Exhibit 4(d)-4
SUPPLEMENTAL INDENTURE NO. 2
dated as of _______ __, 199_
to
INDENTURE OF MORTGAGE AND
DEED OF TRUST NO. [2/3]*
dated as of September 1, 1989,
as supplemented,
between
FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity
but solely as Owner Trustee under Trust Agreement No. [2/3],
dated as of September 1, 1989, with
the Owner Participant,
and
BANKERS TRUST COMPANY,
as successor Corporate Indenture Trustee,
and
STANLEY BURG,
as successor Individual Indenture Trustee
Original Indenture Recorded On September 27,
1989 in Book No. _____, Page ____ as Entry No. _____
in the Conveyance Records of
St. Charles Parish, Louisiana
_______________________________
* Assumes that current indenture trustees under Indentures of
Mortgage and Deeds of Trust Nos. 2 and 3 will be replaced by
Bankers Trust Co. and S. Burg, which henceforth would act as
sole indenture trustee under all three original indentures.
Supplemental Indenture No. 2 to original indenture no. 1 would
be substantially identical to this form, except that the
existing trustee and co-trustee (Bankers Trust Co. and S.
Burg) would continue.
Supplemental Indenture No. 2, dated as of ________ __, 199_, to
Indenture of Mortgage and Deed of Trust No. [2/3], dated as of
September 1, 1989 (the "Original Indenture"; the Original
Indenture, as supplemented by Supplemental Indenture No. 1, dated
as of September 1, 1989, and by this Supplemental Indenture No.
2, and as it may be further supplemented or amended from time to
time by all other indentures supplemental thereto, being
hereinafter referred to as the "Indenture"), between First
National Bank of Commerce, a national banking association having
its principal office and mailing address at 210 Baronne Street,
New Orleans, Louisiana 70112, not in its individual capacity,
except as otherwise expressly provided in the Indenture, but
solely as the Owner Trustee (such term and all other capitalized
terms used herein and not defined herein having the respective
meanings specified in Appendix A to the Original Indenture as
modified by Schedule A-1 thereto, a copy of which Schedule A-1
being attached hereto as Exhibit C), Bankers Trust Company, a New
York banking corporation, as successor in interest under the
Indenture to [First Trust Company of California, National
Association, as successor Corporate Indenture Trustee to Bankers
Trust Company of California, National Association/BankAmerica
National Trust Company (formerly Security Pacific National Trust
Company (New York))/] (the "Corporate Indenture Trustee" and, for
all purposes of the Indenture except as may be required pursuant
to Section 7.03(c) of the Original Indenture, the "Indenture
Trustee"), and Stanley Burg, as successor in interest under the
Indenture to [Lisa D. Jones, as successor Individual Indenture
Trustee to Cecil D. Bobey/Ralph A. Marinello, as successor
Individual Indenture Trustee to Kenneth T. McGraw] (the
"Individual Indenture Trustee" and, solely as may be required
pursuant to Section 7.03(c) of the Original Indenture, the
"Indenture Trustee"), each having its principal office and
mailing address at Four Albany Street, New York, New York 10006,
Attention: Corporate Trust and Agency_Public Utilities Group.
WITNESSETH:
Whereas, the Owner Trustee and the Lessee executed and
delivered to the Indenture Trustee the Original Indenture and
Supplemental Indenture No. 1 pursuant to which the Owner Trustee
issued the Initial Series Bonds;
Whereas, Section 1.03 of Supplemental Indenture No. 1 provides
that the Initial Series Bonds may be subject to redemption, on
and after July 2, 1994, at the option of the Owner Trustee, in
whole at any time or in part from time to time, at the Redemption
Prices set forth therein;
Whereas, the original Indenture Trustee and the successor
Indenture Trustee have executed and delivered, and the Owner
Trustee and the Lessee have acknowledged and accepted, an
instrument in substantially the form of Exhibit B hereto, under
which the original Indenture Trustee has resigned its appointment
as Indenture Trustee and the successor Indenture Trustee has
accepted its appointment as successor Indenture Trustee,
effective upon the effectiveness of this Supplemental Indenture
No. 2;
Whereas, the Owner Trustee desires to issue Additional Bonds to
or upon the order of Funding Corporation as an integral step in
the refunding of the Initial Series Bonds and to enter into this
Supplemental Indenture No. 2 to establish the terms, conditions,
designations and forms of such Additional Bonds;
Whereas, the parties hereto further desire to enter into this
Supplemental Indenture No. 2 in order to evidence the succession
of the new Indenture Trustee and to amend the Indenture in a
number of respects in light of the execution and delivery of the
Collateral Trust Indenture and the issuance by Funding
Corporation of Collateral Bonds in connection with the refunding
of the Initial Series Bonds;
Whereas, Section 10.01 of the Original Indenture provides that,
without the consent of the Holders of any Bonds, the parties
thereto at any time and from time to time may enter into one or
more supplements to the Original Indenture in order to establish
the form and terms of Bonds of any series permitted by Sections
2.01 and 2.04 of the Original Indenture, to evidence the
succession of a new trustee or co-trustee under the Indenture,
and (subject to the limitations provided therein) to change or
eliminate any provision of the Indenture;
Whereas, all action on the part of the Owner Trustee necessary
to authorize the execution and delivery of this Supplemental
Indenture No. 2 and the issuance of the aforesaid Bonds has been
duly taken; and
Whereas, all acts and things necessary (x) to make the Bonds of
the series herein created and established, when executed by the
Owner Trustee and authenticated and delivered by the Indenture
Trustee as provided in the Original Indenture, the legal, valid
and binding obligations of the Owner Trustee and (y) to
constitute these presents a valid and binding supplemental
indenture and agreement according to its terms have been done and
performed, and the execution of this Supplemental Indenture No. 2
and the creation and issuance under the Indenture of such Bonds
have in all respects been duly authorized;
Now, Therefore, in order to establish the form and terms, and
to authorize the authentication and delivery, of the Bonds of the
series herein created and established, and in consideration of
the premises, of the purchase of such Bonds by the Holders
thereof and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Owner
Trustee covenants and agrees with the Indenture Trustee, for the
equal and proportionate benefit of the respective Holders from
time to time of the Bonds, as follows:
ARTICLE ONE
Amendments to Indenture
Section 1.01. Amendments.
(a) The Indenture is hereby amended by deleting the Lessee
as a party thereto and the "Reconciliation and Tie" included
therewith. The Indenture is hereby further amended in the
following respects:
(b) Article One is amended as follows:
(1) Section 1.01 is deleted and the following inserted
in lieu thereof:
"Section 1.01. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided herein or
unless the context otherwise requires:
(a) capitalized terms used herein and not
defined herein have the respective meanings specified
in Appendix A hereto as modified by Schedule A-1
thereto, and the rules of construction specified in
such Appendix are applicable to this Indenture; and
(b) all accounting terms not otherwise
defined herein have the meanings assigned to them in
accordance with generally accepted accounting
principles."
(2) Paragraph (a) of Section 1.04 is deleted and the
following inserted in lieu thereof:
"(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by
Holders shall be embodied in and evidenced by one or
more instruments of substantially similar tenor, signed
by such Holders in person or by an agent duly appointed
in writing. Except as herein otherwise expressly
provided, such action shall become effective when such
instrument or instruments are delivered to the
Indenture Trustee and, where it is hereby expressly
required, to the Owner Trustee and the Lessee. Such
instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this
Indenture and, subject to Section 8.01, conclusive in
favor of the Indenture Trustee, the Owner Trustee and
the Lessee."
(3) Section 1.05 is deleted and the following inserted
in lieu thereof:
"Section 1.05. Notices, etc. to Indenture Trustee,
Lessee, Owner Trustee and Owner Participant. Any request,
demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or
filed with:
(a) the Indenture Trustee by any Holder, by
the Owner Trustee or by the Lessee shall be sufficient
for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to the Indenture Trustee
addressed to it at the address of the Corporate Trust
Office; or
(b) the Owner Trustee by the Indenture
Trustee, by any Holder or by the Lessee shall be
sufficient for every purpose hereunder if in writing
and mailed, first-class postage prepaid, to the Owner
Trustee addressed to it at the address of its principal
office specified in the first paragraph of this
instrument or at any other address previously furnished
in writing to the Indenture Trustee and the Lessee by
the Owner Trustee for such purpose; or
(c) the Lessee by the Indenture Trustee, by
any Holder or by the Owner Trustee shall be sufficient
for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to the Lessee addressed to
it at the address of its principal office specified in
the first paragraph of this instrument or at any other
address previously furnished in writing to the
Indenture Trustee and the Owner Trustee by the Lessee
for such purpose; or
(d) the Owner Participant by the Indenture
Trustee, by any Holder or by the Lessee shall be
sufficient for every purpose hereunder if in writing
and mailed, first-class postage prepaid, to the Owner
Participant addressed to it at its address specified in
Section 17 of the Participation Agreement or at any
other address previously furnished in writing to the
Lessee or the Indenture Trustee for such purpose."
(4) The text of Section 1.07 is deleted and the
caption "[Reserved]" is inserted in lieu of the existing caption,
"Conflict with Trust Indenture Act."
(5) Section 1.13 is deleted and the following inserted
in lieu thereof:
"Section 1.13. Legal Holidays. In the event that any
payment to be made hereunder or in respect of the Bonds of
any series is stated to be due on a day that is not a
Business Day, then such payment shall be due and payable on
the next succeeding Business Day with the same force and
effect as if made on the date on which such payment was
stated to be due, and no interest shall accrue for the
period from and after such stated due date."
(c) Article Two is amended as follows:
(1) Paragraph (b) of Section 2.02 is deleted and the
following inserted in lieu thereof:
"(b) No Bond shall be secured by or entitled
to any benefit under this Indenture or be valid or
obligatory for any purpose hereunder unless there
appears on such Bond a certificate of authentication,
substantially in the form provided above, executed
manually by the Indenture Trustee by an Authorized
Officer thereof, and such certificate upon any Bond
shall be conclusive evidence, and the only evidence,
that such Bond has been duly authenticated and
delivered hereunder."
(2) Section 2.04(b) is deleted and the following
inserted in lieu thereof:
"(b) The Bonds may be issued in one or more
series. The terms, conditions, designations and forms
of the Bonds of any series shall be consistent with the
provisions of this Indenture and shall be established
in the Series Supplemental Indenture creating the Bonds
of such series."
(3) Section 2.05(a)(3) is amended by deleting the text
"(or, if applicable, the Authenticating Agent)" from clause (A)
thereof.
(4) Section 2.06 is deleted and the following inserted
in lieu thereof:
"Section 2.06. Form and Denominations. The Bonds of
any series shall be issued only in fully registered form and
in denominations of original principal amount of $500,000 or
greater, unless otherwise provided in the Series
Supplemental Indenture creating the Bonds of such series."
(5) Section 2.08 is deleted and the following inserted
in lieu thereof:
"Section 2.08. Restrictions on Transfer Resulting from
Federal Securities Laws and ERISA; Legend.
(a) If not prohibited by the Securities Act,
each Bond of any series shall be delivered to the
initial Holder thereof without registration of such
Bond under the Securities Act and without qualification
of this Indenture under the Trust Indenture Act. Prior
to any transfer of any such Bond, in whole or in part,
to any Person other than the Collateral Trust Trustee,
the Holder thereof shall furnish to the Lessee, the
Indenture Trustee, the Owner Participant and the Owner
Trustee either (i) a written representation and
warranty of such Holder to the effect that the
transferee of such Bond and all Persons to which such
Bond shall have been offered are "accredited investors"
or "qualified institutional buyers" within the meaning
of Regulation D or Rule 144A, respectively (or, in each
case, any successor thereto) under the Securities Act,
or (ii) an opinion of counsel to the effect that such
transfer will not violate the registration requirements
of the Securities Act or require the qualification of
this Indenture under the Trust Indenture Act.
Such written representation and warranty and
opinion of counsel, as well as counsel rendering any
such opinion, shall be reasonably satisfactory to the
Lessee, the Indenture Trustee, the Owner Participant
and the Owner Trustee. All Bonds issued hereunder from
time to time without registration thereof under the
Securities Act shall in each case be endorsed with a
legend reading substantially as follows:
This Bond has not been registered under
the Securities Act of 1933, as amended, and may
not be transferred, sold or offered for sale in
violation of such Act.
(b) Prior to any transfer, in whole or in
part, of any Bond issued hereunder without registration
thereof under the Securities Act to any Person other
than the Collateral Trust Trustee, the Holder thereof
shall furnish to the Lessee, the Indenture Trustee, the
Owner Participant and the Owner Trustee a written
representation and warranty to the effect that neither
the transfer of such Bond to, nor the ownership of such
Bond by, such transferee will cause such transferee, or
any such Person, to be engaged in a "prohibited
transaction", as defined in section 406 of ERISA or
section 4975 of the Code, which is not at such time
subject to an exemption contained in ERISA or in the
rules, regulations, releases or bulletins adopted
thereunder."
(6) Section 2.09 is deleted and the following inserted
in lieu thereof:
"Section 2.09. Registration, Transfer and Exchange.
(a) The Indenture Trustee on behalf of the Owner Trustee
shall maintain at the Corporate Trust Office a register
("Bond Register") for the purpose of registration, and
registration of transfer and exchange, of the Bonds by
series in which shall be entered the names and addresses of
the owners of such Bonds and the principal amounts and
serial or other identifying numbers of the Bonds owned by
such Persons. Unless otherwise provided in respect of the
Bonds of a particular series, the Indenture Trustee is
hereby appointed transfer agent and registrar for the Bonds
of all series.
(b) A Holder of a Bond intending to register the
transfer of any Outstanding Bond held by such Holder
(including any transfer in the form of a pledge or
assignment) or to exchange any Outstanding Bond held by such
Holder for a new Bond or Bonds of the same series shall
surrender such Outstanding Bond at the Corporate Trust
Office, duly endorsed and accompanied by the written request
of such Holder or of its attorney duly authorized in writing
(in each case with signatures guaranteed) in form and
substance reasonably satisfactory to the Indenture Trustee,
for the registration of such Bond in the name of any
transferee (including any pledgee or assignee in the case of
a transfer in the form of a pledge or assignment) or for the
issuance of a new Bond or Bonds of the same series,
specifying the authorized denomination or denominations of
any new Bond or Bonds to be issued and the name and address
and taxpayer identification number of the Person or Persons
in whose name or names the Bond or Bonds are to be
registered (either as pledgee or assignee or as owner).
Promptly upon receipt by the Indenture Trustee of the
foregoing and satisfaction of the requirements of paragraph
(d) hereof and Section 2.08, the Indenture Trustee shall
register such Bond or Bonds in the name or names of the
Person or Persons specified in the written request and, if a
new Bond or Bonds are to be issued, the Owner Trustee shall
execute and the Indenture Trustee shall authenticate and
deliver such new Bond or Bonds of the same series, in the
same aggregate principal amount and dated the same date as
the Outstanding Bond surrendered, in the authorized
denomination or denominations specified in the written
request. The Indenture Trustee shall make a notation on
each new Bond of the amount of all payments of principal
theretofore made on the predecessor Bond or Bonds and the
date to which interest on such predecessor Bond or Bonds has
been paid.
(c) Except as otherwise specified in the Series
Supplemental Indenture creating the Bonds of a particular
series, the Indenture Trustee shall not be required to
register transfers or exchanges of the Bonds of any series
on any date fixed for the payment of principal of or
interest on the Bonds of such series or during the fifteen
days preceding any such date.
(d) As a condition to registration of transfer or
exchange of any Bond, the Indenture Trustee and the Owner
Trustee may charge the Holder thereof for any stamp taxes or
governmental charges required to be paid with respect to
such registration of transfer or exchange.
(e) All Bonds issued upon any registration of transfer
or exchange of Bonds shall be the valid obligations of the
Owner Trustee evidencing the same debt, and entitled to the
same security and benefits under this Indenture, as the
Bonds surrendered upon such registration of transfer or
exchange.
(f) All Bonds surrendered to the Indenture Trustee for
registration of transfer or exchange or for payment in full
(whether at the scheduled final maturity thereof, upon
redemption or otherwise) shall be canceled by it; and no
Bonds shall be issued in lieu thereof except as expressly
permitted hereunder. Subject to any Applicable Law to the
contrary, the Indenture Trustee shall destroy canceled Bonds
held by it in accordance with its customary practices in
effect from time to time and deliver a certificate of
destruction to the Owner Trustee. If the Owner Trustee
shall acquire any of the Bonds, such acquisition shall not
operate as a redemption of or the satisfaction of the
indebtedness represented by such Bonds unless and until the
same shall be delivered to the Indenture Trustee for
cancellation.
(g) The Bond Register shall at all reasonable times be
open for inspection by any Holder. Upon receipt of a
written request by any Holder, by the Owner Trustee or by
the Lessee, the Indenture Trustee shall furnish such Person,
at its expense, with a list of the names and addresses of
all Holders entered on the Bond Register, indicating the
series, principal amount and serial or other identifying
number of each Bond held by each such Holder."
(7) Paragraphs (a) and (b) of Section 2.10 are deleted
and the following inserted in lieu thereof:
"(a) If (i) any mutilated Bond is
surrendered to the Indenture Trustee, or the
Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of
any Bond, and (ii) there is delivered to the
Indenture Trustee evidence to its satisfaction of
the ownership and authenticity thereof, and such
security or indemnity as may be required by it to
save it and the Owner Trustee harmless (provided,
however, that if the Holder of such Bond is the
Collateral Trust Trustee, the unsecured written
undertaking thereof, in its individual capacity,
to indemnify the Indenture Trustee and the Owner
Trustee shall constitute sufficient security and
indemnity for such purposes), then, in the absence
of notice to the Indenture Trustee that such Bond
has been acquired by a bona fide purchaser, the
Owner Trustee shall execute and the Indenture
Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Bond, a new Bond of the
same series, in the same original principal amount
and bearing an identification number not
contemporaneously outstanding. The Indenture
Trustee shall make a notation on each such new
Bond of (i) the aggregate amount of all payments
of principal theretofore made on the Bond so
mutilated, destroyed, lost or stolen and (ii) the
date to which interest on such predecessor Bond
has been paid.
(b) [Reserved]"
(8) Section 2.11 is deleted and the following inserted
in lieu thereof:
"Section 2.11. Payments. Except as otherwise
specified in the Series Supplemental Indenture creating the
Bonds of a particular series, the principal of and premium,
if any, and interest on each Bond shall be payable at the
Corporate Trust Office in immediately available funds in
such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of
public and private debts; provided, however, that if so
requested in writing by the Holder of any Bond, all amounts
(other than the final payment) payable with respect to such
obligation shall be paid by crediting the amount to be
distributed to such Holder to an account maintained by it
with the Indenture Trustee or by the Indenture Trustee
transferring such amount by wire transfer of immediately
available funds as soon as practicable but in any event no
later than the close of business on the date of receipt
(assuming the Indenture Trustee has received such funds
prior to 1:00 p.m., New York City time, on the same day) to
such other bank in the United States having an account with
a Federal Reserve Bank, as shall have been specified in such
notice, for credit to the account of such Holder maintained
at such bank, any such credit or transfer pursuant to this
Section to be in immediately available funds, without any
presentment or surrender of such Bond; provided further,
however, that any final payment on any such Bond shall be
made only against presentment and surrender thereof at the
Corporate Trust Office."
(9) The text of Section 2.12 following the caption
"Persons Deemed Owners" is deleted and the following inserted in
lieu thereof:
"The Owner Trustee and the Indenture Trustee shall
deem the Person in whose name any Bond is registered in
the Bond Register as the absolute owner of such Bond
for the purpose of receiving payment of all amounts
payable with respect to such Bond and for all other
purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to
the contrary."
(10) The following section is added to the end of
Article Two:
"Section 2.17. Certain Adjustments to Sinking Fund or
Amortization Schedules. The sinking fund or principal
amortization schedules, as the case may be, and stated
maturity of the Outstanding Bonds of any series may be
adjusted at the discretion of the Owner Trustee under the
circumstances and subject to the conditions set forth in
paragraphs (b) and (c) of Section 2 of the Participation
Agreement; provided, however, that no such adjustment to the
sinking fund or the principal amortization schedules or
stated maturity of the Outstanding Bonds of any series shall
(x) cause the average life of the Bonds of such series
(measured from the date of initial issuance thereof and
calculated in accordance with generally accepted financial
practice) to be decreased or increased by more than six
months, or (y) extend the final maturity of the Bonds of
such series. If it elects to make such an adjustment, the
Owner Trustee shall deliver to the Indenture Trustee and the
Lessee, at least 30 days prior to the first payment date
proposed to be affected by such adjustment, an Officers'
Certificate of the Owner Trustee, prepared by the Owner
Participant and the Lessee, (x) stating that the Owner
Trustee has elected to make such adjustment, (y) attaching
the revised payment schedules for each of the Outstanding
Bonds, and (z) attaching calculations showing that the
average life of the Outstanding Bonds of the series affected
thereby shall not be decreased or increased except as
permitted by this Section. The Indenture Trustee may
conclusively rely on such Owner Trustee certificate and
shall have no duty with respect to the calculations referred
to in the foregoing clause (z), other than to make such
Owner Trustee's certificate available for inspection by each
Holder of Outstanding Bonds of the series affected thereby
at the Corporate Trust Office upon reasonable notice.
Promptly after receipt of such Owner Trustee certificate,
and in any event at least twenty (20) days prior to the
first payment date proposed to be affected thereby, the
Indenture Trustee shall send to each Holder of Outstanding
Bonds of the series affected thereby, in the manner provided
in Section 1.06, a copy of a revised payment schedule for
such Bond after giving effect to such adjustment."
(d) Article Three is amended as follows:
(1) The following is added to the end of paragraph (d)
of Section 3.01:
"; provided, however, that if the
Indenture Trustee has been directed by any Holder
or Holders to make payments by wire transfer
pursuant to Section 2.11, any amounts received by
the Indenture Trustee after 1:00 p.m., New York
City time, may be distributed on the following
Business Day."
(2) The following new section is added to Article
Three:
"Section 3.08. Application of Payments. In
the case of each Bond, each payment on account of
principal thereof or interest thereon or premium, if
any, with respect thereto shall be applied: first, to
the payment of accrued but unpaid interest (including
interest on overdue principal and, to the extent
permitted by law, on overdue interest) on such Bond to
the date of such payment; second, to the payment of the
premium, if any, due with respect to such Bond; third,
to the payment of the principal amount of such Bond
then due and payable other than by virtue of
acceleration; and fourth, the balance remaining, if
any, to the payment of the principal amount of such
Bond remaining unpaid. The amounts paid pursuant to
the preceding clause "fourth" shall be applied to the
installments of principal of such Bond in the reverse
order of their normal maturity."
(e) Article Four is amended as follows:
(1) Section 4.03 is amended in the following respects:
(A) The reference in the first sentence of paragraph (a) to
"or with any Paying Agent" is deleted; (B) paragraph (b) is
deleted; and (C) paragraph (c) is deleted and the following
inserted in lieu thereof:
"(b) [Reserved]"
(c) Any money deposited with the Indenture
Trustee in trust for the payment of the principal of,
and premium, if any, and interest on, any Bond and
remaining unclaimed for three years (or such lesser
period as may be required by law to give effect to this
provision) after such principal, premium, if any, or
interest has become due and payable shall be paid to
the Owner Trustee on Owner Trustee Request (to the
extent such moneys shall have been deposited by the
Owner Trustee) or to any other Person on its written
request (to the extent such moneys shall have been
deposited by such other Person); and the Holder of such
Bond shall thereafter, as an unsecured general
creditor, look only to the Owner Trustee or such other
Person, for payment thereof, and all liability of the
Indenture Trustee with respect to such money shall
thereupon be discharged."
(2) Section 4.04 is deleted and the following inserted
in lieu thereof:
"Section 4.04 [Reserved]"
(3) Paragraph (a) of Section 4.06 is deleted and the
following inserted in lieu thereof:
"(a) Pursuant to Section 9(b)(2) of the
Participation Agreement, the Lessee has covenanted to
maintain the priority of the Lien created by this
Indenture. The Indenture Trustee shall, at the request
and expense of the Lessee as provided in the
Participation Agreement (and upon receipt of the form
of document so to be executed), execute and deliver to
the Lessee and the Lessee shall file, if not already
filed, such financing statements or other documents and
such continuation statements or other documents with
respect to financing statements or other documents
previously filed relating to the Lien created by this
Indenture as may be necessary to protect, perfect and
preserve such Lien. At any time and from time to time,
upon the request of the Lessee or the Indenture
Trustee, at the expense of the Lessee as provided in
the Participation Agreement (and upon receipt of the
form of document so to be executed), the Owner Trustee
shall promptly and duly execute and deliver any and all
such further instruments and documents as the Lessee or
the Indenture Trustee may reasonably request in order
for the Indenture Trustee to obtain the full benefits
of the Lien created or intended to be created hereby
and of the rights and powers herein granted. Upon the
reasonable instructions (which instructions shall be
accompanied by the form of document to be filed) at any
time and from time to time of the Lessee or the
Indenture Trustee, the Owner Trustee shall execute and
file any financing statement (and any continuation
statement with respect to any such financing
statement), any certificate of title or any other
document, in each case relating to the Liens created by
this Indenture, as may be specified in such
instructions. In addition, the Indenture Trustee and
the Owner Trustee shall execute such continuation
statements with respect to financing statements and
other documents relating to the Lien created by this
Indenture as may be reasonably specified from time to
time in written instructions of any Holder (which
instructions may, by their terms, be operative only at
a future date and which shall be accompanied by the
form of such continuation statement or other document
so to be filed)."
(4) Section 4.09 is deleted and the following inserted
in lieu thereof:
"Section 4.09. Notices of Default. The Owner Trustee
shall give to the Indenture Trustee, promptly after having
obtained knowledge thereof, notice in the manner provided in
Section 1.05 of any Indenture Default or Indenture Event of
Default."
(5) The first eight words of Section 4.10 following
the caption "Performance of Obligations" are deleted and the
following inserted in lieu thereof:
"The Owner Trustee shall not"
(6) Section 4.12 is deleted and the following inserted
in lieu thereof:
"Section 4.12 [Reserved]"
(f) Article Five is amended as follows:
(1) The following is added to the end of Section
5.01:
"This Article does not apply to
installment payments of principal of the Bonds of
any series as contemplated in Section 6.03."
(2) Subparagraph (5) of Section 5.05(b) is deleted and
the following inserted in lieu thereof:
"(5) if such Bonds are to be redeemed in
full, the place or places where such Bonds are to
be surrendered for payment of the Redemption
Price, and"
(3) The second sentence of Section 5.06 is deleted and
the following inserted in lieu thereof:
"Upon surrender of any such Bond for
redemption in accordance with such notice, such
Bond or portion thereof shall be paid at the
Redemption Price, together with accrued interest,
if any, to the Redemption Date."
(4) Section 5.07 is deleted and the following inserted
in lieu thereof:
"Section 5.07. Bonds Redeemed in Part. Any Bond which
is to be redeemed only in part may be surrendered at the
Corporate Trust Office (with, if the Owner Trustee or
Indenture Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Owner Trustee and the Indenture Trustee duly executed by,
the Holder thereof or his attorney duly authorized in
writing), and the Lessee shall cause to be prepared, the
Owner Trustee shall execute, and the Indenture Trustee shall
authenticate and deliver to the Holder of such Bond, without
service charge, a new Bond or Bonds of the same series, in
any authorized denomination requested by such Holder and in
an aggregate unpaid principal amount equal to and in
exchange for the unredeemed portion of the principal of the
Bond so surrendered."
(g) Article Six is deleted and the following inserted in
lieu thereof:
"ARTICLE SIX
Sinking Funds; Installment Payments
Section 6.01. Applicability of Article. The
provisions of this Article shall apply (x) to any sinking
fund established for the retirement of the Bonds of a
particular series and (y) to the Bonds of any series the
principal of which is subject to amortization in
installments.
Section 6.02. Sinking Funds. (a) Any Series
Supplemental Indenture may provide for a sinking fund for
the retirement of the Bonds of the series created thereby (a
"Sinking Fund"), in accordance with which the Owner Trustee
shall be required to redeem on the respective dates
specified in or pursuant to such Series Supplemental
Indenture (any such date, a "Sinking Fund Redemption Date")
corresponding principal amounts of the Bonds of such series
(any such corresponding amount, a "Sinking Fund
Requirement").
(b) If there shall have been a redemption, otherwise
than pursuant to a Sinking Fund, of less than all the Bonds
of a series to which a Sinking Fund is applicable (such
redeemed Bonds being hereinafter called the "Redeemed
Bonds"), the Sinking Fund Requirements applicable to the
Bonds of such series for each Sinking Fund Redemption Date
thereafter shall be deemed to have been satisfied to the
extent of an amount equal to the quotient resulting from the
division of (1) the product of (A) the principal amount of
the Redeemed Bonds and (B) such Sinking Fund Requirement by
(2) the sum of (C) the aggregate principal amount of Bonds
of such series then Outstanding (after giving effect to such
redemption) and (D) the principal amount of such Redeemed
Bonds; provided, however, that the remaining Sinking Fund
Requirements determined as set forth in this paragraph shall
be rounded to the nearest integral multiple of $1,000,
subject to further necessary adjustment so that the
aggregate principal amount of such satisfaction of Sinking
Fund Requirements shall be equal to the aggregate principal
amount of such Redeemed Bonds, such adjustment to such
Sinking Fund Requirements to be made in the inverse order of
the respective Sinking Fund Redemption Dates corresponding
thereto.
(c) Particular Bonds to be redeemed pursuant to a
Sinking Fund shall be selected in the manner provided in
Section 5.04, and notice of such redemption shall be given
in the manner provided in Section 5.05.
Section 6.03. Installment Payments. (a) Any Series
Supplemental Indenture may provide for the amortization of
the principal amount of the Bonds of the series created
thereby through installment payments of the principal of
each Bond of such series, in accordance with which the Owner
Trustee shall be required to pay on the respective dates
specified in or pursuant to such Series Supplemental
Indenture (any such date, an "Amortization Date")
corresponding installments of principal of each Bond of such
series (any such installment payment of principal, an
"Amortization Requirement").
(b) If there shall have been a redemption (any
installment payment pursuant to this Section 6.03 not being
considered for such purpose a redemption) of less than all
the Bonds of a series subject to installment payments as
contemplated in this Section (such redeemed Bonds being
hereinafter called the "Redeemed Bonds"), the Amortization
Requirements applicable to the Bonds of such series for each
Amortization Date thereafter shall be deemed to have been
satisfied to the extent of an amount equal to the quotient
resulting from the division of (1) the product of (A) the
principal amount of the Redeemed Bonds and (B) such
Amortization Requirement by (2) the sum of (C) the aggregate
principal amount of Bonds of such series then Outstanding
(after giving effect to such redemption) and (D) the
principal amount of the Redeemed Bonds; provided, however,
that the remaining Amortization Requirements determined as
set forth in this paragraph shall be rounded to the nearest
integral multiple of $1,000, subject to further necessary
adjustment so that the aggregate principal amount of such
satisfaction of Amortization Requirements shall be equal to
the aggregate principal amount of such Redeemed Bonds, such
adjustment to such Amortization Requirements to be made in
the inverse order of the respective Amortization Dates
corresponding thereto. In connection with any such
adjustments to the Amortization Requirements, the Owner
Trustee shall deliver to the Indenture Trustee, not later
than 30 days prior to the next Amortization Date following
such partial redemption, a revised schedule, prepared by the
Lessee and approved by the Owner Participant, setting forth
the Amortization Requirements for the Bonds commencing with
the first Amortization Date following such partial
redemption. The Indenture Trustee may conclusively rely on
such revised schedule and shall have no duty with respect to
the adjustments set forth therein, other than to make such
revised schedule available for inspection by the Holders of
the Bonds affected thereby."
(h) Article Eight is amended as follows:
(1) Section 8.01 is deleted and the following inserted
in lieu thereof:
"Section 8.01. Certain Duties and Responsibilities;
Standard of Care. (a) The Indenture Trustee shall 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
Indenture Trustee. No provision of this Indenture shall
require the Indenture 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 hereunder, 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.
(b) The Indenture Trustee shall not be liable
hereunder except for its own willful misconduct or gross
negligence. The foregoing notwithstanding, if an Indenture
Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct
of his own affairs.
(c) In the absence of bad faith on its part:
(1) the Indenture Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture
Trustee and conforming to the requirements of this
Indenture; provided, however, that in the case of any
such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the
Indenture Trustee, the Indenture Trustee shall be under
a duty to examine the same to determine whether they
conform to the requirements of this Indenture; and
(2) the Indenture Trustee shall not be
liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Bonds of
all series, considered as one class, relating to (A)
the time, method and place of conducting any proceeding
for any remedy available to the Indenture Trustee under
this Indenture or (B) the exercise by it of any trust
or power conferred upon it under this Indenture.
(d) Whether or not herein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of, or affording protection to, the
Indenture Trustee shall be subject to the provisions of this
Section."
(2) Section 8.03 following the caption "Certain Rights
of Indenture Trustee" is deleted and the following inserted in
lieu thereof:
"Except as otherwise provided in Section 8.01:
(a) the Indenture Trustee may rely and shall
be protected in acting or refraining from acting in
reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to
have been signed or presented by the proper party or
parties;
(b) any request or direction of the Owner
Trustee mentioned herein shall be sufficiently
evidenced by an Owner Trustee Request or Owner Trustee
Order and any request of the Lessee shall be
sufficiently evidenced by a Lessee Request or Lessee
Order;
(c) whenever in the administration of this
Indenture the Indenture Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Indenture Trustee (unless other evidence be herein
specifically prescribed) shall be entitled to reserve
and may, in the absence of bad faith on its part, rely
upon an Officers' Certificate of the Owner Trustee;
(d) the Indenture Trustee may consult with
counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon;
(e) the Indenture Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this
Indenture, except to the extent that such Holders shall
have offered to the Indenture Trustee security or
indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it
in compliance with such request or direction; provided,
however, that if the Holder of such Bonds is the
Collateral Trust Trustee, the unsecured written
undertaking thereof, in its individual capacity, to
indemnify the Indenture Trustee shall constitute
sufficient security and indemnity for such purposes;
(f) the Indenture Trustee shall not be bound
to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other
paper or document, but the Indenture Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Indenture Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Owner Trustee, personally or by agent or attorney;
(g) the Indenture Trustee may at any time
request written instructions from the Holders of the
Bonds with respect to any interpretation of this
Indenture or any action to be taken or not to be taken
hereunder and, except as otherwise contemplated in
Section 2.11, may withhold any action under this
Indenture until it shall have received such written
instructions from the Holders of a majority in
aggregate principal amount of the Outstanding Bonds of
all series, considered as one class, evidenced by an
Act of such Holders;
(h) the Indenture Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or, by or through agents or
attorneys appointed by it in writing and acceptable to
the Owner Trustee and the Lessee, indirectly, and the
Indenture Trustee shall not be responsible for any
misconduct or negligence on the part of any such
authorized agent or attorney appointed with due care by
it and as otherwise hereinabove provided;
(i) the Indenture Trustee shall not be
personally liable, in the case of entry by it upon the
Indenture Estate, for debts, contracts or liabilities
or damages incurred in the management or operation of
the Indenture Estate; and
(j) for all purposes of this Indenture, the
Indenture Trustee shall not be deemed to have knowledge
of the occurrence of any Indenture Default or Indenture
Event of Default unless either (1) notice thereof shall
have been given to the Indenture Trustee in the manner
provided in Section 1.05 or (2) a Responsible Officer
of the Corporate Indenture Trustee shall have actual
knowledge of the occurrence thereof; provided, however,
that the Indenture Trustee shall be deemed to have
knowledge of any failure of the Lessee to pay any
installment of Basic Rent within five Business Days
after the same has become due."
(3) The text of Section 8.05 following the caption
"Indenture Trustee and Authorized Agents May Hold Bonds" is
deleted and the following inserted in lieu thereof:
"The Indenture Trustee and any agent appointed by
the Indenture Trustee or Owner Trustee in accordance
with this Indenture, in its individual or any other
capacity, may become the owner or pledgee of Bonds and,
subject to Sections 8.08 and 8.13, may otherwise deal
with the Owner Trustee with the same rights it would
have if it were not Indenture Trustee or such agent."
(4) Section 8.06 is amended in the following respects: (A)
the reference in the caption to "or Paying Agent" is deleted; (B)
the respective references in paragraph (a) to "or the Paying
Agent" and "nor the Paying Agent" are deleted; and (C) the
reference in paragraph (b) to "or the Paying Agent" is deleted.
(5) Section 8.07 is deleted and the following inserted in
lieu thereof:
"Section 8.07. Compensation and Reimbursement. (a) The
Owner Trustee shall:
(1) pay, or cause to be paid, to the
Indenture Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(2) reimburse, or cause to be reimbursed,
the Indenture Trustee upon its request for all
expenses, disbursements and advances incurred or made
by it in accordance with any provision of this
Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or
advance as may be attributable to its own negligence,
willful misconduct or bad faith; and
(3) indemnify, or cause to be indemnified,
each of the Indenture Trustee and any predecessor
Indenture Trustee (and their respective directors,
officers, agents and employees) for, and hold it
harmless against, any loss, liability or expense
incurred without gross negligence, willful misconduct
or bad faith on its part, arising out of or in
connection with the acceptance or administration of
this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
(b) As security for the performance of the obligations
of the Owner Trustee under this Section, the Indenture
Trustee shall have a Lien prior to the Bonds upon all funds
and other property held or collected by it as part of the
Indenture Estate.
(c) The provisions of paragraph (a) apply equally to
any agent appointed by the Indenture Trustee or Owner
Trustee hereunder in accordance with the provisions hereof."
(6) Section 8.08 is deleted and the following inserted in
lieu thereof:
"Section 8.08 [Reserved]"
(7) The text of Section 8.09 following the caption is
deleted and the following inserted in lieu thereof:
"There shall at all times be an Indenture Trustee
hereunder that is a corporation organized and doing
business under the laws of the United States or any
jurisdiction thereof, authorized under such laws to
exercise corporate trust powers, having a combined
capital and surplus of at least $25,000,000, and
subject to supervision or examination by federal or
state or other local authority. If at any time the
Indenture Trustee ceases to remain eligible in
accordance with the provisions of this Section, it
shall resign immediately in the manner and with the
effect hereinafter specified in this Article."
(8) Paragraphs (d) and (e) of Section 8.10 are deleted and
the following inserted in lieu thereof:
"(d) if at any time:
(1) the Indenture Trustee ceases to remain
eligible under Section 8.09 and fails to resign after
written request therefor by the Owner Trustee or by any
Holder who has been a bona fide holder of a Bond for at
least six months, or
(2) the Indenture Trustee has become
incapable of acting or has been adjudged a bankrupt or
insolvent or a receiver of the Indenture Trustee or of
its property has been appointed or any public officer
has taken charge or control of the Indenture Trustee or
of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Owner Trustee,
acting after consultation with the Lessee, may remove
the Indenture Trustee or (y) subject to Section 7.11,
any Holder who has been a bona fide Holder of a Bond
for at least six months may, on behalf of himself and
all others similarly situated, petition any court of
competent jurisdiction for the removal of the Indenture
Trustee and the appointment of a successor Indenture
Trustee.
(e) If the Indenture Trustee resigns, is
removed or becomes incapable of acting, or if a vacancy
occurs in the office of Indenture Trustee for any
cause, the Owner Trustee, acting after consultation
with the Lessee, shall promptly appoint a successor
Indenture Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence
of such vacancy, a successor Indenture Trustee has been
appointed by Act of the Holders of not less than a
majority in aggregate principal amount of the
Outstanding Bonds of all series, considered as one
class, delivered to the Lessee, the Owner Trustee and
the retiring Indenture Trustee, the successor Indenture
Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor
Indenture Trustee and supersede the successor Indenture
Trustee appointed by the Lessee. If no successor
Indenture Trustee has been so appointed by the Owner
Trustee, acting after consultation with the Lessee, or
by the Holders, and has accepted appointment in the
manner hereinafter provided, any Holder who has been a
bona fide Holder of a Bond for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee."
(9) Section 8.13 is deleted and the following inserted in
lieu thereof:
"Section 8.13. [Reserved]"
(10) Section 8.14 is deleted and the following inserted in
lieu thereof:
"Section 8.14. [Reserved]"
(11) Section 8.15 is amended in the following respects:
(A) Paragraph (a) is deleted and the following
inserted in lieu thereof:
"(a) If at any time or times it shall be
necessary or prudent in order to conform to any law of
any jurisdiction in which property shall be held
subject to the Lien hereof, or the Indenture Trustee
shall be advised by counsel, satisfactory to it, that
it is so necessary or prudent in the interest of the
Holders, or the Holders of a majority in aggregate
principal amount of the Outstanding Bonds of all
series, considered as one class, shall by Act of such
Holders so request, the Indenture Trustee and the Owner
Trustee shall execute and deliver all instruments and
agreements necessary or proper to constitute another
bank or trust company or one or more Persons approved
by the Indenture Trustee either to act as co-trustee or
co-trustees of all or any part of the Indenture Estate
jointly with the Indenture Trustee originally named
herein or any successor or successors or to act as
separate trustee or trustees of all or any such
property. In the event the Owner Trustee shall not
have joined in the execution of such instruments and
agreements within ten days after the receipt of a
written request from the Indenture Trustee so to do, or
in case an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee may
act under the foregoing provisions of this Section
without the concurrence of the Owner Trustee, and the
Owner Trustee hereby appoints the Indenture Trustee its
agent and attorney to act for it under the foregoing
provisions of this Section in either of such
contingencies."
(B) Subparagraph (b)(5) is deleted and the following
inserted in lieu thereof:
"(5) the Owner Trustee and the Indenture
Trustee, at any time, by an instrument in writing,
executed by them jointly, may remove any such
additional trustee or trustees and, in that case, by an
instrument in writing executed by them jointly, may
appoint a successor or successors to such additional
trustee or trustees, anything herein to the contrary
notwithstanding; provided, however, that if the Owner
Trustee and the Indenture Trustee remove any such
additional trustee which has been appointed at the
request of the Holders pursuant to subsection (a) of
this Section, then such parties shall appoint a
successor or successors to such additional trustee so
removed unless the Holders of a majority in aggregate
principal amount of the Outstanding Bonds of all
series, considered as one class, shall have agreed in
writing that no such successor or successors need be
appointed. In the event that the Owner Trustee shall
not have joined in the execution of any such instrument
within ten days after the receipt of a written request
from the Indenture Trustee to do so, the Indenture
Trustee shall have power to remove any such additional
trustee and to appoint a successor additional trustee
without the concurrence of the Owner Trustee, the
latter hereby appointing the Indenture Trustee its
agent and attorney to act for it in such connection in
such contingency. In the event that the Indenture
Trustee alone shall have appointed an additional
trustee or trustees as above provided, it may at any
time, by an instrument in writing, remove any such
additional trustee or trustees, the successor to any
such additional trustee so removed to be appointed by
the Owner Trustee and the Indenture Trustee, or by the
Indenture Trustee alone, as hereinbefore in this
Section provided."
(i) Article Nine is deleted and the following inserted in
lieu thereof:
"ARTICLE NINE
[Reserved]"
(j) Article Ten is amended as follows:
(1) Section 10.01 is amended in the following
respects:
(A) the text preceding subparagraphs (a) through (l)
is amended to delete the text "the Lessee,";
(B) subparagraph (b) is deleted and the following
inserted in lieu thereof:
"(b) to evidence the succession of another
bank or trust company to the Owner Trustee, and the
assumption by any such successor of the covenants of
the Owner Trustee herein and in the Bonds contained, or
to evidence the appointment of a co-trustee pursuant to
the terms of the Trust Agreement;"
(C) subparagraph (e) is deleted and the following
inserted in lieu thereof:
"(e) to add to the covenants of the Owner
Trustee for the benefit of the Holders or to evidence
the surrender of any right or power herein conferred
upon the Owner Trustee;"
(D) subparagraph (g) is deleted and the following
inserted in lieu thereof:
"(g) to modify, eliminate or add to the
provisions of this Indenture to such extent as shall be
necessary to qualify or continue the qualification of
this Indenture (including any Series Supplemental
Indenture) under the Trust Indenture Act, or under any
similar federal statute hereafter enacted, or to add to
this Indenture such other provisions as may be
expressly permitted by the Trust Indenture Act;"
(2) Section 10.02 is amended in the following
respects:
(A) Paragraph (a) is amended by deleting from the
phrase "the Owner Trustee and the Lessee may" in the
text preceding the first proviso the words "and the
Lessee"; and
(B) the text ", or reduce the requirements of
Section 12.04 for quorum or voting" at the end of
subparagraph (a)(3) is deleted.
(3) Section 10.08 is deleted and the following
inserted in lieu thereof:
"Section 10.08. [Reserved]"
(4) Section 10.09 is amended by deleting (A) the
references in the first sentence thereof to,
respectively, "or the Lessee" and "and the Lessee", and
(B) the reference in the second sentence thereof to "or
the Lessee", together with the text ", the Lessee".
(k) Article Eleven is amended as follows:
(1) Paragraph (a) of Section 11.01 is amended by
deleting clause (z) thereof.
(2) Paragraph (e) of Section 11.01 is deleted and the
following inserted in lieu thereof:
"(e) Notwithstanding the satisfaction and
discharge of any Bonds as hereinabove provided, the
respective obligations of the Owner Trustee and the
Indenture Trustee in respect of such Bonds under
Sections 2.09, 2.10, 4.03 and 8.07 and this Article
shall survive."
(3) Paragraph (c) of Section 11.02 is deleted and the
following inserted in lieu thereof:
"(c) Notwithstanding the satisfaction and
discharge of any Bonds as hereinabove provided, the
respective obligations of the Owner Trustee and the
Indenture Trustee in respect of such Bonds under
Sections 2.09, 2.10, 4.03 and 8.07 and this Article
shall survive."
(l) Article Twelve is deleted and the following inserted in
lieu thereof:
"ARTICLE TWELVE
[Reserved]"
(m) Appendix A to the Indenture is hereby amended as set
forth in Schedule A-1 attached hereto.
ARTICLE TWO
Terms Of
The Refunding Bonds
Section 2.01 The Refunding Bonds.
(a) There are hereby created and established two separate
series of Additional Bonds designated, respectively, "Waterford 3
Secured Lease Obligation Bonds, % Series [B/C] due ____" (the
"Series [B/C] ____ Bonds") and "Waterford 3 Secured Lease
Obligation Bonds, % Series [B/C] due ____" (the "Series
[B/C] ____ Bonds"; and, together with the Series [B/C] ____
Bonds, the "Refunding Bonds"). The Refunding Bonds of each
series shall be issued in the aggregate principal amounts, shall
bear interest at the rates per annum and shall have the final
maturities set forth below:
Original
Principal Interest Final
Amount Rate Maturity
Series [B/C] Bonds $ % ______ __,
Series [B/C] Bonds $ ______ __,
The Series [B/C] ____ Bonds and the Series [B/C] Bonds
shall be substantially in the forms of Exhibits A-1 and A-2
hereto, respectively.
(b) Each Refunding Bond shall bear interest on the
principal amount thereof from time to time outstanding from the
Issue Date designated thereon until paid in full at the rate of
interest set forth therein, which interest shall be payable on
_________ 2, 199_ and on each ____ 2 and ____ 2 thereafter to and
including the final maturity date thereof, unless paid in full
prior to such date as provided herein and in the Refunding Bond.
(c) The original principal amount of each Refunding Bond
shall be payable in installments on the dates and in the amounts
set forth in Schedule 1 attached thereto, as such Schedule may be
adjusted from time to time in accordance with the provisions of
the Indenture and of such Refunding Bond. Installments of
principal of and premium, if any, and interest on each Refunding
Bond shall be due and payable on the payment dates specified in
Schedule 1 attached thereto.
(d) Each Refunding Bond shall be subject to redemption as
set forth in such Refunding Bond. There shall not be a Sinking
Fund for the Refunding Bonds of either series.
ARTICLE THREE
Miscellaneous
Section 3.01 Execution as Supplemental Indenture.
This Supplemental Indenture No. 2 is executed and shall be
construed as an indenture supplemental to the Indenture and, as
provided in the Original Indenture, this Supplemental Indenture
No. 2 forms a part thereof.
Section 3.02 Counterpart Execution.
This Supplemental Indenture No. 2 may be executed in any
number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 3.03 Concerning the Owner Trustee.
Anything herein to the contrary notwithstanding, all and
each of the agreements and obligations herein made or undertaken
on the part of the Owner Trustee are made or undertaken not as
personal agreements by the Owner Trustee in its individual
capacity for the purpose or with the intention of binding it
personally, but are made or undertaken solely for the purpose of
binding only the Trust Estate, and this Supplemental Indenture
No. 2 is executed and delivered by the Owner Trustee in its
individual capacity solely in the exercise of the powers
expressly conferred upon it as trustee under the Trust Agreement;
and no personal liability or responsibility is assumed hereunder
by or shall at any time be enforceable against the Owner Trustee
or any successor in trust or the Owner Participant on account of
any agreements hereunder of the Owner Trustee, either express or
implied, all such personal liability, if any, being expressly
waived by the Indenture Trustee and the Holders and by all
Persons claiming by, through or under the Indenture Trustee and
the Holders; provided, however, that the Owner Trustee, in its
individual capacity, shall be liable hereunder for its own gross
negligence or willful misconduct. If a successor owner trustee
is appointed in accordance with the terms of the Trust Agreement,
such successor owner trustee shall,without any further act,
succeed to all the rights, duties, immunities and obligations of
the Owner Trustee hereunder, and its predecessor owner trustee
and the Owner Trustee in its individual capacity shall be
released from all further duties and obligations hereunder,
without prejudice to any claims against the Owner Trustee in its
individual capacity or the Owner Trustee for any default by the
Owner Trustee in its individual capacity or the Owner Trustee,
respectively, in the performance of its obligations hereunder
prior to such appointment.
In Witness Whereof, the parties hereto have caused this
Supplemental Indenture No. 2 to be duly executed by their
respective officers thereunto authorized, and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
Attest:
First National Bank of Commerce, not
in its individual capacity,
except as otherwise expressly
provided in the Indenture, but
solely as Owner Trustee
[Seal]
By:
Name:
Title:
Attest:
Bankers Trust Company, as
successor Corporate Indenture
Trustee
[Seal]
By:
Name:
Title:
Stanley Burg,
as successor Individual Indenture Trustee
ACKNOWLEDGMENT
State Of )
) ss.:
County Of )
On this ___ day of _________, 199_, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, and in the presence of the
undersigned competent witnesses, personally came and appeared
____________, to me personally known, who being by me duly sworn
did say that ____ is a ________________________________ of First
National Bank of Commerce, a national banking association, the
Owner Trustee referred to in the foregoing instrument, that the
seal affixed to the foregoing instrument is the seal of said
national banking association, that said instrument was signed and
sealed on behalf of said association by authority of its Board of
Directors and that ____ acknowledged said instrument to be the
free act and deed of said national banking association.
[signature of appearer]
WITNESSES:
Notary Public
My Commission Expires:
ACKNOWLEDGMENT
State Of )
) ss.:
County Of )
On this ___ day of _________, 199_, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, and in the presence of the
undersigned competent witnesses, personally came and appeared
___________, to me personally known, who being by me duly sworn
did say that _____ is a ______________ of Bankers Trust Company,
a New York banking corporation, successor Corporate Indenture
Trustee under the foregoing instrument, that the seal affixed to
the foregoing instrument is the seal of said corporation, that
said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors and that _____
acknowledged said instrument to be the free act and deed of said
corporation.
[signature of appearer]
WITNESSES:
Notary Public
My Commission Expires:
ACKNOWLEDGMENT
State Of )
) ss.:
County Of )
On this ___ day of _________, 199_, before me, the
undersigned Notary Public, duly commissioned and qualified within
the State and County aforesaid, and in the presence of the
undersigned competent witnesses, personally came and appeared
Stanley Burg to me personally known, who being by me duly sworn
did say that he is the successor Individual Indenture Trustee
under the foregoing instrument and that in his capacity as such
he executed the foregoing instrument.
[signature of appearer]
WITNESSES:
Notary Public
My Commission Expires:
EXHIBIT C
TO
SUPPLEMENTAL INDENTURE NO. 2
[Schedule A-1 to Appendix A (Definitions)]
EXHIBIT A-1
TO
SUPPLEMENTAL INDENTURE NO. 2
FORM OF REFUNDING BOND
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT
WATERFORD 3 SECURED LEASE
OBLIGATION BOND, __% SERIES [B/C]
DUE ____
(DUE __________ 2, ____)
Issue Date: ________
No. R-__
FOR VALUE RECEIVED, FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity, but solely as trustee ("Owner
Trustee") under Trust Agreement No. [2/3], dated as of September
1, 1989, with ESSL 2, Inc. (the "Owner Participant"), hereby
promises to pay to _______________________, or registered
assigns, the principal sum of _________________________________
DOLLARS ($________), such payment to be made in the amounts and
on the dates specified in Schedule 1 hereto, as such Schedule 1
may be revised in accordance herewith, and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months)
on the aggregate amount of such principal sum remaining unpaid
from time to time from the date of issuance of this Bond until
due and payable, semiannually in arrears on ________ 2 and
________ 2 in each year, commencing ________ 2, 199_, at the rate
of _____% per annum, until the principal amount hereof is paid in
full.
Capitalized terms used in this Bond and not defined
herein have the respective meanings ascribed thereto in
Supplemental Indenture No. 2 to the Original Indenture (as
hereinafter defined).
In the event that any payment to be made hereunder is
stated to be due on a day that is not a Business Day, then such
payment shall be due and payable on the next succeeding Business
Day with the same force and effect as if made on the date on
which such payment was stated to be due, and no interest in
respect of such payment shall accrue for the period from and
after such stated due date.
All payments of principal, premium, if any, and
interest to be made by the Owner Trustee hereon and under the
Indenture of Trust and Deed of Mortgage No. [2/3], dated as of
September 1, 1989 (the "Original Indenture"), as supplemented by
Supplemental Indenture No. 1, dated as of September 1, 1989, and
Supplemental Indenture No. 2, dated as of October 1, 1994 (the
Original Indenture as so supplemented, and as it may be further
amended or supplemented from time to time in accordance with the
provisions thereof, being hereinafter referred to as the
"Indenture"), between the Owner Trustee and Bankers Trust Company
and Stanley Burg, as successor Corporate and Individual Indenture
Trustee, respectively (together, the "Indenture Trustee"), shall
be made only from the Indenture Estate and the Trust Estate, and
the Indenture Trustee shall have no obligation for the payment
thereof except to the extent that the Indenture Trustee shall
have sufficient income or proceeds from the Indenture Estate to
make such payments in accordance with the terms of Article Three
of the Indenture. The Holder hereof, by its acceptance of this
Bond, shall be deemed to have agreed that such Holder will look
solely to the Trust Estate and the income and proceeds from the
Indenture Estate to the extent available for distribution to the
Holder hereof as above provided, and that neither the Owner
Participant nor, except as otherwise expressly provided in the
Indenture, the Owner Trustee nor the Indenture Trustee is or
shall be personally liable to the Holder hereof for any amounts
payable under this Bond or for any performance to be rendered
under the Indenture or any other Transaction Document or for any
liability thereunder; provided, however, that in the event that
the Lessee, or the Lessee and an Affiliate thereof, shall have
assumed all the obligations of the Owner Trustee hereunder and
under the Indenture in accordance with Section 2.16 of the
Indenture, the Holder hereof, by its acceptance hereof, is deemed
further to have agreed that all payments to be made hereunder and
otherwise under the Indenture shall be made by the Lessee (or the
Lessee and such Affiliate, as the case may be) and from the
Indenture Estate, and in such event the Holder hereof will look
solely to the Indenture Estate and the Lessee (and, if
applicable, such Affiliate) for such payment.
All principal, premium, if any, and interest in respect
of this Bond shall be payable in immediately available funds in
such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public
and private debts upon presentation of this Bond at the Corporate
Trust Office or as otherwise contemplated by and in accordance
with Section 2.11 of the Indenture.
In the manner and to the extent provided in Section
2.17 of the Indenture, Schedule 1 hereto may be adjusted at the
discretion of the Owner Trustee in connection with certain
recalculations of Basic Rent pursuant to the Facility Lease.
In the event of any partial redemption of this Bond
(the installment payments of principal in accordance with
Schedule 1 hereto not being considered for such purpose a
redemption), the installment payments of principal on this Bond
thereafter shall be adjusted in the manner provided in Section
6.03(b) of the Indenture.
The Holder hereof, by its acceptance of this Bond,
agrees that each payment received by it hereunder shall be
applied in the manner provided in Section 3.08 of the Indenture.
The Holder of this Bond, by its acceptance hereof, further agrees
that it will duly note by appropriate means all payments made to
it of principal of, premium, if any, and interest on this Bond,
and that it will not in any event transfer or otherwise dispose
of this Bond unless and until all such notations have been duly
made and the other requirements of the Indenture have been
complied with.
This Bond is one of the Bonds referred to in the
Indenture. The Indenture permits the issuance of additional
series of Bonds, and the several series may be for varying
aggregate principal amounts and may have different maturity
dates, interest rates, redemption provisions and other terms.
The properties of the Owner Trustee included in the Indenture
Estate are pledged to the Indenture Trustee to the extent
provided in the Indenture as security for the payment of the
principal of and premium, if any, and interest on this Bond and
all other Bonds issued and outstanding from time to time under
the Indenture. Reference is hereby made to the Indenture for a
complete statement of the rights of the Holders of, and the
nature and extent of the security for, this Bond and of the
rights of, and the nature and extent of the security for, the
Holders of the other Bonds and of certain rights of the Owner
Trustee, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and
conditions the Holder hereof agrees by its acceptance of this
Bond.
This Bond is subject to purchase by the Owner Trustee
as provided in Section 7.16 of the Indenture. This Bond is also
subject to redemption in full, at the unpaid principal amount
hereof plus accrued interest to the date fixed for redemption, in
the event of the termination of the Facility Lease pursuant to
Section 13(f) or (g) or Section 14 thereof, or Section 16(d)(5)
of the Participation Agreement, subject, however, except in the
case of a termination pursuant to Section 14 of the Facility
Lease, to the right of the Lessee (or the Lessee and an Affiliate
thereof, as the case may be) to assume this Bond in accordance
with Section 2.16 of the Indenture (in which event there shall be
no redemption of this Bond as a consequence of such termination).
In addition, this Bond may be redeemed, in whole or in
part, at any time at the redemption price of 100% of the unpaid
principal amount of this Bond to be so redeemed, together with
interest accrued to the date fixed for redemption, plus the
Lessor Bond Make-Whole Premium, if any. "Lessor Bond Make-Whole
Premium" shall mean an amount equal to the "Make-Whole Premium"
due on such redemption date on the Refunding Collateral Bonds (as
defined in the Indenture of the series correlative to this Bond
which are in an unpaid principal amount equal to the unpaid
principal to be so redeemed on this Bond.
If an Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Bond and
any other Bonds, together with all accrued but unpaid interest
hereon and thereon, may, subject to certain rights of the Owner
Trustee and the Owner Participant contained or referred to in the
Indenture, be declared or may become due and payable in the
manner and with the effect provided in the Indenture.
The obligation of the Owner Trustee to pay the
principal of and premium, if any, and interest on this Bond, and
the lien of the Indenture or the Indenture Estate, is subject to
being legally discharged prior to the maturity of this Bond upon
the deposit with the Indenture Trustee of cash or certain
securities sufficient to pay this Bond when due in accordance
with the terms of the Indenture.
There shall be maintained at the Corporate Trust Office
a register for the purpose of registering transfers and exchanges
of this and the other Bonds in the manner provided in the
Indenture. Subject to the legend at the head of this Bond and
satisfaction of the conditions provided in Section 2.09(b) of the
Indenture, this Bond is transferable upon surrender hereof for
registration of transfer at the Corporate Trust Office. The
Owner Trustee and the Indenture Trustee shall treat the person in
whose name this Bond is registered as the absolute owner hereof
for the purpose of receiving all payments of the principal of and
premium, if any, and interest on this Bond and for all other
purposes whatsoever, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by notice to the contrary.
This Bond shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the Owner Trustee has caused this
Bond to be duly executed as of the date hereof.
FIRST NATIONAL BANK OF COMMERCE, not in
its individual capacity but solely
as Owner Trustee
By: _______________________________
Title:
This Bond is one of the Waterford 3 Secured Lease
Obligation Bonds, _____% Series [B/C] Due ___________ referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as
Corporate Indenture Trustee
Dated:__________________ By: _______________________________
Title:
SCHEDULE 1
TO
EXHIBIT A-1
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Date Principal Amount Payable Principal Balance
EXHIBIT A-2
TO
SUPPLEMENTAL INDENTURE NO. 2
FORM OF REFUNDING BOND
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT
WATERFORD 3 SECURED LEASE
OBLIGATION BOND, __% SERIES [B/C]
DUE ____
(DUE __________ 2, ____)
Issue Date: ________
No. R-__
FOR VALUE RECEIVED, FIRST NATIONAL BANK OF COMMERCE,
not in its individual capacity, but solely as trustee ("Owner
Trustee") under Trust Agreement No. [2/3], dated as of September
1, 1989, with ESSL 2, Inc. (the "Owner Participant"), hereby
promises to pay to _______________________, or registered
assigns, the principal sum of _________________________________
DOLLARS ($________), such payment to be made in the amounts and
on the dates specified in Schedule 1 hereto, as such Schedule 1
may be revised in accordance herewith, and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months)
on the aggregate amount of such principal sum remaining unpaid
from time to time from the date of issuance of this Bond until
due and payable, semiannually in arrears on ________ 2 and
________ 2 in each year, commencing ________ 2, 199_, at the rate
of _____% per annum, until the principal amount hereof is paid in
full.
Capitalized terms used in this Bond and not defined
herein have the respective meanings ascribed thereto in
Supplemental Indenture No. 2 to the Original Indenture (as
hereinafter defined).
In the event that any payment to be made hereunder is
stated to be due on a day that is not a Business Day, then such
payment shall be due and payable on the next succeeding Business
Day with the same force and effect as if made on the date on
which such payment was stated to be due, and no interest in
respect of such payment shall accrue for the period from and
after such stated due date.
All payments of principal, premium, if any, and
interest to be made by the Owner Trustee hereon and under the
Indenture of Trust and Deed of Mortgage No. [2/3], dated as of
September 1, 1989 (the "Original Indenture"), as supplemented by
Supplemental Indenture No. 1, dated as of September 1, 1989, and
Supplemental Indenture No. 2, dated as of October 1, 1994 (the
Original Indenture as so supplemented, and as it may be further
amended or supplemented from time to time in accordance with the
provisions thereof, being hereinafter referred to as the
"Indenture"), between the Owner Trustee and Bankers Trust Company
and Stanley Burg, as successor Corporate and Individual Indenture
Trustee, respectively (together, the "Indenture Trustee"), shall
be made only from the Indenture Estate and the Trust Estate, and
the Indenture Trustee shall have no obligation for the payment
thereof except to the extent that the Indenture Trustee shall
have sufficient income or proceeds from the Indenture Estate to
make such payments in accordance with the terms of Article Three
of the Indenture. The Holder hereof, by its acceptance of this
Bond, shall be deemed to have agreed that such Holder will look
solely to the Trust Estate and the income and proceeds from the
Indenture Estate to the extent available for distribution to the
Holder hereof as above provided, and that neither the Owner
Participant nor, except as otherwise expressly provided in the
Indenture, the Owner Trustee nor the Indenture Trustee is or
shall be personally liable to the Holder hereof for any amounts
payable under this Bond or for any performance to be rendered
under the Indenture or any other Transaction Document or for any
liability thereunder; provided, however, that in the event that
the Lessee, or the Lessee and an Affiliate thereof, shall have
assumed all the obligations of the Owner Trustee hereunder and
under the Indenture in accordance with Section 2.16 of the
Indenture, the Holder hereof, by its acceptance hereof, is deemed
further to have agreed that all payments to be made hereunder and
otherwise under the Indenture shall be made by the Lessee (or the
Lessee and such Affiliate, as the case may be) and from the
Indenture Estate, and in such event the Holder hereof will look
solely to the Indenture Estate and the Lessee (and, if
applicable, such Affiliate) for such payment.
All principal, premium, if any, and interest in respect
of this Bond shall be payable in immediately available funds in
such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public
and private debts upon presentation of this Bond at the Corporate
Trust Office or as otherwise contemplated by and in accordance
with Section 2.11 of the Indenture.
In the manner and to the extent provided in Section
2.17 of the Indenture, Schedule 1 hereto may be adjusted at the
discretion of the Owner Trustee in connection with certain
recalculations of Basic Rent pursuant to the Facility Lease.
In the event of any partial redemption of this Bond
(the installment payments of principal in accordance with
Schedule 1 hereto not being considered for such purpose a
redemption), the installment payments of principal on this Bond
thereafter shall be adjusted in the manner provided in Section
6.03(b) of the Indenture.
The Holder hereof, by its acceptance of this Bond,
agrees that each payment received by it hereunder shall be
applied in the manner provided in Section 3.08 of the Indenture.
The Holder of this Bond, by its acceptance hereof, further agrees
that it will duly note by appropriate means all payments made to
it of principal of, premium, if any, and interest on this Bond,
and that it will not in any event transfer or otherwise dispose
of this Bond unless and until all such notations have been duly
made and the other requirements of the Indenture have been
complied with.
This Bond is one of the Bonds referred to in the
Indenture. The Indenture permits the issuance of additional
series of Bonds, and the several series may be for varying
aggregate principal amounts and may have different maturity
dates, interest rates, redemption provisions and other terms.
The properties of the Owner Trustee included in the Indenture
Estate are pledged to the Indenture Trustee to the extent
provided in the Indenture as security for the payment of the
principal of and premium, if any, and interest on this Bond and
all other Bonds issued and outstanding from time to time under
the Indenture. Reference is hereby made to the Indenture for a
complete statement of the rights of the Holders of, and the
nature and extent of the security for, this Bond and of the
rights of, and the nature and extent of the security for, the
Holders of the other Bonds and of certain rights of the Owner
Trustee, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and
conditions the Holder hereof agrees by its acceptance of this
Bond.
This Bond is subject to purchase by the Owner Trustee
as provided in Section 7.16 of the Indenture. This Bond is also
subject to redemption in full, at the unpaid principal amount
hereof plus accrued interest to the date fixed for redemption, in
the event of the termination of the Facility Lease pursuant to
Section 13(f) or (g) or Section 14 thereof, or Section 16(d)(5)
of the Participation Agreement, subject, however, except in the
case of a termination pursuant to Section 14 of the Facility
Lease, to the right of the Lessee (or the Lessee and an Affiliate
thereof, as the case may be) to assume this Bond in accordance
with Section 2.16 of the Indenture (in which event there shall be
no redemption of this Bond as a consequence of such termination).
In addition, this Bond may be redeemed, in whole or in
part, at any time at the redemption price of 100% of the unpaid
principal amount of this Bond to be so redeemed, together with
interest accrued to the date fixed for redemption, plus the
Lessor Bond Make-Whole Premium, if any. "Lessor Bond Make-Whole
Premium" shall mean an amount equal to the "Make-Whole Premium"
due on such redemption date on the Refunding Collateral Bonds (as
defined in the Indenture) of the series correlative to this Bond
which are in an unpaid principal amount equal to the unpaid
principal to be so redeemed on this Bond.
If an Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Bond and
any other Bonds, together with all accrued but unpaid interest
hereon and thereon, may, subject to certain rights of the Owner
Trustee and the Owner Participant contained or referred to in the
Indenture, be declared or may become due and payable in the
manner and with the effect provided in the Indenture.
The obligation of the Owner Trustee to pay the
principal of and premium, if any, and interest on this Bond, and
the lien of the Indenture or the Indenture Estate, is subject to
being legally discharged prior to the maturity of this Bond upon
the deposit with the Indenture Trustee of cash or certain
securities sufficient to pay this Bond when due in accordance
with the terms of the Indenture.
There shall be maintained at the Corporate Trust Office
a register for the purpose of registering transfers and exchanges
of this and the other Bonds in the manner provided in the
Indenture. Subject to the legend at the head of this Bond and
satisfaction of the conditions provided in Section 2.09(b) of the
Indenture, this Bond is transferable upon surrender hereof for
registration of transfer at the Corporate Trust Office. The
Owner Trustee and the Indenture Trustee shall treat the person in
whose name this Bond is registered as the absolute owner hereof
for the purpose of receiving all payments of the principal of and
premium, if any, and interest on this Bond and for all other
purposes whatsoever, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by notice to the contrary.
This Bond shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the Owner Trustee has caused this
Bond to be duly executed as of the date hereof.
FIRST NATIONAL BANK OF COMMERCE, not in
its individual capacity but solely
as Owner Trustee
By: _______________________________
Title:
This Bond is one of the Waterford 3 Secured Lease
Obligation Bonds, _____% Series [B/C] Due ___________ referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as
Corporate Indenture Trustee
Dated:__________________ By: _______________________________
Title:
SCHEDULE 1
TO
EXHIBIT A-2
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Date Principal Amount Payable Principal Balance