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT THE ISSUER’S INTERESTS IN THE COLLATERAL. THE COVERAGE PURCHASED BY THE TRUSTEE MAY NOT PAY ANY CLAIMS THAT THE ISSUER MAKES OR ANY CLAIM THAT IS MADE AGAINST THE ISSUER IN CONNECTION WITH THE COLLATERAL. THE ISSUER MAY LATER CANCEL ANY SUCH INSURANCE PURCHASED BY THE TRUSTEE, BUT ONLY AFTER PROVIDING THE TRUSTEE WITH EVIDENCE THAT THE ISSUER HAS OBTAINED INSURANCE AS REQUIRED BY THE FINANCING DOCUMENTS. IF THE TRUSTEE PURCHASES INSURANCE FOR THE COLLATERAL, THE ISSUER WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT THE TRUSTEE MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE SECURED OBLIGATIONS SECURED HEREBY. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE THE ISSUER MAY BE ABLE TO OBTAIN ON ITS OWN.
(k)
The provisions of subparagraphs (c) through (j), inclusive, of this Section 7.3, shall be subject to the provisions of Section 7.1 .
(l)
The Trustee need not post any bond for any action taken under this Indenture.
Section 7.4.
Section 7.5.
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affiliated corporation may be interested in any financial transaction with the Issuer or any of its Affiliates without being liable to account for any profits made thereby; and the Trustee may act as depository or otherwise in respect of other securities of the Issuer or any of its Affiliates, all with the same rights which it would have if not the Trustee; provided that the Trustee shall not exercise any right of setoff against any part of the Collateral.
Section 7.6.
Section 7.7.
Section 7.8.
Section 7.9.
Appointment of Successor Trustee. If the Trustee shall have given notice of resignation pursuant to Section 7.6 or if the Trustee shall be removed pursuant to Section 7.7, a successor Trustee may be appointed by the Required Secured Parties (provided that if such successor Trustee would not
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be one of the Predesignated Trustees, and an Event of Default or Default does not then exist, such appointme nt by the Required Secured Parties shall be with the consent of the Issuer, such consent not to be unreasonably withheld or delayed). If no such appointment shall have been made within twenty-five (25) days after the giving of such notice of resignation or such removal, a successor Trustee may be appointed, upon application of the retiring Trustee, any Secured Party or the Issuer, by any court of competent jurisdiction. During any period during which no such appointment shall have been made, the Required Secured Parties may act as and in the place of the Trustee, and shall have all the rights, remedies, powers, privileges, immunities and indemnities as the Trustee would have in so doing.
Section 7.10.
Section 7.11.
Section 7.12.
Conveyance upon Request of Successor Trustee. Should any deed, conveyance or
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instrument in writing from the Issuer be required by any successor Trustee for more fully and certainly vesting in and confirming to such new Trustee such estates, Properties, rights, powers and trusts as are created by this Indenture or the other Security Documents, then upon request of such successor Trustee any and all such deeds, conveyance s and instruments in writing shall be made, executed, acknowledged and delivered, and, if and where appropriate, shall be caused to be recorded and filed, by the Issuer.
Section 7.13.
Co-Trustees and Additional Trustees.
(a)
Delivery of Documents. Anything herein contained to the contrary notwithstanding, if, at any time or times, in order to conform with any law of any jurisdiction in which the Issuer shall then own or hold any Collateral, the Trustee shall be advised by counsel satisfactory to it that it is necessary or pru dent in the interest of the holders of the Secured Obligations so to do, the Trustee shall execute and deliver any and all instruments and agreements necessary or proper to appoint, on behalf of the Trustee, the holders of the Secured Obligations and the Issuer, another trust company, banking corporation or banking association, or one or more other Persons approved by the Trustee either to act as co-trustee or co-trustees hereunder, jointly with the Trustee, or its successors, or to act as separate trustee or trustees hereunder; and the trust company, banking corporation or banking association, or the Person or Persons so appointed shall be such co-trustee or co-trustees, or separate trustee or trustees, with such powers, duties and discretion as shall be specified in the said instruments or agreements of appointment, executed as aforesaid; provided, however, that such instruments or agreements shall not grant to any such trustees any rights or powers greater than, or in addition to, those granted to the Tru stee hereunder and under the other Security Documents. It shall not be necessary for any holder of a Secured Obligation or the Issuer or any other Person other than the Trustee to execute and deliver any such instruments or agreements. The Trustee shall not be responsible for any act or omission of any co-trustee selected by the Issuer or the holders of the Secured Obligations.
(b)
Exercise of Powers. The rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred and imposed upon, and exercised or performed by the Trustee, or jointly by the Trustee and any co-trustee or co-trustees or separate trustee or trustees appointed pursuant to this Section 7.13 as provided herein or in the instrument or agreement appointing suc h co-trustee or co-trustees or separate trustee or trustees, except to the extent that under the law of any jurisdiction in which any particular act or acts are to be performed the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such co-trustee or co-trustees or separate trustee or trustees.
(c)
Trustee Attorney-in-Fact. Any co-trustee or co-trustees or separate trustee or trustees appointed hereunder may at any time by an instrument in writing constitute the Trustee, or its successor in the trusts hereunder, its or their attorney-in-fact, with full power and authority, to the extent which may be permitted by law, to do any and all acts and things and ex ercise any and all discretion authorized or permitted by it or them, for and on behalf of it or them, and in its or their name.
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(d)
Notice. The Trustee will, as promptly as practicable, give written notice in reasonable detail of the appointment of any co-trustee or separate trustee under this Section 7.13 to each of the Secured Parties and the Issuer.
(e)
Resignation of Co-Trustee or Separate Trustee. Each co-trustee or separate trustee appointed pursuant to the provisions of this Section 7.13 may resign and may be removed by the Trustee, and the successors to such trustees may be appointed by the Trustee as set forth in the first paragraph of this Section 7.13; provided that all of the provisions hereof with respect to the resignation or removal of the Trustee or the appointment of a successor to the Trustee (except the provisions of Section 7.10), and the effect thereof, shall be deemed applicable to the resignation or removal of each co-trustee or separate trustee appointed pursuant to the provisions of this Section 7.13 or to the appointment of successors to such trustees, as the case may be.
Section 7.14.
Trustee’s Representations and Warranties. The Trustee represents, warrants and covenants that:
(a)
Organization, Etc. It is a national banking association duly chartered, validly existing and in good standing under the laws of the United States of America, and has all requisite power, authority and legal right under the laws thereof to execute, deliver and carry out the terms of each of the Security Documents to which it is a party. Its corporate trust office is located at its street a ddress set forth in Section 10.3.
(b)
Authorization, Etc. It has duly authorized, executed and delivered this Indenture and the other Security Documents to which it is a party.
(c)
No Violation. The execution and delivery of, and performance of its obligations under, this Indenture and the other Security Documents to which it is a party will not result in any violation of, or be in conflict with, or constitute a default under, any of the provisions of its articles of association or by-laws, or of any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, lease, note or bond purchase agreement, license or bank loan or credit agreement or other agreement to which it is a party or by which it is bound, or any Governmental Requirement of any Governmental Authority governing the banking or trust powers of the Trustee.
(d)
No Consents or Approvals. Neither the execution and delivery by it, in its individual capacity or as Trustee, as the case may be, of this Indenture nor the consummation of any of the transactions contemplated thereby requires the consent or approval of, the giving of notice to, or the registration with, any Governmental Authority pursuant to any law governing the banking or trust powers of Trustee.
(e)
Capitalization. It has (or the bank or bank holding company owning all of the outstanding capital stock or share capital of the Trustee has) capital and unimpaired surplus aggregating at least $500,000,000.
ARTICLE 8
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Section 8.1.
Supplemental Indentures Without Secured Parties’ Consent. The Issuer and the Trustee from time to time and at any time, subject to the restrictions in this Indenture contained, may, without consent from the Secured Parties, enter into an indenture or indentures supplemental hereto and which thereafter shall form a part hereof for any one or more or all of the following purposes:
(a)
to cure any ambiguity or cure, correct or supplement any defect or inconsistent provision hereof or any supplement hereto or thereto, p rovided that none of the foregoing shall adversely affect or diminish the rights of the Secured Parties in any respect;
(b)
to amplify the description of any Property set forth in any Security Document constituting Collateral, or to add any additional Property as Collateral;
(c)
to appoint any co-trustee or separate or successor trustee in accordance with the terms hereof so long as any such Person shall not be required to perform any duties or be exposed to any liabilities except as provided herein; and
(d)
to provide for the joinder of any Additional Secured Party pursuant to the terms hereof.
The Issuer covenants to perform all requirements of any such supplemental indenture. No restrictions or obligations imposed upon the Issuer may, except as otherwise provided in this Indenture, be waived or modified by such supplemental indentures or otherwise.
Section 8.2.
Amendments and Waivers With Secured Parties’ Consent. This Indenture and any ot her Security Document may be amended, and the observance of any term hereof or thereof may be waived, only in writing by agreement of the Trustee and the Issuer (in the form of a supplemental indenture or otherwise), and only with the written consent of the Required Secured Parties, provided that no such amendment or waiver, shall, without the consent of all Secured Parties adversely affected thereby:
(a)
permit the creation of any Lien or security interest with respect to any of the Collateral (excluding Excepted Liens) in favor of any Person other than the Trustee for the benefit of the Secured Parties;
(b)
effect the deprivation of any Secured Party of the benefit of any Lien in and to the Collateral (other than in connection with a release of Collateral in accordance with Section 9.1);
(c)
amend Article 2, Article 3, Article 6, Section 8.4 or Section 10.1 or this
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Section 8.2 or amend any defi ned term to the extent used therein;
(d)
reduce the amounts of debt service payments owed to such Secured Party under its Financing Documents that are included under Section 6 of the Consent;
(e)
modify the definition of “Required Secured Parties,” or “Secured Obligations” or any definition used therein to the extent used therein, or otherwise change the percentage of the aggregate principal amount of Secured Obligations the holders of which are required to consent to any such waiver or supplemental agreement or amendment or modification pursuant to this Section 8.2;
(f)
permit any sale, transfer, conveyance, pledge or release of Collateral not permitted herein and in any other Financing Document; or
(g)
alter any provisions herein or in any other Security Document relative to payment or priority of the Secured Obligations or Liens securing the Secured Obligations.
No such amendment or waiver shall modify the rights, duties or immunities of the Trustee, without the consent of the Trustee.
Section 8.3.
Notice of Amendment or Waiver. Promptly after the execution by the Issuer and the Trustee of any amendment or waiver pursuant to Sections 8.1 or 8.2, the Trustee shall give written notice, together with a conformed copy thereof, to each Secured Party at such time. Any failure of the Trustee to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such document.
Section 8.4.
Solicitation of Secured Parties. The Issuer will not solicit, request or negotiate for or with respect to any proposed amendment or waiver, or consent with respect thereto, of any of the provisions hereof or any other Security Document unless each Secured Party shall be informed thereof by the Issuer and shall be afforded the opportunity of considering the same. The Issuer will not, directly or indirectly, pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, to any Secured Party as consideration for or as an inducement to entering into by any Secured Party of any waiver, modification or amendment of, or agreement with respect to, any of the terms and provisions hereof or the other Security Documents unless such remuneration is concurrently paid, on the same terms, ratably according to amount of outstanding Secured Obligations, to all Secured Parties holding Secured Obligations at the time (regardless of whether such Secured Party executed such amendment or waiver).
Section 8.5.
Opinion of Counsel Conclusive as to as to Amendments and Waivers. The Trustee is hereby authorized to join with the Issuer in the execution of any amendment, waiver or consent authorized or permitted by the terms hereof and to make the further
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agreements and st ipulations that may be therein contained, and the Trustee shall receive an opinion of counsel as conclusive evidence that any such document executed pursuant to the provisions of this Article 8 complies with the requirements of this Article 8.
Section 8.6.
Section 8.7.
Amendments to Recorded Documents and Instruments. Upon the written request of the Required Secured Parties, the Trustee will duly execute and deliver such instruments and documents as may become necessary to reflect, in the public records in which any instrument or document has been filed evidencing the Liens granted to the Trustee pursuant to the Security Documents, any amendment to the description of the Collateral or the Trust Estate by reason of any amendment or restatement of this Indenture or any other Security Document.
ARTICLE 9
SATISFACTION AND DISCHARGE; UNCLAIMED MONIES
Section 9.1.
(b) Notwithstanding anything to the contrary contained herein, if all or any part of any
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payment on account of the Secured Obligations made prior to, or contemporaneously with, a termination of this Indenture shall be invalidated, set aside, declared or found to be void or voidable or required to be repaid to the Issuer, any trustee, custodian, receiver, conservator, master, liquidator or other Person pursuant to the Bankruptcy Code or pursuant to any common law or equitable cause, then, to the extent of such invalidation, set aside, voidness, voidability or required repayment, neither the Secured Obligations nor the Liens hereof shall be deemed to have been paid, satisfied, released or discharged under this Article 9, and, to the extent of such invalidation, set aside, voidness, voidability or required repayment, the Secured Obligations and such Liens shall be immediately and automatically revived without the necessity of any action by the Issuer, the Trustee or any of the Secured Parties, and the Lien hereof shall continue in full force and effect thereafter until all of the Secured Obligations shall have been fully, finally and indefeasibly paid.
Section 9.2.
ARTICLE 10
Section 10.1.
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that the Issuer shall not assign or transfer any of its rights or delegate any of its duties or obligations hereunder or under any other Security Document without the prior written consent of each Secured Party.
Section 10.2.
Section 10.3.
If to the Issuer:
MGE Power Elm Road, LLC
133 South Blair Street
Madison, Wisconsin 53703
Attention: Manager
Telecopier: (608) 252-7098
If to the Trustee:
U.S. Bank National Association
1555 North RiverCenter Drive – Suite 203
Milwaukee, Wisconsin 53212
Attn: Corporate Trust Services
Telecopier: (414) 905-5049
If to the Secured Parties, at the address for communications and notices specified in the Secured Parties register maintained by the Trustee pursuant to Section 4.3.
The parties hereto, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to the Secured Parties) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five (5) Business Days after being deposited in the mail (registered or certified, return receipt requested) if mailed; when receipt acknowledged, on the Business Day sent, if telecopied before 3:00 p.m. New York, New York time, and otherwise on the next Business Day; and the next Business Day after timely delivery to the courier if sent by overnight air courier for next day delivery; provided, however, that any notice to the Trustee shall only be deemed given upon receipt.
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Any notice or communication to a Secured Party under this Indenture shall be mailed by first class mail, c ertified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register required to be maintained pursuant to Section 4.3. Any such notice or communication shall be deemed to have been duly given: five (5) days after being deposited in the mail (registered or certified, return receipt requested) if mailed and the next Business Day after timely delivery to the courier if sent by overnight air courier for next day delivery.
If a notice or communication is given in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
SECTION 10.4.
Section 10.5.
Section 10.6.
Section 10.7.
Section 10.8.
Benefits of Agreement Restricted to Parties. Nothing in this Indenture expressed or
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implied is intended or shall be construed to give to any Person other than the Issuer, the Trustee and the Secured Parties, any legal or equitable right, remedy or claim under or in respect of this Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the s ole and exclusive benefit of the Issuer, the Trustee and the Secured Parties.
Section 10.9.
Section 10.10.
Joinder. Any Holder or Other Secured Lender not executing and delivering this Indenture on the date hereof shall execute and deliver a Joinder, except that any transferee of a Note in accordance with Section 13.2 of the Note Purchase Agreement shall not be required to execute and deliver a Joinder and shall be deemed, by its acceptance of any such Note, to have agreed to the terms and conditions of this Indenture, to be bound by the terms hereof and to have all of the rights and benefits granted to a Secured Party herein. Promptly upon the execution and delivery of a Joinder (or the transfer and acceptance of a Note as provided in the previous sentence), such Holder or Other Secured Lender, as applicable, shall be deemed a “Secured Party” for all purposes herein. Any reasonable costs, fees or expenses incurred by the Trustee or any Secured Party in connection with the execution and delivery of a Joinder to this Indenture shall be for the account of the Issuer.
Section 10.11.
Additional Financing Statements. The Issuer hereby authorizes the Trustee to file one or more financing statements, and amendments thereto, required to perfect the Liens granted under the Security Documents.
Section 10.12.
Sectio n 10.13.
Section 10.14.
Officers’ Certificate and Opinions of Counsel; Statements to be Contained Therein. (a) Other than as specifically provided in Section 3.8 above
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with respect to any demand by the Issuer, upon any request, application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee a certificate signed by a Responsible Officer stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and, upon specific request therefor, an opinion of counsel stating that in the opinion of such counsel all such conditions precedent (to which a legal opinion is reasonably appropriate) have been complied with, except that in the case of any such request, application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular request, application or demand, no additional certificate or opinion need be furnished.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee wit h respect to compliance with a condition or covenant provided for in this Indenture shall include (i) a statement that the person making such certificate or opinion has read such covenant or condition, (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (iii) a statement that, in the opinion of such person, 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 satisfied or complied with and (iv) a statement as to whether or not, in the opinion of such person, such condition or covenant has been satisfied or complied with.
(c)
An y certificate, statement or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer has actual knowledge that such certificate, opinion or representations are erroneous or, in the exercise of reasonable care, should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, upon the certificate, statement or opinion of, or representations by, a Responsible Officer or Officers of the Issuer, unless such counsel has actual knowledge that such certificate, statement or opinion or representations are erroneous.
(d)
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of, or otherwise engaged or retained by, the Issuer or an Affiliate thereof, unless such officer or counsel, as the case may be, has actual knowledge that such certificate or opinion or representations are erroneous.
(e)
Any certificate or opinion of any independent firm of accountants filed with the Trustee shall contain a statement that such firm is independent.
SECTION 10.15.
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OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO.
SECTION 10.16.
Section 10.17.
Trustee Not Engaging in a Trade or Business. The trusts created hereunder have been organized for the purposes described herein with no objective by the Trustee to engage in the conduct of a trade or business.
Section 10.18.
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Section 10.19.
(b)
The Issuer consents to process being served by or on behalf of the Trustee or any Secured Party in any suit, action or proceeding of the nature referred to in Section 10.19(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Section 10.3 or at such other address of which Trustee or such Secured Party shall then have been notified pursuant to said Section. The Issuer agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.
(c)
Nothing in this Section 10.19 shall affect the right of the Trustee or any Secured Party to serve process in any manner permitted by law, or limit any right that the Trustee or any Secured Party may have to bring proceedings against the Issuer in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(d)
THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS INDENTURE OR ANY OTHER SECURITY DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers thereunto duly authorized, all as of the day and year first written above.
MGE POWER ELM ROAD, LLC
By /s/ Jeffrey C. Newman
Name: Jeffrey C. Newman
Title: Manager
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By /s/ Steven F. Posto
Name: Steven F. Posto
Title: Vice President
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ John A. Tanyeri
Name: John A. Tanyeri
Title: Director
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By /s/ Timothy S. Collins
Name: Timothy S. Collins
Title: Authorized Representative
[SIGNATURE PAGE TO TRUST INDENTURE]
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FORM OF JOINDER
Re: MGE Power Elm Road, LLC
This JOINDER TO COLLATERAL TRUST INDENTURE, SECURITY AND ASSIGNMENT AGREEMENT (this “Security Joinder”), dated as of _____________ ;__, 20__, is entered into by the undersigned [Additional Secured Party] (the “Additional Secured Party”), MGE POWER ELM ROAD, LLC, a Wisconsin limited liability company (the “Issuer”), and U.S. Bank National Association, a national banking association, as collateral trustee on behalf of the Secured Parties (the “Trustee”). Terms not otherwise defined herein shall have the meaning set forth in the Indenture hereinafter referred to below.
RECITALS
WHEREAS, the Issuer owns an undivided interest in each of the Unit 1 Facility and the Unit 2 Facility;
WHEREAS, pursuant to the Facility L ease Agreements, the Issuer has leased to MGE its interest in each of the Unit 1 Facility and the Unit 2 Facility;
WHEREAS, in order to finance a portion of the Issuer’s share of the cost of developing and constructing the Facilities, the Issuer has entered into the Note Purchase Agreement pursuant to which the Issuer has issued and sold to the Initial Holders the Series A Notes;
WHEREAS, pursuant to Section 10.1(b) of the Note Purchase Agreement, the Issuer may incur additional Indebtedness to finance any remaining development and construction costs related to the Facilities, which additional Indebtedness may be in the form of (i) the issuance of Additional Notes to Add itional Purchasers pursuant to the Note Purchase Agreement or (ii) Other Secured Loans made by Other Secured Lenders pursuant to an Other Secured Loan Agreement;
WHEREAS, to secure the Issuer’s obligations with respect to the Series A Notes and any Additional Notes or Other Secured Loans, the Issuer has entered into certain Security Documents, including, but not limited to that certain Collateral Trust Indenture, Security and Assignment Agreement, dated as of February 3, 2010 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), by and among the Issuer, each of the Secured Parties thereto and the Trustee, pursuant to which the Issuer has collaterally assigned in favor of the Trustee, for the benefit of the Secured Parties, all of its right, title and interest in the Collateral described therein; and
WHEREAS, pursuant to Section 10.10 of the Indenture, any Additional Purchasers or Other Secured Lenders wishing to become an Additional Secured Party and obtain rights in the Collateral and otherwise to be entitled to the benefits of the Indenture and the other Security Documents is required to enter into this Security Joinder.
NOW, THEREFORE, in consideration of the premises and other good and valuable
ANNEX A
(to Collateral Trust Indenture, Security
and Assignment Agreement)
consideration, the receipt and sufficiency whereof are hereby acknowledged, the Additional Secured Party does hereby covenant and agree, as follows:
In accordance with the requirements of the Indenture, the Additional Secured Party desires to join in the Indenture as a “Secured Party” and agrees to be a party to, subject to, and bound by the terms and provisions of the Indenture in the same manner as if the Additional Secured Party was an original signatory to the Indenture, so that at all times from and after the date hereof, the Additional Secured Party shall be entitled to the rights and benefits set forth in Indenture to the extent and in the manner set forth therein.
The undersigned is duly authorized to execute and deliver this Security Joinder. The execution by the undersigned of this Security Joinder shall evidence its consent to and acknowledgment and approval of the terms set forth herein and in the Indenture.
Upon execution of this Security Joinder, the Indenture shall be deemed to be amended as set forth above. Except as amended herein, the terms and provisions of the Indenture is hereby ratified, confirmed and approved in all respects.
[Remainder of Page Intentionally Blank]
Any and all notices, requests, certificates and other instruments (including any note) may refer to the Indenture without making specific reference to this Security Joinder, but nevertheless all such references shall be deemed to include this Security Joinder unless the context shall otherwise require.
[ADDITIONAL SECURED PARTY]
By
Name:
Title:
MGE POWER ELM ROAD, LLC
By
Name:
Title: Manager
U.S BANK NATIONAL ASSOCIATION, as Trustee
By
Name:
Title:
SECURITY INTEREST FILINGS AND RECORDINGS
Filing of a UCC-1 financing statement (listing the Issuer as debtor and the Collateral Agent as secured party and describing the Collateral) with the Wisconsin Department of Financial Institutions.
SCHEDULE 5.8
(to Collateral Trust Indenture, Security
and Assignment Agreement)
EXHIBIT A
Legal Description of Elm Road Site*
Area “A”
Being part of the Northwest 1/4 and the Northeast Fractional 1/4 of Section 36, Town 5 North, Range 22 East and the Northwest Fractional 1 /4 of Section 31, Town 5 North, Range 23 East, City of Oak Creek, Milwaukee County, Wisconsin, bounded and described as follows:
Commencing at the Northwest corner of the aforesaid Northeast Fractional 1/4 of Section 36; thence N89°49'27"E along the North line of said Northeast Fractional 1/4 of Section 36, 2199.57 feet to a point on the East line of East Oakwood Road as delineated by the aforesaid City of Oak Creek, said point also being a meander corner on said North line and the point of beginning; thence S21°09'39"E along a meander line, 1210.79 feet to a meander corner on the East line of said Northeast Fractional 1/4 of Section 36; thence S25°43'15"E along a meander line, 1669.86 feet to a point on the East line of East Elm Road as delineated by the aforesaid City of Oak Creek, said point also being a meander corner on the South line of the aforesaid Northwest Fraction 1/4 of Section 31; t hence S89°11'23"W along said South line, 702.85 feet to the Southeast corner of the aforesaid Northeast Fractional 1/4 of Section 36; thence S89°44'16"W along the South line of the said Northeast Fractional 1/4 Section 36, 2389.50 feet to a point on the Easterly line of the Chicago and North Western Transportation Company right-of-way; thence N21°17'33"W along said Easterly line, 2803.75 feet to an iron pipe found and a point on the South line of the aforesaid East Oakwood Road; thence N89°49'19"E along said South line, 194.06 feet to the Westerly line of Lot 1, Certified Survey Map (C.S.M.) No. 5261; thence S21°17'33"E along said Westerly line, 911.31 feet to an iron rod found; thence N89°46'47"E along the South line of said Lot 1, 366.42 feet to a iron rod found; thence N00°40'16"W along the East line of said Lot 1 and the West line of Lot 2, C.S.M. No. 88, 822.89 feet to a point on the South line of the aforesaid East Oakwood Road, said point also being the Northwest cor ner of Lot 2, Certified Survey Map No. 88; thence N89°49'27"E along said South line, 528.00 feet to an iron pipe found; thence N00°40'16"W along said South line, 27.00 feet; thence N89°49'27"E along said South line, 1539.27 feet to a point on the aforesaid East line of East Oakwood Road; thence N00°10'33"W along said East line, 33.00 feet to the point of beginning, expecting the Southerly 33 feet West of the meander corner dedicated for road purposes, together with that part of the aforesaid Northeast Fractional 1/4 Section 36 and that part of the aforesaid Northwest Fractional 1/4 of Section 31 lying East of the aforesaid meander lines and West of the Westerly boundary of Lake Michigan. Containing 193.8592 acres (8,444,507 Sq. Ft.) more or less of land gross to the Westerly boundary of Lake Michigan, 166.9345 acres (7,271,667 Sq. Ft.) more or less of land net to said meander lines. Subject to riparian rights, covenants, conditions, restrictions and easements of record.
Area “B”
Being part of the Southeast 1/4 Section 36, Town 5, Range 22 East and the Southwest Fractional
EXHIBIT A
(to Collateral Trust Indenture, Security
and Assignment Agreement)
1/4 of Section 31, Town 5 North, Range 23 East, City of Oak Creek, Milwaukee County, Wisconsin, bounded and described as follows:
Beginning at the Northeast corner of the aforesaid Southeast 1/4 of Section 36; thence N89°11'23"E along the North line of the aforesaid Southwest Fractional 1/4 of Section 31, 702.85 feet to a meander corner on said North line; thence S20°44'41"E along a meander line, 2795.19 feet to a meander corner on the South line of the aforesaid Southwest Fractional 1/4 of Section 31; thence S89°12'43"W along said South line, 1655.56 feet to the Southeast corner of the aforesaid Southeast 1/4 of Section 36; thence S89°13'29"W along the South line of said Southeast 1/4, 1346.79 feet to the Easterly line of the Chicago and North Western Transportation Company right-of-way; thence N21°17'33"W along said Easterly line, 750.00 feet; thence continuing along said Easterly line, N51°17'33"W, 100 feet; thence continuing along said Easterly line, N21°17'33"W, 2009.95 feet to a point on the North line of the aforesaid Sou theast 1/4 of Section 36; thence N89°44'16"E along said North line, 2389.50 feet to the point of beginning, excepting the Northerly 33 feet West of the meander corner dedicated for road purposes, together with that part of the aforesaid Southwest Fractional 1/4 of Section 31 lying East of the aforesaid meander line and West of the Westerly boundary of Lake Michigan. Containing 241.3945 acres (10,515,143 Sq. Ft.) more or less of land gross to the Westerly boundary of Lake Michigan, 182.5011 acres (7,949,748 Sq. Ft.) more or less of land net to said meander line. Subject to riparian rights, covenants, conditions, restrictions and easements of record.
Area “C”
Being part of the Northeast 1/4 of Section L Town 4 North, Range 22 East and the North Fractional 1/2 of Section 6, Town 4 N orth, Range 23 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Beginning at the Northeast corner of the aforesaid Northeast 1/4 of Section 1; thence N89°12'43"E along the North line of the aforesaid North Fractional 1/2 of Section 6, 1655.55 feet to a meander corner on said North line; thence S20°46'04"E along a meander line, 1472.36 feet to a point on the North line of the South 80 acres of said North Fractional 1/2 of Section 6; thence S85°31'53"W along said North line, 2162.64 feet to a point on the East line of the aforesaid Northeast 1/4 of Section 1, said point being 1522.57 feet South of the Northeast corner of the aforesaid Northeast 1/4 of Section 1 as measured along said East line; thence S00°48'20"E along said East line, 1119.17 feet to the Southeast corner of said Northeast 1/4 of Section 1; thence N88°30'37"W along the South li ne of said Northeast 1/4 of Section 1,419.49 feet to a point on the Easterly line of the Chicago and North Western Transportation Company right-of-way; thence N21°17'33"W along said Easterly line, 2684.25 feet; thence continuing along said Easterly line, N68°42'27"E, 50.00 feet; thence continuing along said Easterly line, N21°17'33"W, 100.00 feet to a point on the North line of said Northeast 1/4 of Section 1; thence N89°13'29"E along said North line, 1346.79 feet to the point of beginning, together with that part of the aforesaid North Fractional 1/2 of Section 6 lying East of the aforesaid meander line, North of the aforesaid North line of the South 80 acres and West of the Westerly boundary of Lake Michigan. Containing 139.1991 acres (6,063,511 Sq. Ft.) more or less of land gross to the Westerly boundary of Lake Michigan, 118.7895 acres (5,174,472 Sq. Ft.) more or less of land
net to said meander line. Subject to riparian rights, covenants, conditions, restrictions and easements of record.
Area “D”
Being part of the Southeast 1/4 of Section 1, Town 4 North, Range 22 East and the South Fractional 1/2 of Section 6, Town 4 North, Range 23 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Beginning at the Northeast corner of the aforesaid Southeast 1/4 of Section 1; thence N85°31'53"E alon g the North line of the aforesaid South Fractional 1/2 of Section 6, 2560.72 feet to a meander line intersecting said North line; thence S20°46'04''E along said meander line, 292.10 feet to a meander corner on the North and South 1/4 line of said South Fractional 1/2 of Section 6; thence S30°47'21"E along a meander line, 2627.79 feet to a meander corner on the South line of said South Fractional 1/2 of Section 6; thence S85°36'59"W along said South line, 1329.18 feet to the South of said South Fractional 1/2 of Section 6; thence N00°28'53"W along the aforesaid North and South 1/4 line, 1791.96 feet to the South line of the North 12.82 chains of Southwest 1/4 of said Section 6; thence S85°31'53"W along said South line of the North 12.82 chains, 2647.20 feet to the Easterly line of Tax Key No. 06-013-000, said Easterly line also being the Westerly line of Certified Survey map No. 1189; thence S21°16'53"E along said Easterly line, 1832.97 feet to an iron pipe found and the North li ne of Seven Mile Road; thence S85°31'53"W along said North line, 104.47 feet to the Easterly line of the Chicago and North Western Transportation Company right-of-way; thence N21°16'53"W along said Easterly line, 2762.36 feet to a point on the North line of the aforesaid Southeast 1/4 of Section 1; thence S88°30'37"E along said North line, 419.49 feet to the point of beginning, together with that part of the aforesaid South Fractional 1/2 of Section 6 lying East of the aforesaid meander lines and West of the Westerly boundary of Lake Michigan. Containing 128.6296 acres (5,603,106 Sq. Ft.) more or less of land gross to the Westerly boundary of Lake Michigan, 96.4971 acres (4,203,413 Sq. Ft.) more or less of land net to said meander line. Subject to riparian rights, covenants, conditions, restrictions and easements of record.
Area “E”
Being part of the Northwest 1/4 of the Northwest 1/4 of Section 7, Town 4 North, Range 23 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Commencing at the Northwest corner of the aforesaid Northwest 1/4 of Section 7; thence N85°31'54"E along the North line of said Northwest 1/4 of Section 7, 469.66 feet to a point on the Westerly line of the Chicago and North Western Transportation Company right-of-way; thence S21°21'16"E along said Westerly line, 34.49 feet to a point on the South line of Seven Mile Road, said point also being the point of beginning; thence continuing S21°21'16"E along said Westerly line, 767.80 feet; thence S85°31'54"W, 717.72 feet; thence N00°53'05"W, parallel to and 33.00 feet East of (as measured at right angles to) the West line of the aforesaid Northwest 1/4 of Section 7, 736.14 feet to a point on the aforesaid South line of Seven Mile Road, thence N85°31'54"E along said South line, 448.68 feet to the point of beginning. Containing 9.8364 acres (428,473 Sq. Ft.) more or less of land. Subject to covenants, conditions, restrictions and
easements of record.
Area “F”
Being part of the Northeast 1/4 of Section 12, Town 4 North, Range 22 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Commencing at the Northeast corner of the aforesaid Northeast 1/4 of Section 12; thence S00°53'05"E along the East line of said Northeast 1/4 of Section 12, 144.60 feet; thence N88°40'57"W parallel to the North line of said Northeast 1/4 of Section 12, 33.02 feet to the point of beginning; thence S00°53'05"E parallel to and 33.00 feet West of (as measured at right angles to) the aforesaid East line of the Northeast 1/4 of Section 12, 624.60 feet; thence N88°40'57"W, 193.50 feet; thence N00°53'05"W, 624.60 feet; thence S88°40'57"E, 193.50 feet to the point of beginning. Containing 2.7725 acres (120,768 Sq. Ft.) more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “G”
Being part of the Southeast 1/4 of Section 1, Town 4 North, Range 22 East and part of the Southwest 1/4 of Section 6, Town 4 North, Range 23 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Commencing at the Southeast corner of the aforesaid Southeast 1/4 of Section 1; thence N88°40'57"W along the South line of said Southeast 1/4 of Section 1, 572.27 feet; thence N01°19'03"E, 33.00 feet to a point on the North line of Seven Mile Road (North line being 33.00 feet North of, as measured at right angles to, the South line of said Southeast 1/4 of Section 1 and the South line of said Southwest 1/4 of Section 6), said point also being the point of beginning; thence continuing N01°19'03" E along a West line of Tax Key No. 01-057-003, 308.00 feet; thence N88°40'57"W along a South line of Tax Key No. 01-057-003, 380.02 feet; thence S01°19'03"W along the East line of Tax Key No. 01-053-000, 63.00 feet to an iron rod found; thence N88°40'57"W along the South line of Tax Key No. 01-053-000, 260.72 feet to a point on the Easterly line of Douglas Avenue (S.T.H. “32”), thence Northwesterly along said Easterly line and the arc of a curve to the left, 150.68 feet, radius of 5763.45 feet and a chord bearing N24°51'09"W, 150.68 feet; thence continuing along said Easterly line N24°15'37"W, 1 007.43 feet to the North line of the South 1/2 of the aforesaid Southeast 1/4 of Section 1; thence S88°35'47"E along said North line, 1653.44 feet to a point on the Westerly line of the Chicago and North Western Transportation Company right-of-way; thence S21°16'53"E along said Westerly line, 1343.29 feet to a point on the aforesaid North line of Seven Mile Road; thence South 85°31'53"W along said North line, 459.22 feet; thence continuing along said North l ine, N88°40'57"W, 570.61 feet to the point of beginning. Containing 43.5668 acres (1,897,771 Sq. Ft.) more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “H”
Being part of the Southeast 1/4 of Section 1, Town 4 North, Range 22 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Commencing at the Northwest corner of the aforesaid Southeast 1/4 of Section 1; thence S00°45'44"E along the West line of said Southeast 1/4 of Section 1, 3.23 feet to a point on the Westerly line of Douglas Avenue (S.T.H. “32”), said point being the point of beginning; thence S38°23'59"E along said Westerly line, 742.73 feet; thence S53°34'18"W along the Northerly line of Lot 1, Certified Survey Map No. 1833, 354.24 feet; thence S36°25'42"E along the Westerly line of said Lot 1,399.14 feet; thence N53°34'18"E along the Southerly line of said Lot 1,343.76 feet to a point on the aforesaid Westerly line of Douglas Avenue; thence Southeasterly along said Westerly line and the arc of a curve to the right, 226.22 feet, radius of 2257.00 feet and a chord bearing S27°07'52"E, 226.12 feet; thence continuing along said Westerly line S24°15'35"E, 254.24 feet to an iron rod found; thence N88°35'47"W along the South line of the North 1/2 of the aforesaid Southeast 1/4 of Section 1, 880.20 feet to an iron ro d found; thence N00°45'44"W along the aforesaid West line of the Southeast 1/4 of Section 1, 1321.01 feet to the point of beginning. Containing 11.6507 acres (507,506 Sq. Ft.) more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “J”
Being part of the Northeast 1/4 and the Northwest 1/4 of Section 1, Town 4 North, Range 22 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Beginning at the Northwest corner of the aforesaid Northeast 1/4 of Section 1; thence N89°39'50"E along the North line of the said Northeast 1/4 of Section 1, 22.27 feet to the Southwest corner of the Southeast 1/4 of Section 3 6, Town 5 North, Range 22 East, City of Oak Creek, Milwaukee County, Wisconsin; thence continuing on said North line, N89°13'29"E, 1125.71 feet to a point on the Westerly line of the Chicago and North Western Transportation Company right-of-way; thence S21°17'33"E along said Westerly line, 2798.39 feet to a point on the South line of said Northeast 1/4 of Section 1; thence N88°30'37"W along said South line, 2023.93 feet to a point on the Easterly line of Douglas Avenue (S.T.H. “32”); thence N38°21'36"W along said Easterly line, 1680.96 feet; thence Northwesterly along said Easterly line and the arc of a curve to the left, 176.96 feet, radius of 5763.00 feet with a chord bearing N39°21'44"W, 176.95 feet; thence N36°51'12"W along said Easterly line, 258.94 feet, thence continuing along said Easterly line, N43°09'12"W, 155.19 feet, thence continuing along said Easterly line, N47°56'12"W, 382.34 feet; thence continuing along said Easterly line, N44°36'55"W, 697.01 feet to a point on the North line of the aforesaid Northwest 1/4 of Section 1; thence N89°39'50"E along said North line, 2049.83 feet to the point of beginning. Containing 149.6117 acres (6,517,086 Sq. Ft.) more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “K”
Being part of the Southeast 1/4 and the Southwest 1/4 of Section 36, Town 5 North, Range 22 East, City of Oak Creek, Milwaukee County, Wisconsin, bounded and described as follows:
Commencing at the Northwest corner of the aforesaid Southeast 1/4 of Section 36; thence S00°42'13"E along the West line of said Southeast 1/4 of Section 36, 24.75 feet to a point on the
South line of East Elm Road, said point also being the point of beginning; thence continuing on said West line of the Southeast 1/4 of Section 36 and said South line of East Elm Road, S00°42'13"E, 8.25 feet; thence continuing on said South line, N89°44'16"E, 143.35 feet to a point on the Westerly line of the Chicago and North Western Transportation Company right-of-way; thence S21°17'33"E along said Westerly line, 2793.51 feet to a point on the South line of said Southeast 1/4 of Section 36; thence S89°13'29"W along said South line, 1125.71 feet to the Southwest corner of said Southeast 1/4 of Section 36; thence S89°39'50"W along the South line o f the aforesaid Southwest 1/4 of Section 36, 22.27 feet to the Northwest corner of the Northeast 1/4 of Section 1, Town 4 North, Range 22 East, Village of Caledonia, Racine County, Wisconsin; thence continuing S89°39'50"W along said South line, 2049.83 feet to a point on the Easterly line of South Chicago Road (S.T.H. “32”), said Easterly line is 33.0 feet Easterly of (as measured at right angles to) the reference line described in Document No. 6669080; thence N44°36'55"W along said Easterly line, 25.21 feet; thence continuing along said Easterly line and the arc of a curve to the right, 1436.73 feet, radius of 1730.06 feet and a chord bearing N20°49'29.5''W, 1395.80 feet to a point on the North line of the South 1/2 of the Southwest 1/4 of said Section 36, said North line also being the South line of lands conveyed by Deed recorded in Volume 118 of Deeds at page 607; thence N89°40'13"E along said North line, 214.19 feet; thence N06°26'53"E along the East line of said Deed, 204.93 feet; thence S89°40'13"W along the North line of said Deed, 214.50 feet to a point on the aforesaid Easterly line of South Chicago Road; thence Northeasterly along said easterly line and the arc of a curve to the right, 142.66 feet, radius of 1730.06 feet and a chord bearing N12°07'05"E, 142.62 feet; thence continuing along said Easterly line, N14°28'49"E, 367.90 feet; thence continuing along said Easterly line and the arc of a curve to the left, 611.60 feet, radius of 3307.05 feet and a chord bearing N09°10'56"E, 610.73 feet to a point on the South line of East Elm Road; thence N89°40'36"E along said South line, 726.76 feet; thence S00°42'24"E along the West line of lands conveyed by Deed in Reel 630 of Deeds at image 1338-1339, 363.00 feet; thence N89°40'36"E along the South line of said Deed, 900.00 feet; thence N00°42'24"W along the East line of said Deed, 363.00 feet to a point on the aforesaid South line of East Elm Road; thence N89°40'36"E along sai d South line, 684.93 feet to the point of beginning. Containing 176.2727 acres (7,678,439 Sq. Ft.) more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “L”
Being all that part of Lots 1, 2, 3 and 4, Block 16, Oak View Subdivision No. 3, located in the Northwest 1/4 of Section 36, and that part of the Northeast Fractional 1/4 of Section 36, all in Town 5 North, Range 22 East, City of Oak Creek, Milwaukee County, Wisconsin, bounded and described as follows:
Commencing at the Southeast corner of the aforesaid Northwest 1/4 of Section 36; thence N00°40'16"W along the East line of said Northwest 1/4 of Section 36, 33.00 feet to a point on th e North line of East Elm Road, said point also being the point of beginning; thence continuing N00°40'16"W along said East line of the Northwest 1/4 of Section 36 and said North line of East Elm Road, 42.00 feet; thence continuing along said North line, S89°40'36"W, 474.12 feet to the West line of the aforesaid Lot 4; thence N00°20'19"W along said West line, 200.00 feet to an iron pipe found and the North line of the said Lot 4; thence N89°40'36"E along the North line of the aforesaid Lots 1, 2, 3 and 4, 472.96 feet to the aforesaid East line of the Northwest 1/4 of
Section 36; thence N00°40'16"W along said East line, 71.94 feet to a point on t he Westerly line of the Chicago and North Western Transportation Company right-of-way; thence S21°17'33"E along said Westerly line, 336.34 feet to a point on the aforesaid North line of East Elm Road; thence S89°44'16"W along said North line, 118.46 feet to the point of beginning. Containing 2.6011 acres (113,303 Sq. Ft.) more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “M”
Being part of the Southeast 1/4 of the Southeast 1/4 of Section 35 and part of the Southwest 1/4 of the Southwest 1/4 of Section 36, all in Town 5 North, Range 22 East, City of Oak Creek, Milwaukee County, Wisconsin, bounded and described as follows:
Commenc ing at the Southeast corner of the aforesaid Southeast 1/4 of Section 35; thence S89°23'03"W along the South line of said Southeast 1/4 of Section 35, 1311.215 feet; thence N01°00'36"W along the West line of the East 1/2 of said Southeast 1/4 of Section 35, 24.75 feet to a point on the North line of County Line Road (North line being 24.75 feet North of, as measured at right angles to, the South line of said Southeast 1/4 of Section 35 and the South line of said Southwest 1/4 of Section 36), said point also being the point of beginning; thence continuing N01°00'36"W along said West line, 1301.17 feet; thence N89°23'43"E along the North line of the South 1/2 of said Southeast 1/4 of Section 35, 1302.21 feet to a point on the Westerly line of South Chicago Road (S.T.H. “32”), said Westerly line is 33.0 feet Westerly of (as measured at right angles to) the reference line described in Document No. 6669080; thence Southeasterly along said the Westerly line and the arc of a curve to t he left, 1415.39 feet, radius of 1796.06 feet with a chord bearing S19°43'56"E, 1379.05 feet; thence S89°39'50"W along the aforesaid North line of County Line Road, 433.44 feet; thence continuing along said North line, S89°23'03"W, 1311.52 feet to the point of beginning. Containing 42.5762 acres (1,854,618 Sq. Ft.) more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “A-B”
Being part of the Northeast Fractional 1/4 and the Southeast 1/4 of Section 36, Town 5 North, Range 22 East and part of the Northwest Fractional 1/4 and the Southwest Fractional 1/4 of Section 31, Town 5 North, Range 23 East, City of Oak Creek, Milwaukee County, Wisconsin, bounded and described as follows:
A 66 foot wide strip of land, formerly known as East Elm Road, being the South 33 feet of said Northeast Fractional 1/4 of Section 36, the South 33 feet of said Northwest Fractional 1/4 of Section 31, the North 33 feet of said Southeast 1/4 of Section 36, the North 33 feet of said Southwest Fractional 1/4 of Section 31; lying East of the East line of the Chicago and North Western Transportation Company right-of-way. Containing 4.69 acres more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “D-1”
Being part of the Northeast 1/4 and the Northwest 1/4 of the Southwest 1/4 of Section 6, Town 4
North, Range 23 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Being the East 2007.70 feet of said Southwest 1/4 of Section 6, bounded on the North by the South line of the North 12.82 chains (846.12 feet) of said Southwest 1/4 of Section 6, bounded on the South by the North line of Parcel 3, Certified Survey Map No. 1189, recorded in Volume 3 of Certified Survey Maps on Pages 476-479 at the Registers Office of Racine County as Document No. 1214113. Containing 4.81 acres more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “D-2”
Being part of the Northeast 1/4, Northwest 1/4, Southwest 1/4 and the Southeast 1/4 of the Southwest 1/4 of Section 6, Town 4 North, Range 23 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Being all of Parcel 3, Certified Survey Map No. 1189, recorded in Volume 3 of Certified Survey Maps on Pages 476-479 at the Registers Office of Racine County as Document No. 1214113. Containing 33.14 acres more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “D-3”
Being part of the Southwest 1/4 and the Southeast 1/4 of the Southwest 1/4 of Section 6, Town 4 North, Range 23 East, Village of Caledonia, Racine County, Wisconsin, bounded and described as follows:
Being the South 14.64 chains (966.24 feet) of said Southwest 1/4 of Section 6, lying East of the East line of the Chicago and North Western Transportation Company right-of-way. Excepting therefrom the West 166 feet, being a 166 foot wide strip of land lying East of, parallel and adjacent to said East line of the Chicago and North Western Transportation Company right-of-way, further excepting the South 33 feet for road purposes. Containing 44.98 acres more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Area “K-L”
Being part of the Southeast 1/4 of the Northwest 1/4, the Southwest 1/4 of the Northeast 1/4, the Northwest 1/4 of the Southeast 1/4, the Northeast 1/4 of the Southwest 1/4 of Section 36, Town 5 North, Range 22 East, City of Oak Creek, Milwaukee County, Wisconsin, formerly known as East Elm Road, bounded and described as follows:
Commencing at the Southwest corner of said Northwest 1/4 of Section 36; thence N89°40'36"E along the South line of said Northwest 1/4 of Section 36, 2161.85 feet to a point S89°40'36"W, 474.58 feet from the Southeast corner of said Northwest 1/4 of Section 36, said point also being the point of beginning; thence N00°19'24"W, 75.00 feet to the Southwest corner of Lot 4, Block 16, Oak View Subdivision No. 3; thence N89°40'36"E along the South line of said Block 16,
474.12 feet; thence S00°40'16"E along the East line of said Northwest 1/4 of Section 36, 42.00 feet; thence N89°44'16"E along the South line of Tax Key No. 963-9995, 118.46 feet; thence S21°17'33"E along the West line of the Chicago and North Western Transportation Company right-of-way, 70.71 feet; thence S89°44'16"W along the North line of Tax Key No. 996-9998, 143.35 feet; thence N00°42'13"W along the East line of said Southeast 1/4 of Section 36, 8.25 feet; thence S89°40'36"W along the North line of Tax Key No. 967-9999-001, 474.74 feet; thence N00°19'24"W, 24.75 feet to the point of beginning. Containing l.2848 acres (55,964 Sq. Ft.) more or less of land. Subject to covenants, conditions, restrictions and easements of record.
Corridor South of 7 Mile Road (not shown on diagram)
All that part of the Northwest One-quarter of Section Numbered Seven (7), Township Numbered Four (4) North, Range Numbered Twenty-three (23) East, described as follows: Commencing at the point where the North line of said Section Seven (7) intersects the East line of the railway right of way, One Hundred (100) feet in width of the Chicago and Northwestern Railway Company; running thence Southeasterly on said East line of said One Hundred (100) foot right of way to the South line of the Northwest One-quarter of said Section Seven (7); thence East on said South line to a point, which point is One Hundred (100) feet distant Northeasterly from the East line of said railway right-of-way, One Hundred (100) feet in width, measured at right angles thereto; thence Northwesterly on a line parallel to and One Hundred (100) feet distant from the East line of said railway right-of-way, One Hundred (100) feet in width to the North line of said Section Seven (7); thence West on said North line to the place of beginning. Said land being in the Village of Caledonia, County of Racine, State of Wisconsin.
* The Collateral subject to this Indenture does not include any interest in the Elm Road Site, except for the collateral assignment of Issuer's rights under the Facility Lease Agreements between Issuer and Madison Gas and Electric Company to the Trustee, its successors in trust and assigns. For the sake of clarity and the avoidance of doubt, this Indenture is not intended to, and does not, grant any lien on or with respect to the land described in this Exhibit A or t he Site Improvements, Existing Units or Existing Common Facilities or WEPCO’s title thereto or interest therein, as the case may be. The terms “Site Improvements,” “Existing Units,” “Existing Common Facilities” and “WEPCO” have the respective meanings assigned to those terms in that (i) certain Elm Road Generating Station Unit 1 Easement and Indemnification Agreement dated as of December 17, 2004 between Wisconsin Electric Power Company, as Grantor, and MGE Power Elm Road, LLC and Wisconsin Public Power Inc., as Grantees, recorded in the Register of Deeds for Milwaukee County, Wisconsin on November 4, 2005, as Document No. 09124851 and in the Register of Deeds for Racine County, Wisconsin on November 4, 2005, as Document No. 2057809, and (ii) certain Elm Road Generating Station Unit 1 Easement and Indemnification Agreement dated as of December 17, 2004 between Wisconsin Electric Power Company, as Grantor, and MGE Power Elm Road, LLC and Wisconsin Public Powe r Inc., as Grantees, recorded in the Register of Deeds for Milwaukee County, Wisconsin on November 4, 2005, as Document No. 09124855 and in the Register of Deeds for Racine County, Wisconsin on November 4, 2005, as Document No. 2057808.