EXHIBIT 4.1
INDENTURE
Dated as of December 15, 1993
by and between
FM 1993A CORP.,
the Issuer,
and
STATE STREET BANK AND TRUST COMPANY,
the Trustee
$70,000,000
9.75% SENIOR SECURED NOTES DUE NOVEMBER 1, 2003
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS ........................ 3
Section 1.1. Definitions ........................ 3
ARTICLE TWO THE NOTES .......................... 22
Section 2.1. Form Generally ..................... 22
Section 2.2. Forms of Notes and Certificates of
Authentication ..................... 23
Section 2.3. Authorized Amount; Stated Maturity;
Note Interest Rate ................. 23
Section 2.4. Denominations ...................... 24
Section 2.5. Execution, Authentication, Delivery
and Dating ......................... 24
Section 2.6. Exchange and Registration of
Transfer of Notes; Restrictions on
Transfer; Depositary ............... 25
Section 2.7. Mutilated, Destroyed, Lost or Stolen
Notes .............................. 31
Section 2.8. Payment of Principal and Interest;
Principal and Interest Rights
Preserved .......................... 32
Section 2.9. Prepayment ......................... 34
Section 2.10. Persons Deemed Owners .............. 34
Section 2.11. Cancellation ....................... 34
Section 2.12. Non-recourse ....................... 35
ARTICLE THREE DELIVERY OF NOTES AND DISTRIBUTION
OF PROCEEDS ........................ 36
Section 3.1. General Provisions ................ 36
Section 3.2. Collateral Support ................. 37
i
Section 3.3. [Intentionally Omitted] ............ 41
Section 3.4. Distribution of Proceeds of Notes .. 43
ARTICLE FOUR SATISFACTION AND DISCHARGE ......... 45
Section 4.1. Satisfaction and Discharge of
Indenture .......................... 45
Section 4.2. Application of Trust Money ......... 46
ARTICLE FIVE EVENTS OF DEFAULT; REMEDIES ........ 46
Section 5.1. Events of Default .................. 46
Section 5.2. Acceleration of Maturity,
Foreclosure Events, Rescission and
Annulment .......................... 48
Section 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee ......... 49
Section 5.4. Remedies ........................... 50
Section 5.5. Optional Preservation of Trust
Estate ............................. 52
Section 5.6. Trustee May File Proofs of Claim ... 53
Section 5.7. Trustee May Enforce Claims Without
Possession of Notes ................ 54
Section 5.8. Application of Money Collected ..... 55
Section 5.9. Limitation on Suits ................ 56
Section 5.10. Rights of Noteholders to Receive
Principal, Premium and Interest .... 57
Section 5.11. Restoration of Rights and Remedies.. 58
Section 5.12. Rights and Remedies Cumulative ..... 58
Section 5.13. Delay or Omission Not Waiver ....... 58
Section 5.14. Control by Noteholders ............. 59
Section 5.15. Waiver of Past Defaults ............ 60
Section 5.16. Undertaking for Costs .............. 60
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Section 5.17. Waiver of Stay, Extension or Usury
Laws ............................... 61
Section 5.18. Sale of Trust Estate ............... 61
Section 5.19. Action on Notes .................... 63
ARTICLE SIX THE TRUSTEE ........................ 63
Section 6.1. Certain Duties and Responsibilities. 63
Section 6.2. Notice of Default .................. 65
Section 6.3. Certain Rights of Trustee .......... 65
Section 6.4. Not Responsible for Recitals or
Issuance of Notes .................. 67
Section 6.5. May Not Hold Notes ................. 68
Section 6.6. Money Held in Trust ................ 68
Section 6.7. Compensation and Reimbursement ..... 68
Section 6.8. Corporate Trustee Required;
Eligibility ........................ 69
Section 6.9. Resignation and Removal; Appointment
of Successor ....................... 70
Section 6.10. Acceptance of Appointment by
Successor .......................... 72
Section 6.11. Merger, Conversion, Consolidation or
Succession to Business of Trustee .. 72
Section 6.12. Co-Trustees and Separate Trustee ... 73
Section 6.13. Representations and Warranties of
Trustee ............................ 74
ARTICLE SEVEN COVENANTS .......................... 76
Section 7.1. Payment of Principal and Interest... 76
Section 7.2. Appointment of Agent ............... 76
Section 7.3. Money for Note Payments ............ 76
Section 7.4. Existence of Issuer ................ 76
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Section 7.5. Protection of Trust Estate ......... 77
Section 7.6. Opinions as to Trust Estate ........ 78
Section 7.7. Performance of Obligations ......... 79
Section 7.8. Certain Negative Covenants ......... 79
Section 7.9. Statement as to Compliance ......... 81
Section 7.10. Issuer May Not Consolidate, Etc. ... 82
Section 7.11. No Other Business .................. 82
Section 7.12. No Purchase of Notes ............... 82
Section 7.13. Investment Company Act ............. 82
Section 7.14. Notice of Event of Default ......... 82
Section 7.15. Use of Proceeds .................... 82
Section 7.16. Books and Records .................. 83
Section 7.17. Consents, Waivers and Modifications
of Other Agreements ................ 83
Section 7.18. Grant of Trust Estate .............. 83
Section 7.19. Rent to be Paid Over to Trustee .... 84
Section 7.20. Fiscal Year End .................... 84
Section 7.21. Inspection ......................... 84
Section 7.22. Access to Accountants .............. 85
Section 7.23. Provision of Rule 144A Information.. 85
Section 7.24. Maintenance of Office .............. 86
Section 7.25. Copies of Notices .................. 86
Section 7.26. Performance By Foodmaker ........... 86
ARTICLE EIGHT SUPPLEMENTAL INDENTURES ............ 86
Section 8.1. Supplemental Indentures ............ 86
Section 8.2. Execution of Supplemental Indentures 89
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Section 8.3. Effect of Supplemental Indentures .. 89
ARTICLE NINE ACCOUNTS, ACCOUNTING AND RELEASES .. 89
Section 9.1. Collection of Money ................ 89
Section 9.2. Collection Account and Sinking Fund
Account ............................ 90
Section 9.3. Accounting ......................... 94
Section 9.4. Construction Account ............... 97
Section 9.5. Releases from the Construction
Account ............................ 98
Section 9.6. Establishment of and Releases from
Closing Costs Account and
Administrative Expenses Account .... 103
Section 9.7. Releases ........................... 105
Section 9.8. Reports ............................ 105
Section 9.9. Form of Reports .................... 106
ARTICLE TEN APPLICATION OF MONIES .............. 106
Section 10.1. Disbursements of Monies from the
Collection Account ................. 106
Section 10.2. Trust Account ...................... 108
ARTICLE ELEVEN ADMINISTRATION AND SERVICING OF CRC
NOTES AND MORTGAGES ................ 108
Section 11.1. Duties and Responsibilities as to
Servicing .......................... 108
Section 11.2. Delegation of Duties; Sub-Servicing 108
Section 11.3. Fidelity Note and Errors and
Omissions Insurance Policy ......... 109
Section 11.4. Files and Records .................. 110
Section 11.5. Trustee Receipt of Insurance and
Condemnation Proceeds; Establishment
of Proceeds Account ................ 110
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Section 11.6. Excess Insurance and Condemnation
Proceeds ........................... 111
Section 11.7. Payment of Taxes and Other Charges.. 111
Section 11.8. Maintenance of Casualty Insurance .. 111
Section 11.9. Insurance Proceeds ................. 111
Section 11.10. Enforcement of CRC Leases .......... 112
Section 11.11. Protection of Security ............. 112
Section 11.12. Notices of Default ................. 113
Section 11.13. Intentionally Omitted .............. 113
Section 11.14. Modifications, Etc ................. 113
Section 11.15. Realization Upon Defaulted Mortgage
Loans .............................. 114
Section 11.16. Title to REO Property; REO Account . 116
Section 11.17. Management of REO Properties ....... 117
Section 11.18 Property Substitution .............. 118
Section 11.19. Early Termination Election ......... 121
Section 11.20. Limitation on Liability of the
Trustee Under Article Eleven ....... 122
ARTICLE TWELVE MISCELLANEOUS ...................... 122
Section 12.1. Right to List of Holders ........... 122
Section 12.2. Form of Documents Delivered to
Trustee ............................ 123
Section 12.3. Acts of Noteholders ................ 123
Section 12.4. Notices, Etc., to Trustee and Issuer 124
Section 12.5. Notices to Noteholders; Waiver ..... 124
Section 12.6. Effect of Headings and Table of
Contents ........................... 125
Section 12.7. Successors and Assigns ............. 125
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Section 12.8. Separability ....................... 125
Section 12.9. Benefits of Indenture .............. 125
Section 12.10. Legal Holidays ..................... 126
Section 12.11. Limitation on Interest ............. 126
Section 12.12. Governing Law ...................... 126
Section 12.13. Counterparts ....................... 126
Section 12.14. Indulgences Not Waivers ............ 127
Section 12.15. Recordation of Agreement ........... 127
Section 12.16. Attorneys' Fees .................... 127
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INDENTURE
Indenture, dated as of December 15, 1993, between FM
1993A CORP., a Delaware corporation (herein, together with its permitted
successors and assigns, called the "Issuer"), and STATE STREET BANK AND TRUST
COMPANY, as trustee (herein, together with its permitted successors in the
trusts hereunder, called the "Trustee").
PRELIMINARY STATEMENT: The Issuer and the Trustee are
each duly authorized to execute and deliver this Indenture. All covenants
and agreements made by the Issuer herein are for the benefit and security of
the Noteholders. The Issuer is entering into this Indenture, and the Trustee
is accepting the trusts created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged. All things
necessary to make this Indenture a valid agreement of the Issuer and the
Trustee in accordance with its terms have been done. All things necessary to
make the Notes, when executed by the Issuer and authenticated, issued, and
delivered under this Indenture, the valid, binding, and enforceable
obligations of the Issuer have been done. All capitalized terms used but not
otherwise defined shall have the meanings set forth in Article One of this
Indenture.
GRANTING CLAUSE: The Issuer hereby Grants to the
Trustee, for the benefit and security of the Holders of the Notes, all of the
Issuer's right, title and interest now owned or hereafter acquired in, to and
under all of (but none of its obligations with respect to any of) its assets,
whether now existing or hereafter coming into existence, including, without
limitation, (a) the CRC Notes, the CRC-I Lease Assignment, the CRC-II Lease
Assignment, the CRC-I Mortgages, the CRC-II Mortgages, the Foodmaker
Mortgages, the Deposit Accounts Security Agreements, and the Financing
Statements, and all other Mortgage Note Documents, including, without
limitation, any collateral that may be acquired by foreclosure or deed in
lieu of foreclosure and all proceeds of or to which the Issuer is entitled
under any of the foregoing, including without limitation, Insurance and
Condemnation Proceeds, Liquidation Proceeds and all income from REO
Properties; (b) all funds from time to time held in the Collection Account,
including Reinvestment Income (if any) thereon; (c) all funds from time to
time held in the Construction Account, including Reinvestment Income thereon;
(d) all funds from time to time held in the Proceeds Account, including
Reinvestment Income (if any) thereon; (e) all funds from time to time held in
any REO Account, including Reinvestment Income thereon; (f) all
1
funds from time to time held in the Administrative Expenses Account,
including Reinvestment Income (if any) thereon; (g) all funds from time to
time held in the Closing Costs Account, including Reinvestment Income (if
any) thereon; (h) all funds from time to time held in the Sinking Fund
Account, including Reinvestment Income thereon; (i) all funds from time to
time held in the Equity Collection Account, including Reinvestment Income
thereon; (j) all funds from time to time held in the Additional Unit
Acquisition Account, including Reinvestment Income thereon; (k) the Insurance
Policies; (l) other contracts or agreements of the Issuer; (m) all other
property, real or personal, tangible or intangible; and (n) all proceeds of
any of the foregoing of every kind and nature whatsoever, including without
limitation, proceeds of proceeds, and the conversion, voluntary or
involuntary, of any of the foregoing into cash or other property (including,
but not limited to, any Eligible Investments) (collectively, the "Trust
Estate"). The Trustee acknowledges such Grant, accepts the trusts hereunder
and the Trust Estate for the benefit of and as agent for the Holders of the
Notes in accordance with the provisions hereof.
HABENDUM CLAUSE: To have and to hold in trust the Trust
Estate, for the equal and ratable benefit and security of all present and
future Holders of the Notes issued and to be issued under this Indenture,
without preference, priority, or distinction as to lien or otherwise (except
as herein expressly provided), of any one Note over any other Note upon the
terms and subject to the conditions hereinafter set forth.
ISSUER'S CAPACITY: In executing the Notes and this
Indenture, the Issuer will be acting both as principal and as agent for each
Borrower to the extent of such Borrower's obligations under the Notes. As
used in this Indenture, references to "the Issuer" shall be interpreted to
include the Issuer in its capacity as principal and the Issuer in its
capacity as agent for each Borrower pursuant to the Agency Agreement with
such Borrower and with respect to such Borrower's obligations under this
Indenture.
LEASE PAYMENTS: The Lessee has been directed to make all
payments of Rent and all other amounts which are required to be paid to or
deposited with the Borrowers pursuant to the CRC Leases directly to the
Trustee at such address or addresses as the Trustee shall from time to time
specify, for application as provided in this Indenture. Further, each
Borrower agrees that promptly on receipt thereof, such Borrower will transfer
to the Trustee any and all moneys from time to time received by such Borrower
2
constituting part, or intended to constitute part, of the Trust Estate,
whether or not expressly referred to in the immediately preceding sentence,
for application pursuant to this Indenture, except for any amounts released
from the lien of this Indenture and, directly or indirectly, to such Borrower
by the Trustee under the terms of this Indenture.
ARTICLE ONE
DEFINITIONS
Section 1.1 Definitions.
Except as otherwise specified herein or as the context
may otherwise require, the following terms have the respective meanings set
forth below for all purposes of this Indenture, and the definitions of such
terms are equally applicable both to the singular and plural forms of such
terms and to the masculine, feminine, and neuter genders of such terms. Each
definition with respect to an agreement, instrument, or other document shall
be deemed to include such agreement, instrument, or other document as it may
be amended, modified, or supplemented in accordance with its terms and, if
applicable, in accordance with the terms hereof.
"Accountants' Certificate": A letter of a firm of
Independent certified public accountants of nationally recognized reputation
appointed by the Issuer which may be a firm of Independent accountants that
audits the financial statements of the Issuer or any of its Affiliates.
"Act" or "Acts of Noteholders": The meanings specified
in Section 12.3.
"Additional Unit Acquisition Account": The trust account
established and maintained by the Trustee as a subaccount of the Construction
Account pursuant to Section 9.4.
"Administrative Expenses": Without duplication, the sum
of: (a) amounts due the Trustee under Section 6.7; (b) expenses incurred by
the Trustee relating to the administration and maintenance of the Trust
Estate (including, without limitation, expenses pursuant to Article Eleven);
(c) any fees and expenses, other than fees and expenses paid in connection
with the issuance of the Notes, due to the respective counsel of the
Noteholders and the Trustee; (d) amounts due to Noteholders pursuant to
Section
3
5.14(c) and, with respect to any Issuer or Borrower solicitation, Section
8.1; and (e) any fees and expenses payable to the Rating Agencies other than
in connection with the issuance of the Notes.
"Administrative Expenses Account": The trust account
established and maintained by the Trustee pursuant to Section 9.6(b).
"Affiliate" of any specified Person: (a) Any other
Person controlling or controlled by or under common control with such
specified Person and (b) any partner of such Person if such Person is a
partnership, or any shareholder of such Person if such Person is a
corporation. For the purposes of this definition, "control," when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract, or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agency Agreement": Collectively, the agreements, dated
as of the date hereof, between CRC-I and the Issuer and CRC-II and the
Issuer, as the case may be, concerning the Issuer's issuance and sale of the
Notes as agent for such Borrower.
"Aggregate Outstanding Amount": The aggregate principal
amount of all the Notes outstanding at the date of determination.
"Authorized Officer": With respect to the Issuer, any
Person whose name and specimen signature appears on a list of Authorized
Officers furnished to the Trustee as certified by the Secretary of the
Issuer. With respect to the Trustee or any other bank or trust company
acting as trustee of an express trust or as custodian, a Responsible Officer.
With respect to the Lessee, any Person whose name and specimen signature
appears on a list of Authorized Officers furnished to the Trustee as
certified by the Secretary of the Lessee.
"Bankruptcy Code": The Federal Bankruptcy Code, Title 11
of the United States Code, as amended, or any successor statute(s), or any
other Federal or state bankruptcy, insolvency or similar law, now or
hereafter in effect in the United States.
"Borrower": CRC-I or CRC-II, as the case may be.
4
"Borrowers": CRC-I and CRC-II, collectively and
severally.
"Business Day": A day other than a Saturday, Sunday, or
a day on which banks in New York, New York or the city where the Corporate
Trust Office of the Trustee is located, are authorized or obligated to close
their regular banking business.
"Closing Costs": All fees, expenses and costs of the
Lessor, the Issuer, the Trustee, the Noteholders and Jefferies & Company,
Inc. (including, without limitation, attorneys' fees and expenses of outside
counsel, including, without limitation, special local counsel to Jefferies &
Company, Inc. and of one special counsel to the Noteholders and the fees of
Standard & Poor's and Moody's for issuing the rating agency letters
contemplated by this Indenture), and any investment banking, brokerage and
placement fees resulting from any contract or agreement with the Lessors or
Lessee (including, without limitation, those payable to Jefferies & Company,
Inc.), incident to the preparation and negotiation of this Indenture, the CRC
Leases, the Mortgages, the other Mortgage Note Documents and the Notes, and
all fees, expenses, taxes and costs incurred in connection with the
execution, delivery, filing, recording or rerecording of any notice or
memorandum of the CRC Leases, the Mortgages, and any other document or
instrument (including financing statements) required to be filed, recorded or
rerecorded in connection with the leasing and mortgaging of any Property,
including, without limitation, title insurance premiums and escrow fees.
"Closing Costs Account": The trust account established
and maintained by the Trustee pursuant to Section 9.6(a).
"Closing Date": The date of the initial issuance of the
Notes.
"Code": The Internal Revenue Code of 1986, as amended,
or any successor statute(s).
"Collection Account": The trust account established and
maintained by the Trustee pursuant to Section 9.2.
"Construction Account": The trust account established
and maintained by the Trustee pursuant to Section 9.4, including, without
limitation, the Additional Unit Acquisition Account as a subaccount thereof
as provided in Section 9.4.
5
"Corporate Trust Office": The office of the Trustee at
which its corporate trust business with respect to this Indenture shall be
administered, which office at the date of execution of this Indenture is
located at 225 Franklin Street, Boston, Massachusetts 02110, or such other
address as the Trustee may designate from time to time by written notice to
the Noteholders and the Issuer or the principal corporate trust office of any
successor Trustee.
"Construction Units": The 16 Properties in which CRC-II
will hold as of the Closing Date, and the 22 Potential Construction Units in
which CRC-II will in the future hold, an estate for years, consisting of the
land and improvements and other related property constituting approximately
38 Jack In The Box restaurants constructed or to be constructed by Foodmaker
and which are listed on the attached Schedule A-2, and Schedule B in the case
of Potential Construction Units, or in the case of any permitted Substitution
of any thereof, any Substitute Unit therefor the Mortgages of which are
listed on the updated schedule to the CRC Notes as provided pursuant to
Section 11.18(b)(xiv).
"CRC Lease" or "CRC Leases": The CRC-I Lease or the
CRC-II Lease, as the case may be, or both of such leases.
"CRC Lease Assignments": The CRC-I Lease Assignment and
the CRC-II Lease Assignment, collectively.
"CRC Lease Event of Default": An "Event of Default"
under and as defined in the CRC-I Lease or the CRC-II Lease.
"CRC Mortgage" or "CRC Mortgages": Any of the CRC-I
Mortgages or the CRC-II Mortgages or all of such mortgages, collectively.
"CRC Notes": The CRC-I Note and the CRC-II Note,
collectively.
"CRC-I": CRC-I Limited Partnership, a Massachusetts
limited partnership.
"CRC-I Guaranty": The Guaranty, dated as of the date
hereof, by CRC-I as guarantor of all amounts due under the Notes.
6
"CRC-I Lease": The Master Lease, dated as of the date
hereof, between CRC-I, as lessor, and Foodmaker, as lessee, with respect to
the Existing Assets.
"CRC-I Lease Assignment": Each Assignment of Lessor's
Interest In Leases effecting an assignment of the CRC-I Lease by CRC-I, as
assignor, to the Issuer, as assignee, and consented to by the Lessee.
"CRC-I Mortgage": With respect to a Property included in
the Existing Assets, the mortgage, deed of trust, deed to secure debt or
other security document now or hereafter executed by CRC-I creating a first
priority, perfected lien on and security interest in, among other things,
CRC-I's estate for years in such Property, in favor of the Issuer as
collateral for the CRC Notes, with a collateral assignment thereof by the
Issuer to the Trustee as security for the payment of the Notes.
"CRC-I Note": A promissory note in the original
principal amount of $30,172,952 issued by CRC-I to the Issuer on the Closing
Date pursuant to the CRC-I Note Purchase Agreement.
"CRC-I Note Purchase Price": The meaning specified in
Section 3.4(a).
"CRC-I Note Purchase Agreement": The Note Purchase
Agreement, dated as of the date hereof, between CRC-I and the Issuer.
"CRC-I Rent": All rent and other amounts payable by the
Lessee under the CRC-I Lease, including, without limitation, all Basic Rent,
Special Rent, Special Sinker Rent, Additional Rent, and any Purchase Price
(as all such terms are defined in the CRC-I Lease) payable by the Lessee
thereunder.
"CRC-II": CRC-II Limited Partnership, a Massachusetts
limited partnership.
"CRC-II Guaranty": The Guaranty, dated as of the date
hereof, by CRC-II as guarantor of all amounts due under the Notes.
"CRC-II Lease": The Master Lease, dated as of the date
hereof, between CRC-II, as lessor, and Foodmaker, as lessee, with respect to
the Construction Units.
7
"CRC-II Lease Assignment": Each Assignment of Lessor's
Interest In Leases effecting an assignment of the CRC-II Lease by CRC-II, as
assignor, to the Issuer, as assignee, and consented to by the Lessee.
"CRC-II Mortgage": With respect to a Property included in
the Construction Units, the mortgage, deed of trust, deed to secure debt or
other security document now or hereafter executed by CRC-II creating a first
priority, perfected lien on and security interest in, among other things,
CRC-II's estate for years in such Property, in favor of the Issuer as
collateral for the CRC Notes, with a collateral assignment thereof by the
Issuer to the Indenture Trustee as security for the payment of the Notes.
"CRC-II Note": A promissory note in the original
principal amount of $39,827,048 issued by CRC-II to the Issuer on the Closing
Date pursuant to the CRC-II Note Purchase Agreement.
"CRC-II Note Purchase Price": The meaning specified in
Section 3.4(b).
"CRC-II Note Purchase Agreement": The Note Purchase
Agreement, dated as of the date hereof, between CRC-II and the Issuer.
"CRC-II Rent": All rent and other amounts payable by the
Lessee to CRC-II under the CRC-II Lease, including, without limitation, all
Basic Rent, Special Rent, Special Sinker Rent, Additional Rent, and any
Purchase Price (as all such terms are defined in the CRC-II Lease) payable by
the Lessee thereunder.
"Default": Any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Deposit Accounts Security Agreements": The Deposit
Accounts Security Agreement dated of even date herewith by and between each
of CRC-I and CRC-II (as the case may be) and the Issuer pertaining to funds
deposited in the Closing Costs Account, the Administrative Expenses Account,
the Collection Account, the Proceeds Account, the Sinking Fund Account, the
Equity Collection Account and the Construction Account.
"Depositary": With respect to the Notes issued in global
form, the Person specified in Section 2.6(f) as the "Depositary," until any
successor shall have been appointed and become such pursuant to the terms of
this Indenture, and thereafter, such successor.
8
"Depository Institution": A depository institution as
that term is defined at 12 U.S.C. { 461(b)(1)(A), as amended.
"Destruction": The meaning specified in Article 12 of
the CRC Leases.
"Determination Date": The last day of an Interest
Accrual Period.
"Early Termination": The meaning specified in Article 37
of the CRC Leases.
"Early Termination Election": The meaning specified in
Article 37 of the CRC Leases.
"Eligible Investments": Any one or more of the following
obligations or securities:
(a) (i) negotiable certificates of deposit, having a
maturity of no more than 30 days, of any Depository Institution or
trust company (including the Trustee) incorporated under the laws of
the United States of America or any state thereof and subject to
supervision and examination by federal or state banking authorities
so long as the commercial paper or the short term unsecured debt
obligations of such Depository Institution or trust company (or, in
the case of the principal Depository Institution in a holding
company system, the commercial paper or short term unsecured debt
obligations of such holding company) at the time of such investment
or contractual commitment providing for such investment have a short
term credit rating by the Rating Agencies at least equivalent to AA
for Standard and Poor's and Aa for Moody's and (ii) any other
negotiable certificate of deposit having a maturity of not more than
30 days that is fully insured by the Federal Deposit Insurance
Corporation;
(b) and, with respect to funds held in the Sinking Fund
Account only, the following additional obligations or securities:
(i) direct obligations of, and obligations fully
guaranteed by, the United States of America, the Federal National
Mortgage Association and the Federal Home Loan Mortgage Corporation
or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the
United States of America, provided that
9
obligations of, or obligations fully guaranteed by, the Federal
National Mortgage Association (excluding stripped mortgage-backed
securities that are valued greater than par on the portion of unpaid
principal), the Federal Home Loan Mortgage Corporation, or any such
agency or instrumentality shall be Eligible Investments only if, at
the time of investment they have a credit rating equal to or higher
than AA;
(ii) repurchase obligations pursuant to a written
agreement with respect to (A) any security described in clause (a)
above, or (B) any other security issued or guaranteed by an agency
or instrumentality of the United States of America and providing for
the transfer of such security to the Trustee or its agent as
contemplated by applicable law and regulation in such a way that the
Trustee will have a perfected security interest, in either case
entered into with a Depository Institution or trust company (acting
as principal) described in clause (a)(i) above;
(iii) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of
the United States of America or any state thereof that have a short
term credit rating by the Rating Agencies at least equivalent to AA
at the time of such investment or contractual commitment providing
for such investment; or
(iv) commercial paper issued by any Depository
Institution, or any corporation incorporated under the laws of the
United States of America or any state thereof, so long as the issuer
of such commercial paper has, at the time of such investment, a
credit rating by the Rating Agencies equivalent to at least AA;
provided that all Eligible Investments shall be held in the name of the
Trustee, in its capacity as such, and further provided that Eligible
Investments purchased with funds in any trust account established and
maintained by the Trustee hereunder shall be held until maturity (except as
otherwise provided in the Deposit Accounts Security Agreements) and shall
include only such obligations or securities as mature no later than the
Business Day prior to (x) the Year Nine Installment Payment Date in the case
of Eligible Investments purchased with funds in the Sinking Fund Account, or
(y) the next Payment Date in the case of Eligible Investments purchased with
funds in the Construction Account.
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"Eligible Unit" shall mean a Property, Potential
Construction Unit or Potential Additional Unit as to which Lessee has made an
Early Termination Election or has made the Year Nine Offer or exercised the
Year Nine Option under (and as such terms are defined in) the applicable CRC
Lease.
"Equity Collection Account": The trust account
established and maintained by the Trustee pursuant to Section 9.2(c).
"Event of Default": The meaning specified in Section
5.1.
"Exchange Act": The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing Assets": The 29 Properties in which CRC-I will
hold as of the Closing Date, and the 9 Potential Additional Units in which
CRC-I will in the future hold, an estate for years, consisting of the land
and improvements and other related property constituting 38 existing Jack In
The Box restaurants set forth on the attached Schedules A-1 and A-3, or in
the case of any permitted Substitution thereof, any Substitute Unit(s)
therefor the Mortgages of which are listed on the updated schedule to the CRC
Notes as provided pursuant to Section 11.18(b)(xiv).
"Financing Statements": The financing statements
referred to in Sections 3.2(a)(viii) and (ix) and any financing statements
executed and delivered pursuant to Section 11.18(vii).
"Foodmaker": Foodmaker, Inc., a Delaware corporation.
"Foodmaker Mortgage" or "Foodmaker Mortgages": With
respect to each Property included in the Existing Assets and the Construction
Units, the mortgage, deed of trust, deed to secure debt or other security
document now or hereafter executed by Foodmaker creating a first priority,
perfected lien on and security interest in, among other things, Foodmaker's
reversionary interest in such Property, in favor of the Issuer as collateral
for the CRC Notes, with a collateral assignment thereof by the Issuer to the
Trustee as security for the payment of the Notes, or all of such mortgages,
collectively.
"General Partner": With respect to CRC-I, CRC-I Corp., a
Massachusetts corporation, and with respect to CRC-II, CRC-II Corp., a
Massachusetts corporation.
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"Grant": To grant, bargain, sell, warrant, alienate,
demise, release, convey, assign, transfer, mortgage, charge, pledge, create
and grant a security interest in and right of set-off against, deposit, set
over, and confirm. A Grant of the CRC Notes and the other Mortgage Note
Documents, or of any other instrument or agreement Granted hereunder, shall
include all rights, powers, privileges, remedies, options and other benefits
(but none of the obligations) of the Granting party thereunder, including
without limitation the immediate and continuing right to claim for, to
collect, to receive and to give any receipt for principal, premium, if any,
and interest payments in respect of the CRC Notes and all other monies and
other property payable thereunder or in respect thereof, to give and to
receive notices and other communications, to make waivers or other
agreements, to exercise all rights, powers, privileges, remedies, options and
other benefits, to bring Proceedings in the name of the Granting party or
otherwise, and generally to do and to receive anything that the Granting
party is or may be entitled to do or to receive thereunder or with respect
thereto.
"Highest Lawful Rate": The meaning specified in Section
12.11.
"Holder" or "Noteholder": The Person in whose name a
Note is now or hereafter registered in the Note Register.
"Ideal Sinking Fund Balance" shall mean, as of any
Payment Date, the amount which would be held on such date in the Sinking Fund
Account, assuming that such account were accruing interest at a rate of 6%
(on the basis of a 360-day year) compounded semi-annually on the last
Business Day of each June and December, commencing on the last Business Day
of June, 1994 and ending on the last Business Day of December, 2002, assuming
(i) on the last Business Day of each such June and December the Unit Sinking
Fund Payments due on such day under the Notes were deposited therein; and
(ii) an amount were withdrawn therefrom on the date of the Early Termination
of each Eligible Unit or, where applicable, upon the consummation of the
transactions resulting from the exercise of the Year Nine Option or the
making of the Year Nine Offer as to such Eligible Unit on the Year Nine
Installment Payment Date in an amount equal to 2 times the Unit Percentage
for such Eligible Unit multiplied by the lesser of (A) the balance in the
Sinking Fund Account on such date or (B) the amount which would have been the
Ideal Sinking Fund Balance on such date (after taking into account the
payments assumed to be made on such
12
day in this definition of "Ideal Sinking Fund Balance" (inclusive of any Unit
Sinking Fund Payment attributable to such Eligible Unit which is due on such
day), but disregarding the withdrawal on account of such Eligible Unit under
this clause (ii) of this definition of "Ideal Sinking Fund Balance").
"Indenture": This instrument as originally executed and,
if from time to time supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, as so supplemented or amended. All references in this instrument to
designated "Articles," "Sections," "Subsections," and other subdivisions are
to the designated Articles, Sections, Subsections, and other subdivisions of
this instrument as originally executed. The words "herein," "hereof,"
"hereunder," and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section, Subsection, or other
subdivision.
"Independent": When used with respect to any specified
Person, means such a Person who (a) is in fact independent of the Issuer, the
Lessee, CRC-I, CRC-II and of any Affiliate of any thereof, (b) does not have
any direct financial interest or any material indirect financial interest in
the Issuer, the Lessee, CRC-I, CRC-II or in any Affiliate of any thereof, and
(c) is not connected with the Issuer, the Lessee, CRC-I, CRC-II or any
Affiliate of any thereof as an officer, employee, promoter, underwriter,
trustee, partner (whether general or limited), director, shareholder,
beneficiary or Person performing similar functions or having similar
ownership interests. Whenever it is provided herein that any Independent
Person's opinion or certificate shall be furnished to the Trustee, such
Person shall be appointed by Issuer Order and such opinion or certificate
shall state that the signer has read this definition and that the signer is
Independent within the meaning hereof. "Independent" when used with respect
to any accountant shall include an accountant who audits the books of any
Person referred to in clause (a) above if, in addition to satisfying the
criteria set forth above, the accountant is independent with respect to such
Person within the meaning of Rule 101 of the Code of Ethics of the American
Institute of Certified Public Accountants.
"Installment Payment Date": The first Business Day of
each January and July, from and including July, 1994 through and including
July, 2003.
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"Institutional Investor": Any of the following Persons
existing under the laws of the United States of America or any state thereof
or of the District of Columbia or of Canada or any province thereof: (a) any
bank, trust company, savings and loan association or national banking
association, acting for its own account or in a fiduciary capacity; (b) any
charitable foundation or other eleemosynary institution; (c) any insurance
company; (d) any investment company as defined in the Investment Company Act;
(e) any college or university; (f) any other governmental agency supervising
the investment of public funds; or (g) a "real estate investment trust" as
defined in Section 856 of the Code; provided that a Noteholder shall not be
an "Institutional Investor" for purposes of providing an unsecured agreement
to indemnify the Trustee pursuant to this Indenture, unless such Noteholder,
or, if held in nominee name, the beneficial owner of such Note, has a net
worth of not less than $100,000,000 and has so certified to the Trustee.
"Insurance and Condemnation Proceeds": Amounts paid to
any of the Lessee, any Borrower, the Issuer or the Trustee with respect to a
particular Property, CRC Note or REO Property pursuant to any Insurance
Policy, or as a result of a Destruction or pursuant to any fidelity note or
errors and omissions policy maintained by the Trustee.
"Insurance Policies": With respect to each Property,
those policies of insurance that shall be required to be maintained on or
with respect to such Property pursuant to the related Mortgages or CRC Lease,
including, without limitation, comprehensive general public liability
insurance, casualty insurance, or business interruption insurance, all Title
Policies, and any fidelity note or errors or omissions policy maintained by
the Trustee.
"Interest Accrual Period": As to any Note, with respect
to (i) the initial Interest Accrual Period, the period from the Closing Date
through and including June 30, 1994, (ii) thereafter, commencing July 1, 1994
and until June 30, 2003, the six (6) month period commencing on the first day
of each January or July to and including the last day of June or December,
respectively, and (iii) a final Interest Accrual Period from July 1, 2003
through, but not including November 1, 2003.
"Investment Company Act": The Investment Company Act of
1940, as amended.
"Issuer": FM 1993A Corp., a Delaware corporation, and
its permitted successors and assigns.
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"Issuer Order" or "Issuer Request": A written order or
request dated and signed in the name of the Issuer by an Authorized Officer
of the Issuer, and delivered to the Trustee.
"Lessee": Foodmaker, as lessee under the CRC-I Lease or
the CRC-II Lease or both, as applicable, and its permitted successors and
assigns.
"Liquidation Expenses": All amounts paid or incurred by
or on behalf of the Trustee (including the reasonable fees of its attorneys
and agents) in connection with the liquidation of any interest in any CRC
Note (or portion thereof) or any Property or REO Property or the preservation
of the Trustee's interest therein, including without limitation, the cost of
(a) preservation, restoration or protection of the Property or REO Property,
(b) any enforcement or judicial proceedings, including without limitation,
foreclosure, (c) accepting a deed in lieu of foreclosure, and (d) the
management, leasing, sale or other liquidation of the Property or REO
Property.
"Liquidation Proceeds": All funds received by the
Trustee in connection with the liquidation of any part of the Trust Estate,
including, without limitation, upon sale by deed in lieu of foreclosure, the
receipt of foreclosure proceeds from a judgment, writ of attachment or order
levied against the applicable Borrower and/or the Lessee or its assets, or
the receipt of proceeds from the sale of any Property or REO Property.
"Majority Noteholders": The Holders of more than 50% of
the Aggregate Outstanding Amount of the Notes.
"Maturity": With respect to any Note, the date on which
the entire unpaid principal of and interest on such Note becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration pursuant to the terms of Section 5.2 or otherwise
pursuant to the terms of this Indenture.
"Maximum Construction Unit Allowance": The aggregate
sums to be deposited in the Construction Account on the Closing Date pursuant
to Section 3.4.
"Moody's": Moody's Investors Service, Inc., and its
successors in interest.
"Mortgage Event of Default": Any Event of Default as
defined under any Mortgage.
15
"Mortgage Note Documents": The meaning specified in the
Mortgages.
"Mortgages": The CRC Mortgages and the Foodmaker
Mortgages, collectively and severally.
"Net Liquidation Proceeds": Liquidation Proceeds net of
all Liquidation Expenses.
"Note Interest Rate": The annual rate at which interest
accrues on the Notes, as specified in Section 2.3 and in the terms of the
Notes.
"Note Purchase Agreement": The Note Purchase Agreement
between the Issuer and each Noteholder.
"Note Register" and "Note Registrar": The respective
meanings specified in Section 2.6.
"Noteholder" or "Holder": The Person in whose name a
Note is now or hereafter registered in the Note Register.
"Noteholders' Counsel": Brown & Wood, or other counsel
appointed by Majority Noteholders.
"Notes": The Issuer's 9.75% Senior Secured Notes, Due
November 1, 2003, which are authorized by, and executed, authenticated, and
delivered under, this Indenture.
"Officer's Certificate": A certificate signed on behalf
of any Person by an Authorized Officer of such Person.
"Opinion of Independent Counsel": A written opinion, in
form and substance reasonably satisfactory to the Trustee, addressed to the
Trustee and the Noteholders, of a law firm which shall be Independent and
which shall be reasonably satisfactory to the Trustee.
"Outstanding": With respect to the Notes, as of the date
of determination, all Notes theretofore authenticated and delivered under
this Indenture except:
(a) Notes theretofore cancelled by the Note Registrar;
16
(b) Notes or portions thereof for whose payment money in
the necessary amount has been theretofore irrevocably deposited with
the Trustee in trust for the Holders of such Notes pursuant to the
provisions of this Indenture;
(c) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture;
and
(d) Notes alleged to have been mutilated, destroyed, lost,
or stolen for which replacement Notes have been issued as provided
in Section 2.7;
provided that, in determining whether the Holders of the requisite Aggregate
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder, any Notes
owned by or pledged to the Issuer, any Borrower, any limited partner of any
Borrower, or of any general partner of any Borrower or any Affiliate of any
thereof shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, or waiver,
only Notes that the Trustee knows to be so owned or so pledged shall be
disregarded. Notes owned by a Person described in the immediately preceding
sentence that have been pledged in good faith may be regarded as Outstanding
if the pledgee certifies to the Trustee the pledgee's right so to act with
respect to such Notes and that the pledgee is not any of the Persons
described in the immediately preceding sentence.
"Payment Date": With respect to each semi-annual
installment or deposit payable under the Notes, each Installment Payment
Date, and with respect to the final payment or deposit at Maturity, the
Stated Maturity specified in the Notes.
"Payment Date Statement": The semiannual report to be
prepared by the Issuer pursuant to Section 9.3(a).
"Permitted Encumbrances": With respect to any Property,
(a) the applicable CRC Lease (subject to the provisions of the applicable
Memorandum of Lease as defined in each Mortgage), (b) the liens created by
the Mortgage Note Documents, (c) the lien of general and special real
property taxes and assessments which are not delinquent, (d) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording of the applicable CRC Mortgage and
Foodmaker
17
Mortgage which are generally acceptable in the jurisdiction where the
applicable Property is located to recognized lending institutions in
accordance with prudent lending practices, or as to which the Lessee
certifies to the Issuer and the Trustee in writing that such matters will not
have a material adverse effect on the value of such Property or its intended
use, (e) matters affecting the applicable Property existing as of the date of
the applicable CRC Lease and set forth in the Schedules attached to such CRC
Lease, and (f) other matters approved in writing by Noteholders' Counsel
prior to the recording of the applicable CRC Mortgage and Foodmaker Mortgage
and included in the applicable Title Policy.
"Person": Any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, or government or any agency or political subdivision thereof.
"PORTAL Market": The term "PORTAL Market" shall mean the
Private Offerings, Resales and Trading through Automated Linkages Market
operated by the National Association of Securities Dealers, Inc. or any
successor thereto.
"Potential Additional Units": The meaning specified in
the CRC-I Lease.
"Potential Construction Units": The meaning specified in
the CRC-II Lease.
"Premium": The Prepayment Premium as defined in the
Notes.
"Principal" and "interest": Any Principal Payments,
interest or premium payments required to be distributed to a Noteholder
pursuant to the terms of this Indenture.
"Principal Payments": The installments of principal due
on any Note as provided in the Notes, subject to any adjustment thereof as
provided in the Notes.
"Private Placement Memorandum": With respect to the
Notes, the final Private Placement Memorandum dated as of December 15, 1993
relating to the offer and sale of the Notes by the Issuer.
"Proceeding": Any suit in equity, action at law, or
other judicial or administrative proceeding.
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"Proceeds Account": The trust account established and
maintained by the Trustee pursuant to Section 11.5 for the holding of certain
Insurance and Condemnation Proceeds.
"Property": With respect to any Mortgage, all property
that is subject to such Mortgage as collateral for the CRC Notes, including,
without limitation, the applicable Borrower's estate for years or the
Lessee's reversionary interest (as applicable) in all real property described
therein and the improvements now or hereafter located thereon, all
benefitting easements and other rights relating to such property, and all
personal property described therein (but excluding the Lessee's trade
fixtures and other items of personal property, as provided in the Mortgages),
and together with all leases, rents, purchase proceeds and other Rents,
Profits and Proceeds (as defined therein) and Insurance and Condemnation
Proceeds thereof.
"QIB": The term "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A.
"Rating Agencies": Standard & Poor's and Moody's.
"Registration Rights Agreement": The Registration Rights
Agreement, dated as of the date hereof, among the Issuer, the Lessee, CRC-I,
CRC-II and the Purchasers of Notes who are signatories to such agreement.
"Regular Record Date": As to any Payment Date, the last
Business Day of the month preceding the month in which such Payment Date
occurs.
"Reinvestment Income": Any interest or other earnings on
Eligible Investments, funds, or accounts that are part of the Trust Estate.
"Released Unit": The meaning specified in the CRC
Leases.
"Rent": The CRC-I Rent and the CRC-II Rent,
collectively.
"REO Account": The segregated trust account or accounts
established and maintained by the Trustee with respect to any REO Properties
pursuant to Section 11.16.
"REO Net Income": As to any Payment Date, the gross
revenues received by the Trustee with respect to any REO Property during the
most recently ended Interest Accrual Period, together with reinvestment
income thereon for the related Interest Accrual Period, net of costs of
19
maintenance, restoration, repair, operation and management pursuant to
Section 11.17 for the most recently ended Interest Accrual Period.
"REO Property": A Property acquired by the Trustee on
behalf of the Noteholders through foreclosure or deed-in-lieu of foreclosure
pursuant to this Indenture.
"Required Rating": A debt rating equal to "B+" or better
by Standard & Poor's and "Ba3" or better by Moody's.
"Responsible Issuer Officer": Any officer of the Issuer,
including any president, vice president, secretary, treasurer, assistant vice
president, assistant secretary, assistant treasurer or any other officer of
the Issuer customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively or to whom any
matter is referred because of his or her knowledge of, or familiarity with,
this Indenture or the transactions contemplated hereby.
"Responsible Officer": When used with respect to the
Trustee, any officer within the Corporate Trust Office of the Trustee (or any
successor group of the Trustee) including any vice president, assistant vice
president, assistant secretary, or any other officer of the Trustee
customarily performing functions similar to those performed by the persons
who at the time shall be such officers, and to whom any corporate trust
matter relating to the transactions contemplated by the provisions of this
Indenture is referred because of his or her knowledge of, or familiarity
with, the particular subject.
"Restricted Notes": The term "Restricted Notes" means
any Note that bears or is required to bear the legend set forth in Section
2.6(d).
"Rule 144A": The term "Rule 144A" shall mean Rule 144A
as promulgated under the Securities Act.
"Sale": The meaning specified in Section 5.18.
"Securities Act": The Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Security Documents": The Mortgages, CRC Lease
Assignments, the Deposit Accounts Security Agreements, and the Financing
Statements executed by the applicable Borrower and/or the Lessee or consented
to by the Lessee (as applicable) in favor of the Issuer and as pledged by the
20
Issuer to the Trustee, creating a first priority, perfected lien on, and
security interest in, the applicable Properties as collateral for the CRC
Notes, as well as such additional financing statements, documents,
instruments, and agreements as may be delivered by the Borrowers and/or the
Lessee or consented to by the Lessee (as applicable) to obtain for the
Trustee a first priority, perfected lien on such Properties.
"Sinking Fund Account": The trust account established
and maintained by the Trustee pursuant to Section 9.2(b).
"Standard & Poor's": Standard & Poor's Corporation, and
its successors in interest.
"Stated Maturity": With respect to any Note, the date on
which the entire unpaid principal of such Note becomes due and payable as
provided in Section 2.3 and in the Notes.
"Substitution": The meaning specified in the CRC Leases.
"Substitute Unit": The meaning specified in the CRC
Leases.
"Title Policy": With respect to any Mortgage, the policy
or policies of mortgagee's title insurance covering the related Property on
the 1970 form of American Land Title Association Loan Policy (or other
equivalent title policy form if such form is not available in the
jurisdiction in which any Property is located), insuring such Mortgage as a
valid first lien on the Mortgaged Property described therein, including,
without limitation, the applicable Borrower's estate for years or the
Lessee's reversionary interest therein, as applicable, issued by Chicago
Title Insurance Company (or any other title company approved by the
Noteholders' Counsel), with such endorsements and reinsurance as may be
reasonably required by the Majority Noteholders and subject to no exceptions
other than Permitted Encumbrances.
"Trust Estate": The meaning specified in the Granting
Clause hereof.
"Trustee": State Street Bank and Trust Company, and its
successors in interest and any corporation resulting from or surviving any
consolidation or merger to which it or its successors may be a party or any
successor trustee at the time serving as successor trustee as permitted
hereunder.
21
"Trustee's Collateral Receipts": The Closing Date or
Second Closing Date interim and final receipts, respectively, of the Trustee
to be delivered pursuant to Section 3.2(c) substantially in the form of
Exhibits J-1, J-2, and J-3 respectively.
"UCC": The Uniform Commercial Code as in effect in the
State of New York; provided that in the event that by reason of mandatory
provisions of law, any or all of the attachment, perfection, or priority of
the Trustee's interest in the Trust Estate is governed by the law of some
other jurisdiction, such term shall mean the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection, or priority and for purposes of
definitions relating to such provisions.
"Unit Percentage" shall mean the percentage allocated to
each Property, Potential Construction Unit and Potential Additional Unit on
Schedule C attached hereto, regardless of whether any such Potential
Construction Unit or Potential Additional Unit has been added as part of the
"Leased Property" under any of the CRC Leases.
"Unit Redemption Price": The meaning specified in the
CRC Leases.
"Unit Sinking Fund Payment": The meaning set forth in
the Notes.
"Year Nine Installment Payment Date": The first Business
Day of January, 2003.
ARTICLE TWO
THE NOTES
Section 2.1. Form Generally.
The Notes and the Trustee's certificate of authentication
thereon shall be in substantially the form described in this Article Two,
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers, or other marks of identification and such legends or
endorsements placed thereon, as may, consistently herewith, be determined by
the Authorized Officer of the Issuer executing such Notes as evidenced by his
or her execution of such Notes.
22
Pursuant to recommendations of the Committee on Uniform
Security Identification Procedures, "CUSIP" numbers may be printed on the
Notes.
The definitive Notes shall be typed, printed,
lithographed, or engraved or produced by any combination of these methods or
may be produced in any other manner, all as determined by the Authorized
Officers of the Issuer executing such Notes, as evidenced by their execution
of such Notes.
Section 2.2. Forms of Notes and Certificates of Authentication.
The Notes shall be issuable in fully registered form
without coupons, in substantially the forms attached hereto as Exhibits A-1
and A-2, and the form of the Trustee's certificate of authentication shall be
in the form provided in such Exhibits.
Any Note in global form shall represent such of the
outstanding Notes as shall be specified therein and shall provide that it
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes
represented thereby may from time to time be increased or reduced to reflect
transfers or exchanges permitted hereby. Any endorsement of a Note in global
form to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee, at the
direction of the Trustee, in such manner and upon instructions given by the
Holder of such Note in global form. Payment of principal of and interest and
premium, if any, on any Note in global form shall be made to the Holder of
such Note.
Section 2.3. Authorized Amount; Stated Maturity; Note Interest Rate.
The Notes shall be designated generally as the 9.75%
Senior Secured Notes Due November 1, 2003. The aggregate principal amount of
Notes that may be authenticated and delivered under this Indenture is limited
to $70,000,000 except for Notes authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Notes pursuant to
Sections 2.6 or 2.7.
The Notes shall have a Stated Maturity of November 1,
2003. The Note Interest Rate shall be 9.75% from and including the Closing
Date to but excluding November 1, 2003.
23
Section 2.4. Denominations.
The Notes shall be issuable only in minimum denominations
of $500,000 and integral multiples of $500,000. In each case, such principal
amounts shall be expressed in terms of the principal amounts thereof at the
Closing Date.
Section 2.5. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Issuer by
one Authorized Officer. The signature of such Authorized Officer on the
Notes shall be manual.
Notes bearing the manual signature of an individual who
was at any time the Authorized Officer of the Issuer shall bind the Issuer
notwithstanding the fact that such individual ceased to hold such office
prior to the authentication and delivery of such Notes or did not hold such
office at the date of issuance of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the
Issuer to the Trustee for authentication and the Trustee shall authenticate
and deliver such Notes upon Issuer Order as in this Indenture provided and
not otherwise.
Each Note authenticated and delivered by the Trustee upon
Issuer Order on the Closing Date shall be dated as of the date hereof. All
other Notes that are authenticated after the Closing Date for any other
purpose under the Indenture shall be dated the date of their authentication.
Notes issued upon transfer, exchange or replacement of
other Notes shall be issued in authorized denominations reflecting the
original aggregate principal amount of the Notes so transferred, exchanged or
replaced, but shall represent only the current outstanding principal amount
of the Notes so transferred, exchanged or replaced. In the event that any
Note is divided into more than one Note in accordance with this Article Two,
the original principal amount of such Note shall be proportionately divided
among the Notes delivered in exchange therefor and shall be deemed to be the
original aggregate principal amount of such subsequently issued Notes.
24
No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Note a certificate of authentication, substantially in the form provided
for herein, executed by the Trustee by the manual signature of one of its
Authorized Officers, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and delivered hereunder.
All Notes will be equally and ratably secured hereunder,
without preference, priority or distinction on account of the date or dates
or the actual time or times of the issue of such Notes, so that all Notes
will have the same rights and preferences under and by virtue of this
Indenture.
Section 2.6. Exchange and Registration of Transfer of Notes; Restrictions on
Transfer; Depositary.
(a) The Issuer shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Issuer designated pursuant to
Section 7.2 being herein sometimes collectively referred to as the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and of
transfers of Notes. The Trustee is hereby appointed "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note
to the Note Registrar, and satisfaction of the requirements for such transfer
set forth in this Section 2.6, the Issuer shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may
be required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at any such office or agency. Whenever any Notes are
so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Noteholder making the exchange
is entitled to receive.
25
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Issuer or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer or the Note Registrar, and the
Note shall be duly executed by the Noteholder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes.
The Note Registrar shall not be required to register any
transfer or effect any exchange of any Note fifteen (15) days prior to a
Payment Date.
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, or unless otherwise required by law, all
Notes to be traded on the PORTAL Market shall be represented by a Note in
global form registered in the name of the Depositary or the nominee of the
Depositary. No person acquiring Notes traded on the PORTAL Market shall
receive or be entitled to receive physical delivery of certificates
evidencing such Notes. The transfer and exchange of beneficial interests in
such Note in global form shall be effected through the Depositary, in
accordance with this Indenture (including the restrictions on transfer set
forth herein) and the procedures of the Depositary therefor.
Notwithstanding the preceding paragraph, if at any time
it is necessary for the beneficial holder of an interest in a Note in global
form to obtain a Note in definitive form representing such interest (or a
portion thereof), such beneficial holder shall be entitled to obtain a
definitive Note upon written request to the Trustee in accordance with the
procedures of the Depositary for the issuance thereof. Upon receipt of any
such request, the Trustee will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Trustee,
the aggregate principal amount of the Note
26
in global form to be reduced and, following such reduction, the Issuer will
execute and the Trustee will authenticate and deliver to such beneficial
holder (or its nominee) a Note or Notes in the appropriate aggregate
principal amount in the name of such beneficial holder (or its nominee) and
bearing such restrictive legends as may be required by this Indenture.
Any transfer of a beneficial interest in a Note in global
form which cannot be effected through book-entry settlement must be effected
by the delivery to the transferee (or its nominee) of a definitive Note or
Notes registered in the name of the transferee (or its nominee) on the books
maintained by the Note Registrar. With respect to any such transfer, the
Trustee will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the aggregate
principal amount of the Note in global form to be reduced and, following such
reduction, the Issuer will execute and the Trustee will authenticate and
deliver to the transferee (or such transferee's nominee, as the case may be),
a Note or Notes in the appropriate aggregate principal amount in the name of
such transferee (or its nominee) and bearing such restrictive legends as may
be required by this Indenture.
So long as the Notes are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of a
definitive Note to a QIB in accordance with Rule 144A, upon receipt of the
definitive Note or Notes being so transferred, together with a certification
from the transferor that the transferee is a QIB substantially in the form of
paragraph 4(a) of Exhibit B to the Note Purchase Agreement, the Trustee shall
make an endorsement on the Note in global form to reflect an increase in the
aggregate principal amount of the Notes represented by the Note in global
form, the Trustee shall cancel such definitive Note or Notes and cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Trustee, the aggregate principal amount of Notes
represented by the Note in global form to be increased accordingly.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Note
in global form held on their behalf by the Depositary, or the Trustee as its
custodian, or under such Note in global form, and the Depositary may be
treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee
as the absolute owner of such Note in global
27
form for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Trustee or any agent of the Issuer or
the Trustee, from giving effect to any written certificate, proxy, or other
authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of a beneficial interest in
a Note in global form.
Any Note in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be required by the
Depositary or by the National Association of Securities Dealers, Inc. in
order for the Notes to be tradeable on the PORTAL Market or as may be
required for the Notes to be tradeable on any other market developed for
trading of securities pursuant to Rule 144A or required to comply with any
applicable law or any regulation thereunder or with the rules and regulations
of any securities exchange upon which the Notes may be listed or traded or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Notes are subject.
(c) Every Restricted Note shall be subject to the
restrictions on transfer provided in the legend required to be borne by each
Restricted Note pursuant to Subsection 2.6(d), unless such restrictions on
transfer shall have been waived by the written consent of the Issuer, and the
holder of each Restricted Note, by such Noteholder's acceptance thereof,
agrees to be bound by such restrictions on transfer. As used in this
Subsection 2.6(c) and in Subsection 2.6(d), the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any Restricted Note.
(d) Until three years after the original issuance date
of any Note, any certificate evidencing such Note shall bear a legend in
substantially the following form:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE
REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER"(AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN "ACCREDITED
28
INVESTOR" (AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE
TRANSACTION, AND (2) AGREES THAT IT WILL NOT WITHIN THREE YEARS
AFTER THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY
RESELL OR
OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY EXCEPT (A) TO FM
1993A
CORP. (THE "ISSUER"), (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE ISSUER
AND STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE (OR ANY
SUCCESSOR TRUSTEE, THE "TRUSTEE"), A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS
ON TRANSFER OF THE NOTE EVIDENCED HEREBY (SUBSTANTIALLY IN THE
FORM
ATTACHED AS EXHIBIT B TO THE NOTE PURCHASE AGREEMENT BETWEEN
THE
ISSUER AND THE ORIGINAL HOLDER, A COPY OF WHICH MAY BE
OBTAINED FROM
THE TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE
904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO THE EXEMPTION
FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE). IN CONNECTION WITH ANY TRANSFER OF THE NOTE
EVIDENCED
HEREBY WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH
NOTE,
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH IN THE
ATTACHED
TRANSFER CERTIFICATE RELATING TO THE MANNER OF SUCH TRANSFER
AND
SUBMIT SUCH CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED
TRANSFEREE
IS AN ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S.
PERSON,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS REQUIRED
PURSUANT TO THE ATTACHED TRANSFER CERTIFICATE OR PURSUANT TO
THE
INDENTURE DATED AS OF DECEMBER 15, 1993 BETWEEN SUCH TRUSTEE
AND
THE ISSUER TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
MAY BE
REMOVED AFTER THE EXPIRATION OF THREE YEARS FROM THE ORIGINAL
ISSUANCE OF THE NOTE EVIDENCED HEREBY. AS USED HEREIN, THE
TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
29
THE HOLDER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE
NOTE EVIDENCED HEREBY IS PROPOSED TO BE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THE FOREGOING LEGENDS.
After three years from the original issuance date of any
Note, any Note (or security issued in exchange or substitution therefor) may,
upon its surrender for exchange to the Note registrar in accordance with the
provisions of this Section 2.6, be exchanged for a new Note or Notes, of like
tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this Subsection 2.6(d).
(e) Notwithstanding any other provisions of this
Indenture (other than the provisions set forth in Subsection 2.6(f)), a Note
in global form may not be transferred as a whole except by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
(f) The Depositary shall be a clearing agency
registered under the Exchange Act. The Issuer initially appoints the
Depositary Trust Company to act as Depositary with respect to the Notes in
global form. Initially, the global Note shall be issued to the Depositary,
registered in the name of Cede & Co., as the nominee of the Depositary, and
deposited with the Custodian for Cede & Co.
If at any time the Depositary for the Note in global form
notifies the Issuer that it is unwilling or unable to continue as Depositary
for such Note, the Issuer may appoint a successor Depositary with respect to
such Note. If a successor Depositary for the Note is not appointed by the
Issuer within 90 days after the Issuer receives such notice, the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of Notes, will authenticate and deliver, Notes in
definitive form, in an aggregate principal amount equal to the principal
amount of the Note in global form, in exchange for such Note in global form.
30
If a definitive Note is issued in exchange for any
portion of a Note in global form after the close of business at the office or
agency where such exchange occurs on any Regular Record Date and before the
opening of business at such office or agency on the next succeeding Payment
Date, principal, premium (if any), and interest will not be payable on such
Payment Date in respect of such definitive Note, but will be payable on such
Payment Date only to the Person to whom principal, premium (if any), and
interest in respect of such portion of such Note in global form is payable in
accordance with the provisions of this Indenture.
Definitive Notes issued in exchange for all or a part of
a Note in global form pursuant to this Section 2.6 shall be registered in
such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall
deliver such definitive Notes to the persons in whose names such definitive
Notes are so registered.
(g) At such time as all interests in a Note in global
form have been redeemed, converted, repurchased, or canceled, such Note in
global form shall be canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the Trustee.
At any time prior to such cancellation, if any interest in a global Note is
exchanged for definitive Notes, redeemed, converted, canceled, or transferred
to a transferee who receives definitive Notes therefor or any definitive Note
is exchanged or transferred for part of a Note in global form, the principal
amount of such Note in global form shall, in accordance with the standing
procedures and instructions existing between the Depositary and the Trustee,
be reduced or increased, as the case may be, and an endorsement shall be made
on such Note in global form by the Trustee to reflect such reduction or
increase.
Section 2.7. Mutilated, Destroyed, Lost or Stolen Notes.
If (i) any damaged or mutilated Note is surrendered to
the Trustee, or the Issuer and the Trustee receive evidence of the
destruction, loss, or theft of any Note, and (ii) there is delivered to the
Issuer and the Trustee such security or indemnity as may reasonably be
required by them to save each of them harmless (provided, however, that if
the Holder of the surrendered Note is an Institutional
31
Investor, such Holder's unsecured agreement to indemnify the Trustee and the
Issuer in a form reasonably acceptable to the Trustee and the Issuer shall be
a sufficient indemnity for this purpose), the Issuer shall execute and the
Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, damaged, destroyed, lost, or stolen Note, a new Note of the
same tenor and principal amount, bearing a number and such other identifying
mark not contemporaneously outstanding. If any such mutilated, damaged,
destroyed, lost, or stolen Note shall have become or shall be about to become
due and payable, instead of issuing a new Note, the Issuer may pay such Note
without surrender thereof, except that any damaged or mutilated Note shall be
surrendered.
Upon the issuance of any new Note under this Section 2.7,
the Issuer or the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto.
Every new Note issued pursuant to this Section 2.7 in
lieu of any mutilated, damaged, destroyed, lost, or stolen Note shall
constitute an original additional contractual obligation of the Issuer
whether or not the mutilated, damaged, destroyed, lost, or stolen Note shall
be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
Section 2.8. Payment of Principal and Interest; Principal and
Interest Rights Preserved.
(a) (i) The Notes shall accrue interest during each
Interest Accrual Period at the Interest Rate specified in Section
2.3. Interest and principal shall be payable on the Notes, and
deposits to the Administrative Expenses Account, Sinking Fund
Account and Equity Collection Account shall be made pursuant to the
Notes, all as provided in the Notes, in the forms attached hereto as
Exhibits A-1 and A-2.
(ii) Unless the unpaid principal of the Notes
becomes due and payable at an earlier date by acceleration, by
reason of an Early Termination or otherwise, principal shall be
payable on the Year Nine Installment Payment Date and upon the
Stated Maturity as further provided in the Notes.
32
(iii) All payments of principal on the Notes shall
be allocated on a pro rata basis among all Outstanding Notes,
without preference or priority of any kind.
(b) Principal, premium (if any), and interest on each
Note shall be payable by wire transfer of immediately available funds to a
United States dollar account maintained by the Holder of such Note at a
Depository Institution in the United States of America as reflected on the
Note Register if the Noteholder has so notified the Trustee by the related
Regular Record Date and is the owner of Notes in an aggregate principal
amount of at least $5,000,000, and otherwise by check mailed to the
Noteholder by first-class mail, postage prepaid at its address as it appears
on the Note. Interest on each Note shall be paid by the Trustee from amounts
available therefor in the Collection Account as provided in Section 10.1
below. A portion of the principal payments due upon the Early Termination of
a Property, Potential Construction Unit or Potential Additional Unit shall be
paid from amounts available therefor in the Sinking Fund Account as provided
in Section 9.2(b) below. Principal payments on each Note on the Year Nine
Installment Payment Date shall be paid by the Trustee from amounts available
therefor in the Sinking Fund Account as provided in Section 9.2(b). In the
case of the Maturity of a Note, the Trustee shall, in the name and at the
expense of the Issuer, notify the Noteholder entitled thereto at its address
as it appears on the Note Register that such Note is to be paid in full.
Such notice shall be mailed as soon as practicable, and in any event no later
than the tenth day prior to the Maturity of such Note. Each Noteholder that
does not surrender any Note to the Trustee for payment and cancellation upon
the Maturity of such Note shall, nevertheless, be entitled to payment of such
Note, but such Noteholder shall be deemed to have agreed to indemnify the
Trustee and the Issuer and to save each of them harmless from any claim,
loss, or cost arising out of the nonsurrender of such Note.
(c) The Holders as of the Regular Record Date in
respect of a Payment Date shall be entitled to the interest accrued and
payable and principal and premium (if any) payable on such Payment Date.
Payments of principal and premium (if any) to such Holders shall be made in
the proportion that the unpaid principal balance of the Notes registered in
the name of each such Holder on such Regular Record Date bears to the
aggregate unpaid principal amount of all Notes Outstanding on such Regular
Record Date.
33
(d) Interest with respect to any Note shall be computed
on the basis of a 360-day year consisting of 12 months of 30 days each and
the actual number of days elapsed.
(e) In the case where the date of any Payment Date,
Stated Maturity, or any other date for the payment of the principal of, or
premium or interest on, any Note shall not be a Business Day, then payment
need not be made on such date, but shall be made on the next succeeding
Business Day with the same force and effect as if made on the date of any
such Payment Date, Stated Maturity, or other date for the payment of the
principal of, or premium or interest on, such Note, as the case may be, and
no additional interest shall accrue on such payment for any period as a
result of such payment being made on the next succeeding Business Day.
(f) Subject to the foregoing provisions of this Section
2.8, each Note delivered under this Indenture and upon registration of
transfer of or in exchange for or in lieu of any other Note shall carry the
rights to unpaid interest, premium (if any), and principal that were carried
by such other Note.
Section 2.9. Prepayment.
The Notes shall not be prepayable except in connection
with (a) an Early Termination on or after the fifth anniversary of the
Closing Date as provided in Section 11.19 and (b) Lessee's exercise of the
Year Nine Option or making of the Year Nine Offer, in each case as provided
in the applicable CRC Lease and in the Notes.
Section 2.10. Persons Deemed Owners.
Prior to due presentment for registration of transfer of
any Note, the Issuer, the Trustee, and any agent of the Issuer or of the
Trustee shall treat the Person in whose name any Note is registered as the
owner of such Note for the purpose of receiving payments of principal of and
premium, if any, and interest on such Note and for all other purposes
whatsoever (whether or not such Note is overdue), and neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be affected by
notice to the contrary.
Section 2.11. Cancellation.
All Notes surrendered for payment or registration of
transfer or exchange or deemed lost or stolen, shall, if surrendered to any
Person other than the Trustee, be
34
delivered to the Trustee and shall be promptly canceled by it; provided,
however, that any Note delivered to the Trustee for payment shall be canceled
by the Trustee only if such Note is paid. No Notes shall be authenticated in
lieu of or in exchange for any Notes canceled as provided in this Section
2.11, except as expressly permitted by this Indenture. All canceled Notes
held by the Trustee shall be destroyed in accordance with its customary
procedure.
Section 2.12. Non-recourse.
(a) Subject to the provisions of this Section 2.12,
neither the Trustee nor the Holders of the Notes shall seek or obtain
judgment against the Issuer or any of the Issuer's officers, directors,
shareholders or employees for payment of principal or interest under the
Notes, or any sums payable under this Indenture, and the sole recourse of the
Trustee and the Holders of the Notes against the Issuer for any default in
the payment of such principal or interest or other sums shall be limited to
the Trust Estate.
(b) The limitation on recourse set forth in this
Section 2.12 shall be deemed void as against the Issuer and shall have no
force or effect as against the Issuer if the Issuer should attempt to
materially delay any foreclosure by the Trustee against the Trust Estate, or
if the Issuer or any other person described above should claim that any Note
or this Indenture or any Mortgage Note Document is invalid or unenforceable
to an extent that would preclude any such foreclosure.
(c) The limitation on recourse set forth in this
Section 2.12 shall not prejudice the rights of the Trustee or any Noteholder
to:
(i) name the Issuer as a party defendant in any
action, proceeding, reference or arbitration subject to the
limitations of this Section 2.12;
(ii) exercise remedies such as foreclosure
against or sale of any of the Trust Estate or obtain the
appointment of a receiver, or enforce the Assignment of Leases (as
defined in the CRC Mortgages);
(iii) collect or recover all Rents, Profits and
Proceeds (as defined in the CRC Mortgages) and all Insurance and
Condemnation Proceeds.
35
(d) The limitation on recourse set forth in this
Section 2.12 does not affect the rights of the Trustee or any Noteholder to
recover from the Issuer any expenses, damages or costs, including attorneys'
fees and expenses (including the allocated costs for services of in-house
counsel), which the Trustee or any Noteholder may incur because of the
Issuer's fraud, willful misrepresentation, waste, misappropriation of Rents,
Profits and Proceeds or intentional damage of or to any of the Trust Estate;
(e) Nothing contained in this Section 2.12 shall limit
in any way any liability or obligations of Foodmaker under the CRC Leases or
of CRC-I or CRC-II under the CRC-I Guaranty and the CRC-II Guaranty,
respectively.
(f) Nothing contained in this Section 2.12 shall limit
in any way any liability or obligations of CRC-I, CRC-II or Foodmaker under
Section 1.09 or 1.18 of the Mortgages; provided, however, that no partner in
CRC-I or CRC-II shall have personal liability for the repayment of the
indebtedness evidenced by the CRC Notes.
(g) Nothing contained in this Section 2.12 shall impair
the validity of any Note or this Indenture or any lien or security interest
which it may create or perfect or the rights of Trustee to receive all Rents,
Profits and Proceeds following an Event of Default.
ARTICLE THREE
DELIVERY OF NOTES AND DISTRIBUTION OF PROCEEDS
Section 3.1. General Provisions.
On the Closing Date, the Notes to be issued on the
Closing Date in accordance with the Note Purchase Agreement shall be executed
by the Issuer and thereafter delivered to the Trustee for authentication and
thereupon the same shall be authenticated and delivered by the Trustee upon
Issuer Request, and upon compliance with the conditions of Section 3.2, and
upon receipt or execution by the Trustee and upon receipt by the Noteholders
(if addressed to them) of the following:
(a) One or more Officer's Certificates (i) evidencing
the authorization of the execution, authentication and delivery of this
Indenture and such Notes by the Issuer and specifying the Stated Maturity,
the principal amounts and the Interest Rates of each of the
36
Notes to be authenticated and delivered; and (ii) certifying that (A) the
copy of the Issuer's charter documents, bylaws and resolutions of the
Issuer's board of directors attached thereto authorizing the execution,
delivery and performance of the foregoing agreements and the Issuer's
obligations thereunder, and designating the officers authorized to execute
and deliver such documents is a true and complete copy thereof; (B) such
charter documents, bylaws and resolutions have not been amended or rescinded
and are in full force and effect; and (C) the officers authorized to execute
and deliver such documents hold the offices and have the signatures indicated
therein;
(b) An Opinion or Opinions of Independent Counsel to
the Issuer substantially in the form of Exhibit B attached hereto, addressed
to the Trustee, the Noteholders and their respective counsel. In rendering
such opinion such counsel may rely as to matters of fact on Officer's
Certificates, certificates and records of public officials, certificates of
the Trustee, and such other certificates and records as such counsel deems
necessary and reasonable;
(c) An Officer's Certificate stating that (i) the
Issuer is not in Default under this Indenture and no Event of Default has
occurred; (ii) that the issuance of the Notes applied for will not result in
a breach of any of the terms, conditions or provisions of, or constitute a
default under, any indenture or other agreement or instrument to which the
Issuer is a party or by which the Issuer is bound, or any order of any court
or administrative agency entered in any Proceeding to which the Issuer is a
party or by which the Issuer is bound or to which the Issuer may be subject;
and (iii) that all conditions precedent provided in this Indenture relating
to the authentication and delivery of the Notes applied for have been
complied with;
(d) An executed counterpart of this Indenture;
(e) Evidence that the Administrative Expenses Account,
Closing Costs Account, Collection Account, Construction Account (and the
Additional Unit Acquisition Account as a subaccount thereof), Sinking Fund
Account and Equity Collection Account have been created in accordance with
the terms of this Indenture and, if required on the Closing Date, funded in
accordance with the provisions hereof. Evidence that all Closing Costs have
been paid by the Lessee (to the extent not paid from funds deposited in the
Closing Costs Account);
(f) A certificate signed by a Responsible Officer of
the Trustee, certifying the specimen signature and
37
incumbency of the officers of the Trustee authorized to execute this
Indenture and the Trustee's certificate of authentication on the Notes;
(g) A letter from each of the Rating Agencies to the
effect that the Notes have been rated not lower than the Required Rating, and
that such rating is in full force and effect on the Closing Date;
(h) The Registration Rights Agreement and the Note
Purchase Agreement; and
(i) Such other documents as the Trustee and the
Noteholders may reasonably require.
Section 3.2. Collateral Support.
On the Closing Date, the Notes shall be executed by the
Issuer and thereafter delivered to the Trustee for authentication and
thereupon the same shall be authenticated and delivered by the Trustee upon
Issuer Request, and upon compliance with the conditions of Section 3.1, and
upon receipt by the Trustee of the following:
(a) The Grant of all of the Issuer's right, title and
interest in and to the CRC-I Note and the related Mortgage Note Documents,
including all right to receive interest and principal on or with respect
thereto.
In connection with such Grant, the Issuer shall
deliver to, and deposit with, or cause to be delivered to and deposited with,
the Trustee the following documents, instruments or items, each duly
executed, endorsed and acknowledged (where required) by each of the parties
thereto (as applicable), and each in form and substance satisfactory to the
Noteholders' Counsel:
(i) the original CRC-I Note in the form attached
hereto as Exhibit C-1, endorsed by the Issuer to the order of the
Trustee in the following form: "PAY TO THE ORDER OF State Street
Bank and Trust Company, as Trustee for the Noteholders under the
certain Indenture, dated as of December 15, 1993, between FM 1993A
Corp. and said Trustee, and without recourse except as provided
in the Indenture and the documents delivered thereunder, as
collateral for the obligations of FM 1993A CORP. under said
Indenture";
(ii) the original CRC-II Note in the form attached
hereto as Exhibit C-2, endorsed by the
38
Issuer to the order of the Trustee in the following form: "PAY TO
THE ORDER OF State Street Bank and Trust Company, as Trustee for the
Noteholders under the certain Indenture, dated as of December 15,
1993, between FM 1993A Corp. and said Trustee, and without recourse
except as provided in the Indenture and the documents delivered
thereunder, as collateral for the obligations of FM 1993A CORP.
under said Indenture";
(iii) the original CRC-I Mortgage executed by CRC-I
with respect to each of the Existing Assets listed on the attached
Schedule A-1, with the collateral assignment thereof and of the
related Mortgage Note Documents from the Issuer to the Trustee, in
the forms attached hereto as Exhibit D-1;
(iv) the original CRC-II Mortgage executed by
CRC-II with respect to each of the Construction Units listed on the
attached Schedule A-2, with the collateral assignment thereof and of
the related Mortgage Note Documents from the Issuer to the Trustee,
in the forms attached hereto as Exhibit D-2;
(v) the original Foodmaker Mortgage executed by
the Lessee with respect to each of the Existing Assets listed on the
attached Schedule A-1 and each of the Construction Units listed on
the attached Schedule A-2, with the collateral assignment thereof
and of the related Mortgage Note Documents from the Issuer to the
Trustee, in the forms attached hereto as Exhibits D-3 and D-4,
respectively;
(vi) all duplicate originals of the CRC-I Lease
Assignment executed by CRC-I with respect to the Existing Assets
listed on the attached Schedule A-1, with the consent thereto by the
Lessee, in the forms attached hereto as Exhibit E-1;
(vii) all duplicate originals of the CRC-II Lease
Assignment executed by CRC-II with respect to the Construction Units
listed on the attached Schedule A-2, with the consent thereto by the
Lessee, in the forms attached hereto as Exhibit E-2;
39
(viii) Uniform Commercial Code financing statements
on Form UCC-1 with respect to the Existing Assets listed on the
attached Schedule A-1 naming each of CRC-I and the Lessee,
respectively, as debtor, the Issuer, as secured party and the
Trustee, as assignee;
(ix) Uniform Commercial Code financing statements
on form UCC-1 with respect to the Construction Units listed on the
attached Schedule A-2 naming each of CRC-II and the Lessee,
respectively, as debtor, the Issuer, as secured party and the
Trustee, as assignee;
(x) the original Deposit Accounts Security
Agreements executed by each of CRC-I and CRC-II in the forms of
Exhibits F-1 and F-2, respectively;
(xi) Uniform Commercial Code financing statement
on Form UCC-1 naming the Issuer, as debtor, and the Trustee, as
secured party, with respect to the CRC-I Note and the related
Mortgage Note Documents;
(xii) the original of each CRC Lease (which shall
be the sole original thereof and which together with the original of
any amendments thereto permitted under the Mortgage Note Documents
shall be delivered to the Trustee on the Closing Date and held by
the Trustee at all times during the term hereof) and the original
recorded Short-Form Master Lease, Notice of Non-Responsibility and
Subordination and Recognition Agreement for each Existing Asset
listed on the attached Schedule A-1 and each Construction Unit
listed on the attached Schedules A-2;
(xiii) the Insurance Policies or certificates (which
may be blanket certificates) evidencing the Insurance Policies with
respect to each of the Existing Assets listed on the attached
Schedule A-1 and each of the Construction Units listed on the
attached Schedule A-2;
(xiv) the original Title Policies or commitments
therefor for each of the Existing Assets listed on the attached
Schedule A-1 and each of the Construction Units listed on the
attached Schedule A-2;
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(xv) a copy of any survey used in connection with
the issuance of such Title Policies;
(xvi) a copy of a "Phase I" environmental report
concerning each such Property, to the extent in the Lessee's or
CRC-I's or CRC-II's possession;
(xvii) the original CRC-I Guaranty in the form
attached hereto as Exhibit G-1;
(xviii) the original CRC-II Guaranty in the form
attached hereto as Exhibit G-2;
(xix) an original Officer's Certificate executed by
an Authorized Officer of the Lessee in the form attached hereto as
Exhibit H; and
(xx) Opinions of Independent Counsel dated the
Closing Date, addressed to the Trustee and the Noteholders
(including opinions of special New York counsel and local counsel in
each state in which a Property is located), in the forms attached
hereto as Exhibits B, and I-1 through I-4 with respect to, among
other things, the due authorization, execution and enforceability by
and against each of the Lessee, CRC-I, CRC-II and the Issuer of each
of the documents referred to in this Section to which such entity is
a party, which opinions may include customary assumptions,
limitations, qualifications and exclusions.
All such Security Documents and other documents and
assignments thereof delivered to the Trustee shall, as applicable, be in
appropriate form for filing or recording and shall be duly filed or recorded
in the offices where such filing or recording is required in the state where
the relevant Property is located; provided that the Trustee shall not be
required to determine whether any document is in recordable form or see to
the filing or recording of any document. With respect to the original
Security Documents or any other document set forth in the foregoing clauses
(i) through (xx) or any assignments thereof to the Trustee, that requires
filing or recordation, the Issuer hereby represents and warrants that such
original Security Document or other document or assignment thereof has been
delivered to the title company issuing the Title Policies for filing or
recordation, as the case may be. In all such instances, the Issuer shall
deliver the original Security Document or other document or assignment
thereof to the Trustee, with evidence of filing or recording, as the case may
be, indicated thereon, within 60 days after the Closing Date.
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All filing and recording required pursuant to this
Section 3.2 shall be accomplished at the expense of the Issuer. The Issuer
shall pay or shall cause the Lessee to pay all Closing Costs incurred in
connection with the closing hereunder.
The closing with respect to each of the Existing Assets
listed on the attached Exhibit A-1 and each of the Construction Units listed
on the attached Exhibit A-2 shall occur simultaneously.
(b) An Officer's Certificate of the Issuer, dated as of
the Closing Date, to the effect that, in the case of the CRC Notes and each
other item Granted as part of the Trust Estate, immediately prior to the
delivery thereof on the Closing Date with respect to paragraphs (i) through
(v) of this Subsection 3.2(b) and contemporaneous with the delivery thereof
with respect to paragraph (v) of this Subsection 3.2(b):
(i) the Issuer is the owner of the CRC Notes and
holder of the rights under each item Granted as part of the Trust
Estate, as applicable, in each case free and clear of any liens,
claims or encumbrances of any kind;
(ii) the Issuer has acquired its ownership in the
CRC Notes and such other items Granted as part of the Trust Estate
in good faith without notice of any adverse claim;
(iii) the Issuer has not assigned, pledged or
otherwise encumbered any interest in the CRC Notes or any other
items Granted as part of the Trust Estate;
(iv) the Issuer has full right to Grant the CRC
Notes and such other items Granted as part of the Trust Estate to
the Trustee;
(v) the Trustee shall have a valid, perfected
first priority security interest in the Trust Estate for the benefit
of the Noteholders hereunder.
(c) The Trustee shall have delivered to the Issuer
(with a copy to the Lessee at its address set forth in the CRC Leases) the
Trustee's Closing Date Collateral Receipt dated as of the Closing Date
confirming the Trustee's receipt of the CRC-I Note and the CRC-II Note and
the related Mortgage Note Documents which have been delivered to
42
it and such other information specified therein in the form of Exhibit J-1
attached hereto. The Trustee shall also deliver the following Trustee's
Collateral Receipts to the Issuer (with a copy to the Lessee at its address
set forth in the CRC Leases):
(i) the Trustee's Interim Collateral Receipt,
dated as of the date 30 days from the Closing Date, in the form of
Exhibit J-2 attached hereto;
(ii) if the Trustee cannot certify in the
Trustee's Interim Collateral Receipt that it has received all
documents listed therein, the Trustee's Final Collateral Receipt,
dated as of the date on which the Trustee receives or has received
all such documents, in the form of Exhibit J-3 attached hereto.
In delivering any such Collateral Receipt, the Trustee
shall bear no responsibility for determining the due execution and the
genuineness of any signature on the documents which it has received. It is
understood that the scope of the Trustee's receipt with respect to the Notes
and related Mortgage Note Documents and other information specified in the
Collateral Receipts is to confirm that documents purported to be those
described on such Receipts have been delivered to it, and the Trustee shall
bear no responsibility for determining whether such insurance policies as are
delivered to it meet the definition thereof provided herein or to see to it
that all required insurance policies are delivered to it; nor shall the
Trustee bear any responsibility for determining whether the Security
Documents and other documents and assignments thereof delivered to it create
a valid, first priority lien.
Section 3.3. Intentionally Omitted.
Section 3.4. Distribution of Proceeds of Notes.
The Issuer will use the proceeds of the Notes on the
Closing Date to purchase the CRC-I Note and the CRC-II Note from CRC-I and
CRC-II, respectively, pursuant to the CRC-I Note Purchase Agreement and the
CRC-II Note Purchase Agreement, respectively, as follows:
(a) CRC-I Note Purchase. The Issuer has agreed to
purchase the CRC-I Note from CRC-I for the purchase price set forth in the
CRC-I Note Purchase Agreement (the "CRC-I Note Purchase Price"), which
purchase price shall be deposited with the Trustee and disbursed in full on
the Closing Date as follows:
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(i) The Issuer and CRC-I hereby direct and
authorize the Trustee to disburse $22,683,100 of the CRC-I Note
Purchase Price, on behalf of CRC-I, to the Lessee on the Closing
Date to finance the purchase by CRC-I of an estate for years in each
of the Existing Assets listed on the attached Schedule A-1 from the
Lessee, through the escrow established with the title company
issuing the Title Policies or as the Lessee may otherwise direct in
writing.
(ii) CRC-I and the Issuer hereby direct and
authorize the Trustee to deposit and hold proceeds of the CRC-I Note
Purchase Price, in the amount of $1,069,154, in the Closing Costs
Account in accordance with Section 9.6(a), and to release funds
deposited in the Closing Costs Account, from time to time to pay
Closing Costs in accordance with Section 9.6(a).
(iii) The Issuer and CRC-I hereby direct and
authorize the Trustee to deposit and hold the remaining balance of
the CRC-I Note Purchase Price, in the amount of $5,950,000 in the
Additional Unit Acquisition Account, and to release funds deposited
therein from time to time as a Potential Additional Unit(s) listed
on the attached Schedule A-3 is subjected to the CRC-I Lease, as
provided in Section 9.5. hereof
Notwithstanding that such disbursements of the CRC-I Note Purchase Price
shall be made directly by the Trustee to the Lessee or deposited in the
Closing Costs Account or the Additional Unit Acquisition Account and released
in accordance with Section 9.6(a) or 9.5, as applicable, such disbursements
shall be deemed to be paid by the Issuer to CRC-I under the CRC-I Note
Purchase Agreement on the Closing Date and interest shall accrue and be
payable by CRC-I on the full principal amount of the CRC-I Note at the rate
and as otherwise provided in the CRC-I Note commencing on the Closing Date.
(b) CRC-II Note Purchase. The Issuer has agreed to
purchase the CRC-II Note from CRC-II for the purchase price set forth in the
CRC-II Note Purchase Agreement (the "CRC-II Note Purchase Price"), which
purchase price shall be deposited with the Trustee and disbursed in full on
the Closing Date, as follows:
(i) The Issuer and CRC-II hereby direct and
authorize the Trustee to disburse $15,671,050 of the CRC-II Note
Purchase Price, on behalf of CRC-II, to the Lessee on the Closing
Date to finance the purchase by CRC-II of an estate for years in
each of the
44
Construction Units listed on the attached Schedule A-2 from the
Lessee, together with the construction of a Jack In The Box
Restaurant on each such Property (as applicable) by the Lessee in
accordance with the terms of the CRC-II Lease, through the escrow
established with the title company issuing the applicable Title
Policies or as the Lessee may otherwise direct in writing.
(ii) CRC-II and the Issuer hereby direct and
authorize the Trustee to deposit and hold proceeds of the CRC-II
Note Purchase Price, in the amount of $1,411,241, in the Closing
Costs Account in accordance with Section 9.6(a), and to release
funds deposited in the Closing Costs Account, from time to time to
pay Closing Costs in accordance with Section 9.6(a).
(iii) CRC-II and the Issuer further hereby direct
and authorize the Trustee to deposit and hold the remaining balance
of the CRC-II Note Purchase Price, in the amount of $22,123,455, in
the Construction Account in accordance with Section 9.4, and to
release funds deposited in the Construction Account, from time to
time, on behalf of CRC-II, directly to the Lessee as the Lessee
acquires each of the Potential Construction Units listed on the
attached Schedule B and CRC-II acquires an estate for years in each
such Property from the Lessee, and otherwise in accordance with the
terms and conditions set forth in Section 9.5.
Notwithstanding that such disbursements of the CRC-II Note Purchase Price
shall be made directly by the Trustee to the Lessee or deposited in the
Closing Costs Account or the Construction Account and that such funds may
from time to time be released directly by the Trustee to the Lessee in
accordance with Sections 9.4 and 9.5 and 9.6(a), as applicable, such amounts
shall be deemed to be paid by the Issuer to CRC-II under the CRC-II Note
Purchase Agreement on the Closing Date and interest shall accrue and be
payable by CRC-II on the full principal amount of the CRC-II Note at the rate
and as otherwise provided in the CRC-II Note commencing on the Closing Date.
The Trustee shall have no responsibility to confirm that
the proceeds of the Notes are used for the purposes specified herein.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture.
Provided no Default or Event of Default has occurred and
is continuing hereunder, this Indenture shall cease to be of further effect
and the liens Granted hereunder shall cease and the Issuer shall be relieved
of all obligations hereunder, except as to (i) rights of registration of
transfer and exchange, (ii) substitution of mutilated, destroyed, lost or
stolen Notes, (iii) the rights of Noteholders to receive payments of
principal and interest, (iv) the rights, obligations and immunities of the
Trustee hereunder, and (v) the rights of Noteholders as beneficiaries hereof
with respect to the property deposited with the Trustee and payable to all or
any of them, and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture (except as limited above), when:
(1) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been mutilated, damaged, destroyed, lost or
stolen and which have been paid or replaced as provided in Section 2.7 or
upon payment in full as provided in Subsection 2.8(c), and (ii) Notes for
whose payment money has theretofore been deposited in trust and thereafter
repaid to the Issuer or discharged from such trust, as provided in Section
4.2), have been paid in full;
(2) the Issuer has paid or caused to be paid in full
all other sums payable hereunder; and
(3) the Issuer has delivered to the Trustee an
Officer's certificate and Opinion of Counsel stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to the Notes have been complied with.
Section 4.2. Application of Trust Money.
All monies deposited with the Trustee pursuant to Section
4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, including, without limitation,
Section 10.1 or 5.8, as the case may be, to the payment to the Persons
entitled thereto, of the principal and interest, for whose payment such money
has been deposited with the Trustee. Such money shall be held in a
segregated trust account in
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the trust department of the Trustee identified as being held in trust by the
Trustee for the benefit of the Noteholders.
ARTICLE FIVE
EVENTS OF DEFAULT; REMEDIES
Section 5.1. Events of Default.
"Event of Default" wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and
irrespective of whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree, or order of any
court or any order, rule, or regulation of any administrative or governmental
body):
(a) any CRC Lease Event of Default or Mortgage
Event of Default shall have occurred and be continuing;
(b) failure to pay any interest, premium or
principal on any Note or to make any deposit required under the
Notes to be made to the Sinking Fund Account or the Administrative
Expenses Account, when due and payable;
(c) default in the performance, or breach of any
term, provision, covenant, obligation or agreement of the Issuer in
Sections 7.8, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15 or 7.24;
(d) default in the performance, or breach, of any
term, provision, covenant, obligation, or agreement of the Issuer in
this Indenture (other than a covenant, a default in the performance
of which or breach of which is specifically dealt with elsewhere in
this Section), and such default or breach shall continue for a
period of 30 days from the earlier of (a) actual knowledge thereof
by any Responsible Issuer Officer or (b) written notice thereof to
the Issuer by the Trustee or to the Issuer and the Trustee by any
Noteholder;
(e) if any representation, warranty or
certification made by or on behalf of the Issuer herein or pursuant
hereto or by the Issuer in or pursuant to any other document
entered into by the Issuer or in connection with any of the
transactions contemplated hereby or thereby shall prove to have
been false or incorrect on the date as of which made and such
breach
47
remains uncured 30 days after notice thereof has been given
to the Issuer or after the expiration of any reasonable and
necessary extension (which shall not be for more than 90 days)
given by the Trustee for those misrepresentations which by their
nature cannot be cured in 30 days and which Issuer is diligently
proceeding to cure;
(f) if (i) the Issuer, CRC-I, CRC-II, Foodmaker
or any General Partner (A) shall institute (by petition,
application, written admission, written consent or otherwise in
writing) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debts, dissolution, liquidation, or similar
proceedings, or (B) shall be adjudicated a bankrupt or become
insolvent or (C) shall make an assignment for the benefit of its
creditors or (D) shall admit in writing its inability to pay its
debts generally as they become due, or (E) shall be dissolved or (F)
shall suspend payment of its obligations or (G) shall take any
corporate action in furtherance of any of the foregoing; or
(ii) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, readjustment of debt, dissolution,
liquidation or similar proceedings shall be instituted (by petition,
application or otherwise) against the Issuer, CRC-I, CRC-II,
Foodmaker or any General Partner and (A) such entity shall consent
to the institution thereof, or (B) such proceedings shall not be
discharged or denied within sixty (60) days after the institution
thereof; or
(iii) a receiver, trustee or liquidator (or other
similar official) shall be appointed for or take possession or
charge of the Issuer, CRC-I, CRC-II, Foodmaker or any General
Partner or of any such entity's estate or interest in any Property
or of all or a substantial part of any such entity's other property
(if any), and shall not be discharged within sixty (60) days
thereafter, or if any such entity shall apply for consent to or
acquiesce in such appointment, or
(g) default by any party under the Registration
Rights Agreement.
Upon the occurrence of a Default, the Issuer shall
promptly notify the Trustee thereof in writing. Upon receipt of such
notification from the Issuer or if a Responsible Officer of the Trustee has
actual knowledge of the occurrence of a Default, the Trustee shall promptly
notify the Noteholders and, if any of the Notes are then
48
rated by the Rating Agencies, the Rating Agencies, in writing of the
occurrence of such Default.
Section 5.2. Acceleration of Maturity, Foreclosure Events,
Rescission and Annulment.
If an Event of Default occurs and is continuing, then and
in every such case the Majority Noteholders may declare the principal of all
the Notes to be immediately due and payable, by a notice in writing to the
Issuer and to the Trustee, and upon any such declaration such principal,
together with interest accrued thereon and any premium payable in connection
therewith, shall become immediately due and payable; provided that if an
Event of Default specified in Subsection 5.1(f) occurs, then such principal,
together with interest accrued thereon and any premium payable in connection
therewith shall become immediately due and payable without any such
declaration, demand, presentment or notice or any other action (all of which
are waived) and references in this Indenture to "declaration of acceleration"
shall include such automatic acceleration.
At any time after such a declaration of acceleration of
Maturity has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as provided in this Article Five,
the Majority Noteholders, by written notice to the Issuer and the Trustee,
may rescind and annul such declaration and the consequences thereof if:
(a) the Issuer has paid or irrevocably deposited with
the Trustee on behalf of the Noteholders a sum sufficient to pay:
(i) all overdue installments of interest,
premium, if any, and principal on all Notes;
(ii) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements,
and advances, if any, of the Trustee and its agents and counsel; and
(iii) all sums payable to Noteholders pursuant to
Section 5.14(c), Section 7.1, and Section 8.1 and the reasonable
compensation, expenses, disbursements, and advances of their
counsel; and
(b) all Events of Default, other than the non-payment
of the interest on or principal of Notes that have become due solely by such
acceleration, have been cured or waived as provided in Section 5.15.
49
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Issuer covenants that, if Default is made in the
payment of any principal of or interest on or any deposit required under any
Note, the Issuer will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holder of such Note, the whole amount then due and payable
on such Note for principal, interest and any premium and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel, and
all sums, if any, payable to Noteholders pursuant to Section 5.14(c), Section
7.1, and Section 8.1 and the reasonable compensation, expenses,
disbursements, and advances of their counsel and any Administrative Expenses
incurred by the Trustee or by the Noteholders in connection therewith.
Subject to the provisions of Section 2.12 hereof, if the
Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, may institute a Proceeding
for the collection of the sums so due and unpaid, and may prosecute such
Proceeding to judgment or final decree, and may enforce the same against the
Issuer or any other obligor upon the Notes and collect the monies adjudged or
decreed to be payable in the manner provided by law and out of the Trust
Estate.
If an Event of Default occurs and is continuing, subject
to Section 5.14, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Noteholders by such appropriate
Proceedings as the Trustee shall deem most effectual or as directed by the
Majority Noteholders to protect and enforce any such rights whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Trustee by this Indenture or
by law.
The Issuer shall reimburse and indemnify the Trustee for
any expenses incurred in connection with any such Proceeding as provided in
Section 6.7.
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Section 5.4. Remedies.
(a) If the Notes have been declared, or have become,
due and payable and such declaration and its consequences have not been
rescinded and annulled, the Trustee may, after notice to the Noteholders, and
shall, upon direction by the Majority Noteholders subject to Section
6.1(b)(iv), do one or more of the following:
(i) institute Proceedings for the collection of
all amounts then payable on the Notes or under this Indenture,
whether by acceleration or otherwise, enforce any judgment obtained,
and collect from the Trust Estate monies adjudged due;
(ii) sell all or any portion of the Trust Estate
or rights or interest therein, at one or more public or private
sales called and conducted in any manner permitted by applicable law
and in accordance with Section 5.18 hereof;
(iii) institute Proceedings from time to time for
the complete or partial foreclosure of this Indenture with respect
to the Trust Estate;
(iv) exercise any remedies of a secured party
under the UCC (whether or not said UCC is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted, including, without limitation,
the right, to the maximum extent permitted by law, to exercise all
voting, consensual and other powers of ownership pertaining to the
Trust Estate as if the Trustee were the sole and absolute owner
thereof (and the Issuer agrees to take all such action as may be
appropriate to give effect to such right), and take any other
appropriate action that may be available at law or in equity or
pursuant to any Mortgage Note Document or other agreement to protect
and enforce the rights and remedies of the Notes or the Holders of
the Notes;
(v) institute Proceedings from time to time for
the enforcement of the CRC Leases;
(vi) institute Proceedings from time to time for
the enforcement of the CRC-I Guaranty and/or the CRC-II Guaranty,
enforce any judgment obtained, and collect all amounts payable
thereunder; or
51
(vii) exercise any other rights and remedies that
may be available hereunder or under any of the Mortgage Note
Documents or at law or in equity.
(b) Notwithstanding the foregoing or anything to the
contrary contained herein, unless and until a CRC Lease Event of Default or
Mortgage Event of Default under any of the Foodmaker Mortgages shall have
occurred and be continuing, no such remedies shall be available with respect
to or exercisable against Foodmaker's interest in any Mortgaged Property
encumbered by any of the Foodmaker Mortgages.
(c) Upon any sale, whether made under the power of sale
hereby given or by virtue of judicial proceedings, any Noteholder or
Noteholders may bid for and purchase the Trust Estate or any part thereof
and, upon compliance with the terms of sale, may hold, retain, possess or
dispose of such property in its or their own absolute right without
accountability; and any purchaser at any such sale may, in paying the
purchase money, turn in any of the Notes in lieu of cash to the extent of the
amount which shall, upon distribution of the net proceeds of such sale, be
payable thereon. Said Notes, in the event that the amounts so payable
thereon shall be less than the amount due thereon, shall be returned to the
Holders thereof after being properly stamped to show partial payment.
Upon any sale, whether made under the power of sale
hereby given or by virtue of judicial proceedings, the receipt of the
Trustee, or of the officer making a sale under judicial proceedings, shall be
a sufficient discharge to the purchaser or purchasers at such sale for its or
their purchase money, and such purchaser or purchasers shall not be obliged
to see to the application thereof.
Any such sale, whether under any power of sale
hereby given or by virtue of judicial proceedings, shall bind the Issuer, the
Trustee and the Noteholders, shall operate to divest all right, title and
interest whatsoever, either at law or in equity, of each of them in and to
the property sold, and shall be a perpetual bar, both at law and in equity,
against each of them and their successors and assigns, and against any and
all Persons claiming through or under them.
(d) The Trustee shall give notice to the Issuer of any
sale of all or a portion of the Trust Estate pursuant to this Section 5.4 in
accordance with the requirements of applicable law.
52
Section 5.5. Optional Preservation of Trust Estate.
(a) If an Event of Default shall have occurred and be
continuing and so long as no declaration of acceleration has occurred which
has not been rescinded, the Trustee shall retain the Trust Estate securing
the Notes intact, receive the proceeds thereof and make and apply all such
receipts in respect of the Notes in accordance with the provisions of Section
5.8 or 10.1 (as applicable).
So long as such Event of Default is continuing, any
such retention of all or any portion of the Trust Estate pursuant to this
Subsection 5.5(a) may be rescinded at any time and from time to time by
written notice from the Majority Noteholders to the Trustee and the Issuer
directing the Trustee to liquidate or sell all or any portion of the Trust
Estate.
(b) Nothing contained in Subsection 5.5(a) shall be
construed to require the Trustee to preserve the Trust Estate securing the
Notes if prohibited by applicable law or if an Event of Default has occurred
and the Trustee is directed to liquidate or sell all or any portion of the
Trust Estate by the Majority Noteholders.
Section 5.6. Trustee May File Proofs of Claim.
In case there shall be pending Proceedings relating to
the Issuer under the Bankruptcy Code or any other applicable federal or state
bankruptcy, insolvency, or other similar law, or in case a receiver,
assignee, trustee in bankruptcy or reorganization, liquidator, sequestrator,
or similar official shall have been appointed for or taken possession of the
Issuer or its property, or in case of any other comparable proceedings
relating to the Issuer upon the Notes, or the creditors or property of the
Issuer, the Trustee, regardless of whether the principal of any Notes shall
then be due and payable as therein expressed or by declaration or otherwise
and regardless of whether the Trustee shall have made any demand pursuant to
the provisions of Section 5.3, shall be entitled and empowered (but shall not
be obligated), subject in each case to Section 5.14, by intervention in such
Proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid and other amounts
including, without limitation, Administrative Expenses in respect of
the Notes and this Indenture and to file such other papers or
documents and
53
take such other action (including participating in a creditors'
committee) as it may deem necessary or advisable in order to have
the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of
negligence or bad faith, all as provided in Section 6.7) and of
the Noteholders (including any claim for sums due to Noteholders
pursuant to Section 5.14(c), Section 7.1 and Section 8.1) allowed
in any Proceedings relating to the Issuer upon the Notes or to the
creditors or property of the Issuer;
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the Notes in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation, or other bankruptcy or insolvency
Proceedings or Person performing similar functions in comparable
Proceedings; and
(c) to collect and receive any monies or other
property payable to or deliverable on any such claims, and to
distribute in accordance with Section 5.8 all amounts received with
respect to the claims of the Noteholders and of the Trustee on their
behalf; and any trustee, receiver, liquidator, custodian, or other
similar official is hereby authorized by each of the Noteholders to
make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the Noteholders,
to pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of
negligence or bad faith, all as provided in Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Noteholder any plan of reorganization, arrangement, adjustment, or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Noteholder in
any such Proceeding except, as aforesaid, to vote for the election of a
trustee or standby trustee or
54
similar Person or to participate as a member of any committee of creditors.
In any Proceedings brought by the Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture
to which the Trustee shall be a party), the Trustee shall be held to
represent all the Holders of the Notes, and it shall not be necessary to make
any Holders of the Notes parties to any such Proceedings.
Section 5.7. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or
the Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any Proceeding
relating thereto, and any such Proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall be applied as set forth in Section 5.8.
Section 5.8. Application of Money Collected.
Notwithstanding any other provision of this Indenture,
money collected by the Trustee pursuant to Article Eleven of this Indenture
with respect to Rent, CRC Note payments, REO Net Income, or otherwise
pursuant to Article Eleven with respect to any CRC Lease, CRC Note, Property,
or REO Property shall be deposited in the Collection Account and shall be
distributed pursuant to Section 10.1 of this Indenture, subject to payment of
the Trustee's fees and expenses incurred in connection with such collection.
Any money collected by the Trustee pursuant to Sections 5.3, 5.4, 5.6 and
5.18 (except as otherwise expressly provided in Section 5.5) shall be
deposited in the Collection Account, shall be applied, to the extent of such
funds then available in the Collection Account, in the order specified below,
on each Payment Date, or, in connection with any full or partial liquidation
of the Trust Estate pursuant to this Article Five, at such earlier date or
dates fixed by the Trustee in the following order of priority:
FIRST: Unless otherwise paid out of the Collection Account
pursuant to Subsection 10.1(a) on such date, to the payment of all
taxes, assessments, or liens with respect to the Trust Estate that
are prior to the lien of this Indenture, except those taxes,
assessments, or liens as to which any sale under this Article shall
have been subject, and to the payment of all reasonable costs and
expenses of any sale of or
55
other realization upon the Trust Estate pursuant to the provisions
of this Article, and to the payment of all Liquidation Expenses (if
any) due and unpaid or previously paid, all amounts due and unpaid
to the Trustee under Section 6.7, and all liabilities, and advances
incurred or made by the Trustee (including its reasonable
compensation) or its agents and counsel in connection with exercise
of any remedies, the sale or other realization upon the Trust Estate
and all sums payable to Noteholders pursuant to Section 5.14(c) and
Section 8.1;
SECOND: To the payment of interest previously due but unpaid
on the Notes;
THIRD: To the payment of interest due on the Notes;
FOURTH: To the payment of premium (if any) previously
due but unpaid on the Notes;
FIFTH: To the payment of premium due (if any) on the
Notes;
SIXTH: To the payment of principal of and any other
amounts then owing with respect to the Notes until the principal of
and any other amounts owing with respect to the Notes are paid in
full;
SEVENTH: Provided that the Aggregate Outstanding Amount
of the Notes and any other amounts owing with respect to the Notes,
any Mortgage Note Document and the CRC Leases (after giving effect
to the foregoing distributions) is zero, to the payment of all
remaining Administrative Expenses not paid pursuant to clause FIRST
above; and
EIGHTH: Provided that the Aggregate Outstanding Amount
of the Notes and any other amounts owing with respect to the Notes
(after giving effect to the foregoing distributions) is zero, and
all amounts due and owing pursuant to clause SEVENTH have been paid,
to the payment of any remaining funds to the Issuer or any other
Person legally entitled thereto.
Section 5.9. Limitation on Suits.
Subject to Section 5.10, no Holder of any Note shall have
any right to institute any Proceedings, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless:
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(a) the Holders of not less than 25% in Aggregate
Outstanding Amount of Notes shall have made written request to the
Trustee to institute Proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(b) such Holder or Holders have offered to the
Trustee reasonable indemnity (provided, however, that if such Holder
is an Institutional Investor with a capitalization at least equal to
double the indemnity, such Holder's unsecured agreement to indemnify
the Trustee and the Issuer in a form reasonably acceptable to the
Trustee shall be a sufficient indemnity for this purpose) against
the costs, expenses and liabilities to be incurred in compliance
with such request;
(c) the Trustee for 30 days after its receipt of such
notice, request, and offer of indemnity has failed to institute any
such Proceeding; and
(d) no direction inconsistent with such written
request has been given to the Trustee during such 30-day period by
the Majority Noteholders;
it being understood and intended that no one or more Holders of Notes shall
have any right in any manner whatever by virtue of, or by availing themselves
of, any provision of this Indenture to affect, disturb, or prejudice the
rights of any other Holders or to obtain or to seek to obtain priority or
preference over any other Holders (except as expressly provided in this
Indenture) or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders of
Notes.
In the event the Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, neither group constituting the Majority Noteholders, the Trustee in
its sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provision of this Indenture. In such event, the
Trustee shall give notice of such conflicting or inconsistent requests to the
Holders of the Notes.
Section 5.10. Rights of Noteholders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision of this Indenture,
the right of any Holder of any Note to receive
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payment of the principal of and premium, if any, or interest on such Note, on
or after the respective Payment Dates expressed in such Note, or to institute
Proceedings for the enforcement of any such payment on or after such
respective dates, or to institute Proceedings for the enforcement of the
CRC-I Guaranty and/or the CRC-II Guaranty, shall not be impaired or affected
without the consent of such Holder, except as to a postponement of an
interest payment for a period not exceeding three years from its due date
consented to by Holders of no less than seventy-five percent (75%) of the
Aggregate Outstanding Amount of the Notes, and except that such Holder may
not institute any such Proceedings, if and to the extent that the institution
or prosecution thereof or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver, or loss of the
lien of this Indenture upon any property subject to such lien.
Section 5.11. Restoration of Rights and Remedies.
If the Trustee or any Noteholder has instituted any
Proceeding to enforce any right or remedy under this Indenture and such
Proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Noteholder, then and in every
such case the Issuer, the Trustee and the Noteholder shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Noteholders shall continue as though no such Proceeding
had been instituted.
Section 5.12. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to
the Trustee or to the Noteholders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing by law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent or later assertion or employment of any other
appropriate right or remedy.
Section 5.13. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an
58
acquiescence therein. Every right and remedy given by this Article
Five or by law to the Trustee or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Noteholders, as the case may be.
Section 5.14. Control by Noteholders.
(a) Notwithstanding any other provisions of this
Indenture, the Majority Noteholders shall have the right to direct the time,
method, and place of conducting any Proceeding for any remedy available to
the Trustee or exercising any right, remedy, trust or power conferred on the
Trustee (including, without limitation, directing the Trustee to engage
counsel of such Noteholders' choice at the direction of such Noteholders);
provided that:
(i) such direction shall not be in conflict with
any rule of law or with this Indenture, and
(ii) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction;
provided, however, that, in accordance with Section 6.1, the Trustee
need not take any action that it reasonably determines might involve
it in liability, unless it receives a reasonable indemnity therefor
(provided, further, that if such Holder is an Institutional Investor
with a capitalization at least equal to double the indemnity, such
Holder's unsecured agreement to indemnify the Trustee in a form
reasonably acceptable to the Trustee shall be a sufficient indemnity
for this purpose).
(b) Whenever the Trustee has received any request or
direction from any Holder or group of Holders pursuant to the provisions of
this Article that requires, or would, with the passage of time, require, any
action by the Trustee, the Trustee shall so notify each Noteholder of the
substance of such request or direction.
(c) If the Majority Noteholders determine that the
enforcement or protection of their rights under the Notes or this Indenture
so require, such Holders may take such action as shall not be inconsistent
with the terms of this Indenture and as they shall deem necessary or
appropriate to enforce or protect such rights, and shall be entitled to
reimbursement from the Issuer for their reasonable out-of-pocket expenses
relating thereto, including, but not limited to, legal fees and expenses of
counsel to such Holders engaged for such purpose.
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Section 5.15. Waiver of Past Defaults.
Prior to the time a judgment or decree for payment of the
money due has been obtained by the Trustee, as provided in this Article, the
Majority Noteholders may on behalf of the Holders of all the Notes waive any
past Default and its consequences, except a Default:
(a) in the payment of the principal of or premium or
interest on any Note, excluding principal or interest which has
become due as a result of acceleration, or
(b) in respect of a covenant or provision hereof that
under Section 8.1 cannot be modified or amended without the waiver
and consent of the Holder of each Outstanding Note affected.
In the case of any such waiver, the Issuer, the Trustee
and the Noteholders shall be restored to their former positions and rights
hereunder. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.
Section 5.16. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of
any Note by its acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the foregoing provisions shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder, or group
of Noteholders, holding in the aggregate more than 10% in Aggregate
Outstanding Amount of the Notes, or to any suit instituted by any Noteholder
for the enforcement of the payment of the principal of or interest on any
Note on or after the Stated Maturity expressed in such Note in which suits
the Trustee or such Noteholder or Noteholders, as the case may be, do not
prevail.
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Section 5.17. Waiver of Stay, Extension or Usury Laws.
The Issuer covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay, or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
Section 5.18. Sale of Trust Estate.
(a) The power to effect any sale (a "Sale") of any
portion of the Trust Estate pursuant to Section 5.4 shall not be exhausted by
any one or more Sales as to any portion of such Trust Estate remaining unsold
but shall continue unimpaired until the entire Trust Estate shall have been
sold or all amounts payable on the Notes and any other amounts due under this
Indenture with respect thereto shall have been paid. The Trustee may, with
subsequent notice to the Noteholders, and shall upon direction of the
Majority Noteholders, from time to time postpone any Sale by public
announcement made at the time of and place of such Sale. The Trustee hereby
expressly waives its rights to any amount fixed by law as compensation for
any Sale.
(b) The Trustee may bid for and acquire any portion of
the Trust Estate in connection with a Sale thereof, and may pay all or part
of the purchase price by crediting against amounts owing on the Notes or
other amounts secured by this Indenture, all or part of the net proceeds of
such Sale. The Notes need not be produced in order to complete any such
Sale, or in order for the net proceeds of such Sale to be credited against
amounts owing on the Notes. The Trustee shall hold, lease, operate, manage,
or otherwise deal with any property so acquired in accordance with this
Indenture in any manner permitted by law; provided, however, that nothing in
this Indenture shall require the Trustee to so hold, lease, operate, manage
or otherwise deal with any Property if as a result of any such action, the
Trustee would be considered to hold title to, or be a "mortgagee-in-
possession" of, or to be an "owner" or "operator" of such Property within the
meaning of CERCLA or any comparable law, or if as a result of such action,
the Trustee would be subject to liability pursuant to any
61
federal, state or local environmental statute, regulation or similar
requirement, including, but not limited to, CERCLA, the Resource Conservation
and Recovery Act, the Toxic Substances Control Act, or at common law.
(c) The Trustee shall execute and deliver an
appropriate instrument of conveyance transferring its interest in any portion
of the Trust Estate in connection with a Sale thereof. In addition, the
Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the
Issuer to transfer and convey its interest in any portion of the Trust Estate
in connection with a Sale thereof, and to take all action necessary to effect
such Sale. No purchaser or transferee at such a Sale shall be bound to
ascertain the Trustee's authority, inquire into the satisfaction of any
conditions precedent, or see to the application of any monies.
(d) The Trustee may, upon ten (10) Business Days' prior
written notice to the Issuer of the time and place of a proposed public sale
or the time after which a private sale may occur, with respect to the Trust
Estate or any part thereof which shall then be or shall thereafter come into
the possession, custody or control of the Trustee, the Noteholders or any of
their respective agents, sell, lease, assign or otherwise dispose of all or
any portion of such Trust Estate pursuant to Section 5.4, at such place or
places as the Trustee deems best and for cash or on credit or for immediate
or future delivery (without thereby assuming any credit risk), at public or
private sale, without demand of performance or notice of intention to effect
any such disposition or of time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived) and the Trustee
or any Noteholder or anyone else may be the purchaser, lessee, assignee or
recipient of any or all of the Trust Estate so disposed of at any public sale
(or, to the extent not prohibited by law, at any private sale), and
thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory or
otherwise) of the Issuer or any of its Affiliates, any such demand, notice or
right and equity being hereby expressly waived and released. The Trustee
may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time
and place fixed for the sale, and such sale may be made at any time or place
to which the same may be so adjourned. The foregoing shall not limit in any
way Subsection 5.4(a)(ii).
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(e) The Trustee and the Noteholders shall incur no
liability as a result of the sale of the Trust Estate, or any part thereof,
at any private sale pursuant to this Section 5.18 conducted in a commercially
reasonable manner. The Issuer hereby waives any claims against the Trustee
or any Noteholder arising by reason of the fact that the price at which the
Trust Estate may have been sold at such a private sale was less than the
price that might have been obtained at a public sale or was less than the
aggregate amount of the obligations secured by this Indenture.
Section 5.19. Action on Notes.
The Trustee's right to seek and recover judgment on the
Notes or under this Indenture shall not be affected by the seeking or
obtaining of or application for any other relief under or with respect to
this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Trustee or the Noteholders shall be impaired by the recovery
of any judgment by the Trustee against the Issuer, or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon
any of the assets of the Issuer.
ARTICLE SIX
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities.
(a) (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;
(ii) in the absence of bad faith on its part and
of actual knowledge otherwise by a Responsible Officer, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, including, without limitation, certificates as to
factual matters provided by Foodmaker; provided, however, that in
the case of any such 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
and shall promptly notify
63
the Person delivering the same if such certificate or opinion does
not conform; and if a corrected form shall not have been delivered
to the Trustee within fifteen (15) days after such notice from the
Trustee, the Trustee shall so notify the Noteholders; and
(iii) following an Event of Default and
acceleration of the indebtedness incurred hereby, the 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 person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this Subsection 6.1(b) shall not be construed
to limit the effect of Subsection 6.1(a);
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it
shall be proven that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders as may be required
by the terms hereof relating to the time, method, and place of
conducting any Proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture; and
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any
extraordinary 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 (provided, however, that if a Holder is
an Institutional Investor having a capitalization of at least double
the indemnity requested, such Holder's unsecured agreement to
indemnify the Trustee in a form reasonably
64
acceptable to the Trustee shall be a sufficient indemnity for such
purpose) unless such risk or liability is incidental to its required
or ordinary services under this Indenture prior to the occurrence of
an Event of Default; provided, however, that the Trustee shall
promptly give written notice to the Noteholders of any decision by
it not to expend or risk its funds or incur financial liability as
permitted hereby.
(c) 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 6.1.
(d) The Trustee shall not sell, transfer, exchange or
otherwise dispose of, or enter into or engage in any business with respect
to, any part of the Trust Estate, except as expressly permitted by this
Indenture.
Section 6.2. Notice of Default.
Promptly (and in no event later than fifteen (15)
Business Days) after the occurrence of any Default or Event of Default known
to a Responsible Officer of the Trustee or after declaration of acceleration
has been made pursuant to Section 5.2, the Trustee shall transmit by
facsimile transmission with a copy thereof delivered by overnight courier for
next-day delivery to the Rating Agencies (so long as any of the Notes are
rated by the Rating Agencies) and to all Noteholders (in the manner provided
for in Section 12.5), notice of all Defaults hereunder known to a Responsible
Officer of the Trustee to have occurred and notice of cure or waiver thereof,
and notice of any acceleration or rescission of acceleration of the Notes.
Section 6.3. Certain Rights of Trustee.
Except as otherwise provided in Section 6.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, note, debenture, Issuer Order, Issuer Request,
accounting report, Payment Date Statement, certificate as to factual
matters provided by Foodmaker, or other paper or document believed
by it to be genuine and to have been signed or presented by the
proper party or parties and the Trustee shall have no duty hereunder
to
65
independently verify whether any person is an Authorized Officer;
(b) any request or direction of the Issuer mentioned
herein shall be sufficiently evidenced by an Issuer Request or
Issuer Order;
(c) whenever in the administration of this Indenture
the Trustee shall (i) deem it desirable that a matter be proved or
established prior to taking, suffering, or omitting any action
hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part and of
actual knowledge otherwise by a Responsible Officer, rely upon an
Officer's Certificate or a certificate as to factual matters
provided by Foodmaker, or (ii) be required to determine the value of
any collateral or funds hereunder, the Trustee may, in the absence
of bad faith on its part and of actual knowledge by a Responsible
Officer, rely on reports of nationally recognized Independent
accountants or other Independent Persons qualified to provide the
information required to make such determination or a certificate as
to factual matters provided by Foodmaker where permitted hereunder;
(d) as a condition to the taking or omitting of any
action by it hereunder, the Trustee may first consult with the
Noteholders or with the Noteholders' Counsel or with its own
counsel, and instructions of the Noteholders or the advice of such
counsel or any Opinion of Independent Counsel shall be full and
complete authorization and protection in respect of any action taken
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall 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, debenture, note, certificate as
to factual matters provided by Foodmaker, or other paper or document
nor shall it be obligated to analyze or verify any calculation
contained in any such documents, but the Trustee, in its discretion,
may, and upon written direction by the Majority Noteholders shall,
make such further inquiry or investigation into such facts or
matters as it may see fit or as it shall be directed, and, if the
Trustee shall determine or be directed to make such further inquiry
or investigation, it shall be entitled, on reasonable prior notice
to the Issuer to examine the books, records, and premises of the
Issuer personally or by agent or attorney during the Issuer's normal
business hours; provided, that the Trustee shall
66
hold, and shall cause its agents to hold, in confidence all such
information, except to the extent disclosure may be made to the
Noteholders or be required by law or any regulatory authority having
jurisdiction over any Noteholder and except to the extent that the
Trustee, in its sole judgment, may determine that such disclosure is
consistent with its obligations hereunder;
(f) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents (including servicers and independent
contractors) or attorneys; provided, however, that the Trustee shall
select such agents or attorneys in good faith and with due care and
that any agreement with an agent or attorney shall provide for due
care by such agent or attorney in respect of the Noteholders;
(g) to the extent permitted by applicable law, the
Trustee shall not be required to give any note or surety in respect
of the execution of this Indenture or otherwise;
(h) in the absence of actual knowledge thereof by a
Responsible Officer, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default or of any other fact
or circumstances upon the happening of which the Trustee may be
requested to take action hereunder; provided, however, that the
Trustee shall be deemed to have knowledge of any Default or Event of
Default arising out of a failure by the Issuer to make any payment
or deposit required to be made by or to the Trustee under this
Indenture or any failure of Foodmaker to deliver the annual
certificates required to be provided by Foodmaker as provided in the
CRC Leases; and
(i) the Trustee shall have no liability for losses on
investments made in accordance with this Indenture or any investment
instructions it receives from the proper party in accordance with
this Indenture; provided, however, that the foregoing shall not
excuse the institution acting as Trustee for any liability for any
such investments as to which such institution is an obligor acting
in its individual commercial capacity.
Section 6.4. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, other
than the certificate of authentication thereon, shall be taken as the
statements of the Issuer, and the Trustee
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assumes no responsibility for their correctness. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the sufficiency of the Trust
Estate. Except as specifically provided herein, the Trustee shall not be
accountable for the use or application of the Notes or proceeds of the Notes.
Section 6.5. May Hold Notes.
The institution acting as Trustee, in its individual or
any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Issuer or any Affiliate thereof, with the same rights
it would have if it were not the Trustee, the Note Registrar or any other
agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder shall be
segregated from other funds held by the Trustee in trust. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed upon and except to the extent of income or other
gain on investments that are deposits in or certificates of deposit of the
institution acting as Trustee, acting not as Trustee but in its individual
commercial capacity, and income or other gain actually received by the
Trustee.
Section 6.7. Compensation and Reimbursement.
The Issuer agrees:
(a) to pay or cause the Lessee to pay the Trustee (i)
on the Closing Date, an agreed amount, and (ii) on each Installment
Payment Date (A) reasonable compensation for all services rendered
by it hereunder (including wire transfers of funds, any transfer of
Notes, regular periodic reporting as required hereunder, review of
loan files received on the Closing Date, normal servicing
obligations hereunder (including any site inspections), any trading
fees relating to Eligible Investments, any initial costs of setting
up any necessary computer operations in respect of its reporting and
accounting obligations hereunder and filing of UCC continuation
statements), and which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust, and (B) a fee in the amount payable on such
Installment Payment Date as set forth on the attached Schedule C, to
the extent not paid from funds
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held in the Administrative Expenses Account pursuant to Section
9.6(b);
(b) except as otherwise expressly provided herein, to
reimburse or cause the Lessee to reimburse the Trustee in a timely
manner upon its request for all reasonable out-of-pocket expenses,
disbursements, and advances incurred or made by the Trustee in
accordance with any provision of this Indenture or any Mortgage Note
Document (including the reasonable compensation, fees, and the
expenses and disbursements of its agents and counsel) and not
included in the compensation described in Section 6.7(a) and to the
extent not paid from funds held in the Administrative Expenses
Account pursuant to Section 9.6(b), except any such expense,
disbursement, or advance as may be attributable to its negligence,
willful misconduct, or bad faith; and
(c) to indemnify Trustee for, and to hold it harmless
against, any loss, liability, or expense incurred without
negligence, willful misconduct, or bad faith on its part, arising
out of or in connection with the acceptance or administration of
this trust, 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 and to the
extent not paid from funds held in the Administrative Expenses
Account pursuant to Section 9.6(b).
The Trustee shall have a lien on the Trust Estate ranking
junior to that of the Notes upon all property and funds held or collected as
part of the Trust Estate by the Trustee in its capacity as such securing the
payment of the foregoing amounts; provided, however, that the Trustee shall
not institute any proceeding for enforcement of such lien except after
payment in full of all of the Notes. The Trustee agrees not to cause the
filing of a petition in bankruptcy against the Issuer for the non-payment to
the Trustee of any amounts provided by this Section 6.7 until at least 91
days after the payment in full of all Notes issued under this Indenture.
Section 6.8. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the laws of the
United States of America or of any state, authorized under such laws to
exercise corporate trust powers, having, or being a member of a bank holding
company having, a combined capital and surplus of at least
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$100,000,000, subject to supervision or examination by federal or state
banking authority. Such standards for eligibility of the Trustee shall not
be modified without the Issuer's prior written consent. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 6.8, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article; provided, however, that if the
Majority Noteholders so direct, the Trustee shall continue as Trustee
notwithstanding such ineligibility.
Section 6.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.10. Any (i) resignation or removal of the Trustee,
(ii) appointment of a successor Trustee and (iii) acceptance of such
appointment by such successor Trustee, in each case under this Article Six,
shall be deemed to be without further notice or act.
(b) The Trustee may resign at any time by giving
written notice thereof to the Issuer and the Noteholders. Upon receiving
such notice of resignation, the Issuer shall promptly appoint a successor
Trustee or Trustees by written instrument, in duplicate, executed by two
Authorized Officers of the Issuer on behalf of the Issuer, one copy of which
shall be delivered to the Trustee so resigning and one copy to the successor
Trustee or Trustees, together with a copy to each Noteholder; provided,
however, that such successor Trustee shall be appointed only upon the written
consent of the Majority Noteholders. If no successor Trustee shall have been
appointed and an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 60 days after the giving of such
notice of resignation, the resigning Trustee or any Noteholder (who has been
a Holder of Notes 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 Trustee.
(c) The Trustee may be removed at any time by the
Majority Noteholders by written notice delivered to the Trustee and to the
Issuer. On or after the receipt by the Trustee of such written notice, all
authority and power of the Trustee under this Indenture whether with respect
to the Mortgage Note Documents or otherwise, shall pass to and be vested in
the successor Trustee appointed pursuant to and
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under this Section; and, without limitation, the successor Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Trustee, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the CRC Notes and related
documents, or otherwise. The Trustee agrees to cooperate with the successor
Trustee in effecting the termination of the Trustee's responsibilities and
rights hereunder, including, without limitation, the transfer to the
successor Trustee for administration by it of any cash amounts which are
thereafter received by the Trustee with respect to the Trust Estate. Removal
or resignation hereunder will not release the Trustee from any liability or
obligation that will have arisen or may thereafter arise as a result of any
acts or omissions by the Trustee prior to such removal or resignation
constituting wilful misconduct, bad faith, or negligence in the performance
of duties hereunder.
(d) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Trustee
for any cause, the Trustee and the Issuer shall promptly notify the
Noteholders of such resignation, removal or inability to perform with respect
to the Trustee and propose the appointment of a successor Trustee, subject to
the consent of the Majority Noteholders (which notice shall (i) specify the
proposed successor Trustee and (ii) state that such consent shall be deemed
to have been given upon passage of thirty (30) days from the date of mailing
of notice of such proposed appointment by the Issuer to the Noteholders if no
response to the contrary has been received). If no successor Trustee shall
have been so appointed by the Issuer or the Noteholders and shall have
accepted appointment in the manner hereinafter provided, any Noteholder may,
on behalf of such Noteholder and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(e) The Trustee and the Issuer shall give prompt notice
of each resignation and each removal of the Trustee and each appointment of a
successor Trustee by giving written notice of such event to the Noteholders,
and, if the Notes are then rated by the Rating Agencies, to the Rating
Agencies. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
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Section 6.10. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Issuer and the retiring Trustee an
instrument accepting such appointment and making the representations set
forth in Section 6.13 hereof, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts, duties, and obligations of the retiring Trustee under this
Indenture but, on request of the Issuer or the successor Trustee, such
retiring Trustee shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers, and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 6.7. Upon request
of any such successor Trustee, the Issuer shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers, and trusts.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 6.10, the Issuer shall mail notice thereof to the
Noteholders.
No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor shall be qualified and eligible
under this Article Six.
Section 6.11. Merger, Conversion, Consolidation or Succession to Business of
Trustee.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder provided such corporation shall be otherwise qualified and
eligible under this Article Six, without the execution or filing of any paper
or any further act on the part of any of the parties hereto or thereto. In
case any Notes have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion, or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
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Section 6.12. Co-Trustees and Separate Trustee.
At any time or times, if the Trustee deems it to be
reasonably necessary, for the purpose of meeting the legal requirements of
any jurisdiction in which any part of the Trust Estate may at the time be
located, the Trustee shall have power to appoint, and, upon the written
request of the Majority Noteholders, shall so appoint, one or more Persons
(who shall not be Noteholders) either to act as co-trustee, jointly with the
Trustee, of all or any part of the Trust Estate, or to act as separate
trustees of any such property, in either case with such powers as may be
provided in the instrument of appointment which shall expressly designate the
property affected and the capacity of the appointee as either a co-trustee or
separate trustee, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary, subject to
the other provisions of this Section 6.12. The Issuer shall be deemed to
have joined in any such appointment by virtue of the execution of this
Indenture. The Issuer agrees to pay any reasonable fees and expenses in
connection with such appointment.
Should any written instrument from the Issuer be required
by any co-trustee or separate trustee so appointed for more fully confirming
to such co-trustee or separate trustee such property, title, right or power,
any and all such instruments shall, on request, be executed, acknowledged and
delivered by the Issuer and the Issuer hereby irrevocably designates the
Trustee to so act.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms:
(a) the Notes shall be authenticated and delivered
and all rights, powers, duties and obligations hereunder in respect
of the custody of securities, cash and other personal property held
by, or required to be deposited or pledged with, the Trustee
hereunder shall be exercised solely by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by the appointment of a co-trustee or separate trustee shall
be conferred or imposed upon and exercised or performed by the
Trustee or by the Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any
law of any jurisdiction in
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which any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee; provided, however,
that such co-trustee or separate trustee may exercise and perform
such rights, powers, duties and obligations only to the extent
necessary to comply with applicable law;
(c) the Trustee at any time, by an instrument in
writing executed by it, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section 6.12;
upon the written request of the Trustee, the Issuer shall join with
the Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignations or removal; a successor to any co-trustee or separate
trustee which has resigned or has been removed may be appointed in
the manner provided in this Section 6.12;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the Trustee
hereunder;
(e) the Trustee shall not be liable by reason of any
act or omission of a co-trustee or separate trustee selected, if
selected by the Trustee, in good faith and with due care; and
(f) any Act of Noteholders delivered to the Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
The appointment of a co-trustee shall not relieve the
Trustee of its responsibilities hereunder.
Section 6.13. Representations and Warranties of Trustee.
The Trustee represents and warrants that:
(a) The Trustee has been duly organized, and is validly
existing and in good standing as a Massachusetts banking corporation and has
the power to conduct business and affairs as a trustee.
(b) The Trustee has the corporate power and authority
to perform the duties and obligations of Trustee under this Indenture,
including, without limitation, the power and authority to hold the CRC Notes
and the other Mortgage Note Documents; the power and authority to
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establish and maintain the Administrative Expenses Account, Closing Costs
Account, Collection Account, Equity Collection Account, Construction Account,
Sinking Fund Account and, if necessary, to establish and maintain the
Proceeds Account, and to hold funds in and disburse funds from the
Administrative Expenses Account, Closing Costs Account, Collection Account,
Equity Collection Account, the Construction Account, Sinking Fund Account
and, if necessary, the Proceeds Account, as contemplated herein. The Trustee
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Indenture and all of the documents required pursuant
hereto and thereto. Upon execution and delivery by the Issuer, this
Indenture will constitute the legal, valid and binding obligation of the
Trustee enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights generally from time
to time in effect.
(c) Upon execution and delivery to the Trustee by the
Issuer and authentication and delivery to the Noteholders by the Trustee, the
Notes will have been duly and validly authenticated and delivered by the
Trustee on behalf of the Issuer.
(d) No consent, approval, authorization or order of,
giving of notice to, registration with, or taking of any other action with
respect to, any court or governmental agency or body is required for the
execution, delivery or performance by the Trustee of the Indenture the
authentication by the Trustee of the Notes, or the consummation by the
Trustee of the transactions provided for in this Indenture except such as
have been made or obtained, if any.
(e) The execution and delivery by the Trustee of this
Indenture and compliance with the terms hereof in its capacity as Trustee and
the authentication by the Trustee of the Notes will not, to its best
knowledge after diligent inquiry, (i) conflict with or violate any term or
provision of the charter or bylaws of the Trustee or any statute, order or
regulation applicable to the Trustee of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Trustee, or (ii) conflict with, result in a breach, violation or the
acceleration of or constitute a default under the terms of any material
indenture or other agreement or instrument to which the Trustee is a party or
by which it is bound.
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(f) No actions, proceedings or investigations are
pending or, to the best of its knowledge, threatened before any court,
administrative agency or other tribunal with respect to the Trustee (and no
basis therefor exists), which would affect the existence of the Trustee or in
any way contesting or affecting the validity or enforceability of this
Indenture, or the Notes or contesting the powers of the Trustee or its
authority to enter into and perform its obligations under this Indenture as
Trustee.
ARTICLE SEVEN
COVENANTS
Section 7.1. Payment of Principal and Interest.
The Issuer will duly and punctually pay the principal of
and premium, if any, and interest on, and all deposits required under, the
Notes in accordance with the terms of the Notes and this Indenture. Amounts
properly withheld under the Code, and under any laws of any state or other
jurisdiction by any Person from a payment to any Noteholder of interest or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
Section 7.2. Appointment of Agent.
The Issuer hereby irrevocably appoints the Trustee, at
its Corporate Trustee Office, to serve as the Issuer's agent to whom (i)
Notes may be presented or surrendered for payment, (ii) Notes may be
surrendered for registration of transfer or exchange, and (iii) notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may
be served.
Section 7.3. Money for Note Payments.
All payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection
Account or the Sinking Fund Account shall be made on behalf of the Issuer by
the Trustee as provided herein.
Section 7.4. Existence of Issuer.
The Issuer will maintain in full force and effect its
existence, rights and franchises as a corporation, organized under the laws
of the State of Delaware, separate
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and apart from any of its Affiliates, and will obtain and preserve its
qualification to do business as a foreign corporation, in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and enforceability of this Indenture, the Notes or the Trust Estate. The
Issuer shall not amend its articles of incorporation or by-laws without the
written consent of the Majority Noteholders. The Issuer at all times will be
operated in accordance with the provisions of its articles of incorporation,
by-laws and any laws or regulations applicable to it, and shall observe all
corporate formalities, including keeping its own separate books and records,
having its own bank accounts and keeping its funds separate from the funds of
its shareholders, holding periodic meetings of its directors and
shareholders, and having officers that (when acting in their capacity as
officers of the Issuer) act in such corporation's best interests, and is able
to fund from its own assets all of its activities and expenses. The charter
and by-laws of the Issuer provide that a unanimous vote of all directors of
the Issuer is necessary for (a) any merger or consolidation, (b) any
voluntary bankruptcy filing and any declaration of insolvency for any purpose
for the Issuer, or (d) any amendment of the Issuer's charter, or of its
by-laws if such amendment pertains to the matters set forth in this Section
7.4, Section 7.8 or Section 7.11.
Section 7.5. Protection of Trust Estate.
(a) The Issuer shall from time to time execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and
other instruments, and shall take such other action as may be necessary or,
upon request of the Trustee or the Majority Noteholders, advisable to:
(i) Grant more effectively all or any portion of
the Trust Estate;
(ii) maintain or preserve the lien (and the
priority thereof) of this Indenture or to carry out more effectively
the purposes hereof;
(iii) perfect, publish notice of, or protect the
validity of any Grant made or intended to be made by this Indenture;
(iv) enforce any of the Mortgage Note Documents,
Eligible Investments, or other
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instruments included in the Trust Estate, or the CRC Leases;
(v) preserve and defend title to the Trust Estate
and the rights therein of the Trustee and the Noteholders in such
Trust Estate against the claims of all Persons and parties; and
(vi) pay any and all taxes levied or assessed upon
all or any part of the Trust Estate.
The Issuer hereby irrevocably designates the Trustee its agent and attorney-
in-fact to execute, to the extent not prohibited by applicable law, any
financing statements, continuation statements, or other instruments or
documents required pursuant to this Section 7.5 if such Issuer fails to do
so.
(b) The Trustee shall not (i) remove any portion of the
Trust Estate that consists of money or is evidenced by an instrument,
certificate, or other writing including, without limitation, the CRC Notes,
(A) from the jurisdiction in which it was held at the date the most recent
Opinion of Independent Counsel was delivered pursuant to Section 7.6 (or from
the jurisdiction in which it was held as described in the Opinion of
Independent Counsel, delivered at the Closing Date), if no Opinion of
Independent Counsel has yet been delivered pursuant to Section 7.6) or (B)
from the possession of the Person who held it on such date or (ii) cause or
permit ownership or the pledge of any portion of the Trust Estate to be
recorded on the books of a Person (A) located in a different jurisdiction
from the jurisdiction in which such ownership or pledge was recorded at such
date or (B) other than the Person on whose books such ownership or pledge was
recorded at such date, unless the Trustee shall have first received an
Opinion of Independent Counsel to the effect that the lien and perfected
first priority security interest created by this Indenture with respect to
such property will continue to be maintained after giving effect to such
action or actions.
(c) The Issuer shall pay or cause to be paid any taxes
levied on the Issuer on account of the Issuer's ownership of the Trust
Estate.
Section 7.6. Opinions as to Trust Estate.
On or before December 31 in the third calendar year
following the Closing Date and on December 31 in each third year thereafter,
the Issuer shall furnish to the Trustee an Opinion of Independent Counsel
either (i) stating that, in
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the opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents as is
necessary to maintain the lien and perfected first priority security interest
created by this Indenture with respect to the Trust Estate and reciting the
details of such action, or (ii) stating that, in the opinion of such counsel,
no such action is necessary to maintain such lien and perfected first
priority security interest. Such Opinion of Independent Counsel shall also
describe the recording, filing, re-recording, and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents that
will, in the opinion of such counsel, be required to maintain the lien and
perfected first priority security interest of this Indenture with respect to
the Trust Estate. The fees and expenses incurred in connection with each
such Opinion of Independent Counsel shall be Administrative Expenses payable
in accordance with the terms of this Indenture, and any such fees and
expenses not so paid shall be paid by the Trustee, to the extent funds are
available from the Trust Estate or are otherwise provided to the Trustee, on
behalf of the Issuer subject to the Trustee's right of reimbursement therefor
pursuant to Section 6.7.
Section 7.7. Performance of Obligations.
The Issuer shall not take any action, and will use its
best efforts not to permit any action to be taken by others, that would
release any Person from any of such Person's covenants or obligations under
the Mortgage Note Documents or the CRC Leases or under any instrument
included in the Trust Estate or which would result in the amendment,
hypothecation, subordination, termination, or discharge of, or impair the
validity or effectiveness of, any of the Mortgage Note Documents, the CRC
Leases or any such instrument, except as provided in this Indenture or such
Mortgage Note Document, the CRC Leases or other instrument.
Section 7.8. Certain Negative Covenants.
(a) From and after the Closing Date, the Issuer will
not:
(i) sell, transfer, exchange, or otherwise
dispose of, or pledge, mortgage, hypothecate, or otherwise encumber
(or permit such to occur or suffer such to exist), any part of the
Trust Estate, except as expressly permitted by this Indenture;
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(ii) claim any credit on, or make any deduction
from, the principal or interest payable with respect to the Notes
(other than the amounts required to be withheld in accordance with
the Code) or assert any claim against any present or future
Noteholder, by reason of the payment of any taxes levied or assessed
upon any part of the Trust Estate;
(iii) incur or have outstanding any indebtedness,
or incur, assume, or guarantee the indebtedness of any Person
(including, without limitation, pursuant to any purchase or
repurchase agreement, any indemnity, or any keep-well, take-or-pay,
through-put, or other arrangement having the effect of assuring or
holding harmless any third Person against loss with respect to any
obligation of such other Person) other than pursuant to this
Indenture, unless such indebtedness is an invoice, statement of
account, check, work request, purchase order or other similar
document representing expenses relating to activities of the Issuer
in accordance with Section 7.11;
(iv) cause, permit or acquiesce in any sale,
transfer, assignment or other disposition of the interests of the
shareholders in the Issuer which would result in a transfer,
cumulatively, of 49% or more of the shareholder interests in Issuer;
(v) (A) permit the validity or effectiveness of
this Indenture or any Grant hereunder to be impaired, or permit the
lien of this Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to this Indenture or the
Notes or any document executed pursuant hereto or thereto, except as
may be expressly permitted hereby or thereby; (B) permit any lien,
charge, adverse claim, security interest, mortgage or other
encumbrance (other than the lien of this Indenture and any lien for
taxes not yet due and payable) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof,
any interest therein or the proceeds thereof, or (C) take any action
that would permit the lien of this Indenture not to constitute a
valid first priority perfected security interest in the Trust
Estate;
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(vi) employ any employees; or
(vii) enter into or permit to exist, directly or
indirectly, any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering
of any service) with any Affiliate of the Issuer, except for
transactions in the ordinary course of the business of the Issuer
and upon fair and commercially reasonable terms which are no less
favorable to the Issuer than would be obtained in a comparable
arm's-length transaction with a Person that is not such an
Affiliate.
(b) The Issuer shall not exercise any right of the
lessor under either of the CRC Leases (including, without limitation, any
right to make any election or determination or give any consent, direction,
or waiver under such CRC Lease) without the prior written approval of the
Trustee, all of which rights are assigned to the Trustee by virtue of the CRC
Lease Assignments, including the collateral assignments thereof by the Issuer
to the Trustee. To the extent any such consent may not be unreasonably
withheld by the applicable Borrower under the applicable CRC Lease, the
Trustee and the Noteholders shall be bound by such reasonableness standard.
Section 7.9. Statement as to Compliance.
Promptly upon request by the Trustee or any Noteholder,
the Issuer shall deliver to the Trustee an Officer's Certificate stating, as
to each signer thereof, that:
(a) a review of the activities of the Issuer during
the preceding six-month period and of the Issuer's performance under
this Indenture has been made under his or her supervision; and
(b) to the best of his or her knowledge, based on
such review, the Issuer has fulfilled all of its obligations under
this Indenture and the Mortgage Note Documents throughout such
six-month period has complied fully with the terms and provisions
hereof and no Default exists hereunder or thereunder, or, if there
has or had been a Default during such quarter, specifying each such
Default known to him and the nature and status thereof.
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Section 7.10. Issuer May Not Consolidate, Etc.
Except as expressly permitted by Sections 7.11, the
Issuer shall not consolidate or merge with or into any other Person or convey
or transfer its properties and assets to any Person.
Section 7.11. No Other Business.
The Issuer shall not engage in any business or activity
other than: (i) issuing and selling the Notes pursuant to this Indenture and
acquiring, owning, and pledging the Trust Estate in accordance with the terms
of this Indenture; (ii) issuing or incurring indebtedness permitted by
Section 7.8(a)(iii); and (iii) engaging in any other activities which are
necessary, suitable, or convenient to accomplish the matters set forth in
this Section 7.11 or are incidental thereto or connected therewith. The
organizational documents of the Issuer provide that the Issuer is restricted
to engaging only in such business or activities.
Section 7.12. No Purchase of Notes.
The Issuer may not acquire any Notes.
Section 7.13. Investment Company Act.
The Issuer shall at all times while the Notes are
outstanding take all actions necessary to ensure that the Issuer is at all
times exempt from and need not register as an "investment company" under the
Investment Company Act, and shall at no time allow itself to be controlled by
an "investment company" as defined in the Investment Company Act.
Section 7.14. Notice of Event of Default.
Upon the occurrence of any Default or Event of Default,
the Issuer shall promptly notify the Trustee thereof in writing.
Section 7.15. Use of Proceeds.
The Issuer shall use the proceeds from the sale and
issuance of the Notes solely for the purposes set forth in Section 3.4. The
Issuer will not use any of the proceeds from the sale and issuance of the
Notes for the purchase of any security that constitutes "margin stock" or
"margin securities" within the meaning of Regulations G, T, U or X
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of the Board of Governors of the Federal Reserve System (or any successor
regulations thereto).
Section 7.16. Books and Records.
The Issuer shall keep accurate books and records
regarding the Notes and the Trust Estate and its business affairs and
transactions.
Section 7.17. Consents, Waivers and Modifications of Other Agreements.
Without the prior written consent of Majority Noteholders
or obtaining an Opinion of Independent Counsel and Accountants that a
requested action should have no material adverse effect on the Noteholders,
neither the Issuer nor the Trustee will consent to, waive or enter into or
acquiesce in or consent to any amendment, supplement or other modification of
any of the terms or provisions contained in, or applicable to, any Mortgage
Note Document, or CRC Lease or the partnership agreement or charter documents
of any Borrower or the charter documents of any General Partner. In
addition, neither the Issuer nor the Trustee will consent to any material
amendment, supplement or other modification of any of the terms or provisions
contained in, or applicable to, any CRC Note or any of the payment terms
thereof without the prior written consent of the Lessee. At the cost of the
Issuer, the Issuer shall provide to the Trustee and the Noteholders a copy of
any such proposed amendment, supplement or other modification, as applicable,
promptly upon receipt thereof by the Issuer. The fees and expenses incurred
in connection with each such advice letter of Independent counsel shall be
Administrative Expenses payable in accordance with the terms of this
Indenture, and any such fees and expenses not so paid shall be paid by the
Trustee, to the extent funds are available from the Trust Estate or are
otherwise provided to the Trustee, on behalf of the Issuer subject to the
Trustee's right of reimbursement therefor pursuant to Section 6.7. At the
cost of the Issuer, the Issuer shall provide to the Trustee and the
Noteholders a copy of the executed amendment, supplement or modification as
soon as practicable after its execution.
Section 7.18. Grant of Trust Estate.
The Grant of the Trust Estate hereby made shall be valid
and binding from and after the time of the delivery by the Trustee of the
first Note authenticated and delivered under this Indenture. All present and
future property of the Issuer subject to, or intended to be subject to, the
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Grant of the Trust Estate hereby made shall immediately be subject to the
lien created by such Grant and the obligation to perform the contractual
provisions hereunder shall have priority over any and all other obligations
and liabilities of the Issuer, and the lien created by such Grant shall be
valid and binding as against all parties having claims of any kind in tort,
contract, or otherwise against the Issuer irrespective of whether such
parties have notice thereof.
Section 7.19. Rent to be Paid Over to Trustee.
The Issuer shall cause the Rent to be paid directly to
the Trustee. If, notwithstanding these arrangements, the Issuer receives any
Rent, the Issuer shall immediately pay over the same to the Trustee and if
the Issuer is for any reason unable immediately to pay over such Rent to the
Trustee, the Issuer shall hold all such rent in trust for the Trustee and
shall pay over such Rent to the Trustee at the earliest possible time that
the Issuer is able to do so.
Section 7.20. Fiscal Year End.
The Issuer will use the calendar year as its fiscal year
and will not change its fiscal year.
Section 7.21. Inspection.
The Issuer shall permit and shall cause each Borrower to
permit the Trustee, any Noteholder, or any authorized representative
designated by any thereof, to visit, have access to and inspect, audit,
appraise and verify any information in the possession of the Issuer or such
Borrower with respect to, the Issuer, the Borrower, or any of the Properties,
including any related financial, accounting and other files and records, and
to make copies and take extracts therefrom, and to discuss the Issuer's or
any Borrower's affairs, finances and business with its respective officers,
directors, partners, employees and public accountants, at such reasonable
times during normal business hours and as often as may be reasonably
requested. The Issuer shall, at the request of the Trustee or any
Noteholder, take all steps necessary to facilitate any such inspection,
audit, appraisal or verification and, without limiting the generality of the
foregoing, shall use its best efforts to cause the Issuer's or any
Borrower's, as the case may be, officers, directors, partners, employees and
public accountants to cooperate in this regard.
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Section 7.22. Access to Accountants.
Upon request by the Trustee or any Noteholder, the Issuer
shall use its best efforts to cause its public accountants to deliver to the
Trustee (and upon receipt the Trustee shall deliver to each Noteholder) a
letter stating that the Trustee and the Noteholders are entitled to rely on
the financial statements (if any), reports and other material produced by
such accountants for the Issuer or any other Person in connection with this
Indenture or the Trust Estate Granted hereunder. The Issuer authorizes its
public accountants to discuss the financial condition of the Issuer and the
Properties with the Trustee and each Noteholder upon reasonable notice to the
Issuer and such accountants and authorizes such accountants to disclose to
the Trustee and the Noteholders any and all information of any kind that such
accountants may have with respect to the financial condition of the Issuer
and the Properties or either thereof. The Trustee and the Noteholders may
make such requests and take such action permitted under this Section 7.22 as
often as they may deem necessary including, without limitation, any time the
Issuer changes its public accountants.
Section 7.23. Provision of Rule 144A Information.
During the period beginning on the original issuance date
of the Notes and ending on the date that is three years from such date, the
Issuer covenants and agrees that it shall, during any period in which the
Lessee or the Issuer is not subject to Section 13 or 15(d) under the Exchange
Act, make available to any Holder or beneficial holder of Notes which
continue to be Restricted Notes in connection with any sale thereof, and make
available to any prospective purchaser of Notes from such Holder or
beneficial holder, the information required pursuant to Rule 144A(d)(4) under
the Securities Act upon the request of such Holder or beneficial holder of
the Notes. The Issuer shall take such further action as any Holder or
beneficial holder of such Notes may reasonably request, all to the extent
required from time to time to enable such Holder or beneficial holder to sell
its Notes without registration under the Securities Act within the limitation
of the exemption provided by Rule 144A, as such rule may be amended from time
to time. Upon the request of any Holder or any beneficial holder of the
Notes, the Issuer shall deliver to such Holder or beneficial holder a written
statement as to whether it has complied with such requirements.
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Section 7.24. Maintenance of Office.
The Issuer shall maintain its chief executive office and
principal place of business at One Financial Center, Boston, Massachusetts,
or at such other place in the United States of America as the Issuer shall
designate upon 60 days' prior notice to the Trustee and the Noteholders as
provided in Section 12.5 hereof.
Section 7.25. Copies of Notices.
The Issuer shall promptly send duplicate copies to the
Trustee of all notices furnished to the Issuer or given by it to any of the
Lessee, or any Borrower.
Section 7.26. Performance By Foodmaker.
To the extent Foodmaker performs any obligations of the
Issuer hereunder which are capable of being performed by Foodmaker, such
obligations of the Issuer shall be deemed satisfied.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures.
(a) The Issuer, when authorized by a resolution of its
Board of Directors, and the Trustee may amend or supplement this Indenture or
the Notes without notice to or the consent of any Holder;
(i) to cure any ambiguity, defect or
inconsistency;
(ii) to provide for the issuance of notes
hereunder to be exchanged for the Notes pursuant to a Registered Exchange
Offer (as defined in the Registration Rights Agreement);
(iii) to comply with any requirements of the
Securities and Exchange Commission in connection with the qualification of
this Indenture under the Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated thereunder;
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(iv) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee appointed in accordance with
Article Six; or
(v) to make any change that does not materially
and adversely affect the rights of any Holder.
(b) With the written consent of the Holders of the
Majority Noteholders, by Act of such Holders delivered to the Issuer and the
Trustee, the Issuer and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Note:
(i) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Note, or
reduce or increase the principal amount thereof or the Note Interest
Rate thereon or the rights of the Noteholders to the benefit of any
provisions relating to the redemption of the Notes, change the
provisions of this Indenture relating to the application of proceeds
of the Trust Estate to the payment of principal or interest on the
Notes, or change any place where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Maturity thereof;
(ii) change the percentage in Aggregate
Outstanding Amount of Notes, the consent of the Holders of which is
required for the execution of any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with provisions of this Indenture or Defaults hereunder
and their consequences provided for in this Indenture;
(iii) impair or adversely affect or release any
part of the Trust Estate except as otherwise permitted herein;
(iv) permit the creation of any lien ranking prior
to or on a parity with the lien of this Indenture with respect to
any part of the Trust Estate or terminate the lien of this
Indenture on any property at any time subject hereto or deprive any
Noteholder of the security afforded by the lien of this Indenture;
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(v) change the percentage of the Aggregate
Outstanding Amount, the consent of the Holders of Notes of which is
required to direct the Trustee to sell or liquidate the Trust Estate
pursuant to Article Five;
(vi) modify any of the provisions of this Section
8.1, or Section 5.15, 7.18 or Section 11.14;
(vii) modify the proviso to the definition of the
term "Outstanding" or modify the terms "Holder" and "Noteholder";
(viii) modify any of the provisions of this
Indenture in such a manner as to affect the calculation of the
amount of any payment of interest, premium, or principal due on any
Note, on any Payment Date (including the calculation of any of the
individual components of such calculation); or
(ix) cause the rating of the Notes to be lowered
by either of the Rating Agencies.
At the cost of the Issuer, the Trustee shall provide to
the Noteholders and, if any of the Notes are then rated by the Rating
Agencies, to the Rating Agencies a copy of any proposed supplemental
indenture at least 15 Business Days prior to the execution thereof by the
Trustee. The Trustee shall request written confirmation from the Rating
Agencies within such 15 Business Day period that the Rating Agencies will
not, as a result of such supplemental indenture, cause the rating of the
Notes to be lowered and the Trustee shall promptly provide the Noteholders
with any written response received from the Rating Agencies. At the cost of
the Issuer, the Trustee shall provide to the Noteholders and the Rating
Agencies a copy of the executed supplemental indenture as soon as practicable
after its execution. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Any solicitation of Holders of Notes to any consent,
waiver, or amendment under this Indenture involving consideration shall
provide that such consideration be paid equally to all Noteholders regardless
of whether or not such Noteholders agree to such consent, waiver, or
amendment or are entitled to participate in such consent, waiver, or
amendment.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of Sections 5.4(b), 9.2(b) (regarding the withdrawal
of funds from the Sinking Fund
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Account), 9.7(a), 11.5, 11.6, 11.18 and 11.19 of this Indenture shall not be
amended or supplemented without the prior written consent of Foodmaker.
Section 8.2. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created
by any supplemental indenture permitted by this Article Eight or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Sections 6.1 and 6.3) shall be
fully protected in relying upon, an Opinion of Independent Counsel stating
that the execution of such supplemental indenture is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties, or immunities, respectively, under this Indenture or otherwise.
Section 8.3. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
permitted under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Notes theretofore and
thereafter authenticated and delivered hereunder shall be bound thereby
whether or not the Notes have any reference or notation concerning such
supplemental indenture.
ARTICLE NINE
ACCOUNTS, ACCOUNTING AND RELEASES
Section 9.1. Collection of Money.
Except as otherwise expressly provided herein, the
Trustee may demand payment or delivery of, and shall receive and collect,
directly and without intervention or assistance of any fiscal agent or other
intermediary, all money and other property payable to or receivable by the
Trustee pursuant to this Indenture or the Mortgage Note Documents or any
collateral assignment thereof to the Trustee, including, without limitation,
pursuant to either of the CRC Leases by virtue of the CRC Lease Assignments
and the collateral assignment thereof by the Issuer to the Trustee,
including, without limitation, all Rent, all payments due on the CRC Notes,
and all other amounts received under the Mortgage Note Documents. To the
extent any such amounts are paid or
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delivered to the Issuer, such amounts shall be held in trust for the benefit
of the Holders of the Notes and remitted to the Trustee by the Business Day
following receipt of such amounts. The Trustee shall hold all such money and
property received by it in trust for the Noteholders and shall apply it as
provided in this Indenture.
Section 9.2. Collection Account, Sinking Fund Account and Equity Collection
Account.
(a) Collection Account. The Trustee shall, prior
to the Closing Date, establish a segregated non-interest bearing trust
account for the benefit of the Noteholders which shall be called the
"Collection Account" into which the Trustee shall from time to time deposit
all amounts required to be deposited therein pursuant to the terms of this
Indenture. Without limiting the foregoing, all Rent is required to be paid
by the Lessee directly to the Trustee pursuant to the CRC Leases for deposit
in the Collection Account, and for application hereunder by the Trustee in
accordance with Section 10.1 or Section 5.8 (as applicable). All monies
deposited from time to time in the Collection Account pursuant to this
Indenture shall be held by the Trustee as part of the Trust Estate and shall
be applied as herein provided.
(b) Sinking Fund Account.
(i) The Trustee shall, prior to the Closing Date,
establish a segregated trust account for the benefit of the Noteholders which
shall be called the "Sinking Fund Account" into which the Trustee shall
deposit on each Payment Date to and including the Year Nine Installment
Payment Date, the sum of the Unit Sinking Fund Payments due on such date
under the Notes, from the funds deposited in the Collection Account (to the
extent available and after giving effect to any distributions from the
Collection Account pursuant to clauses FIRST through SIXTH of Section 10.1).
All monies deposited in the Sinking Fund Account pursuant to this Indenture
and all Reinvestment Income thereon shall be held by the Trustee as part of
the Trust Estate. So long as no Event of Default has occurred and is
continuing, all or a portion of the monies in the Sinking Fund Account shall
be invested and reinvested at the Lessee's direction, by a written request
dated and signed in the name of the Lessee by an Authorized Officer of the
Lessee and delivered to the Trustee, in one or more Eligible Investments
having a maturity date no later than the Business Day prior to the Year Nine
Installment Payment Date.
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(ii) In addition, so long as no Event of Default
has occurred and is continuing, at the Issuer's and the Lessee's direction,
by a written request dated and signed in the name of the Issuer and the
Lessee by Authorized Officers of the Issuer and the Lessee and delivered to
the Trustee, (A) upon Lessee's purchase of the applicable Borrower's interest
in an Eligible Unit upon the Early Termination thereof, a portion of the
balance of the Sinking Fund Account (herein referred to as the "Required
Equity Account Contribution"), in an amount specified in such request and
which shall equal the amount by which (I) two (2) times the Unit Percentage
for each such Eligible Unit multiplied by the lesser of (aa) the balance in
the Sinking Fund Account on such date or (bb) the amount which would have
been the Ideal Sinking Fund Balance on such date (after taking into account
the payments assumed to be made on such date in the definition of "Ideal
Sinking Fund Balance" (inclusive of any payment of Individual Unit Special
Rent (as defined in the applicable CRC Lease) attributable to such Eligible
Unit which is due on such day), but disregarding the withdrawal on account of
such Eligible Unit under clause (ii) of the definition of "Ideal Sinking Fund
Balance"), exceeds (II) the excess, if any, of the Lessee's Early Termination
Increment over the Lessee's Present Value Increment for such Eligible Unit
(in each case as defined in the applicable CRC Lease) shall be deposited in
the Equity Collection Account (any Required Equity Account Contribution
actually deposited in the Equity Collection Account is referred to herein as
an "Actual Equity Account Contribution") and an amount equal to the excess,
if any, of the Lessee's Early Termination Increment over the Lessee's Present
Value Increment for such Eligible Unit shall be released to Lessee in
accordance with the instructions specified in Lessee's written request and
(B) upon the applicable Borrower's purchase of Lessee's interest in an
Eligible Unit upon the Early Termination thereof, an amount equal to the
Required Equity Account Contribution shall be released to the applicable
Borrower as specified in such request. Notwithstanding the foregoing, at
such time as the aggregate Actual Equity Account Contributions (which for
purposes of this sentence shall be deemed to include any Required Equity
Account Contributions released to the applicable Borrower) together with the
Reinvestment Income which would have been earned thereon had such Actual
Equity Account Contributions accrued interest from the date of deposit (or
deemed deposit) thereof into the Equity Collection Account at the rate of 6%
(on the basis of a 360-day year), compounded semi-annually on the first day
of each January and July), equal the present value (discounted to the date of
such calculation at a discount rate of 6% (on the basis of a 360-day year)
compounded semi-annually on the first day of each January and July of a
payment of
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$11,500,000 due on the first business day of January, 2003, as certified in a
certificate signed by an Authorized Officer of the Lessee and delivered to
the Trustee, no further Required Equity Account Contributions shall be due or
made or released to any Borrower.
In addition, so long as no Event of Default has occurred
and is continuing, at the Issuer's and the Lessee's direction, by a written
request dated and signed in the name of the Issuer and the Lessee by
Authorized Officers of the Issuer and Lessee and delivered to the Trustee,
upon the Year Nine Installment Payment Date and so long as all payments
previously due or then due on the Notes have been paid, the remaining balance
of the Sinking Fund Account shall be applied as follows:
(x) A portion of such balance, in an amount equal to
the aggregate Required Equity Account Contributions for all Eligible
Units as to which an Early Termination has been consummated
(exclusive of the amounts of all Actual Equity Account Contributions
previously deposited to the Equity Collection Account and Required
Equity Account Contribution released to the Borrowers) together with
all Reinvestment Income earned on the amounts of such Required
Equity Account Contributions while they were retained in the Sinking
Fund Account, as certified in a Certificate signed by Authorized
Officers of the Issuer and the Lessee and delivered to the Trustee,
shall be deposited in the Equity Collection Account; and
(y) The balance of such account shall be released to
Lessee.
If an Event of Default has occurred and is continuing or
if the Lessee shall not have given any directions pursuant to this Subsection
9.2(b), the Trustee shall invest and reinvest such monies as fully as
practicable in one or more Eligible Investments and which are, to the extent
available, administered by the Trustee or an Affiliate of the Trustee. All
income or other gain from such investments shall be credited to the Sinking
Fund Account and shall be applied as provided above. Any loss resulting from
such investments shall be charged to the Sinking Fund Account. The Trustee
shall not in any way be held liable by reason of any insufficiency in the
Sinking Fund Account resulting from any loss on any Eligible Investment,
except as otherwise provided in Subsection 6.3(i). Nothing contained herein
shall limit the obligations of the Issuer to pay the Initial Bullet Payment
(as defined in the Notes) or any other amounts payable under each of the
Notes in the event the funds in the Collection
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Account are not sufficient to pay the full amount of the Initial Bullet
Payment under (and as defined in) each of the Notes on the Year Nine
Installment Payment Date or such other payments when due.
(c) Equity Collection Account. The Trustee shall,
prior to the Closing Date, establish a segregated trust account for the
benefit of the Noteholders which shall be called the "Equity Collection
Account." Provided that no Event of Default has occurred and is continuing,
the sum of the Purchase Price plus the Special Sinker Rent (if any) paid
under (and as such terms are defined in) the CRC Leases for any Property in
connection with the Early Termination or exercise of the Year Nine Option or
making of the Year Nine Offer (as defined in the CRC Leases), minus the
Termination Value of such Property, which amount shall be certified in an
Officer's Certificate by an Authorized Officer of the Issuer (as agent to the
applicable Borrower) to the Trustee, shall be transferred by the Trustee from
the Collection Account, after giving effect to the distributions from the
Collection Account set forth in clauses FIRST through TENTH of Section 10.01,
to the Equity Collection Account. In addition, deposits shall be made to the
Equity Collection Account as provided in Section 9.2(b). Monies in the
Equity Collection Account (including any Reinvestment Income thereon) shall
be held by the Trustee as part of the Trust Estate as collateral for the
repayment of the Notes. So long as no Event of Default has occurred and is
continuing, all or a portion of the monies in the Equity Collection Account
shall be invested and reinvested upon Issuer Order, in one or more Eligible
Investments having a maturity date no later than the Business Day prior to
the Stated Maturity. If an Event of Default has occurred and is continuing
or if the Issuer (as agent for the applicable Borrower) shall not have given
any directions pursuant to this Subsection 9.2(c), the Trustee shall invest
and reinvest such monies as fully as practicable in one or more Eligible
Investments and which are, to the extent available, administered by the
Trustee or an Affiliate of the Trustee. All income or other gain from such
investments shall be credited to the Equity Collection Account and shall be
applied as provided above. Any loss resulting from such investments shall be
charged to the Equity Collection Account. The Trustee shall not in any way
be held liable by reason of any insufficiency in the Equity Collection
Account resulting from any loss on any Eligible Investment, except as
otherwise provided in Subsection 6.3(i). Upon the satisfaction and discharge
of this Indenture in accordance with Section 4.2, any funds deposited in the
Equity Collection Account and any Reinvestment Income thereon shall be
distributed by the Trustee to the applicable Borrower,
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upon written request of the Issuer joined in by both Borrowers and
authorization by the Issuer as to the Borrower entitled to such funds or any
portion thereof. Upon the occurrence of any Event of Default, the funds
deposited in the Equity Collection Account and any Reinvestment Income
thereon may be applied by the Trustee to the outstanding principal balance of
the Notes and any accrued interest thereon or any other sums owing hereunder
or under the Mortgage Note Documents.
Section 9.3. Accounting.
If the Trustee shall not have received any accounting
provided for in this Section 9.3 on or before the first Business Day after
the date on which such accounting is due to the Trustee, the Trustee shall
immediately notify the Issuer of such fact.
(a) Payment Date Accounting. The Issuer shall prepare
a statement (the "Payment Date Statement") not later than the second Business
Day preceding each Payment Date. Upon request by the Trustee, the Issuer
shall provide or cause the Lessee to provide the Trustee with all information
not in the Trustee's possession and necessary to prepare each Payment Date
Statement in a timely manner. The Trustee shall forward copies of the
Payment Date Statement to each Noteholder on each Payment Date (in the manner
set forth in Section 12.5) and the Trustee shall not be liable for any error
made in calculating or otherwise determining the information required to be
set forth in the Payment Date Statement pursuant to this Subsection 9.3(a),
except for any error resulting from negligence, willful misconduct, or bad
faith on the part of the Trustee or its employees. Pursuant to Subsection
6.7(c), the Issuer shall indemnify the Trustee for any loss, liability or
expense incurred without negligence, willful misconduct or bad faith on the
part of the Trustee or its employees arising out of the Trustee's preparation
and delivery of the Payment Date Statement and disbursements made pursuant
thereto. The Payment Date Statement shall contain, without limitation, the
following information with respect to each Payment Date:
(i) The interest to be paid on such Payment Date on the Notes,
and the portion thereof, if any, that was due but not paid on a previous
Payment Date;
(ii) The premium, if any, to be paid on such Payment Date on the
Notes, and the portion thereof, if any, that was due but not paid on a
previous Payment Date;
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(iii) The Aggregate Outstanding Amount of Notes before giving
effect to any payment to be made on such Payment Date;
(iv) The principal (if any) to be paid on such Payment Date
on the Notes;
(v) The amount of cash held in the Collection Account as
of the related Determination Date (before giving effect to any
distributions to be made on such Payment Date);
(vi) The amount of cash and Eligible Investments and
Reinvestment Income thereon (if any) held in the Construction
Account (including the Additional Unit Acquisition Account) as of the
related Determination Date (before giving effect to any distributions to
be made on such Payment Date);
(vii) The amount of cash held in the Proceeds Account (if
any) as of the related Determination Date (before giving effect to any
distributions to be made on such Payment Date);
(viii) The amount of cash held in the Administrative Expenses
Account (if any) as of the related Determination Date (before giving
effect to any distributions to be made on such Payment Date);
(ix) The amount of cash held in the Closing Costs Account
(if any) as of the related Determination Date (before giving effect to
any distributions to be made on such Payment Date);
(x) The amount of cash and Eligible Investments and
Reinvestment Income thereon (if any) held in the Sinking Fund
Account as of the related Determination Date (before giving effect to
any distributions to be made on such Payment Date);
(xi) The amount of cash and Eligible Investments and
Reinvestment Income thereon (if any) held in the Equity Collection
Account as of the related Determination Date (before giving effect
to any distributions to be made on such Payment Date);
(xii) The amount to be withdrawn from the Administrative
Expenses Account, the Closing Costs Account, the Collection Account
(including the Additional Unit Acquisition Account), the Construction
Account, the Sinking Fund Account, the Equity Collection
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Account, and the Proceeds Account, if any, as of such Determination
Date, which amount shall be disbursed in accordance with Sections 9.6(a)
and (b), 10.1 (or 5.8, as applicable), 9.5, 9.2(b), and 11.5 or 11.6,
respectively;
(xiii) The balance remaining in the Administrative Expenses
Account, the Closing Costs Account, the Collection Account (including
the Additional Unit Acquisition Account), the Construction Account,
the Sinking Fund Account, the Equity Collection Account, and the
Proceeds Account immediately after all withdrawals to be made from
such account(s) on such Payment Date;
(xiv) The amount due to the Trustee under Section 6.7 of the
Indenture;
(xv) The amount of any Administrative Expenses for such
Payment Date other than as set forth in Section 9.3(a)(xi);
(xvi) The amount of all CRC-I Rent received for the related
Interest Accrual Period;
(xvii) The amount of all CRC-II Rent received for the related
Interest Accrual Period;
(xviii) The amount of all Rent credited to interest payments
on the CRC Notes for the related Interest Accrual Period;
(xix) The amount of all Rent and other amounts credited to
principal payments on or with respect to the CRC Notes (including
and shown on an itemized basis, all Principal Payments and all
Liquidation Proceeds and Insurance and Condemnation Proceeds applied to
reduction of principal) for the related Interest Accrual Period and a
calculation showing how each such amount was derived;
(xx) The amounts required to be deposited on such date in
the Administrative Expenses Account, the Sinking Fund Account and the
Equity Collection Account pursuant to Sections 9.6(b), 9.2(b) and
9.2(c); and
(xxi) The amount of all Reinvestment Income payable to Foodmaker
in accordance with the CRC Leases.
(b) Payment Date Instructions. The Trustee shall
withdraw on each Payment Date from the Collection Account and pay, in
accordance with Subsection 2.8(c), to the
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Persons entitled thereto and deposit in the Administrative Expenses Account,
Sinking Fund Account and Equity Collection Account, funds in the specified
amounts set forth in the Payment Date Statement in accordance with the
priorities established in Section 10.1 or in Section 5.8, as the case may be.
(c) Annual Reports. Within ninety (90) days after the
last day of each calendar year, the Issuer shall deliver to each Noteholder a
copy of: (i) a balance sheet of the Issuer as at the end of such year setting
forth in comparative form the figures for the corresponding period in the
previous fiscal year, and (ii) statements of income and retained earnings and
of changes in cash flows of the Issuer for such year, setting forth in
comparative form the figures for the previous fiscal year, all in reasonable
detail and certified by the chief financial officer of the Issuer as being
accurate and complete and, if requested by Majority Noteholders, or if
required under any applicable securities laws, accompanied by an Accountants'
Certificate, which certificate shall state that such financial statements
fairly present the financial condition of the Issuer and that the examination
of such accountants in connection therewith has been made in accordance with
generally accepted auditing standards, and accordingly employed such tests of
the accounting records and such other auditing procedures as were deemed
necessary.
Section 9.4. Construction Account.
(a) The Trustee shall, prior to the Closing Date,
establish a segregated trust account for the benefit of the Noteholders which
shall be called the "Construction Account." The Trustee shall, on the
Closing Date, deposit the amount specified in Subsection 3.4(b)(iii) above in
the Construction Account. The Trustee shall, on the Closing Date, deposit
the amount specified in Subsection 3.4(a)(iii) above in the Additional Unit
Acquisition Account, which shall be a subaccount of the Construction Account.
All monies deposited from time to time in the Construction Account
(including, without limiting, the Additional Unit Acquisition Account)
pursuant to this Indenture and all Reinvestment Income thereon shall be held
by the Trustee as part of the Trust Estate and shall be applied to the
purposes herein provided.
(b) So long as no Event of Default has occurred and is
continuing, all or a portion of the monies in the Construction Account
(including, without limiting, the Additional Unit Acquisition Account) shall
be invested and reinvested at the Lessee's direction, by a written request
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dated and signed in the name of the Lessee by an Authorized Officer of the
Lessee and delivered to the Trustee, in one or more Eligible Investments
having a maturity date no later than the Business Day prior to the next
Payment Date. If an Event of Default known to a Responsible Officer of the
Trustee has occurred and is continuing, the Trustee shall invest and reinvest
such monies as fully as practicable in one or more Eligible Investments and
which are, to the extent available, administered by the Trustee or an
Affiliate of the Trustee. All income or other gain from such investments
shall be credited to the Construction Account and, provided no CRC Lease
Event of Default or Mortgage Event of Default under any Foodmaker Mortgage
shall have occurred and be continuing, shall be disbursed to the Lessee on
each Payment Date in accordance with the CRC Leases as specified in the
applicable Payment Date Statement. If a CRC Lease Event of Default or
Mortgage Event of Default under any Foodmaker Mortgage shall have occurred
and shall be known to a Responsible Officer of the Trustee, such income and
gain shall be transferred by the Trustee to the Collection Account and
disbursed pursuant to Section 10.1 or 5.8 (as applicable). Any loss
resulting from such investments shall be charged to the Construction Account.
The Trustee shall not in any way be held liable by reason of any
insufficiency in the Construction Account resulting from any loss on any
Eligible Investment, except as otherwise provided in Subsection 6.3(i).
Section 9.5. Releases from the Construction Account.
(a) The Trustee shall, from time to time as requested
in writing by the Lessee, release, on behalf of CRC-I or CRC-II (as
applicable), to the Lessee or to such Person as the Lessee may direct in
writing, (A) funds on deposit in the Additional Unit Acquisition Account as
CRC-I acquires an estate for years in each of the Potential Additional Units
identified on the attached Schedule A-3 (or such Substitute Units acquired in
substitution of any of the Potential Additional Units identified on the
attached Schedule A-3 in accordance with Article 15 of the Master Lease),
which funds shall be used to finance the purchase by CRC-I of such estates
for years, and (B) funds on deposit in the Construction Account (other than
funds in the Additional Unit Acquisition Account) as the Lessee acquires each
of the Potential Construction Units identified on the attached Schedule B (or
such Substitute Units acquired in substitution of any of the Potential
Construction Units identified on the attached Schedule B in accordance with
Article 15 of the CRC-II Lease) and CRC-II acquires an estate for years
therein from the Lessee, which funds shall be used to finance the purchase by
CRC-II of such estate for
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years in, and the construction by the Lessee of a Jack In The Box Restaurant
on, each such Property in accordance with the terms of the CRC-II Lease. Any
such release shall be made within five (5) Business Days after written notice
to the Trustee including the amount requested to be released, the date on
which the release is requested to be effected, and a schedule of the
Additional Unit(s) or Potential Construction Unit(s) with respect to which
such release is being requested, and satisfaction of the conditions set forth
in this Section 9.5(a) and Section 9.5(b), to the extent such funds are
available in the Additional Unit Acquisition Account or the balance of the
Construction Account, respectively. Any such release shall require delivery
to the Trustee of the following with respect to each such Potential
Additional Unit and Potential Construction Unit, each duly executed and
acknowledged (where required) by all of the parties thereto (as applicable),
and each in form and substance satisfactory to the Trustee and the
Noteholder's Counsel:
(i) an original certificate of the Lessee in the
form attached hereto as Exhibit K as to the facts set forth above
and the other matters set forth in Exhibit K (which certificate
shall include, in the case of a Substitute Unit, a certification by
the Lessee that the fair market value of the Substitute Unit is no
less than the fair market value of the unit identified on the
attached Schedule A-3 or B for which the Substitute Unit has been
substituted);
(ii) the original deed executed by the Lessee
conveying an estate for years in the applicable Property to the
applicable Borrower in the form attached hereto as Exhibit L with
such modifications thereto as may be necessary under applicable
state law as approved by Noteholder's Counsel;
(iii) an original Short-Form Master Lease, Notice
of Non-Responsibility and Subordination and Recognition Agreement in
the form attached hereto as Exhibit M with such modifications
thereto as may be necessary under applicable state law as approved
by Noteholder's Counsel;
(iv) an original CRC Mortgage executed by the
applicable Borrower, and an original Foodmaker Mortgage executed by
the Lessee, in each case with the collateral assignment thereof from
the Issuer to the Trustee, which Mortgages and collateral
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assignments shall be in the form of the deed of trust or mortgage
(as applicable) attached as Exhibits D-2 and D-4, respectively, with
such modifications thereto as may be necessary under applicable
state law as approved by Noteholder's Counsel;
(v) a supplement to the applicable CRC Lease
Assignment executed by the applicable Borrower, with consent thereto
executed by the Lessee, in the form attached hereto as Exhibit N;
(vi) a Uniform Commercial Code financing statement
on Form UCC-1 naming each of the applicable Borrower and the Lessee,
respectively, as debtor, the Issuer, as secured party and the
Trustee, as assignee;
(vii) the Insurance Policies or certificates (which
may be blanket certificates) evidencing the Insurance Policies for
the applicable Property;
(viii) the original Title Policy or Policies or
commitments therefor with respect to such Property, insuring the
applicable CRC Mortgage or Foodmaker Mortgage as valid and first
priority liens on the applicable Borrower's estate for years
interest and the Lessee's reversionary interest, respectively,
in such Property in favor of the Issuer and the Trustee (by virtue
of the collateral assignment thereof to the Trustee referred to in
clause (iv) above) subject to no exceptions other than Permitted
Encumbrances;
(ix) a copy of any survey used in connection with
the issuance of such Title Policy;
(x) a copy of a "Phase I" environmental report
concerning the Property, to the extent in the Lessee's or the
applicable Borrower's possession;
(xi) Uniform Commercial Code financing statement
on Form UCC-1 naming the Issuer, as debtor, and the Trustee, as
secured party;
(xii) an original amendment to the applicable CRC
Lease in the form attached hereto as Exhibit O-1 or O-2 (which shall
be the sole original thereof and which shall be delivered to the
Trustee and held by the Trustee during the term hereof);
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(xiii) an original Officer's Certificate executed by
an Authorized Officer of the Lessee in the form attached hereto as
Exhibit H;
(xiv) opinions of Independent Counsel addressed to
the Trustee and the Noteholders (including opinions of special New
York counsel and local counsel in the state in which each such
Property is located), substantially in the forms attached hereto as
Exhibits B, and I-1 through I-4, which opinions shall be approved by
Noteholders' Counsel, and may include customary assumptions,
limitations, qualifications and exclusions; and
(xv) an updated schedule to the CRC Notes
describing the Mortgages which secure such notes.
All such Security Documents and other documents and assignments thereof to
the Trustee shall, as applicable, be in appropriate form for filing or
recording and shall be duly filed or recorded in the offices where such
filing or recording is required in the state where the relevant Property is
located; provided that the Trustee shall not be required to determine whether
any document is in recordable form or see to the filing or recording of any
document. With respect to the original Security Documents or any other of
the documents referred to above or any assignments thereof to the Trustee
that requires filing or recordation, the Issuer shall represent and warrant
in writing that such original Security Document or other document or
assignment thereof has been delivered to the title company issuing the Title
Policies for filing or recordation, as the case may be and the Trustee is
hereby directed to accept such copies. In all such instances, the Issuer
shall deliver or cause to be delivered such original Security Document or
other document or assignment thereof to be filed or recorded to the Trustee,
with evidence of filing or recording, as the case may be, indicated thereon,
within 60 days after such release of funds from the Construction Account.
All filing and recording required pursuant to this
Section 9.5 shall be accomplished at the expense of the Issuer.
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All of the foregoing documents and items shall be subject
to review by the Noteholders' Counsel for conformity with the requirements
hereof and of the applicable CRC Lease and, in the case of a Substitute Unit
which is located in a state other than Arizona, California, Texas,
Washington, Illinois or Missouri, to review by local counsel in such state to
the extent Noteholders' Counsel deems reasonably necessary. The Trustee may
rely conclusively on the review by Noteholders' counsel as to conformity of
the foregoing documents or items with such requirements. The Issuer shall
pay or cause the Lessee to pay all expenses incurred by the Trustee and the
Noteholders in connection with any release of funds from the Construction
Account, including, without limitation, reasonable attorneys' fees and
expenses (including, without limitation, for special local counsel, if any)
incurred in reviewing any of the foregoing documents or items.
(b) In no event shall funds in the Construction Account
be released to the Lessee or to any other Person with respect to any
Potential Construction Unit or Additional Unit or any Substitute Unit: (i)
in excess of the lesser of (A) the amount allocated to such unit on the
attached Schedule B or A-3, as applicable (or, in the case of a Substitute
Unit, in excess of the amount allocated to the Released Unit on the attached
Schedule A-3 or B), or (B) in the case of any Potential Construction Unit,
the amount which, when added to all prior releases of funds from the
Construction Account (other than funds in the Additional Unit Acquisition
Account) pursuant to this Indenture, does not exceed the Maximum Construction
Unit Allowance and, in the case of any Potential Additional Unit, the amount
which when added to all prior releases of funds from the Additional Unit
Acquisition Account does not exceed the sum of the amounts allocated to such
units on Schedule A-3; (ii) if the Lessee has not acquired fee title to such
Property and conveyed an estate for years in such Property to the applicable
Borrower; (iii) if the Trustee has not received any of the documents,
instruments or items required to be delivered to the Trustee pursuant to
Section 9.5(a); (iv) if, in the case of a Substitute Unit, any of the other
conditions to such Substitution set forth in Article 15 of the applicable CRC
Lease have not been satisfied as certified by the Lessee in the certificate
referred to in clause (i) above; or (v) if a CRC Lease Event of Default or
Mortgage Event of Default under any Foodmaker Mortgage has occurred and is
continuing.
(c) If any of the conditions set forth in clauses (ii)
through (v) of Section 9.5(b) have not been met, the funds then remaining in
the Construction Account
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(including the Additional Unit Acquisition Account) and any Reinvestment
Income thereon shall not be released to the Lessee or any other Person, but
shall instead be retained in the Construction Account as security for the
payment of the Notes in accordance with the Deposit Accounts Security
Agreements and the collateral assignment thereof by the Issuer to the
Trustee, and upon a CRC Lease Event of Default or Mortgage Event of Default
under any Foodmaker Mortgage shall be transferred by the Trustee to the
Collection Account and applied to the Aggregate Outstanding Amount of the
Notes as provided in Section 10.1 or 5.8 (as applicable).
(d) Subject to satisfaction of all of the conditions
set forth in this Section 9.5, provided such funds have not been transferred
to the Collection Account as provided in Section 9.4(b), 9.5(c) and Section
10.1, such funds shall be released to the Lessee or its designee through the
escrow established with the title company issuing the Title Policies or, in
the case of the portion of any such funds to be released representing costs
of construction of the Jack In The Box restaurant to be constructed on a
Potential Construction Asset, directly to the Lessee in accordance with
written instructions from the Lessee upon the consummation of the Lessee's
acquisition of such Property. Funds in the Construction Account shall
continue to be released to the Lessee upon satisfaction of the conditions set
forth in this Section 9.5 notwithstanding any other Event of Default or any
foreclosure under any CRC Mortgage so long as no CRC Lease Event of Default
or Mortgage Event of Default under any Foodmaker Mortgage has occurred and is
continuing.
(e) Prior to releasing any funds from the Construction
Account, the Trustee shall receive and be entitled to rely conclusively upon
an Officer's Certificate of the Issuer and/or the Lessee and/or an Opinion of
Counsel to the effect that all conditions precedent herein to such release
have been satisfied.
Section 9.6. Establishment of and Releases from Closing Costs Account
and Administrative Expenses Account.
(a) The Trustee shall, prior to the Closing Date,
establish a segregated account for the benefit of the Noteholders which shall
be called the "Closing Costs Account" into which the Trustee shall, on the
Closing Date, deposit the amounts specified in Sections 3.4(a) and (b),
respectively. All monies deposited in the Closing Costs Account pursuant to
this Indenture shall be held by the
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Trustee as part of the Trust Estate and shall be applied by the Trustee at
the written direction of the Issuer or any Noteholder to pay all Closing
Costs (to the extent such funds are sufficient therefor) incurred by the
Trustee or the Noteholders with respect to the closing hereunder on the
Closing Date, or the closing of the acquisition of any Potential Additional
Unit listed on the attached Schedule A-3 or Potential Construction Unit
listed on the attached Schedule B or Substitute Unit in the case of a
permitted Substitution, subject in the case of reimbursement to any
Noteholder of receipt of written certification from such Noteholder (with a
copy to the Lessee at its address set forth in the CRC Leases) that any
Closing Costs for which it requests reimbursement were properly incurred in
connection with any such closing. In the event the monies deposited in the
Closing Costs Account are not sufficient at any time to pay all such Closing
Costs in full, the Issuer shall pay or shall cause the Lessee to pay all
excess Closing Costs on the Closing Date or, in the case of the closing of
any Potential Additional Unit or Potential Construction Unit or any
Substitute Unit, on the closing date thereof, or otherwise promptly upon
written demand by the Trustee. In the event that upon satisfaction and
discharge of this Indenture pursuant to Section 4.2, the actual Closing Costs
that have been incurred by the Trustee and the Noteholders hereunder are less
than the monies remaining in the Closing Costs Account, such excess funds
shall be released by the Trustee to the Lessee upon its written certification
that it is entitled to such excess funds. The Trustee shall be entitled to
rely conclusively on any such certification.
(b) The Trustee shall, prior to the Closing Date,
establish a segregated trust account for the benefit of the Noteholders which
shall be called the "Administrative Expenses Account" into which the Trustee
shall deposit, on each Payment Date, to the extent available, $25,000 from
the funds deposited in the Collection Account (after giving effect to any
distributions from the Collection Account pursuant to clauses FIRST through
SEVENTH of Section 10.1) representing the estimated Administrative Expenses
for the preceding six (6) month period. All monies deposited in the
Administrative Expenses Account pursuant to this Indenture shall be held by
the Trustee as part of the Trust Estate and shall be applied by the Trustee
to pay Administrative Expenses. In the event the monies deposited in the
Administrative Expenses Account are not sufficient at any time to pay in full
any Administrative Expenses then due but unpaid, the Issuer shall pay or
shall cause the Lessee to pay such excess Administrative Expenses promptly in
accordance with Section 6.7 hereof. Funds deposited in the Administrative
Expenses Account and not applied as provided
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herein shall be held by the Trustee in the Administrative Expenses Account
and shall be used to pay subsequently accrued Administrative Expenses;
provided, that upon satisfaction and discharge of this Indenture pursuant to
Section 4.2, any excess funds in the Administrative Expenses Account not
needed to pay Administrative Expenses shall be released to the Lessee. The
Trustee shall provide the Issuer (with a copy to the Lessee at its address
set forth in the CRC Leases) with invoices for all Administrative Expenses,
whether or not paid from funds in the Administrative Expenses Account.
Section 9.7. Releases.
(a) In addition to releases of funds from the Sinking
Fund Account pursuant to Section 9.2(b), from the Equity Collection Account
pursuant to Section 9.2(c), from the Construction Account pursuant to Section
9.5, from the Closing Costs Account and the Administrative Expenses Account
pursuant to Section 9.6, and from the Proceeds Account pursuant to Section
11.5, the Trustee may, and when required by the provisions of this Indenture
shall, execute instruments to release property from the lien of this
Indenture, or convey the Trustee's interest in the same, in all cases in
accordance with the provisions of this Indenture. No party relying upon an
instrument executed by the Trustee as provided in this Section 9.7 shall be
bound to ascertain the Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
(b) The Trustee shall, at such time as there are no
Notes Outstanding and all obligations of the Issuer hereunder have been
satisfied (including the payment of all fees and expenses of the Trustee),
release the Trust Estate from the lien of this Indenture and deliver it to
the Issuer or other Person legally entitled thereto.
Section 9.8. Reports.
The Trustee and the Issuer shall each supply in a timely
fashion to the other and, upon request to any Noteholder, any information
available to either of them that the other, or any Noteholder, may from time
to time request with respect to the CRC Notes or the Collection Account,
Sinking Fund Account, Construction Account, Closing Costs Account,
Administrative Expenses Account, Equity Collection Account or Proceeds
Account or that is reasonably needed to complete the Payment Date Statement
or to provide any other information required to be provided by Section 9.3.
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Section 9.9. Form of Reports.
With the prior written consent of the Majority
Noteholders, the Issuer or the Trustee may change the format of any report
required to be delivered by it pursuant to this Indenture in order to better
present the information required by this Indenture or to clarify any
ambiguities in such reports. Any such change in any report will be effective
after such consent and three Business Days after delivery of notice thereof
by the party making such change to the other party to this Indenture and the
other party to this Indenture may change the format of any reports it
delivers to correspond to such changes.
ARTICLE TEN
APPLICATION OF MONIES
Section 10.1. Disbursements of Monies from the Collection Account.
(a) On each Payment Date, the Trustee shall withdraw
funds from the Collection Account (unless otherwise provided pursuant to
Section 5.8 hereof) and shall make the following disbursements to the extent
funds are available therefor:
FIRST: to the Noteholders, an amount equal to the interest
previously due on the Notes but unpaid;
SECOND: to the Noteholders, an amount equal to the interest
due on the Notes;
THIRD: to the Noteholders, an amount equal to any premium
previously due with respect to the Notes but unpaid;
FOURTH: to the Noteholders, an amount equal to any premium
due on the Notes;
FIFTH: to the Noteholders, an amount equal to the principal
previously due with respect to the Notes but unpaid;
SIXTH: to the Noteholders, an amount equal to the principal
due on the Notes;
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SEVENTH: with respect to each Payment Date to and including
the Year Nine Installment Payment Date, the Aggregate Unit Sinking
Fund Payments due on such date under the Notes shall be deposited in
the Sinking Fund Account in accordance with Section 9.2(b);
EIGHTH: $25,000 shall be deposited in the Administrative
Expenses Account in accordance with Section 9.6(b);
NINTH: to the payment of all amounts due and unpaid to
the Trustee under Section 6.7 and to the payment of all remaining
Administrative Expenses to the extent not paid from funds held in
the Administrative Expenses Account;
TENTH: to Foodmaker, an amount not to exceed all Reinvestment
Income earned on the funds in the Construction Account during the
preceding Interest Accrual Period;
ELEVENTH: to the Equity Collection Account in an amount
equal to the Equity Collection Account Contributions previously due
but unpaid or then due under the Notes;
TWELFTH: on any Payment Date (or on the Stated Maturity)
on which (after giving effect to the distributions made pursuant to
the foregoing clauses) there is no continuing Default or Event of
Default, to the Issuer or to such Person as the Issuer may direct or
to any other Person legally entitled thereto, an amount equal to the
remaining funds in the Collection Account.
If, on any Payment Date the amount on deposit in the
Collection Account is insufficient to make the payments set forth in
clauses FIRST through EIGHTH, then the Trustee shall, before making
such payments, transfer to the Collection Account funds sufficient
to make such payments from the Construction Account, the Equity
Collection Account and the Proceeds Account to the extent funds are
available therefor.
If, in order to make the disbursements set forth above,
the Trustee requires additional information with respect to the
priority of payments within any clause above or otherwise, the
Trustee may request and the Issuer shall provide the Trustee with
such information.
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(b) If the amount available in the Collection Account
on a Payment Date is insufficient to make the full amount of the
disbursements required by the accounting furnished by the Issuer pursuant to
Subsection 9.3(a), the Trustee shall make the disbursements called for in the
order and according to the priority set forth under Subsection 10.1(a) above
or Section 5.8, as the case may be, to the extent funds are available
therefor.
Section 10.2. Trust Account.
All monies held by, or deposited with the Trustee in the
Collection Account, pursuant to the provisions of this Indenture shall be
deposited in one or more segregated trust accounts for the benefit of the
Noteholders. To the extent monies deposited in any trust account exceed the
FDIC insured amounts, such accounts shall be invested in Eligible Investments
in the manner provided in Subsection 9.2(b).
ARTICLE ELEVEN
ADMINISTRATION AND SERVICING OF CRC
NOTES AND MORTGAGES
Section 11.1. Duties and Responsibilities as to Servicing.
The Trustee shall receive such amounts as are delivered
to it with respect to each CRC Note, and shall hold, and subject to the
provisions hereof, enforce the CRC Notes and the Mortgages in the best
interests of and for the benefit of the Noteholders in accordance with the
terms of this Indenture. The Trustee shall not have any duties or
responsibilities regarding the CRC Notes and the Mortgages except those
expressly set forth in this Article Eleven and no implied covenants,
responsibilities, duties, obligations or liabilities shall be read into this
Indenture or the Mortgage Note Documents or otherwise imposed upon the
Trustee.
Section 11.2. Delegation of Duties; Sub-Servicing.
(a) The Trustee may execute any of its duties hereunder
by or through other Persons. The Trustee may enter into servicing agreements
with a servicer for the servicing and administration of all or part of the
CRC Notes and the Mortgages, provided such servicer and such servicing
agreement conform to the requirements therefor in this Indenture. Each
servicer must be a reputable, knowledgeable and competent servicer of
commercial mortgage loans and be qualified to transact business and be in
good standing under
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the laws of each state in which any Property serviced by the servicer is
located or be otherwise exempt under applicable law from such qualification.
References in this Indenture to actions taken or to be taken by the Trustee
in servicing the CRC Notes and the Mortgages include actions taken or to be
taken by a servicer on behalf of the Trustee provided that none of the
provisions of this Indenture relating to servicing agreements or to actions
taken through any such servicer or otherwise shall be deemed to relieve the
Trustee of any of its express duties and obligations to the Noteholders
hereunder, with respect to the servicing of the related CRC Notes and the
Mortgages or otherwise, and the Trustee shall be primarily obligated with
respect thereto to the same extent and under the same terms and conditions as
if it alone were performing all such duties and obligations. The Trustee
shall not be responsible for the acts or omissions of a servicer appointed
with due care. Following an Event of Default hereunder, the Administrative
Expenses to be reimbursed to the Trustee hereunder shall include the
reasonable fees of any duly appointed servicer.
(b) The Trustee shall send written notice to the Issuer
and Noteholders whenever it enters into any servicing arrangement identifying
the servicer and enclosing a copy of the servicing agreement. Any servicing
agreement that may be entered into and any other transaction or services
relating to the CRC Loans involving a servicer shall be deemed to be between
the servicer and the Trustee alone and Noteholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the servicer.
Section 11.3. Fidelity Note and Errors and Omissions Insurance Policy.
The Trustee, at the Trustee's expense, will maintain in
effect during the term hereof a fidelity bond and an errors and omissions
insurance policy, affording coverage for all directors, officers, employees
and other Persons acting on the Trustee's behalf with respect to the
Trustee's activities as a servicer of mortgage loans with recognized insurers
having an A. M. Best's rating of A+ or better and a Standard & Poor's rating
of "A" or better and in such amount as is customary for entities servicing
commercial mortgage loan portfolios (either owned by such entity or by third
persons) of a size similar to the portfolio serviced by the Trustee for
itself or others. On or prior to the date of delivery of this Indenture and
thereafter, upon the request of the Issuer or any Noteholder, the Trustee
shall furnish to the Issuer or such requesting Noteholder copies of all
binders and policies or
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certificates evidencing that such note and insurance policy are in full force
and effect. Notwithstanding the foregoing, the Trustee shall not be required
to maintain an errors and omissions policy so long as the long term unsecured
debt of the Trustee has a credit rating equal to or higher than AA.
Section 11.4. Files and Records.
The Trustee will maintain for each Mortgage a Mortgage
file consisting of a complete copy of each Mortgage and related Mortgage Note
Documents and any correspondence and other papers and documents relating to
such Mortgage coming into the possession of the Trustee and specifically
identifying such Mortgage that are material to the performance of the
obligations of the Trustee hereunder.
Section 11.5. Trustee Receipt of Insurance and Condemnation Proceeds;
Establishment of Proceeds Account.
(a) The CRC Leases and the Mortgages (and the
collateral assignments thereof) require certain Insurance and Condemnation
Proceeds to be delivered to the Trustee and certain funds to be deposited by
Foodmaker with the Trustee in connection with a Destruction. Any such
Insurance and Condemnation Proceeds and Foodmaker's funds (to the extent not
otherwise applied pursuant to Subsection 11.5(b) hereof), received (and
identified as such) by the Trustee shall promptly be deposited by the Trustee
into, and shall be held by the Trustee in, one or more segregated trust
accounts (collectively, the "Proceeds Account").
(b) Funds in the Proceeds Account shall be released by
the Trustee to the Lessee in accordance with the terms of Article 12 of the
CRC Leases and Section 1.03(c) of the Foodmaker Mortgages as certified by
Foodmaker to the Trustee. The Trustee may conclusively rely on a
certification by Foodmaker as to the satisfaction of such requirements and of
the requirements for release of funds contained in subsection (c) hereof, as
applicable.
(c) Upon the occurrence of a CRC Lease Event of Default
or a Mortgage Default under any Foodmaker Mortgage in each case known to a
Responsible Officer of the Trustee, all funds in the Proceeds Account will be
immediately deposited in the Collection Account for application to payments
on the Notes and other distributions pursuant to Subsection 10.1(a) or
Section 5.8, as applicable. Funds in the Proceeds Account shall continue to
be released to the Lessee upon satisfaction of the requirements of the CRC
Leases and the Foodmaker Mortgages as certified by Foodmaker to the Trustee
notwithstanding any other Event of Default or
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foreclosure under any CRC Mortgage so long as no CRC Lease Event of Default
or Mortgage Event of Default under any Foodmaker Mortgage has occurred and is
continuing as certified by Foodmaker.
Section 11.6. Excess Insurance and Condemnation Proceeds.
Any funds remaining in the Proceeds Account with respect
to a particular Property shall be released to the Lessee in accordance with
the CRC Leases upon satisfaction of the requirements of the CRC Leases as
certified by Foodmaker to the Trustee. The Trustee may conclusively rely on
a certification by Foodmaker as to the satisfaction of such requirements.
Section 11.7. Payment of Taxes and Other Charges.
With respect to each Property, the Issuer shall maintain
or shall, by monitoring compliance with the CRC Leases, cause the Lessee to
maintain accurate records reflecting the status of taxes, assessments, and
other charges which are or may become a lien upon any Property and the status
of insurance premiums and coverage under the Insurance Policies and shall
obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date and at a time appropriate for securing
the maximum discounts allowable. The Trustee shall have no responsibility to
monitor such compliance.
Section 11.8. Maintenance of Casualty Insurance.
The Issuer shall maintain or shall, by monitoring
compliance with the CRC Leases, cause the Lessee to maintain Insurance
Policies for each Property. The Trustee shall maintain or cause to be
maintained Insurance Policies for each REO Property. Any amounts received by
the Trustee under any such policies and any other Insurance and Condemnation
Proceeds received by the Trustee shall be deposited in the Proceeds Account
subject to disbursement pursuant to Sections 11.5 and 11.6.
Section 11.9. Insurance Proceeds.
Except as otherwise provided in the CRC Leases, the
Trustee shall be named as a payee on all insurance loss drafts and the
Trustee upon the occurrence and continuance of an Event of Default shall be
responsible for the disbursement of insurance loss settlements under each
Insurance Policy, including, but not limited to:
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(a) Arranging for and authorizing the restoration and
rehabilitation of the related Property in accordance with the Mortgage Note
Documents or of the related REO Property;
(b) Collecting, endorsing, and disbursing the Insurance
Proceeds and arranging for progress inspections and payments, if necessary;
and
(c) Complying with all requirements of each Insurance
Policy pertaining to the filing of claims and the settlement of insurance
losses.
Section 11.10. Enforcement of CRC Leases.
(a) Upon the occurrence of an Event of Default and
subject to the provisions of this Indenture, the Trustee shall enforce the
CRC Leases in accordance with their terms with respect to all payment and
performance by the Lessee thereunder. By virtue of the CRC Lease
Assignments, including the collateral assignments thereof by the Issuer to
the Trustee, the Trustee shall have all rights (but no obligations) of the
lessor under each CRC Lease, which may be exercised to the exclusion of the
Issuer and the applicable Borrower or jointly with either the Issuer or their
applicable Borrower in the Trustee's sole discretion, including, without
limitation, the right to make any election or give any consent, direction, or
waiver under such CRC Lease. The Trustee shall, nevertheless, not assume or
be deemed to have assumed any obligation of the lessor under either CRC Lease
unless the Trustee succeeds to the interest of the Issuer under any Mortgage
and forecloses on that Mortgage, but subject to the terms of the applicable
Memorandum of Lease.
(b) The Trustee shall immediately notify the Issuer of
the delinquency of any semi-annual payment due with respect to a CRC Note or
a CRC Lease.
Section 11.11. Protection of Security.
(a) Inspection of Properties. If a CRC Note is 60 days
or more delinquent, or if a Responsible Officer of the Trustee has reason to
believe that the interests of the Trustee and the Noteholders in a Property
may be materially adversely affected as a result of negligent or willful acts
or omissions of any Person or any default on the part of a Borrower under the
terms of its CRC Note or any other Mortgage note document and, after giving
notice thereof to each Noteholder, is directed by the Majority Noteholders to
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do so and receives satisfactory indemnity for its fees and expenses, the
Trustee shall make or cause to be made an immediate inspection of the
relevant Property and shall cause the delivery of a report with respect
thereto to the Issuer and each Noteholder. When an inspection reveals that
repairs are necessary, the Trustee shall demand forthwith that the Lessee
make or cause to be made all necessary repairs. In addition, if the Trustee
receives notice that any Property is in violation of any laws (including
building codes), the Trustee shall provide the Lessee with a copy thereof
and, if an Event of Default has occurred and is continuing, use reasonable
efforts to require that the Lessee make or cause to be made the repairs
necessary to fulfill such legal requirements.
(b) Notice of Liens and Other Actions. The Trustee
will promptly notify the Issuer and each Noteholder whenever the Trustee
receives actual notice that any levy or writ of attachment on any Property
has occurred or that a lien on any Property has been claimed, or in the event
of any actual or threatened condemnation of any Property.
(c) Filing of Continuation Statements. The Trustee
will file, or cause to be filed, any and all financing statements necessary
to continue the liens created by the financing statements executed by the
Borrowers and the Lessee to the Issuer or the Issuer to the Trustee on the
Closing Date.
Section 11.12. Notices of Default.
Each of the parties hereto will promptly notify the other
party hereto and each Noteholder in writing (a "Default Notice") of the
occurrence of any event of default with respect to a CRC Note or any Mortgage
of which it has actual knowledge, which Default Notice shall specify the
event of default.
Section 11.13. Intentionally Omitted.
Section 11.14. Modifications, Etc.
Upon prior written notice to the Noteholders with a copy
of each proposed modification, waiver, amendment, approval or consent, and
the prior written consent thereto of the Majority Noteholders or as otherwise
may be required pursuant to Section 7.17, the Trustee is authorized and
empowered to execute and deliver or cause to be executed and delivered, any
and all modifications, waivers, amendments, approvals or consents to any
provisions contained in any of the Mortgage Note Documents and any and all
instruments of
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satisfaction or cancellation or of full or partial release, discharge or
modification, and all other comparable instruments with respect to the
Mortgage Note Documents and the Properties, provided, however, that so long
as any Note remains outstanding the Trustee may not take any action with
respect to (a) any change in the interest rate or manner of calculating
interest on a CRC Note, (b) any forgiveness of any payment of principal or
interest on a CRC Note, (c) any extension of the final due date for
principal, (d) any release or substitution of security for a CRC Note (except
as expressly permitted pursuant to Section 5.06 of each Mortgage) or (e) the
waiver of any other term of a CRC Note that would result in one of the
modifications mentioned in this proviso, without the consent of the Majority
Noteholders. At the cost of the Issuer, the Issuer shall provide to the
Trustee, the Noteholders and the Rating Agencies a copy of the executed
amendment, supplement or modification as soon as practicable after its
execution. In accordance with Section 5.06 of each Mortgage, the Trustee is
further authorized, empowered and directed to execute and deliver or cause to
be executed and delivered a full or partial reconveyance of such Mortgage
upon satisfaction of the conditions therefor set forth in Section 5.06 (as
such fact is certified to the Trustee by the Issuer) of each Mortgage,
without the prior consent of or prior notice to the Noteholders.
Section 11.15. Realization Upon Defaulted Mortgage Loans.
(a) Upon written direction to do so from a Majority of
Noteholders and subject to Section 6.1(b)(iv), the Trustee will give such
notices of default, declare the CRC Note or CRC Notes, as applicable,
immediately due and payable and commence such proceedings with respect
thereto as are directed by the Majority Noteholders.
(b) If requested in writing by the Majority Noteholders
and subject to Section 6.1(b)(iv), the Trustee will, no later than sixty (60)
days after receipt of such request, cause to be prepared a general plan of
foreclosure with respect to the Properties or any thereof which secure the
CRC Loans or any CRC Loan which have or has been accelerated and with respect
to enforcement of the CRC Leases or either thereof that will include a
proposal regarding the order of foreclosure of such Properties or proposed
enforcement action, the proposed actions to be taken in connection therewith,
a good faith estimate of the time and expenses necessary to complete the
foreclosure plan or other proposed enforcement action and such other
information as any Noteholder may request thereto. In connection with the
preparation of such plan, at the request
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of the Majority Noteholders, the Trustee shall obtain an advice letter of
Independent counsel in each state in which such a Property is located and in
the state of California (and any other state as the Majority Noteholders may
direct) with respect to the effect or possible effect of exercising any
remedies pursuant to this Section 11.15(b) including, without limitation,
consideration of any applicable "one form of action" rules, anti-deficiency
legislation, equitable defenses of the applicable Borrower with respect to
marshalling of assets, or other issues such counsel may consider appropriate
to address concerning such exercise or remedies, and the Trustee shall
promptly deliver such advice letter of Independent counsel to each
Noteholder. The fees and expenses incurred in connection with each such
advice letter of Independent counsel shall be Administrative Expenses payable
in accordance with the terms of this Indenture, and any such fees and
expenses not so paid shall be paid by the Trustee, to the extent funds are
available from the Trust Estate or are otherwise provided to the Trustee, on
behalf of the Issuer subject to the Trustee's right of reimbursement therefor
pursuant to Section 6.7. Upon written direction to do so by the Majority
Noteholders (subject to Section 6.1(b)(iv)) the Trustee will: (i) foreclose
upon or otherwise comparably convert, or cause to be foreclosed upon or
comparably converted, the ownership of the applicable Property or Properties
or seek the appointment of a receiver with respect to the ownership of the
applicable Property or Properties, (ii) obtain a deed or deeds in lieu of
foreclosure of the applicable Property or Properties or, (iii) abandon the
applicable Property or Properties, or (iv) enforce either or both of the CRC
Leases; provided, however, that, notwithstanding anything else contained
herein or in the Mortgages, CRC Leases or related Security Documents, the
Trustee shall not commence foreclosure proceedings with respect to or take
any formal action to acquire title to any Property, take over the operation
of any Property or take any other action with respect to any Property if, as
a result of any such action, the Trustee, on behalf of the Noteholders, would
be considered to hold title to, to be a "mortgagee-in-possession" of or to be
an "owner" or "operator" of such Property within the meaning of CERCLA, or
any comparable law, or if, as a result of such action, the Trustee would be
subject to liability pursuant to any federal, state or local environmental
statute, regulation or similar requirement including but not limited to
CERCLA, the Resource Conservation and Recovery Act, the Toxic Substances
Control Act, the Clean Water Act and the Clean Air Act, or at common law.
The Trustee shall be reimbursed for all reasonable costs and expenses
(including fees and expenses of its counsel and agents) incurred by it in
connection with any
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foreclosure or comparable proceedings or enforcement of the CRC Leases (as
well as its normal compensation). In no event will the Trustee be liable for
the inaccuracy of any prediction, estimate or statement in connection with
the foreclosure or enforcement plan, provided that the Trustee acted in good
faith and accordance with the standard of care imposed hereunder.
Notwithstanding anything else contained herein to the contrary, the Trustee
will not, however, commence foreclosure proceedings with respect to or take
any formal action to acquire title to any Property, or take over the
operation of any Property or take any other action with respect to any
Property customarily administered by secured lenders), unless it has (i)
taken all actions necessary (if any) pursuant to the environmental indemnity
contained in the Grant Deed (as defined in the Mortgages for the applicable
Property and the CRC Leases to preserve, pursue, protect and enforce all
rights and remedies thereunder and (ii) received, and provided copies thereof
to, the Noteholders, a study prepared by a qualified Independent professional
engineer selected by the Majority Noteholders of whether such Property is
subject to or presents any toxic waste or environmental hazards, contingent
or accrued liabilities or any other hazards and an estimate of the cost of
curing or cleaning up any such hazard. In addition, if any given study
discloses any environmental hazards, the Trustee shall immediately deliver a
copy of such study to the applicable Borrower and the Lessee and (subject to
Section 6.1(b)(iv)) shall take all actions necessary pursuant to such
environmental indemnities to preserve, pursue, protect and enforce all rights
and remedies thereunder. The Trustee shall not be under an obligation of any
kind to expend its own funds towards the curing or cleaning up of any toxic
waste or environmental hazard found on any Property. The Trustee shall
report to the Internal Revenue Service and the applicable Borrower in the
manner required by applicable law the information required to be reported
regarding any Property that is abandoned or that has been foreclosed.
(c) Notwithstanding any other provision of this
Indenture, the Trustee shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any modification,
foreclosure, cancellation or abandonment that occurs by operation of law, or
that the Trustee may be restricted by law from preventing.
Section 11.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed
or certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the Noteholders.
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(b) The Trustee shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. All Insurance and Condemnation
Proceeds with respect to any REO Property shall be dealt with by the Trustee
pursuant to Sections 11.5 and 11.6 hereof. The Trustee shall establish and
maintain one or more segregated trust accounts (collectively, the "REO
Account"), held in trust for the benefit of the Noteholders, into which the
Trustee shall deposit revenues derived from such REO Property. Funds in the
REO Account may be invested in Eligible Investments so long as liquid funds
are always made available to make any transfers required by Section 11.16(c)
hereof.
(c) The Trustee shall deposit, or cause to be
deposited, on the Business Day immediately following receipt, in the REO
Account all revenues received by it with respect to any REO Property. The
Trustee shall withdraw from the REO Account funds necessary for the proper
operation, management, maintenance and disposition of any REO Property, but
only to the extent of amounts on deposit in the REO Account relating to such
REO Property. On each Payment Date, the Trustee shall withdraw from the REO
Account and deposit into the Collection Account the REO Net Income from each
REO Property on deposit in the REO Account.
(d) The payments or cash recoveries from sale or other
disposition of any REO Property (including proceeds of a final sale or
Insurance and Condemnation Proceeds) shall be deposited in the Collection
Account on the Business Day following receipt thereof for distribution on the
succeeding Payment Date in accordance with Subsection 10.1(a) or Section 5.8,
as the case may be.
(e) The Trustee shall keep and maintain records for the
purpose of accounting for all deposits to, and withdrawals from, the REO
Account pursuant to Section 11.16(b) or (c) or Section 11.17.
Section 11.17. Management of REO Properties.
If, upon the foreclosure, acceptance of a deed in lieu of
foreclosure, or other transfer of title to any Property, or the taking by the
Trustee of possession thereof pursuant to the Mortgage Note Documents, the
Trustee acquires any REO Property, the Trustee shall have full power and
authority to do any and all things in connection therewith, including without
limitation, to hold, lease, operate, manage, or otherwise deal with such REO
Property, subject to the direction of the Majority Noteholders with
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respect thereto. The Trustee may enter into a servicing agreement with a
servicer or an agreement with an independent contractor for the management of
REO Properties in accordance with the provisions of Section 11.2(a).
Section 11.18. Property Substitution.
(a) The Lessee shall have the right to make a Substitution
with respect to any Property subject to the CRC Leases with another property
(a "Substitution") in accordance with Articles 12, 15 and 28 of the
applicable CRC Lease.
(b) Any such Substitution shall require sixty (60) days'
prior written notice to the Trustee. Such notice shall include the date upon
which the Substitution is requested, the Property requested to be replaced,
and the proposed Substitute Unit. Any such Substitution shall be subject to
all of the terms and conditions set forth in Articles 12 and 15 (as
applicable) and Article 28 of the applicable CRC Lease, as certified by the
Lessee pursuant to the certificates referred to in clause (i) below. In
addition to all such conditions, such Substitution shall not occur unless and
until the Trustee has received all of the following, with respect to such
Substitution and the Substitute Unit, each duly executed and acknowledged
(where required), and each in form and substance satisfactory to Noteholders'
Counsel:
(i) a certificate of the Lessee in the form
attached as Exhibit P;
(ii) a copy of the deed evidencing the applicable
Borrower's estate for years in the Substitute Unit of a duration not
less than the then remaining estate for the Released Unit in the
form attached as Exhibit L;
(iii) an original Short-Form Master Lease, Notice
of Non-Responsibility, Subordination and Recognition Agreement in
the form of Exhibit M;
(iv) an original amendment to the applicable CRC
Lease subjecting the Substitute Unit to such CRC Lease in the form
attached hereto as Exhibit O-3 (which shall be the sole original
thereof and which shall be delivered to the Trustee and held by the
Trustee during the term hereof);
(v) an original CRC Mortgage and Foodmaker
Mortgage with respect to the Substitute Unit
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executed by the applicable Borrower and the Lessee, respectively,
with the collateral assignment thereof from the Issuer to the
Trustee, which Mortgages and collateral assignment shall be in the
form of the deed of trust or mortgage (as applicable) attached as
Exhibits D-1, D-2, D-3 or D-4, as the case may be, with such
modifications thereto as may be necessary under applicable state law
as approved by the Noteholders' Counsel;
(vi) an original supplement to the applicable CRC
Lease Assignment with respect to the Substitute Unit in the form
attached as Exhibit N;
(vii) a Uniform Commercial Code financing statement
on Form UCC-1 naming CRC-I or CRC-II, as applicable, and the Lessee,
respectively, as debtor, the Issuer, as secured party and the
Trustee, as assignee;
(viii) the Insurance Policies or certificates (which
may be blanket certificates) evidencing the Insurance Policies
concerning the Substitute Unit;
(ix) a copy of any survey required in connection
with the issuance of Title Policies concerning the Substitute Unit,
if available;
(x) a copy of the MAI appraisals required under
the applicable CRC Lease, each dated not more than 60 days before
the date of such Substitution, concerning the Substitute Unit;
(xi) a copy of a "Phase I" environmental report
concerning the Substitute Unit, to the extent in the Lessee's or
CRC-I's or CRC-II's possession;
(xii) any necessary Uniform Commercial Code
financing statements on Form UCC-1 naming the Issuer, as debtor, and
the Trustee, as secured party;
(xiii) the Title Policy or Policies for the
Substitute Unit or a commitment therefor, insuring the CRC Mortgage
and the Foodmaker Mortgage for such Substitute Unit as valid first
priority liens on, among other things, the applicable Borrower's
estate for years interest or the Lessee's reversionary interest in
such Property, as applicable, in favor of the Issuer and the Trustee
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(by virtue of the collateral assignment thereof to the Trustee
referred to in clause (vi) above), subject to no exceptions other
than Permitted Encumbrances;
(xiv) an updated schedule to the CRC Notes
describing the Mortgages which secure such notes; and
(xv) opinions of counsel addressed to the Trustee
and the Noteholders (including from special New York counsel and
local counsel acceptable to the Trustee in the state in which the
Substitute Unit is located), substantially in the forms attached
hereto as Exhibits B, and I-1 through I-4, as applicable, with
respect to, among other things the due authorization, execution,
delivery and enforceability by and against the Issuer, the
applicable Borrower and the Lessee of each of the documents referred
to in this Section to which such entity is a party, which opinions
may include customary assumptions, limitations, qualifications and
exclusions.
In no event shall any Substitution be permitted if a CRC
Lease Event of Default or an Event of Default under any Foodmaker Mortgage
has occurred and is continuing.
All such Security Documents and other documents and
assignments thereof to the Trustee shall be in appropriate form for filing or
recording and shall be duly filed or recorded in the offices where such
filing or recording is required in the state where the relevant Substitute
Unit is located; provided that the Trustee shall not be required to determine
whether any document is in recordable form or see to the filing or recording
of any document. With respect to the original Security Documents or any
other of the documents referred to above or any assignments thereof to the
Trustee that requires filing or recordation, the Issuer shall represent and
warrant in writing that such original Security Document or other document or
assignment thereof has been delivered to the title company issuing the Title
Policies for filing or recordation, as the case may be. In all such
instances, the Issuer shall deliver or cause to be delivered such original
Security Document or other document or assignment thereof to be filed or
recorded to the Trustee, with evidence of filing or recording, as the case
may be, indicated thereon, within 60 days after the Substitution.
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All filing and recording required pursuant to this
Section 11.18 shall be accomplished at the expense of the Issuer.
All of the foregoing documents and items shall be subject
to review by Noteholders' Counsel for conformity with the requirements hereof
and of the applicable CRC Lease, and if a Substitute Unit is located in a
state other than Arizona, California, Texas, Washington, Illinois or
Missouri, to review by local counsel in such state to the extent Noteholders'
Counsel deems reasonably necessary. The Issuer shall pay or cause the Lessee
to pay all expenses incurred by the Trustee and the Noteholders in connection
with any such Substitution, including, without limitation, reasonable
attorneys' fees and expenses (including, without limitation, for special
local counsel) incurred in reviewing any of the foregoing documents or items.
(c) Upon satisfaction of the foregoing conditions of
this Section 11.18, the Substitute Unit shall constitute a Property for all
purposes of this Indenture and the Trustee shall execute and deliver releases
relating to the Released Unit to release such Released Unit from the lien of
this Indenture and the lien of the applicable Mortgages in accordance with
Section 5.06 of the applicable Mortgages. The Trustee may rely conclusively
on Noteholders' counsel as to satisfaction of the conditions to any such
release.
Section 11.19. Early Termination Election.
The Lessee shall have the right, at its option, at any
time on or after the fifth anniversary of the Closing Date, to deliver an
Early Termination Election with respect to any Property, Potential Additional
Unit or Potential Construction Unit in accordance with Article 37 of the
applicable CRC Lease and have such Property or unit released from the lien of
this Indenture and any applicable Mortgages by making a payment under the
Notes as provided in Section 5 of the Notes, and satisfaction of all other
conditions set forth in Article 28 (as applicable to an Early Termination
Election) and Article 37 of the applicable CRC Lease and in Section 6 of the
Notes. The Issuer shall provide, or cause the Lessee to provide, to the
Trustee copies of all appraisals and all necessary calculations for such
prepayment as may be requested by the Trustee, with the notice to the Trustee
of prepayment required under the Notes. Upon receipt by the Trustee of
copies of such appraisals and calculations satisfactory to the Trustee, and
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satisfaction of all other conditions set forth or referred to in this Section
11.19 above, the Trustee shall execute and deliver releases relating to the
Terminated Unit(s) (as defined in the CRC Leases) to release such Property
from the lien of this Indenture and the applicable Mortgages. The Issuer
shall pay or cause the Lessee to pay all expenses incurred by the Issuer and
the Trustee in connection with any Early Termination Election, including,
without limitation, reasonable attorneys' fees and expenses.
Section 11.20. Limitation on Liability of the Trustee Under
Article Eleven.
Neither the Trustee nor any of its officers, directors,
employees, or agents shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under this Article Eleven; provided,
however, that this provision shall not protect the Trustee or any such Person
against any liability which would otherwise be imposed by reason of wilful
misconduct, bad faith, reckless disregard or negligence in the performance of
its duties under this Article Eleven, or (b) responsible in any manner to any
Person for any recitals, statements, representations, or warranties made by
the Issuer, Foodmaker, the Borrowers or any officer thereof contained in the
Mortgage Note Documents or in any certificate, report, statement, or other
document referred to or provided for in, or received by the Trustee under or
in connection with the Mortgage Note Documents or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of such Mortgage
Note Documents or for any failure of the Issuer, Foodmaker or either Borrower
to perform its obligations thereunder. The Trustee shall not be under any
obligation to any Person to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, such
Mortgage Note Documents or to inspect the properties, books, or records of
the Issuer, Foodmaker or either Borrower other than and to the extent as
expressly required hereunder.
ARTICLE TWELVE
MISCELLANEOUS
Section 12.1. Right to List of Holders.
Any Noteholder shall have the right, upon five days prior
notice to the Trustee, to obtain a complete list of Noteholders.
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Section 12.2. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such person may certify or give an opinion as to such matters in one or
several documents.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 12.3. Acts of Noteholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be
given or taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in
person or by an agent or proxy duly appointed in writing; and, except as
otherwise expressly provided herein or in such instrument, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved in any manner that the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by any Noteholder shall bind the
Holder (and any transferee thereof) of every
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Note issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof, in respect of anything done, omitted or suffered to be
done by the Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 12.4. Notices, Etc., to Trustee and Issuer.
Any request, demand, authorization, direction, notice,
consent, waiver, or Act of Noteholders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with:
(i) the Trustee by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder when
delivered if made, given, furnished or filed in writing to the
Trustee addressed to it at its Corporate Trust Office; or
(ii) the Issuer by the Trustee or by any
Noteholder shall be sufficient for every purpose hereunder if in
writing and mailed, by first-class mail, postage prepaid, sent by
facsimile or telecopier or sent by overnight courier to the Issuer
addressed to it c/o Mr. Christopher Wilson, at 1-1 Concord Green,
Concord, Massachusetts 01742, with a copy to Mr. Charles Duddles,
c/o Foodmaker, Inc., 9330 Balboa Avenue, San Diego, California
92123.
Section 12.5. Notices to Noteholders; Waiver.
Where this Indenture provides for notice to Noteholders
of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, by first-class mail,
postage prepaid, (or, upon the prior direction to the Trustee by a
Noteholder, sent by facsimile or telecopier or sent by overnight courier) to
such Noteholder, at its address for such notice as it appears on the
respective Note Register. Any defect in any notice so given to any
particular Noteholder shall not affect the sufficiency of such notice with
respect to other Noteholders, and any notice which is mailed in the manner
herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for any notice or delivery to Noteholders, such
notice shall also be delivered to the Rating Agencies so long as they
continue to rate any of the Notes.
The Trustee shall deliver to each Noteholder a copy of
any request, demand, authorization, direction, notice,
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consent, waiver or other document received by the Trustee, in connection with
this Indenture, any of the Mortgage Note Documents or any other documents
referred to herein, and which does not indicate it has been previously or
concurrently furnished to each Noteholder.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed
with the Trustee but such filing shall not be a condition precedent to the
validity of any action taken or omitted in reliance upon such waiver.
Section 12.6. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
Section 12.7. Successors and Assigns.
All covenants and agreements in this Indenture by the
Issuer shall bind its successors and assigns, whether so expressed or not.
Section 12.8. Separability.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 12.9. Benefits of Indenture.
Nothing in this Indenture or in the Notes, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Noteholders, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided, however,
that the Lessee shall be a third party beneficiary of those specific
provisions of this Indenture which call for payments to be made directly to
the Lessee or for performance of other obligations to be made in favor of the
Lessee.
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Section 12.10. Legal Holidays.
In the event that the date of any Payment Date or other
date for any payment hereunder shall not be a Business Day, then
notwithstanding any other provision of the Notes or this Indenture, payment
need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
any such Payment Date or other date for any payment hereunder, and no
additional interest shall accrue for the period from and after any such
nominal date.
Section 12.11. Limitation on Interest.
Anything herein or in any Note to the contrary
notwithstanding, the amount of interest payable or paid on any Note under the
terms of this Indenture shall be limited to any amount that shall not exceed
the maximum nonusurious rate of interest allowed by the applicable laws of
the United States and the State of New York, that could lawfully be
contracted for, charged, or received (the "Highest Lawful Rate"). In the
event any payment of interest is made in violation of this provision, the
parties hereto stipulate, and each Noteholder by his purchase of a Note is
hereby deemed to stipulate, that such excess amount shall be deemed to have
been paid as a result of an error on the part of both the Trustee, acting on
behalf of the Holder of such Note, and the Issuer and the Holder receiving
such excess payment shall promptly, upon discovery of such error or upon
notice thereof from the Issuer or the Trustee, apply the excess to the
payment of principal of such Note, if any, remaining unpaid. In addition,
all sums, which must be treated as interest, paid or agreed to be paid to the
Trustee for the benefit of Holders of Notes for the use, forbearance or
detention of money shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full term of such
Notes.
Section 12.12. Governing Law.
THIS INDENTURE, EACH NOTE AND EACH COLLATERAL
ASSIGNMENT
ATTACHED AS PART II TO EACH MORTGAGE SHALL BE CONSTRUED IN
ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 12.13. Counterparts.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
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be an original, but all such counterparts shall together constitute but one
and the same instrument.
Section 12.14. Indulgences Not Waivers.
Neither the failure nor any delay on the part of a party
to exercise any right, remedy, power or privilege under this Indenture will
operate as a waiver thereof, nor will any single or partial exercise of any
such right, remedy, power or privilege preclude any other or further exercise
of the same or of any other such right, remedy, power or privilege with
respect to any occurrence or be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver will be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 12.15. Recordation of Agreement.
To the extent permitted by applicable law, this Indenture
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the Properties are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Trustee
at the Issuer's expense at direction of the Majority Noteholders accompanied
by an Opinion of Independent Counsel to the effect that such recordation
materially and beneficially affects the interests of the Trustee or is
necessary for the administration or servicing of the CRC Notes and the
Mortgages. For the purpose of facilitating the recordation of this Indenture
as herein provided and for other purposes, this Indenture may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and such counterparts shall constitute but
one and the same instrument.
Section 12.16. Attorneys' Fees.
Notwithstanding anything to the contrary contained herein
but subject to the provisions of Section 2.12 hereof, in each case where this
instrument provides for the payment of the attorneys' fees and expenses of
in-house or staff counsel to the Noteholders or the Trustee, such provision
shall obligate the Issuer to pay only the reasonably allocated fees and
expenses of in-house or staff counsel to the Trustee, based on a billing for
legal services actually rendered on an hourly basis and at a reasonable
hourly rate.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be executed, as of the day and year first above written.
FM 1993A CORP., a Delaware corporation,
as principal and as agent for the Borrowers
By: /S/ CHARLES DUDDLES
-------------------------------
Name: Charles Duddles
Title: President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /S/ DANIEL GOLDEN
_________________________________
Name: Daniel Golden
Title: Assistant Vice President
ATTACHMENTS TO INDENTURE
SCHEDULES
Schedule A-1 Schedule of 29 Existing Assets to be funded
on the Closing Date
Schedule A-2 Schedule of 16 Construction Units to be
funded on the Closing Date
Schedule A-3 Schedule of 9 Potential Additional Units to
be funded after the Closing Date
Schedule B Schedule of 22 Potential Construction Units
to be acquired by Lessee after the Closing
Date
Schedule C Unit Percentages
Schedule D Schedule of Trustee's Fees