EXHIBIT 4.3.4
TRUST INDENTURE AND SECURITY AGREEMENT
dated as of December 21, 1993
between
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, NATIONAL ASSOCIATION,
a national banking association,
not in its individual capacity except as expressly
stated herein, but solely as Owner Trustee
under the Trust Agreement dated as of December 21, 1993
with the Owner Participant
and
WILMINGTON TRUST COMPANY,
a Delaware banking corporation,
as Indenture Trustee
________________________
SMITH'S FOOD & DRUG CENTERS, INC.
Leveraged Lease
of Six (6) Food and Drug Stores
and One (1) Distribution Center
TABLE OF CONTENTS
PAGE
RECITALS 1
GRANT OF SECURITY 2
ARTICLE 1 PROVISIONS OF GENERAL APPLICATION 5
SECTION 1.1 Definitions 5
SECTION 1.2 Compliance Certificates and Opinions 5
SECTION 1.3 Form of Documents Delivered to Indenture Trustee 5
SECTION 1.4 Acts of Noteholders; Record Dates 6
SECTION 1.5 Requests etc. to Indenture Trustee, Lessee,
Owner Trustee and Owner Participant 7
SECTION 1.6 Notices to Noteholders; Waiver 8
SECTION 1.7 Effect of Headings and Table of Contents 9
SECTION 1.8 Successors and Assigns 9
SECTION 1.9 Separability Clause 9
SECTION 1.10 Benefits of Indenture 9
SECTION 1.11 Governing Law 9
SECTION 1.12 Legal Holidays 9
SECTION 1.13 No Recourse Against Others 10
ARTICLE 2 THE NOTES 10
SECTION 2.1 Issuable in Series; Designations 10
SECTION 2.2 Form and Denomination 10
SECTION 2.3 [INTENTIONALLY OMITTED] 10
SECTION 2.4 Execution of Notes 10
SECTION 2.5 Temporary Notes 11
SECTION 2.6 Registration, Registration of Transfer
and Exchange 11
SECTION 2.7 Mutilated, Destroyed, Lost and Stolen Notes 12
SECTION 2.8 Payment of Interest and Principal 12
SECTION 2.9 Persons Deemed Owners 14
SECTION 2.10 Cancellation 14
SECTION 2.11 Authentication, Execution Delivery,
and Dating of Notes 14
SECTION 2.12 Source of Payments; Rights and Liabilities
of Owner Trustee; Owner Participant Not Liable 14
SECTION 2.13 Series of Notes 15
SECTION 2.14 Legends 17
SECTION 2.15 Series J Notes Superior 17
ARTICLE 3 SATISFACTION AND DISCHARGE 17
SECTION 3.1 Satisfaction and Discharge of Indenture 17
SECTION 3.2 Application of Deposited Money 19
SECTION 3.3 19
ARTICLE 4 RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME AND PROCEEDS FROM THE INDENTURE ESTATE 20
SECTION 4.1 Basic Rent; Interest on Overdue Installments
of Basic Rent 20
SECTION 4.2 Amount Received as Result of Event of Loss
or Exercise of Option to Terminate 22
SECTION 4.3 Amounts Received After, or Held at Time of,
Indenture Event of Default 22
SECTION 4.4 Amounts Received for which Provision is
Made in a Transaction Document 23
SECTION 4.5 Amounts Received for which No Provision Is Made 23
SECTION 4.6 Payments to Owner Trustee 23
SECTION 4.7 Excepted Payments 24
ARTICLE 5 COVENANTS 24
SECTION 5.1 Payment of Principal, Premium, if any,
and Interest 24
SECTION 5.2 Money for Note Payments To Be Held in Trust 24
SECTION 5.3 Maintenance of Office or Agency 25
SECTION 5.4 Title; Further Assurances; Recording 25
SECTION 5.5 Termination of Trust Agreement and Transfer
of Interest 25
SECTION 5.6 Notice of Default 26
SECTION 5.7 Discharge of Liens; Etc 26
SECTION 5.8 Notice of Remedial Action 26
ARTICLE 6 REDEMPTION OF NOTES 27
SECTION 6.1 Applicability of Article 27
SECTION 6.2 Notice to Indenture Trustee of Redemption 27
SECTION 6.3 [INTENTIONALLY OMITTED] 28
SECTION 6.4 Notice of Redemption 28
SECTION 6.5 Deposit of Redemption Price; Credit with
Respect to Surrender of Notes 28
SECTION 6.6 Notes Payable on Redemption Date 29
ARTICLE 7 ORIGINAL ISSUANCE AND DEBT REFINANCING 29
SECTION 7.1 Series J Notes 29
SECTION 7.2 Refinancing and Redemption 29
SECTION 7.3 Debt Refinancing Notes 30
ARTICLE 8 INDENTURE EVENTS OF DEFAULT; REMEDIES 30
SECTION 8.1 Indenture Events of Default 30
SECTION 8.2 Acceleration upon Notice; Rescission 31
SECTION 8.3 Enforcement of Remedies 32
SECTION 8.4 [INTENTIONALLY OMITTED] 33
SECTION 8.5 Actions for Ratable Benefit of Noteholders 33
SECTION 8.6 Noteholders May Demand Enforcement of
Rights by Indenture Trustee 33
SECTION 8.7 Control by Noteholders 34
SECTION 8.8 Noteholder May Not Bring Suit Except
under Certain Conditions 34
SECTION 8.9 Waiver of Past Defaults 35
SECTION 8.10 Right of Owner Trustee to Pay Interest,
Principal, etc.; Note Purchase 35
SECTION 8.11 Right of Noteholders to Receive Payment Not To Be Impaired
37
SECTION 8.12 No Action Contrary to Lessee's Rights
Under the Lease 38
SECTION 8.13 Waiver of Stay 38
SECTION 8.14 Right of Indenture Trustee to Perform
Covenants etc. 39
SECTION 8.15 Certain Other Rights of Owner Trustee 39
SECTION 8.16 Restoration of Rights and Remedies 39
SECTION 8.17 Rights and Remedies Cumulative 40
ARTICLE 9 THE INDENTURE TRUSTEE 40
SECTION 9.1 Certain Rights and Duties of Indenture Trustee 40
SECTION 9.2 Not Responsible for Recitals or
Issuance of Notes 42
SECTION 9.3 Indenture Trustee and Authorized Agents
May Hold Notes 43
SECTION 9.4 Funds May Be Held by Indenture Trustee or
Paying Agent; Investments 43
SECTION 9.5 Compensation, Reimbursement and
Indemnification 43
SECTION 9.6 Corporate Indenture Trustee Required;
Eligibility 44
SECTION 9.7 Resignation and Removal; Appointment of
Successor 44
SECTION 9.8 Acceptance of Appointment by Successor 46
SECTION 9.9 Merger, Conversion, Consolidation or
Succession to Business 46
SECTION 9.10 Maintenance of Agencies 47
SECTION 9.11 Co-Indenture Trustee or Separate Trustee 49
SECTION 9.12 Withholding Taxes 50
ARTICLE 10 NOTEHOLDERS' LISTS 51
SECTION 10.1 List of Names and Addresses of Noteholders 51
ARTICLE 11 SUPPLEMENTAL INDENTURES 51
SECTION 11.1 Supplemental Indentures Without Consent
of Noteholders 51
SECTION 11.2 Amendments with Consent of Noteholders 52
SECTION 11.3 Execution of Supplemental Indentures 54
SECTION 11.4 Effect of Supplemental Indentures 54
SECTION 11.5 Reference Notes to Supplemental Indentures 54
ARTICLE 12 SUBORDINATION OF PROPERTY 54
SECTION 12.1 Subordination of Security Interest in Indenture
Estate for Reasons Other Than Condemnation 54
SECTION 12.2 Removal of Property Without Release 55
SECTION 12.3 Purchasers Not Bound to Inquire 55
SECTION 12.4 Appoint Indenture Trustee Attorney-in-Fact 55
ARTICLE 13 EXCHANGE AND ASSUMPTION OF NOTES 55
SECTION 13.1 Exchange of Obligations of Owner Trustee for
Unsecured Obligations of the Lessee 55
SECTION 13.2 Exchange of Obligations of Owner Trustee
for Secured Obligations of the Lessee 57
ARTICLE 14 SUNDRY PROVISIONS 59
SECTION 14.1 Execution in Counterparts 59
SECTION 14.2 Lessee Not Liable 59
SECTION 14.3 Limitation of Liability 59
TRUST INDENTURE AND SECURITY AGREEMENT dated as of December 21, 1993
between State Street Bank and Trust Company of California, National
Association, a national banking association, not in its individual
capacity, except as expressly provided herein, but solely as Owner Trustee
(the "Owner Trustee") under the Trust Agreement dated as of December 21,
1993 (the "Trust Agreement") with the Owner Participant and Wilmington
Trust Company, a Delaware banking corporation, as trustee for the benefit
of the Noteholders (the "Indenture Trustee").
RECITALS:
A. The Owner Participant and the Owner Trustee have entered into the
Trust Agreement whereby, among other things, the Owner Trustee has declared
a certain trust for the use and benefit of the Owner Participant, subject,
however, to the lien and security interest of this Indenture and any
Supplemental Indentures, and the Owner Trustee is authorized and directed
to execute and deliver this Indenture;
B. The Owner Trustee has authorized the Notes, issuable in one or
more series as may be set forth in Supplemental Indentures hereto in
accordance, with the terms of this Indenture, and to secure the Notes and
to provide for the authentication and delivery thereof by the Indenture
Trustee, the Owner Trustee has duly authorized the execution and delivery
of this Indenture;
C. The Owner Trustee is the owner of the Lessor Interests in respect
of each of the Properties;
D. The Lessor shall concurrently lease the Lessor Interests to the
Lessee under the Leases; and
E. Each Lease will have been executed and delivered contemporaneously
with, and a memorandum in respect of each Lease will be recorded with the
Official Records for the county in which the Related Leased Property is
located together with the Related Supplemental Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that in consideration of
the premises, of the acceptance by the Indenture Trustee of the trust
hereby created and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, in order to secure (a)
the payment of the principal of, Premium, if any, and interest on the Notes
Outstanding from time to time hereunder according to their tenor and
effect, and (b) the performance and observance by the Owner Trustee for the
benefit of the Noteholders and the Indenture Trustee of all the covenants,
agreements and provisions contained herein and in the Notes, in each case
for the uses and purposes and subject to the terms and provisions hereof:
GRANT OF SECURITY:
Pursuant to the terms of each Supplemental Indenture to be executed
and delivered by the Owner Trustee, which is to provide for the grant of
security, in accordance with this Indenture and the other Transaction
Documents, the Owner Trustee shall grant, transfer, assign, mortgage,
warrant, alien, demise, release, set over, deliver and convey to a trustee,
in trust, with power of sale and right of entry, for the benefit of the
Indenture Trustee, its successors and assigns, the following described
property, rights and privileges, whether now owned or held or hereafter
acquired (herein referred to collectively, in respect of all Properties, or
in respect of any particular Property, as the context may require, the
"Indenture Estate"), to wit:
(a) all right, title and interest of the Owner Trustee, now
existing or hereafter arising, in and to the Related Lessor Interest;
(b) all right, title and interest of the Owner Trustee, now
existing or hereafter arising, in and to the Deed in respect of the Related
Lessor Interest, the Option Agreement to the extent that such Option
Agreement relates to the Related Property, the Related Lease in respect of
the Related Lessor Interest, and all sums now or hereafter payable to the
Owner Trustee with respect thereto, including, without limitation, (A) all
amounts of Rent under the Related Lease, payments pursuant to Section 16 of
the Related Lease, insurance proceeds and condemnation, requisition and
other awards and payments of any kind for or with respect to any part of
the Indenture Estate as contemplated in or by the Granting Clause Documents
(the foregoing sums, excluding all Excepted Payments, being hereinafter
referred to as the "Assigned Payments") and (B) all rights (exclusive of
Excepted Rights) of the Owner Trustee, now existing or hereafter arising,
to exercise any election or option or to make any decision or determination
or to give or receive any notice, consent, waiver or approval or to take
any other action under or in respect of any Granting Clause Document
relating to or in connection with the Related Lessor Interest (including,
without limitation, but subject to Section 6(c) of the Related Lease, all
the Owner Trustee's right, title, interest and estate in, to and under, any
and all warranties and other claims against dealers, manufacturers,
vendors, contractors and subcontractors relating to the construction, use
or maintenance of the Related Lessor Interest), as well as all rights,
powers and remedies on the part of the Owner Trustee, now existing or
hereafter arising and whether arising under any Granting Clause Document
relating to or in connection with the Related Lessor Interest, or by
statute or at law or equity or otherwise, arising out of any Event of
Default under the Related Lease;
(c) all moneys and securities now or at any time hereafter
paid to or deposited with or required to be paid to or deposited with the
Indenture Trustee pursuant to any provision of this Indenture or any
Granting Clause Document, in each case, relating to or in connection with
the Related Lessor Interest and held or required to be held by the
Indenture Trustee hereunder;
(d) all rents (including Rent), issues, profits, products,
revenues and other income of all property from time to time subjected to
the lien and security interest of this Indenture, relating to or in
connection with the Related Lessor Interest or the Related Supplemental
Indenture (other than such amounts derived from Lessee's Property or
properties title to which has vested in the Lessee pursuant to Section 8(e)
of the Related Lease), and all right, title and interest of every nature
whatsoever of the Owner Trustee, now existing or hereafter arising, in and
to the same and every part thereof;
(e) all other property of every kind and description, real,
personal and mixed, and all interests therein (other than the Lessee's
Property referred to in Section 8(h) of the Related Lease), now owned or
hereafter acquired by the Owner Trustee, pursuant to the provisions of the
Granting Clause Documents relating to or in connection with the Related
Lessor Interest (excluding removed parts as to which title has vested in
the Lessee pursuant to Section 8(g) of the Related Lease, whether located
in the Related Lessor Interest or elsewhere, without the necessity of
Supplemental Indentures), and the Indenture Trustee is hereby authorized to
receive any such property and to hold and apply any and all such property
subject to and in accordance with the terms of this Indenture as then
supplemented and with the terms of the Related Supplemental Indenture; and
(f) all right, title and interest of the Owner Trustee, now
existing or hereafter arising, in and to the Tripartite Agreement to the
extent such Tripartite Agreement relates to the Related Property; and
(g) all proceeds of any of the foregoing.
Notwithstanding the foregoing provisions, the Notes issued
pursuant to any Supplemental Indenture shall be secured only by the
"Indenture Estate" related to such Notes, as such term is defined in such
Supplemental Indenture, and shall not be secured by the "Indenture Estate"
related to any Other Notes, as such term is defined in any Other
Supplemental Indenture.
BUT EXCLUDING, HOWEVER, from the Indenture Estate any and all
Excepted Payments and Excepted Rights now existing or hereafter arising and
subject to the following provisions:
(aa) So long as no Indenture Event of Default shall have
occurred and be continuing, the Owner Trustee at all times shall retain, to
the exclusion of the Indenture Trustee, all rights of the Owner Trustee,
now existing or hereafter arising, to exercise any election or option or to
make any decision or determination or to give or receive any notice,
consent, waiver or approval or to take any other action under or in respect
of the Granting Clause Documents as relating to or in connection with the
Related Lessor Interest, as well as all rights, powers and remedies on the
part of the Owner Trustee, now existing or hereafter arising, and arising
under the Granting Clause Documents as relating to or in connection with
the Related Lessor Interest or by statute or at law or in equity or
otherwise, arising out of any Default or Event of Default under the Related
Lease; provided, however, that, except insofar as the same relates to
Excepted Payments to which the Owner Trustee or the Owner Participant is
entitled, the Owner Trustee shall not, without prior written consent of the
Indenture Trustee given with the consent of a Majority in Interest of
Noteholders, agree to any amendment to, or any modification, waiver,
discharge, supplement, or termination of, or grant any consent under, any
term or provision of (i) the following provisions of the Related Lease:
Section 2(a), Section 2(b) (if the result thereof would be to shorten the
term of the Related Lease to a period shorter than the period ending with
the latest maturity of any series of the Related Notes), Section 3(a),
Section 3(b) (if the result thereof would be that the Basic Rent payable
thereunder would be insufficient to pay principal or interest on the
Related Notes as same became due and payable), Section 3(c)(i), Section
3(c)(ii) (if the result thereof would be that the Supplemental Rent payable
thereunder would be insufficient to pay Premium, if any, in respect of the
Related Notes), Section 3(c)(iii) (if the result thereof would be to reduce
the amounts payable to or for the account of the Indenture or the Pass
Through Trustee), Section 3(g), Section 4, Section 5(a) (if the result
thereof would permit a use not permitted by Applicable Law or which would
constitute a public or private nuisance), Section 5(b), Section 6(a),
Section 6(b), Section 7, Section 8(a)(i), Section 8(c) (with respect to the
proviso of the penultimate sentence thereto), Section 8(g), Section 8(h),
Section 8(i), Section 9 (if the result thereof would be to lower the
threshold for a Casualty to constitute an Event of Loss or adversely affect
or delay or decrease the amount of any prepayment of the Related Notes in
the event of an Event of Loss), Section 10 (other than Section 10(b)),
Section 11(a), Section 11(b) (other than consents and actions of the Owner
Trustee, set forth in such section), Section 11(e), Section 14, Section 15
and Section 16; (ii) the definitions contained in Appendix A to the extent
that any amendment, modification, waiver, discharge, supplement or
termination, or consent to any thereof, would result in a substantive
change to any of the foregoing provisions which would contradict or alter
any such provision in a manner that would be prohibited as set forth above.
(bb) During the continuance of any Indenture Event of
Default caused by an Event of Default under the Related Lease, the Owner
Trustee at all times shall be entitled on a non-exclusive basis with the
Indenture Trustee to (i) enforce any covenant or obligation (including
obligations in respect of the payment of Rent) of the Lessee under the
Related Lease; provided, that in so enforcing any such covenant, the Owner
Trustee may not exercise any remedies under Section 16(a)(i) the Related
Lease other than as provided in clause (ii) below, unless such exercise is
required by law in order to effect the Owner Trustee's rights under clause
(ii) below, (ii) declare the Related Lease in default and exercise remedies
solely pursuant to Section 16(a) (v) (D) thereof (and such other remedies
as are required by law in order to effect the rights of the Owner Trustee
under this clause), (iii) [INTENTIONALLY OMITTED] and (iv) receive any
notice under the Granting Clause Documents as relating to or in connection
with the Related Lessor Interest, provided that any amount obtained by the
Owner Trustee, as a consequence of any of the above actions which is
payable to the Indenture Trustee or any Noteholder or to which the
Indenture Trustee is entitled shall (apart from Excepted Payments) be
received by the Owner Trustee, for the benefit of, and immediately paid
over to, the Indenture Trustee.
(cc) Subject to subparagraph (aa) above, but otherwise
without the consent of any of the Noteholders, at any time and from time to
time, the respective parties to the Transaction Documents may modify, amend
or supplement any of such Transaction Documents (other than this Indenture
or the Related Supplemental Indenture) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions thereof or modifying in any manner the rights of the respective
parties thereunder or may give any consent or waiver thereunder; provided,
however, that no such modification, amendment, supplement, consent or
waiver shall without the consent of each Noteholder affected thereby,
modify, amend or supplement, or give any consent in respect of or waive any
provision of, the Related Lease in such manner (i) as to reduce the amounts
payable by the Lessee under the Related Lease assigned to the Indenture
Trustee, or change the time for the payment thereof, so that such payments
are less than the amounts necessary to pay the principal of, Premium, if
any, and interest on the Outstanding Related Notes when due (whether at
maturity, upon acceleration or otherwise) or (ii) as would release the
Lessee from its obligation in respect of payment of Basic Rent, Casualty
Value, Termination Value or any other amount payable under the Related
Lease and intended to be used to pay the principal of, Premium, if any, or
interest on the Related Notes, in any manner inconsistent with clause (i)
above.
IT IS HEREBY COVENANTED AND AGREED that all the Related Notes are
to be issued and delivered, and that all property, rights and privileges
subject or to become subject hereto, are to be held subject to the further
covenants, conditions, uses and trusts herein set forth, and the Owner
Trustee, intending to be legally bound hereby, hereby covenants and agrees
with the Indenture Trustee for itself and for the equal and proportionate
benefit and security of the Noteholders of the Outstanding Related Notes
from time to time, and the Indenture Trustee agrees to accept the trusts
and duties herein set forth, as follows:
ARTICLE 1
PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions. Unless the context shall otherwise
require, each of the capitalized terms used in this Indenture and not
otherwise defined in this Indenture shall have the meaning assigned to it
in Appendix A, and the rules of usage set forth in Appendix A shall apply
thereto. As used in this Indenture, the term "parties" means,
collectively, the Owner Trustee and the Indenture Trustee. Unless
otherwise indicated, references in this Indenture to articles, sections,
paragraphs, clauses, appendices, schedules and exhibits are to the same
contained in or attached to this Indenture.
SECTION 1.2 Compliance Certificates and Opinions. Every request
or application by the Owner Trustee for action by the Indenture Trustee
shall be accompanied by an Officers' Certificate of the Owner Trustee and
an Opinion of Counsel stating in each case that in the opinion of the
Person making such certificate or giving such opinion the conditions
precedent, if any, to such action, provided for in this Indenture have been
complied with.
SECTION 1.3 Form of Documents Delivered to Indenture 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, 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.
Any certificate or opinion of an officer of the Owner Trustee may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer actually
knows that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous.
Any such certificate or opinion may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Owner Trustee stating that the information
with respect to such factual matters is in possession of the Owner Trustee,
unless such counsel actually knows. that the certificate or opinion or
representations with respect to such matters are erroneous.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
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 1.4 Acts of Noteholders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor, signed by such Noteholders in
person or by an agent duly appointed in writing and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee and, where
it is hereby expressly required, to the Owner Trustee and the Lessee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the 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 subject to Section 9.1, conclusive
in favor of the Indenture Trustee and the Owner Trustee, if made in the
manner provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved (1) by the certificate of any
notary public or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the Person executing such
instrument acknowledged to him the execution thereof; (2) by a notarized
affidavit of a witness to such execution; or (3) by having the signature
guaranteed by an "eligible guarantor institution", as that term is defined
in Rule 17Ad-15 under the Securities Exchange Act. The fact and date of
the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any such manner which the
Indenture Trustee deems sufficient,and where such execution is by an
officer of a corporation or association or a member of a partnership on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) The Owner Trustee may fix any date as the record date
for the purpose of determining the Noteholders entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or
taken by Noteholders, which date shall be no more than 60 days before the
first solicitation of a Noteholder made by any Person with respect to any
such action. If not set by the Owner Trustee prior to the first
solicitation of a Noteholder made by any Person with respect to any such
action or, in the case of any such vote, prior to such vote, the record
date for any such action or vote shall be the 30th day (or, if later, the
date of the most recent list of Noteholders required to be provided
pursuant to Section 10.1) prior to the first solicitation or vote, as the
case may be. With regard to any record date, only the Noteholders on such
date (or their duly designated proxies) shall be entitled to give or take,
or vote on, the relevant action.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by any Noteholder shall bind every other
holder of a Note issued upon the transfer thereof or in exchange therefor
or in lieu thereof, whether or not notation of such action is made upon
such Note.
(f) Without limiting the foregoing, a Noteholder entitled
hereunder to give or take any such action with regard to any particular
Note may do so with regard to all or any part of the principal amount of
such Note or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of
such principal amount.
SECTION 1.5 Requests etc. to Indenture Trustee, Lessee, Owner
Trustee and Owner Participant. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders or other document
provided for or permitted by this Indenture to be made upon, given or
furnished to, or filed with the following Persons, shall be sufficient if
in writing and delivered in person or by courier or mailed, first-class
postage prepaid (in the absence of a mail strike or other disruption of the
mail) or transmitted by means of telecopy or other wire transmission (with
request for assurance of receipt in a manner typical with respect to
communications of that type) to:
(1) the Indenture Trustee at
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Fax: (302) 651-1576
Attn: Corporate Trust Administration
(2) the Owner Trustee, at
750 Main Street
Suite 1114
Hartford, CT 06103
Fax: (203) 244-1899
Attn: Corporate Trust Department; or
(3) the Lessee, at
Smith's Food & Drug Centers, Inc.
1550 South Redwood Road
Salt Lake City, Utah 84104
Fax: (801) 974-1676
Attn: General Counsel; or
(4) the Owner Participant, at
PMCC Leasing Corporation
800 Westchester Avenue
Rye Brook, New York 10573-1031
Attn: Senior Vice President - Lease Financing
or to any of the above Persons at any other address or telecopy number
subsequently furnished in writing by it to each of the other Persons listed
above.
Whenever the Indenture Trustee shall receive any notice, report,
certificate, opinion or other document from the Owner Trustee, it shall
immediately send copies thereof to each of the other parties named above
(unless it shall be clear from the face of such documents or otherwise that
the originator thereof has already done so), and whenever the Indenture
Trustee shall send any notice, report, certificate, opinion or other
document to the Owner Trustee or the Noteholders, it shall simultaneously
send copies thereof to each of the other parties named above.
SECTION 1.6 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 first-class postage prepaid, to each Noteholder, at
such Person's address as it appears in the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the 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 Indenture Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon
such waiver.
In any case where notice to Noteholders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
SECTION 1.7 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience of reference only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns. All covenants, agreements,
representations and warranties in this Indenture by the Indenture Trustee
and the Owner Trustee shall bind and, to the extent permitted hereby, shall
inure to the benefit of and be enforceable by their respective successors
and assigns, whether so expressed or not.
SECTION 1.9 Separability Clause. 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 1.10 Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors and assigns hereunder, the Owner
Participant and its successors and permitted assigns and the Noteholders,
any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.11 GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CHOICE OF LAW DOCTRINE OF SUCH STATE.
SECTION 1.12 Legal Holidays. Unless otherwise provided with
respect to a specific series of Notes, in any case where any Installment
Payment Date, Interest Payment Date or Redemption Date or the Stated
Maturity of any Note, or any date on which any Defaulted Installment or
Defaulted Interest is proposed to be paid, shall not be a Business Day,
then (notwithstanding any other provision of this Indenture) payment of
interest or principal, and Premium, if any, need not be made on such date,
and if not made on such date shall instead be made on the next succeeding
Business Day with the same force and effect as if made on the Installment
Payment Date, Interest Payment Date, or Redemption Date or at the Stated
Maturity of such Note, or on the date on which the Defaulted Interest is
proposed to be paid, and, provided that such payment is so made on such
next succeeding Business Day, no interest shall accrue for the period from
and after such Installment Payment Date, Interest Payment Date, Redemption
Date or Stated Maturity, or date for the payment of any Defaulted
Installment or Defaulted Interest, as the case may be, to and including
such next succeeding Business Day.
SECTION 1.13 No Recourse Against Others. No director, officer,
employee or stockholder, as such, of the Remainderman Participant, the
Remainderman Trustee, the Owner Trustee or the Owner Participant, as the
case may be, or any Affiliate of the foregoing shall have any liability for
any obligations of the Owner Trustee under this Indenture or for any claim
based on, or in respect of or by reason of such obligations or their
creation. Each Noteholder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issue of the Notes.
ARTICLE 2
THE NOTES
SECTION 2.1 Issuable in Series; Designations. The Notes shall
be issuable hereunder in one or more series and with such designations as
are specified in a Supplemental Indenture, including as contemplated by
Section 2.13 and Article 7. Subject to Section 2.13 and Article 7, the
aggregate principal amount of the Notes that may be authenticated and
delivered under this Indenture is unlimited.
SECTION 2.2 Form and Denomination. The form of the Notes of any
series shall be established by or pursuant to the authority granted in the
Supplemental Indenture creating such series. The Notes of any series shall
be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plans as the officers of the Owner Trustee executing
the same may determine with the approval of the Indenture Trustee.
Any Notes of any series may be issued with appropriate
insertions, omissions, substitutions or variations, and may have imprinted
or otherwise reproduced thereon such legend or legends, not inconsistent
with the provisions of this Indenture, as may be required to comply with
any law or with any rules or regulations pursuant thereto, or with the
rules of any securities market in which the Notes of such series are
admitted to trading, or to conform to general usage.
The Notes of each series shall be issued only in registered form
in the denomination of $1,000 or integral multiples thereof, unless
otherwise provided in the Supplemental Indenture creating such series.
SECTION 2.3 [INTENTIONALLY OMITTED]
SECTION 2.4 Execution of Notes. The Notes shall be executed on
behalf of the Owner Trustee by any of its authorized officers and attested
by any of its authorized officers but the same officer shall not execute
and attest the same Note. The signature of any of such authorized officers
on the Notes may be manual or facsimile. The Owner Trustee's seal shall be
reproduced on the Notes.
Notes bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Owner Trustee shall bind
the Owner Trustee, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery
of such Notes or did not hold such offices at the date of execution of this
Indenture.
SECTION 2.5 Temporary Notes. Pending the preparation of
definitive Notes, the Owner Trustee may execute, and upon the written order
of the Owner Trustee signed by a Responsible Officer, the Indenture Trustee
shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor of the definitive Notes in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as may be appropriate for temporary
Notes, all as may be determined by the officers executing such Notes with
the concurrence of the Indenture Trustee.
If temporary Notes of any series are issued, definitive Notes of
such series will be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes held by any Noteholder
shall be exchangeable for definitive Notes upon surrender of the temporary
Notes at any office or agency to be maintained for such purpose pursuant to
Section 5.3, without charge to such Noteholder. Upon surrender or
cancellation of any one or more temporary Notes, the Owner Trustee shall
execute and the Indenture Trustee shall authenticate and deliver in
exchange there for a like aggregate principal amount of definitive Notes of
the same series with the same interest rate and Stated Maturity in
authorized denominations. Until so exchanged the temporary Notes shall in
all respects be entitled to the same security and benefits under this
Indenture as definitive Notes.
SECTION 2.6 Registration, Registration of Transfer and Exchange.
The Owner Trustee shall cause to be kept at the designated office of the
Note Registrar a register in which, subject to such reasonable regulations
as the Indenture Trustee may prescribe, the Owner Trustee shall provide for
the registration of Notes and of transfers and exchanges of Notes. This
register is herein sometimes referred to as the "Note Register."
Upon surrender for registration of transfer of any Note at the
designated office of the Note Registrar, or at any office or agency
maintained for such purpose pursuant to a Section 5.3, the Owner Trustee
shall execute and register, and the Indenture Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one
or more new Notes of the same series with the same interest rate and Stated
Maturity as the Notes so to be transferred for a like aggregate principal
amount, in any authorized denominations and bearing numbers not
contemporaneously outstanding.
At the option of any Noteholder, Notes may be exchanged for an
equal aggregate principal amount of Notes of the same series with the same
interest rate and Stated Maturity as the Notes so to be exchanged and in
any authorized denominations, upon surrender of the Notes to be exchanged
at such designated office, or at any other office or agency maintained for
such purpose pursuant to Section 5.3. Whenever any Notes are so
surrendered for exchange, the Owner Trustee shall execute, and the
Indenture Trustee shall authenticate and deliver, the Notes which the
Noteholder making the exchange is entitled to receive.
All Notes issued upon registration of transfer or exchange of
Notes shall be the valid obligations of the Owner Trustee, evidencing the
same debt, and entitled to the
same security and benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Note Registrar duly
executed by the Noteholder thereof or his attorney thereunto duly
authorized in writing.
Unless otherwise provided as a term of a series of Notes, no
service charge shall be required of any Noteholder with respect to any
transfer or exchange of Notes, but the Note Registrar 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, other than exchanges pursuant to any of Section 2.5, 6.7 or 11.5 not
involving any transfer.
The Owner Trustee shall not be required to issue and the Note
Registrar shall not be required (i) to register the transfer of or exchange
any Note of any series during a period beginning at the opening of business
15 days before the date of the first mailing of a notice of redemption of
Notes of such series and ending at the close of business on the day of
first mailing of such notice or (ii) to register the transfer of or
exchange any Note selected for redemption in whole or in part except the
unredeemed portion of any Note selected for redemption in part.
SECTION 2.7 Mutilated, Destroyed, Lost and Stolen Notes. Upon
receipt by the Owner Trustee and the Indenture Trustee of evidence
satisfactory to them of the theft, loss, destruction or mutilation of any
Outstanding Note, and (in the case of any such theft, loss or destruction)
of indemnity satisfactory to them, and upon payment, if the Owner Trustee
or the Indenture Trustee shall require it, of a reasonable charge and upon
reimbursement to the Owner Trustee and the Indenture Trustee of all
reasonable expenses incident thereto, and upon surrender and cancellation
of such Note, if mutilated, the Owner Trustee may execute, and the
Indenture Trustee shall thereupon authenticate and deliver, a new Note of
like tenor and of the same series with the same interest rate and Stated
Maturity in lieu of such stolen, lost, destroyed or mutilated Note, or if
any such Note shall have matured or be about to mature, instead of issuing
a substituted Note the Owner Trustee may pay the same without surrender
thereof. Any indemnity bond shall name as obligees the Owner Trustee, the
Indenture Trustee, and if requested by the Owner Trustee, any Paying Agent.
SECTION 2.8 Payment of Interest and Principal. The Person in
whose name any Note is registered at the close of business on any Record
Date with respect to the immediately succeeding Installment Payment Date of
such Note shall be entitled to receive the Installment Payment Amount, if
any, or interest payable on such Installment Payment Date notwithstanding
any registration of transfer or exchange of such Note subsequent to such
Record Date and on or prior to such Installment Payment Date, except if and
to the extent the Owner Trustee shall default in the payment of such
Installment Payment Amount or the interest due on such Installment Payment
Date, in which case such defaulted installment ("Defaulted Installment") or
defaulted interest (the "Defaulted Interest") shall be paid to the Persons
in whose names Outstanding Notes of the applicable series are registered at
the close of business on a subsequent Record Date (which shall be not less
than 10 Business Days prior to the date of payment of such Defaulted
Installment or Defaulted Interest) established by notice given by mail by
the Indenture Trustee to the Noteholders of such series not less than 15
days preceding such subsequent Record Date after receipt of an amount of
money at least equal to the aggregate amount proposed to be paid in respect
of such Defaulted Installment or Defaulted Interest or arrangements
satisfactory to the Indenture Trustee have been made for such payment. The
term "Record Date" as used with respect to any Installment Payment Date or
Series J Interest Payment Date, as the case may be, except a date for
payment of Defaulted Installment or Defaulted Interest, shall mean the date
specified as such in the Supplemental Indenture providing for the creation
of such series.
Unless otherwise provided with respect to a particular series of
Notes, interest on the Notes shall be calculated on the basis of a 360-day
year consisting of 12 30-day months.
Subject to Articles 6 and 7, the principal of any particular
series of Notes may be payable either in full at Stated Maturity or in
installments on such dates and in such amounts as provided by the Related
Supplemental Indenture. Except as otherwise provided in the applicable
Supplemental Indenture with respect to a series of Notes, principal of and
Premium, if any, on the Notes payable at Stated Maturity shall be payable
to the Noteholders of such Notes upon presentation and surrender of such
Notes at the office or agency for the payment of Notes maintained for such
purpose pursuant to Section 5.3. Except as otherwise provided in the
applicable Supplemental Indenture with respect to a series of Notes,
interest or installments of principal other than installments due at
maturity on the Notes shall be paid on the applicable Installment Payment
Date by wire transfer of immediately available funds to the Paying Agent
and mailed to the registered addresses of the Noteholders as they shall
appear on the Note Register as of the Record Date preceding such Interest
Payment Date. Payment as aforesaid shall be made in such coin or currency
of the United States of America as, at the respective times of payment,
shall be legal tender for the payment of public and a private debts.
Notwithstanding the foregoing provisions of this Section 2.8, the
Owner Trustee may make, or cause to be made, payment of any Defaulted
Installment or Defaulted
Interest in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Notes in respect of which
installments of principal or interest is in default may be listed, and upon
such notice as may be required by such exchange, if, after notice given by
the Owner Trustee to the Indenture Trustee of the proposed payment pursuant
to this paragraph, such manner of payment shall be deemed practicable by
the Indenture Trustee.
Subject to the foregoing provisions of this Section 2.8, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in replacement of any other Note shall carry the rights to
interest accrued and unpaid, and to accrue interest, which were carried by
such other Note, and each such Note shall bear interest from whatever date
shall be necessary so that neither gain nor loss in interest shall result
from such registration of transfer, exchange or replacement.
SECTION 2.9 Persons Deemed Owners. Prior to due presentment for
registration of transfer, the Person in whose name any Note is registered
on the Note Register shall be deemed to be the absolute owner of such Note
for the purpose of receiving payment of principal (including, subject to
the provisions of Section 2.8 regarding the applicable record dates,
Installment Payment Amounts) of, Premium, if any, and (subject to Section
2.8) interest on such Note and for all other purposes whatsoever, whether
or not such Note be overdue, regardless of any notice to anyone to the
contrary.
SECTION 2.10 Cancellation. All Notes surrendered for payment,
redemption, or registration of transfer or exchange shall, if surrendered
to any Person other than the Indenture Trustee, be delivered to the
Indenture Trustee for cancellation. The Owner Trustee may at any time
deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Owner Trustee may have
acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Indenture Trustee. No Notes shall be authenticated
in lieu of or in exchange for any Notes canceled as provided in this
Section 2.10, except as expressly permitted by this Indenture. All
canceled Notes held by the Indenture Trustee shall be destroyed and
certification of their destruction delivered to the Owner Trustee unless,
by Owner Trustee Request, the Owner Trustee otherwise directs.
SECTION 2.11 Authentication, Execution Delivery, and Dating of
Notes. From time to time after the execution and delivery of this
Indenture, series of Notes may be issued pursuant to Section 2.13. Unless
otherwise specifically provided with respect to a series of Notes, Notes
shall be dated as of the date of their authentication. 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 in the form provided for in the Supplemental Indenture
creating the Notes of such series, executed by the Indenture Trustee by the
manual or facsimile signature of one of its authorized officers or
signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and delivered hereunder.
SECTION 2.12 Source of Payments; Rights and Liabilities of Owner
Trustee; Owner Participant Not Liable. All payments of principal of,
Premium, if any, and interest on a particular series of Notes, and any
other amounts due with respect to such series of Notes, shall be made only
from assets subject to or intended to be subject to the lien of the Related
Supplemental Indenture, the income and proceeds received by the Indenture
Trustee therefrom and all payments of principal, Premium, if any, and
interest, and any other amounts due with respect to such series of Notes,
shall be made in accordance with the terms of Section 2.8 and Article 4.
The Indenture Trustee agrees, and each Noteholder, by its acceptance of a
Note, shall be deemed to agree (a) that they will look solely to the assets
subject to or intended to be subject to the lien of the Related
Supplemental Indenture, the income and proceeds received by the Indenture
Trustee therefrom to the extent a available for distribution to such
Noteholder as herein provided and (b) that neither the Owner Participant
nor, except as otherwise expressly provided herein, the Owner Trustee in
its individual capacity is liable to any Noteholder or to the Indenture
Trustee for any amounts payable under any Note or this Indenture.
Anything herein to the contrary notwithstanding, except as set
forth in the following proviso: (i) all and each of the representations,
warranties, covenants and agreements herein made on the part of the Owner
Trustee are made and intended not as personal representations, warranties,
covenants and agreements by the Owner Trustee in its individual capacity or
for the purpose or with the intention of binding it personally but are made
and intended for the purpose of binding only the Related Indenture Estate,
and this Indenture and the Notes are executed and delivered by the Owner
Trustee solely in the exercise of the powers expressly conferred upon it as
trustee under the Trust Agreement; and (ii) no personal liability or
responsibility is assumed hereunder or under the Notes by or shall at any
time be enforceable against the Owner Trustee in its individual capacity or
the Owner Participant on account of any representation, warranty, covenant
or agreement hereunder of the Owner Trustee, either express or implied, all
such personal liability, if any, being expressly waived by the Indenture
Trustee and (by its acceptance of a Note) deemed to have been waived by
each Noteholder and by all Persons claiming by, through or under such
Noteholder; provided, however, that the Owner Trustee in its individual
capacity shall be liable hereunder (a) for the performance of its
agreements made in such capacity under Section 6.3 of the Participation
Agreement, (b) in the case of the inaccuracy of any representation or
warranty on the part of the Owner Trustee made in its individual capacity
contained in Section 5.3 of the Participation Agreement and (c) for its own
willful misconduct or gross negligence. If a successor Owner Trustee is
appointed in accordance with the terms of the Trust Agreement, such
successor Owner Trustee shall, without any further act, succeed to all the
rights, duties, immunities and obligations hereunder, and its predecessor
Owner Trustee in its individual capacity and as the Owner Trustee shall be
released from all further duties and obligations hereunder and under each
other Transaction Document, without prejudice to any claims against such
predecessor Owner Trustee in its individual capacity or as the Owner
Trustee for any default by such predecessor Owner Trustee in its individual
capacity or as the Owner Trustee, respectively, in the performance of its
obligations hereunder and under the other Transaction Documents to which it
is a party prior to such appointment or for any inaccuracies in warranties,
willful misconduct or gross negligence during the term of such predecessor
Owner Trustee.
SECTION 2.13 Series of Notes. Subject to the satisfaction or
waiver of the requirements of Section 2.4, 2.5 or 2.6 of the Participation
Agreement or Section 8(f) of the Related Lease, as the case may be, the
Owner Trustee shall have the right from time to time to issue Notes to
provide (a) a portion of the Lessor Purchase Price for the Related Lessor
Interest, (b) sufficient funds to redeem the principal amount of Related
Notes of any series theretofore authenticated and delivered hereunder, (c)
sufficient funds to redeem any Outstanding Series J Notes or (d) all or a
portion of the amount necessary to finance any Modification. The terms,
conditions, designations and maximum aggregate principal amount of each
series of such Notes (to the extent not inconsistent with this Indenture)
shall be set forth in the case of clause (a), (b) or (c), in a Supplemental
Indenture and, in the case of clause (d), in an amendment to the Related
Supplemental Indenture, in each case executed by the Owner Trustee and the
Indenture Trustee; provided that (i) no Premium or penalty shall be payable
as a result of (a) the redemption of such Notes occurring as a result of an
Event of Loss, (b) the payment of such Notes after the declaration of
acceleration of such Notes or in connection with the occurrence of an
Indenture Event of Default or (c) the refinancing of any Notes pursuant to
Section 2.6 of the Participation Agreement and (ii) the Installment Payment
Dates or Series J Interest Payment Dates, as the case may be, and the
Record Dates for all Notes shall not differ. The Indenture Trustee shall
authenticate and deliver all Notes in accordance with the provisions of the
Related Supplemental Indenture upon receipt by the Indenture Trustee of the
following documents:
(i) a copy of such Supplemental Indenture and the
certificates representing such Notes together with an Owner
Trustee Request that the Indenture Trustee execute such
Supplemental Indenture and authenticate such Notes;
(ii) an Officers' Certificate of each of the Owner
Trustee and the Owner Participant stating that no Indenture Event
of Default attributable to it has occurred and is continuing;
(iii) an Officers' Certificate of the Owner Trustee
stating that the requirements of the Participation Agreement and
the Related Lease, as appropriate, for the issuance of such Notes
have been met or waived;
(iv) an Officers' Certificate of the Lessee stating that
no Event of Default or Special Default has occurred and is
continuing;
(v) an Officers' Certificate of each of the Lessee and
the Owner Trustee and an Opinion of Counsel stating that all
requirements for, and conditions precedent to, the issuance of
such Notes under this Indenture and the related Supplemental
Indenture have been complied with;
(vi) so long as the Pass Through Trust holds any Notes,
if such Supplemental Indenture provides for the issuance of
Additional Notes, an opinion of counsel reasonably satisfactory
to the Pass Through Trustee to the effect that the issuance of
such Additional Notes does not cause, nor can it be reasonably
foreseen to cause, any Pass Through Trust to become an
"investment company," as defined in the Investment Company Act of
1940, as amended; and
(vii) such additional information, documents,
certificates and opinions as shall be reasonably requested by the
Indenture Trustee.
SECTION 2.14 Legends. Unless sold pursuant to an effective
Registration Statement under the Securities Act, all Notes issued hereunder
shall bear the following
legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SAID ACT.
Prior to any transfer of any Note bearing such legend, in whole
or in part (other than pursuant to an effective registration statement
under the Securities Act, or a sale or other disposition made pursuant to
Rule 144 or 144A (or any successor rules) of such Act), the Noteholder
thereof shall furnish, at the expense of such Noteholder, to the Owner
Trustee, the Lessee and the Indenture Trustee an Opinion of Counsel, which
shall be reasonably satisfactory in form and substance to such parties, to
the effect that such transfer is exempt from registration under the
Securities Act.
SECTION 2.15 Series J Notes Superior. In the event that any
provision in any First Supplemental Indenture or in any Series J Note shall
conflict with or be inconsistent with any provision of this Indenture then,
notwithstanding any provision in this Indenture to the contrary, the
provision in such First Supplemental Indenture or in such Series J Note, as
the case may be, shall control.
ARTICLE 3
SATISFACTION AND DISCHARGE
SECTION 3.1 Satisfaction and Discharge of Indenture. If at any
time (a) the principal of, Premium, if any, and interest on all of the
Notes Outstanding hereunder shall have been paid, (b) all of the Notes
theretofore authenticated (other than any such Notes which shall have been
replaced or paid as provided in Section 2.7) shall have been delivered to
the Indenture Trustee for cancellation or (c) there shall have been
irrevocably deposited with the Indenture Trustee as trust funds (A) cash
(other than moneys repaid by the Indenture Trustee or any Paying Agent to
the Owner Trustee in accordance with Section 5.2) sufficient to pay, or (B)
direct obligations of the United States of America, backed by its full
faith and credit and maturing as to principal, Premium, if any, and
interest in such amounts and at such times as will ensure the availability
of cash sufficient to pay, at the Stated Maturity of each Outstanding Note
or upon redemption thereof pursuant to this Indenture (the Owner Trustee
hereby agreeing that it will in such case deliver to the Indenture Trustee,
at the time such cash or obligations are deposited, an Owner Trustee
Request irrevocably specifying any such Redemption Date or Dates), and
(without duplication) on each date on which any payment of interest shall
be due and payable thereon, the full amount of the principal of, Premium,
if any, and interest on all Outstanding Notes on the date of such deposit
and if all other sums payable hereunder, under the Related Supplemental
Indentures and under such Notes to the Noteholders shall have been paid (or
held by the Indenture Trustee for payment in the case of unsurrendered
Notes or interest checks not cashed), then the terms and conditions set
forth in this Indenture shall no longer apply to such Notes of the
applicable Noteholders (except, in the case of clause (c), as to (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive
payments of principal of, Premium, if any, and interest on the Outstanding
Notes upon the Stated Maturity thereof or upon such Redemption Date or
Dates, as the case may be (but not upon acceleration (but including the
right to receive installments of principal)), (iv) rights, obligations and
immunities of the Indenture Trustee hereunder, (v) rights of Noteholders
under this Article 3 and (vi) the right, in the case of Outstanding Notes
for which a Redemption Date has not been specified, of the Owner Trustee to
redeem such Notes pursuant to Article 6, and the Indenture Trustee, upon an
Owner Trustee Request and at the cost and expense of the Owner Trustee and
upon delivery to the Indenture Trustee of an Officers' Certificate of the
Owner Trustee and an Opinion of Counsel for the Owner Trustee, each stating
that all conditions precedent to the satisfaction and discharge of this
Indenture, with respect to such Notes, have been complied with, shall
execute proper instruments acknowledging that and the terms and conditions
set forth in this Indenture shall no longer apply to such Notes (except
with respect to the cash and direct obligations deposited with the
Indenture Trustee and except as otherwise provided in this Article 3).
Concurrently with the deposit specified in clause (c) in the first sentence
of this Section 3.1, there shall be delivered to the Indenture Trustee an
Opinion of Counsel furnished by counsel reasonably satisfactory to the
Indenture Trustee and in form and substance reasonably satisfactory to the
Indenture Trustee, to the effect that (i) the holders of such Notes (and,
so long as any Pass Through Certificates remain outstanding, the holders of
such Pass Through Certificates) will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and such defeasance
and will be subject to federal income tax of the same amounts and in the
same manner and at the same times, as a would have been the case if such
deposit and defeasance had not occurred and (ii) such defeasance will not
result in the trust arising from such deposit constituting an investment
company under the Investment Company Act of 1940, as amended.
If this Indenture and the Related Supplemental Indentures are
released with respect to any Notes that will not become due and payable at
Maturity or upon redemption (pursuant to a notice of redemption duly given
to the Related Noteholders) within 60 days from the date of deposit
pursuant to this Section 3.1, the Indenture Trustee shall, as soon as
practicable after the date of such deposit and not more than 60 days or
less than 30 days before each date of Maturity or Redemption Date, mail
notice by first-class mail, postage prepaid, to such Noteholders at their
last addresses as they shall appear upon the Note Register, stating that
the deposit required by this Section 3.1 has been made with the Indenture
Trustee and that such Notes are no longer entitled to the benefits of this
Indenture or the Related Supplemental Indenture except with respect to the
cash and direct obligations deposited with the Indenture Trustee and except
as otherwise provided in this Article 3 and stating the Maturity or
Redemption Date or Dates upon which moneys are to be available for the
payment of the principal of, Premium, if any, and interest on such Notes.
SECTION 3.2 Application of Deposited Money. All moneys and
obligations deposited with the Indenture Trustee pursuant to Section 3.1
shall be held in trust and applied by it, in accordance with the provisions
of this Indenture, to the payment to the Noteholders of the particular
Notes for the payment or redemption of which such moneys and obligations
have been deposited with the Indenture Trustee of all sums due or to become
due thereon for principal and Premium, if any, and interest; provided,
however, that, in the case of Notes for which a Redemption Date was not
specified at the time of deposit of moneys and obligations and which are
subsequently called for redemption pursuant to Article 6, upon payment by
the Owner Trustee to the Paying Agent of an amount of money sufficient to
pay the Redemption Price of all the Notes which are to be redeemed on the
Redemption Date, the moneys and obligations originally deposited with the
Indenture Trustee in respect of such Notes shall be released to the Owner
Trustee. The Indenture Trustee and any Paying Agent shall promptly pay or
return to the Owner Trustee upon request of the Owner Trustee any cash or
direct obligations of the United States of America held by them at any time
that are not required for the payment of the amounts described above for
which cash or direct obligations of the United States of America have been
deposited pursuant to Section 3.1.
SECTION 3.3 Release or Partial Release of Supplemental
Indentures. With respect to any Supplemental Indenture entered into
pursuant to this Indenture, upon any of:
(a) the occurrence of an Event of Loss under the Related
Lease and either (i) payment in full of the principal of and interest on
all of the Related Notes Outstanding or (ii) the valid election by the
Lessee to substitute a Substitute Parcel for the Related Property in
accordance with Section 14(d) of the Related Lease and the satisfaction by
the Lessee of all of the conditions and requirements of such substitution
pursuant to such Section 14(d);
(b) the termination of the Related Lease pursuant to Section
14 thereof and either (i) the payment in full of the principal of, Premium,
if any, and interest on all of the Related Notes Outstanding, (ii) the
valid election by the Lessee to exchange full recourse securities for the
Related Notes Outstanding pursuant to Section 13.1 or 13.2 and the
satisfaction by the Lessee of the applicable conditions and requirements of
said exchange pursuant to such Section 13.1 or 13.2, as the case may be, or
(iii) the valid election by the Lessee to substitute a Substitute Parcel
for the Related Property in accordance with Section 14(d) of the Related
Lease and the satisfaction by the Lessee of the conditions and requirements
of such substitution pursuant to such Section 14(d);
(c) a redemption of all of the Related Notes Outstanding
pursuant to Section 2.5 of the Participation Agreement and the payment in
full of the principal of, Premium, if any, and interest on all of the
Related Notes Outstanding;
(d) the consummation of the Debt Refinancing on the Debt
Refinancing Date in accordance with Section 2.6 of the Participation
Agreement and the redemption of the Outstanding Notes in connection
therewith;
(e) any optional or mandatory redemption pursuant to Section
6.1(b)(iv) and the payment in full of the principal of, Premium, if any,
and interest on all of the Related Notes Outstanding; or
(f) the satisfaction by the Lessee of the conditions and
requirements for the release of any Release Parcel pursuant to the Out
Parcel Agreement;
at the cost and expense of the Owner Trustee and upon delivery to the
Indenture Trustee of an Officers' Certificate of the Owner Trustee and an
Opinion of Counsel for the Owner Trustee, each stating that all conditions
precedent to the release of the lien of the applicable Supplemental
Indenture have been complied with, shall execute proper instruments of
reconveyance with respect to the applicable Supplemental Indenture and the
Related Indenture Estate and shall release such lien thereby or, in the
circumstances described in clause (f) above, with respect to the applicable
portion of the Related Indenture Estate and shall deliver same to the Owner
Trustee.
ARTICLE 4
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME AND PROCEEDS FROM THE INDENTURE ESTATE
SECTION 4.1 Basic Rent; Interest on Overdue Installments of Basic
Rent.
(a) With respect to each Lease, except as otherwise provided in
Section 4.3 or 4.7, each installment of Basic Rent and any payment of
Supplemental Rent representing interest on overdue installments of Basic
Rent or in respect of interest due under Section 2.8 shall be promptly
distributed by the Indenture Trustee on the date such payment is due under
such Lease (or as soon thereafter as such payment shall be received by the
Indenture Trustee) in respect of the Related Notes in the following order
of priority:
first, so much of such aggregate amount as shall be required
to pay in full the principal of, Premium, if any, and interest
then due on all Related Outstanding Notes shall be distributed to
the Persons entitled thereto and in case such aggregate amount
shall be insufficient to pay in full the whole amount so due and
unpaid, then to the payment of such principal and interest,
without any preference or priority of one such Note over another,
ratably according to the aggregate amount then due for principal
and interest at the date of payment; and
second, the balance, if any, of such installment or payment
remaining thereafter shall be distributed to the Owner Trustee or
as the Owner Trustee may direct.
With respect to each Lease and the Related Notes, subject to Sections 4.2,
4.3 and 4.7, if, as a result of any failure by the Lessee to pay in full
any installment of Basic Rent when due (or within any applicable period of
grace) or for any other reason, there shall not have been distributed
pursuant to this Section 4.1 on any date (or within any applicable period
of grace) the full amount then distributable pursuant to clause "first" of
this Section 4.1, the Indenture Trustee shall distribute other payments of
the character referred to in Section 4.4 (other than payments representing
Supplemental Rent made pursuant to Section 3(c)(ii) of such Lease) or 4.5
then held by it or thereafter received by it, except as otherwise provided
in Section 4.3, to the Related Noteholders to the extent necessary to make
all the distributions then due pursuant to clause "first" of this Section
4.1(a); provided, however, that, to the extent any distribution is made
from such amounts held pursuant to Section 4.4 or 4.5 and the payment of
Basic Rent or Supplemental Rent in respect of which such distribution was
made, is subsequently made, such payment of Basic Rent or Supplemental
Rent, unless an Indenture Event of Default under the Related Supplemental
Indenture shall have occurred and be continuing, shall be applied to the
purpose for which such amount held pursuant to Section 4.4 or 4.5 had been
held, subject, in all cases, to the provisions of Sections 4.4 and 4.5.
The portion of each such installment or payment made to the Indenture
Trustee that is to be distributed by the Indenture Trustee in payment of
the Related Notes shall be applied in accordance with this Section 4.1(a).
Any payment received by the Indenture Trustee pursuant to the first
sentence of Section 8.10(a) (i) shall be distributed to the Related
Noteholders in the order of priority set forth in clause "first" of the
preceding paragraph.
(b) With respect to each Lease and the Related Notes, subject to
Sections 4.2, 4.3 and 4.7, if, at the time of receipt by the Indenture
Trustee of any installment of Basic Rent (whether or not then overdue) or
Supplemental Rent of the kind described in Section 3(c) (iv) of such Lease,
there shall have occurred and be continuing an Indenture Event of Default
under the Related Supplemental Indenture, then the Indenture Trustee shall
retain such payments (to the extent the Indenture Trustee is not then
required to distribute such amount pursuant to clause "first" of Section
4.1(a)) as part of the Related Indenture Estate and shall not distribute
any such payments pursuant to clause "second" of Section 4.1(a) until the
earliest of (i) the first Business Day occurring more than 180 days
following (a) in the case of an Indenture Event of Default under Section
8.1(a), the date of the occurrence of such Indenture Event of Default
(after giving effect to the grace period set forth in Section 8.1(a)) and
(b) in the case of any other Indenture Event of Default, the date on which
the Indenture Trustee shall have received notice of such Indenture Event of
Default (after giving effect to any applicable grace period), in which case
such retained payment shall be distributed pursuant to clause "second" of
section 4.1(a), (ii) such time as the Related Notes shall have been
declared, or shall have become, due and payable pursuant to Section 8.2, in
which case such retained payment shall be distributed pursuant to Section
4.3 and (iii) such time as such Indenture Event of Default shall no longer
be continuing or shall have been cured or waived, in which case such
retained payment shall be distributed pursuant to clause "second" of
Section 4.1(a); provided, however, that following an Indenture Event of
Default and the lapse of 180 days during which period the Indenture Trustee
failed to accelerate the Related Notes, such Indenture Event of Default
shall not thereafter be the basis of a retention of any Basic Rent or
Supplemental Rent payment hereunder.
SECTION 4.2 Amount Received as Result of Event of Loss or
Exercise of Option to Terminate.
(a) With respect to each Lease, except as otherwise provided
in Sections 4.3 and 4.7, if an Event of Loss under such Lease shall occur,
any amounts payable by the Lessee under Section 9(c) of such Lease received
by the Indenture Trustee in respect of such Event of Loss shall be
distributed on the date of receipt as provided in Section 4.3 in respect of
the Related Notes (except that payments and other amounts shall be
distributed under clause "second" thereof first and under clause "first"
thereof second).
(b) If the Lessee shall exercise its option to terminate a
Lease pursuant to Section 14 thereof and the Lessee shall not have
exchanged the Related Notes pursuant to Section 13.1 or 13.2, then (to the
extent that there shall have been paid or provision made for payment of the
amounts due on the Related Notes on the Obsolescence Redemption Date) there
shall be redeemed on the Obsolescence Redemption Date the unpaid principal
amount of all Related Notes, together with the Premium, if any, and all
accrued but unpaid interest thereon to the Obsolescence Redemption Date.
Except as otherwise provided in Section 4.3 or 4.7, any payments received
and amounts realized by the Indenture Trustee upon exercise of the Lessee's
option to terminate a Lease pursuant to Section 14 thereof shall in each
case be distributed on the Obsolescence Redemption Date as provided in
Section 4.3 (except that payments and other amounts shall be distributed
under clause "second" thereof first and under clause "first" thereof
second).
SECTION 4.3 Amounts Received After, or Held at Time of,
Indenture Event of Default. Except as otherwise provided in Section 4.7,
all payments received and amounts held or realized by the Indenture Trustee
in respect of a particular Indenture Estate (including any amounts realized
by the Indenture Trustee from the exercise of any remedies pursuant to the
Related Lease or pursuant to Article 8) after an Indenture Event of Default
shall have occurred and be continuing, as well as all payments thereafter
received or amounts then held by the Indenture Trustee as part of the
Related Indenture Estate, shall be distributed by the Indenture Trustee in
respect of the Related Notes in the following order of priority:
first, so much of such payments or amounts as shall be
required to pay the Indenture Trustee all amounts then
due to it pursuant to Article 9 with respect to such
Supplemental Indenture shall be applied to pay the
Indenture Trustee such amounts;
second, so much of such payments or amounts remaining
as shall be required to pay in full the principal,
Premium, if any, and interest thereon to the date of
distribution shall be applied ratably to the payment of
such principal, Premium, if any, and interest; and in
case such aggregate amount shall be insufficient to pay
in full the whole amount so due and unpaid, then to the
payment of such principal, Premium, if any, and
interest without priority of one over another, ratably
according to the aggregate unpaid principal, Premium,
if any, and interest on all Related Notes held by each
such Noteholder bears to the aggregate unpaid
principal, Premium, if any, and interest thereon to the
date of distribution; and
third, the balance, if any, of such payments or amounts
remaining thereafter shall be distributed to the Owner
Trustee or as the Owner Trustee may direct.
SECTION 4.4 Amounts Received for which Provision is Made in a
Transaction Document. Except as otherwise provided in Section 4.1, 4.2,
4.3 or 4.7, any payments received by the Indenture Trustee in respect of a
particular Indenture Estate for which provision as to the application
thereof is made in a Transaction Document shall be applied forthwith to the
purpose for which such payment was made in accordance with the terms of
such Transaction Document. Notwithstanding the foregoing, any payments
received by the Indenture Trustee from insurers (other than with respect to
self-insurance or policy deductibles) with respect to a Casualty Event
under the Related Lease shall, until the requirements of Section 9(b) of
the Related Lease have been satisfied, be held by the Indenture Trustee as
a part of the Related Indenture Estate, as security for the obligations of
the Owner Trustee under this Indenture with respect to the Related Notes,
the Related Supplemental Indenture and the Related Notes, but may be
released to the Lessee from time to time if and to the extent required by
Section 9(g) of the Related Lease.
SECTION 4.5 Amounts Received for which No Provision Is Made.
Except as otherwise provided in Section 4.1, 4.2, 4.3 or 4.7, any payments
received and any amounts realized by the Indenture Trustee in respect of a
particular Indenture Estate for which no provision as to the application
thereof is made in a Transaction Document or elsewhere in this Article 4
shall be held by the Indenture Trustee as part of such Indenture Estate,
and, to the extent the same are received or realized at any time after
payment in full of the principal of, Premium, if any, and interest on all
the Related Notes and all other amounts owing to the Related Noteholders
hereunder and under the Related Supplemental Indenture, such payments and
amounts, together with any other amounts remaining as part of such
Indenture Estate after payment in full of the principal of, Premium, if
any, and interest on all the Related Notes and all other amounts owing to
the Related Noteholders hereunder and under the Related Supplemental
Indenture shall be distributed by the Indenture Trustee in the order of
priority set forth in clause "second" of Section 4.1(a).
SECTION 4.6 Payments to Owner Trustee. Unless otherwise
directed by the Owner Trustee, all payments to be made to the Owner Trustee
hereunder shall be made to the Owner Trustee by wire transfer of
immediately available funds as soon as practicable but in any event prior
to 2:00 p.m., New York City time, on the date of receipt (except that such
payment may be made on the next succeeding Business Day, if agreed by the
Owner Trustee and the Indenture Trustee, if the Indenture Trustee has
received such funds on or after 3:00 p.m., New York City time, on such date
of receipt or if such date of receipt is not a Business Day), to such
account at such bank or trust company as the Owner Trustee shall from time
to time designate in writing to the Indenture Trustee.
SECTION 4.7 Excepted Payments. Anything in this Article 4 or
elsewhere in this Indenture or any Supplemental Indenture to the contrary
notwithstanding, any Excepted Payment received at any time by the Indenture
Trustee shall be distributed as promptly as practicable to the Person
entitled to receive such Excepted Payment.
ARTICLE 5
COVENANTS
SECTION 5.1 Payment of Principal, Premium, if any, and Interest.
Subject to Section 2.12, the Owner Trustee will duly and punctually pay the
principal of, Premium, if any, and interest and any other amounts due under
the Notes, hereunder and under the Related Supplemental Indenture in
accordance with, and subject to, the terms of such Notes, this Indenture
and such Related Supplemental Indenture.
SECTION 5.2 Money for Note Payments To Be Held in Trust. All
moneys deposited with the Indenture Trustee or with any Paying Agent for
the purpose of paying the principal of, Premium, if any, or interest on any
Notes shall be deposited and held in trust for the benefit of the
Noteholders entitled to such principal, Premium, if any, or interest,
subject to the provisions of this Section 5.2. Moneys so deposited and held
in trust shall not be a part of the Related Indenture Estate but shall
constitute a separate trust fund for the benefit of the relevant
Noteholders.
The Owner Trustee may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct any Paying Agent to pay, to the Indenture Trustee all sums
held in a trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same terms as those upon which such sums were held by such
Paying Agent, and, upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Indenture Trustee or any Paying
Agent in trust for the payment of the principal of, Premium, if any, or
interest on any Note and remaining unclaimed for two years and 11 months
(or such lesser period as may be required by law to give effect to this
provision) after such principal, Premium, if any, or interest has become
due and payable shall be paid to the Owner Trustee; and the Noteholder of
such Note shall thereafter, as an unsecured general creditor, look solely
to the Owner Trustee to the extent such moneys shall have been paid to the
Owner Trustee for payment thereof, and all liability of the Indenture
Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; provided, however, that the Indenture Trustee or such
Paying Agent, before being required to make any such payment, may, at the
expense of the Owner Trustee, cause to be mailed to each such Noteholder
notice that such money remains unclaimed and that, after a date specified
therein, which date shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will be paid to
the Owner Trustee.
SECTION 5.3 Maintenance of Office or Agency. The Owner Trustee
will maintain an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner
Trustee in respect of Notes and this Indenture may be served. The Owner
Trustee will give prompt written notice to the Indenture Trustee of the
location, and of any change in the location, of each such office or agency.
If at any time the Owner Trustee shall fail to maintain any such office or
agency or the Owner Trustee shall fail to furnish the Indenture Trustee
with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Indenture Trustee Office, and the
Owner Trustee hereby appoints the Indenture Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
SECTION 5.4 Title; Further Assurances; Recording.
THE OWNER TRUSTEE, IN ITS INDIVIDUAL CAPACITY AND AS OWNER
TRUSTEE, MAKES (i) NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS
TO THE TITLE, VALUE, COMPLIANCE WITH SPECIFICATIONS, CONDITION, DESIGN,
OPERATION, MERCHANTABILITY, ABSENCE OF LATENT DEFECTS, FREEDOM FROM PATENT
OR TRADEMARK INFRINGEMENT OR FITNESS FOR USE OF THE PROPERTIES (OR ANY PART
THEREOF) OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE LESSOR INTERESTS (OR ANY PART THEREOF), except
that the Owner Trustee in its individual capacity represents and warrants
that on the Closing Date and on the Debt Refinancing Date, the Indenture
Estate shall be free of any Lessor's Lien attributable to it in its
individual capacity and (ii) no representation or warranty as to the
validity sufficiency, legality or enforceability of any Transaction
Document, or as to the correctness of any statement contained therein
except, in the case of the Owner Trustee, to the extent that any such
statement in any Transaction Document was or is expressly made by the Owner
Trustee in its individual capacity, and except that the Owner Trustee
hereby represents and warrants in its individual capacity (x) that it has
the requisite corporate power and authority to execute and deliver the
Transaction Documents and Notes to which it is a party and that such
Transaction Documents, and Notes, upon execution and delivery, have been or
will be, duly executed and delivered by one or more of the Authorized
Officers of the Owner Trustee and (y) that its performance of all
transactions contemplated herein or therein have been duly authorized by
all necessary corporate action.
SECTION 5.5 Termination of Trust Agreement and Transfer of
Interest. Unless the Notes and all other sums payable hereunder and under
each Supplemental Indenture have been exchanged in accordance with Section
13.1 or 13.2, the Owner Trustee shall not act to terminate or permit the
termination of the Trust Agreement or the trust thereunder before the date
that the Notes and all other sums payable hereunder and under each
Supplemental Indenture to the Noteholders have been paid in full pursuant
to Section 3.1. Except as contemplated by the Transaction Documents,
without the prior written consent of the Indenture Trustee, the Owner
Trustee shall not transfer any interest in the Lessor Interests, either
legal or equitable, unless the transferee is the Lessee and all Outstanding
Notes have been exchanged in accordance with Section 13.1 or 13.2 or all
Outstanding Notes have been redeemed in accordance with the Indenture and
the Related Supplemental Indentures and all other sums payable hereunder
and thereunder have been paid.
SECTION 5.6 Notice of Default. The Owner Trustee will deliver
to the Indenture Trustee and the Lessee, promptly after an Authorized
Officer has obtained actual knowledge thereof, written notice of any
Indenture Event of Default and any event which with the giving of notice or
lapse of time, or both, would become an Indenture Event of Default.
SECTION 5.7 Discharge of Liens; Etc.
(a) The Owner Trustee, in its individual capacity, agrees
that it shall not, directly or indirectly, create, incur or suffer to exist
any Lessor's Liens attributable to it in its individual capacity, and will,
at its own cost and expense, promptly take such action as may be necessary
duly to discharge any such Lessor's Liens. The Owner Trustee agrees that
it shall not, directly or indirectly, incur or suffer to exist any Lessor's
Liens attributable to it in its fiduciary capacity and will promptly take
such action as may be necessary to discharge any such Lessor's Liens.
(b) Except as expressly permitted by the terms of the
Transaction Documents (except as provided in Section 8(f) of each Lease as
in effect on the Closing Date), the Owner Trustee will not contract for,
create, incur, assume or suffer to exist any debt, and will not guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance of any obligation or capability of so
doing, or otherwise), endorse (other than endorsements for collection in
the ordinary course of business) or otherwise be or become contingently
liable, directly or indirectly, in respect of the debt of any other Person.
(c) The Owner Trustee will not permit the Trust to enter
into any business or activity other than the business of owning the Lessor
Interests and leasing the thereof to the Lessee and the carrying out of the
transactions contemplated by the Transaction Documents and other activities
necessary or appropriate to the maintenance of its existence and the
performance of its obligations under the Transaction Documents, as amended
from time to time as permitted by the Granting Clause of the Supplemental
Indenture.
SECTION 5.8 Notice of Remedial Action. The Owner Trustee shall
furnish the Indenture Trustee with prior written notice of any remedy to be
undertaken by it pursuant to Section 16(a) of any Lease.
ARTICLE 6
REDEMPTION OF NOTES
SECTION 6.1 Applicability of Article.
(a) Except as otherwise provided in the Related Supplemental
Indenture, any redemption of Notes, as required by any provision of this
Indenture, shall be made in accordance with such provision and with this
Article 6 or Article 7, as applicable. Redemption of any Notes shall be
made only to the extent permitted by the Related Supplemental Indenture and
not inconsistent with the provisions hereof.
(b) (i) With respect to any Lease, upon the occurrence of an
Event of Loss where the Lessee has elected to terminate such Lease pursuant
to Section 9(c) thereof, each Outstanding Related Note shall be redeemed in
whole at a Redemption Price equal to the aggregate unpaid outstanding
principal amount thereof, without Premium (except with respect to the
Series J Notes), together with accrued and unpaid interest thereon, to but
excluding the applicable Redemption Date. The Redemption Date for Notes to
be redeemed pursuant to this Section 6.1(b)(i) shall be the Casualty Value
Date determined pursuant to Section 9(c) of the Related Lease.
(ii) With respect to any Lease, upon termination of such
Lease pursuant to Section 14 thereof and if the Lessee has not elected to
cause the Related Notes to be exchanged pursuant to Section 9.1 of the
Participation Agreement and Section 13.1 or 13.2, as the case may be hereof
or has not satisfied the conditions of such exchange pursuant to Section
13.1 or 13.2 hereof, each Outstanding Related Note shall be redeemed in
whole at a Redemption Price equal to the aggregate unpaid outstanding
principal amount thereof, plus Premium, if any, together with accrued but
unpaid interest thereon, to but excluding the applicable Redemption Date.
The Redemption Date for Notes to be redeemed pursuant to this clause (ii)
shall be the Obsolescence Redemption Date specified in such Lease.
(iii) [INTENTIONALLY OMITTED]
(iv) The Notes of any series are also subject to optional or
mandatory redemption, to the extent and under the circumstances set forth
in the Supplemental Indenture pursuant to which such Notes were issued and
Article 7 hereof.
(v) Upon the giving of the notice of redemption contemplated
by Section 6.4, and subject to Section 6.5, the principal amount of the
Notes to be redeemed, the Premium, if any, and interest thereon to the
Redemption Date specified in such notice shall become due and payable on
such Redemption Date as provided in Section 6.6.
SECTION 6.2 Notice to Indenture Trustee of Redemption. In case
of any election by the Owner Trustee to redeem any Notes, the Owner Trustee
shall, at least 30 days prior to the scheduled Redemption Date (unless a
shorter notice shall be satisfactory to the Indenture Trustee), notify the
Indenture Trustee in writing of such Redemption Date and of the series, the
principal amount and Stated Maturity of Notes to be redeemed.
SECTION 6.3 [INTENTIONALLY OMITTED]
SECTION 6.4 Notice of Redemption. Except as otherwise provided
in the applicable Supplemental Indenture with respect to a series of Notes,
notice of redemption of Notes shall be given by the Indenture Trustee by
first-class mail, postage prepaid, mailed not less than 25 days prior to
the Redemption Date, to each Noteholder of a Note to be redeemed, at his
address appearing on the Note Register and to the parties named in Section
1.5.
Unless otherwise provided as to a particular series of Notes, all
notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) [INTENTIONALLY OMITTED]
(d) any condition to such redemption including, without
limitation, that, if applicable, such redemption is subject to the
provisions set forth in Section 6.5(c),
(e) that on the Redemption Date, and upon the satisfaction of
each such condition, the Notes or portions thereof to be redeemed shall
cease to bear interest, and
(f) the place where such Notes are to be surrendered for payment
of the Redemption Price.
Notice of redemption of Notes to be redeemed shall be given by
the Indenture Trustee in the name of the Owner Trustee.
SECTION 6.5 Deposit of Redemption Price; Credit with Respect to
Surrender of Notes.
(a) Except as provided in paragraph (c) of this Section 6.5, on
or prior to any Redemption Date, the Owner Trustee shall deposit, or cause
to be deposited, with the Indenture Trustee an amount of money sufficient
to pay the Redemption Price of all the Notes which are to be redeemed on
that date.
(b) [INTENTIONALLY OMITTED]
(c) Except as otherwise provided in the applicable Supplemental
Indenture with respect to a series of Notes, any redemption notice with
respect to an optional redemption of Notes or with respect to a redemption
of Notes pursuant to Section 6.1(b)(ii) and to which moneys sufficient to
pay the principal of, Premium, if any, and interest on such Notes on the
Redemption Date of such Notes shall not have been deposited with the
Indenture Trustee, shall state, and it shall be the case that, unless, upon
the giving of such notice, such Notes shall be deemed to have been paid
pursuant to Section 3.1, such redemption shall be conditional upon the
receipt by the Indenture Trustee (on or prior to the Redemption Date) of
moneys in immediately available funds sufficient to pay the principal of,
Premium, if any, and interest on such Notes to be redeemed, and that if
such moneys shall not have been so received, such notice of redemption
shall be of no force and effect, and the Owner Trustee shall not be
required to redeem such Notes. In the event that such notice of redemption
contains such a condition and such moneys are not so received, the
redemption shall not be made and the Indenture Trustee shall, prior to the
date fixed for such redemption, give notice, in the manner in which the
notice of redemption was given, that such moneys were not so received.
SECTION 6.6 Notes Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Notes so to be redeemed
shall, on the Redemption Date, except as provided in Section 6.5(c), become
due and payable at the designated corporate trust office of the Paying
Agent at the Redemption Price therein specified, and from and after such
date (unless there shall be a default in the payment of the Redemption
Price), such Notes shall cease to bear interest. Upon surrender of such
Notes for redemption in accordance with such notice, such Notes shall be
paid at the Redemption Price, exclusive, however, of installments of
interest maturing on or prior to the Redemption Date payment of which shall
have been made or duly provided for to the Noteholders registered as such
on the relevant Record Dates, or otherwise, according to the terms and the
provisions of Section 2.8.
Except as provided in Section 6.5(c), if any Note called for
redemption shall not be so paid upon surrender thereof for redemption
because the Indenture Trustee shall not have received pursuant to Section
6.5 an amount of money sufficient to pay the Redemption Price for such
Note, the principal and Premium, if any, and (to the extent permitted by
Applicable Law) any accrued interest thereon shall, until paid, continue to
bear interest from the Redemption Date at the rate borne by the Note in
respect of overdue payments.
ARTICLE 7
ORIGINAL ISSUANCE AND DEBT REFINANCING
SECTION 7.1 Series J Notes. On the Closing Date, subject to the
conditions set forth in Section 2.4 of the Participation Agreement, the
Owner Trustee shall issue a series of Notes in an aggregate principal
amount equal to the Debt Financing Amount which shall be designated in nine
Supplemental Indentures as "Series J Notes," in one or more subseries in
order to finance a portion of the Lessor Purchase Price in respect of the
Lessor Interests.
SECTION 7.2 Refinancing and Redemption. On the Debt
Refinancing Date, (a) subject to the conditions set forth in Section 2.6
of the Participation Agreement, the Owner Trustee shall issue, pursuant to
nine Supplemental Indentures, the Refinancing Notes in order to refinance
all then Outstanding Series J Notes and (b) simultaneously, with the
proceeds of the issuance of all such Refinancing Notes, the Outstanding
Series J Notes shall be redeemed at a Redemption Price equal to the
aggregate principal amount of such Outstanding Series J Notes, together
with all accrued and unpaid interest thereon to but excluding the
applicable Redemption Date, plus Premium, if any. The Redemption Date for
the Series J Notes shall be the Debt Refinancing Date.
SECTION 7.3 Debt Refinancing Notes. The aggregate principal
amount of Refinancing Notes to be issued pursuant to Section 7.2(a) shall
be in an amount equal to the Debt Refinancing Amount, which aggregate
principal amount shall under no circumstances exceed the lesser of (i) an
amount equal to 88% of the aggregate Lessor Purchase Price in respect of
the Lessor Interests or (ii) an amount equal to 105% of the aggregate
original principal amount of the Series J Notes on the Series J
Commencement Date. The principal of the Refinancing Notes shall be due and
payable on such dates, and interest shall accrue thereon at such rates, as
shall be set forth in the applicable Supplemental Indentures, provided,
that the Stated Maturity of all such Refinancing Notes shall be no later
than the Stated Maturity of the Series J Notes to be refinanced thereby.
ARTICLE 8
INDENTURE EVENTS OF DEFAULT; REMEDIES
SECTION 8.1 Indenture Events of Default. With respect to any
Supplemental Indenture, the term "Indenture Event of Default" shall mean
any of the following events, and any such event shall continue to be an
Indenture Event of Default if and for so long as it shall not have been
cured, remedied or waived:
(a) the failure of the Owner Trustee to pay when due any payment
of principal of, Premium, if any, or interest on any Related Note, and such
failure shall have continued unremedied for 10 days; or
(b) an Event of Default (other than any such Event of Default
arising by reason of nonpayment of, or failure to perform with respect to,
any Excepted Payment when due) under the Related Lease; provided that any
such Event of Default shall be deemed to exist and continue so long as, but
only so long as, it shall not be remedied, cured or waived; and provided,
further, that the Indenture Trustee or a Majority in Interest of
Noteholders have given to the Owner Trustee, by registered or certified
mail, a written notice stating the Indenture Trustee's or Noteholders'
intention, as the case may be, to terminate the Related Lease, commence
action to foreclose on any of the Related Lessor Interests or to exercise
any other comparable remedies under the Related Lease; or
(c) the Trust shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect, or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or it shall consent to any such relief or
to the appointment of or taking of possession by any such official in any
involuntary case or other proceeding commenced against it, or it shall make
a general assignment for the benefit of creditors; or
(d) a decree or order for relief shall be entered by a court
having jurisdiction over the Trust in any involuntary case under any
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a trustee, receiver liquidator, custodian or other similar
official of the Trust, its interest in the Indenture Estate or any
substantial part of the Trust's property, or ordering the winding-up or
liquidation of the Trust or its affairs, and such decree or order shall
remain undismissed or unstayed for a period of 60 consecutive days; or
(e) any failure by the Owner Trustee, in its individual capacity
or as Owner Trustee, to comply with any covenant contained in Section
6.3(a) or 6.3(j) of the Participation Agreement subparagraph (aa), (bb) or
(cc) of the Granting Clause of the Related Supplemental Indenture or
Section 5.5 or 5.7 of this Agreement, which failure is not remedied within
a period of 60 days after there has been a given to the Owner Trustee, by
registered or certified mail, a written notice specifying such failure and
requiring it to be remedied and stating that such notice is a "Notice of
Default", by the Indenture Trustee or by a Majority in Interest of
Noteholders; provided, however, that if such a, failure to comply cannot be
cured by the payment of money within such 60-day period or, with respect to
other breaches, cannot be cured by diligent efforts within such 60-day
period but efforts to cure shall have been properly commenced within such
period, the cure period, as long as the Owner Trustee or Owner Participant
is diligently pursuing a cure, shall be extended for an additional period
of time as may be necessary to cure, but not to exceed 360 days; or
(f) any representation or warranty affecting the rights or
interests of the Indenture Trustee or the Related Noteholders made by the
Owner Trustee, in its individual capacity or as Owner Trustee, in Sections
5.3(b) through (g) of the Participation Agreement or by the Owner
Participant in Sections 5.2(a) through (i) of the Participation Agreement
shall prove at any time to have been inaccurate in any material respect as
of the date made and any material adverse impact of such inaccuracy shall
continue unremedied for a period of 60 days after there has been given to
the Owner Trustee or the Owner Participant by registered or certified mail,
a written notice specifying such incorrectness and requiring it to be
remedied and stating that such notice is a "Notice of Default" by the
Indenture Trustee or by a Majority in Interest of Noteholders.
SECTION 8.2 Acceleration upon Notice; Rescission.
(a) With respect to any Supplemental Indenture, during the
continuance of any Indenture Event of Default and subject to the provisions
of Section 8.10, the Indenture Trustee, in its discretion may (or when so
directed by a Majority in Interest of Noteholders shall) or a Majority in
Interest of Noteholders may, in any such case, by notice in writing to the
Lessee and the Owner Trustee (and to the Indenture Trustee if given by
Noteholders), declare the principal of all the Outstanding Related Notes
and the interest accrued thereon to be due and payable immediately, and
thereupon the same shall become immediately due and payable without Premium
(except with respect to any Series J Notes). Upon any exercise of remedies
by the Owner Trustee under the circumstances and as permitted by
subparagraph (bb) of the Granting Clause that result in the termination of
the Related Lease, acceleration of Rent due thereunder or a demand under
Section 16(a) (v) (D) of such Lease, then, in such case, the Indenture
Trustee shall be deemed to have declared the principal of all Outstanding
Related Notes to be due and payable without Premium upon the receipt by the
Indenture Trustee of any payments pursuant to such provisions.
(b) At any time after such acceleration and before any sale of
the Indenture Estate as relating to any series of Notes, or any part
thereof, shall have been made pursuant to any sale as hereinafter in this
Article 8 provided, a Majority in Interest of Noteholders by Directive
delivered to the Lessee, the Owner Trustee, the Owner Participant and the
Indenture Trustee, may rescind and annul such declaration and its
consequences if (l) there shall have been paid to or deposited with the
Indenture Trustee a sum sufficient to pay (A) all overdue installments of
interest on all Related Notes, (B) the principal of and Premium, if any, on
any Notes which have become due otherwise than by such acceleration and
interest thereon at the respective rates provided in the Notes for late
payments of principal or Premium and (C) to the extent that payment of such
interest is lawful, interest upon overdue installments of interest at the
respective rates provided in the Related Notes for late payments of
interest; and (2) all Indenture Events of Default, other than the non-
payment of the principal of Notes which have become due solely by such
acceleration, have been cured or waived as provided in Section 8.9. No
such rescission shall affect any subsequent Indenture Event of Default or
impair any right consequent thereon.
SECTION 8.3 Enforcement of Remedies.
(a) With respect to any Supplemental Indenture, subject to
Section 8.10 and the limitations set forth in this Section 8.3(a), if an
Indenture Event of Default that arises out of an Event of Default under the
Related Lease shall have occurred and be continuing, then in every such
case the Indenture Trustee, as assignee and grantee or secured party
hereunder or otherwise, may, to the extent permitted by Applicable Law,
exercise any or all of the rights and powers and pursue any or all of the
remedies under the Related Lease (including Section 16 thereof) and, in
connection therewith, corresponding remedies under this Article 8 and the
Related Supplemental Indenture may take possession of all or part of the
Related Indenture Estate and may exclude the Owner Trustee and the Lessee
and, to the extent provided in the Related Lease and as permitted by
Applicable Law, all Persons claiming under either of them wholly or partly
therefrom; provided, however, that, notwithstanding any provision herein to
the contrary the Indenture Trustee shall not exercise any remedies against
the Related Indenture Estate seeking to deprive the Owner Trustee of its
interests therein unless a declaration of acceleration has been made
pursuant to Section 8.2. Any provision of the Related Lease, this
Indenture or any other Transaction Document to the contrary
notwithstanding, the Indenture Trustee shall not foreclose the Lien of such
Supplemental Indenture or otherwise exercise remedies which would result in
the exclusion of the Owner Trustee from the Indenture Estate or any
substantial part thereof demised under the Related Lease as a result of any
Indenture Event of Default that arises solely by reason of one or more
events or circumstances that constitute an Event of Default unless the
Indenture Trustee has taken or is currently taking action under the Related
Lease to dispossess the Lessee, to terminate the Related Lease, or effect a
comparable remedy under the Related Lease.
(b) Any provision of any Lease, this Indenture or any
Supplemental Indenture to the contrary notwithstanding, if the Lessee shall
fail to pay any Excepted Payment to any Person entitled thereto as and when
due, such Person shall have the right at all times, to the exclusion of the
Indenture Trustee, to demand, collect, sue for, enforce performance of
obligations relating to or otherwise obtain all amounts due in respect of
such Excepted Payment; provided, however, that such Person shall not be
entitled to collect such payment from or execute any judgment against or
otherwise cause the placing of a Lien upon any asset constituting a portion
of the Related Indenture Estate.
(c) With respect to any Lease, except as expressly provided in
Article VIII of the Participation Agreement, and for so long as the Lessee
is the lessee under such Lease, the Lessor Interest may not be sold or
otherwise transferred to any Person.
SECTION 8.4 [INTENTIONALLY OMITTED]
SECTION 8.5 Actions for Ratable Benefit of Noteholders. All
proofs of claim, rights of action and rights to assert claims under this
Indenture or under any of the Notes may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production
thereof in any trial or other proceedings relative thereto, and any such
action or proceedings instituted by the Indenture Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment or reimbursement of the
proper charges, expenses or advances of the Indenture Trustee, be for the
ratable benefit of the Noteholders in respect of which such judgment has
been recovered.
SECTION 8.6 Noteholders May Demand Enforcement of Rights by
Indenture Trustee. Subject to Sections 8.3, 8.9 and 8.10, if an Indenture
Event of Default shall have occurred and shall be continuing with respect
to any Supplemental Indenture, the Indenture Trustee shall, upon the
receipt of a Directive from a Majority in Interest of Noteholders and upon
the offering of indemnity as provided in Section 9.1(e), proceed to
institute one or more suits, actions or proceedings at law, in equity or
otherwise, or take any other appropriate remedy, to enforce payment of the
principal of, or Premium, if any, or interest on, the Related Notes or to
foreclose the lien of such Related Supplemental Indenture or to sell or to
cause to be sold the Indenture Estate under a judgment or decree of a court
or courts of competent jurisdiction or under the power of sale herein
granted, or take such other appropriate legal, equitable or other remedy,
as the Indenture Trustee, being advised by counsel, shall deem most
effectual to protect and enforce any of the rights or powers of the
Indenture Trustee or the Related Noteholders, or, in case such Noteholders
shall have requested a specific method of enforcement permitted hereunder,
in the manner requested, provided that such action shall be in accordance
with law and the provisions of such Related Supplemental Indenture and this
Indenture, and the Indenture Trustee, subject to such indemnity provisions,
shall have the right to decline to follow any such request if the Indenture
Trustee in good faith shall determine that the suit, proceeding or exercise
of the other remedy so requested would involve the Indenture Trustee in
personal liability or expense.
SECTION 8.7 Control by Noteholders. A Majority in Interest of
Noteholders of Outstanding Notes issued pursuant to any Related
Supplemental Indenture shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Indenture Trustee or exercising any trust or power conferred on the
Indenture Trustee pursuant to such Related Supplemental Indenture or this
Indenture with respect to the Related Indenture Estate, provided that:
(1) such direction shall not be in conflict with any rule of
law or with the rights of the Owner Trustee under this Indenture
or such Supplemental Indenture, and
(2) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee which is not inconsistent with
such direction.
SECTION 8.8 Noteholder May Not Bring Suit Except under Certain
Conditions. Subject to Sections 8.3, 8.9 and 8.10, a Noteholder shall not
have the right to institute any suit, action or proceeding at law or in
equity or otherwise for the foreclosure of this Indenture or for the
enforcement of any other remedy under or upon this Indenture, unless:
(1) such Noteholder previously shall have given
written notice to the Indenture Trustee of a continuing
Indenture Event of Default;
(2) the Indenture Trustee shall have received a
Directive from not less than a Majority in Interest of
Noteholders requesting that it institute such action,
suit or proceeding and shall have been offered
indemnity as provided in Section 9.1(e);
(3) the Indenture Trustee shall have refused or
neglected to institute any such action, suit or
proceeding for 60 days after receipt of such notice,
request and offer of indemnity; and
(4) no subsequent Directive from not less than a
Majority in Interest of Noteholders inconsistent with
the first such Directive has been given to the
Indenture Trustee during such 60-day period.
It is understood and intended that no one or more of the
Noteholders of a series shall have any right in any manner whatever
hereunder or under the Related Notes to (i) surrender, impair, waive,
affect, disturb or prejudice the lien of the Related Supplemental Indenture
on any property subject thereto or the rights of the Noteholders of any
other Related Notes, (ii) obtain or seek to obtain priority over or
preference to any other such Related Noteholder or (iii) enforce any right
under this Indenture or such Related Supplemental Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
the Related Noteholders, subject to the provisions of this Indenture.
SECTION 8.9 Waiver of Past Defaults. Upon receipt of a
Directive from the Noteholders of not less than a majority in principal
amount of Outstanding Notes issued pursuant to any Supplemental Indenture
the Indenture Trustee shall waive any past Indenture Default and its
consequences and upon any such waiver such Indenture Default shall cease to
exist, and any Indenture Event of Default arising therefrom shall be deemed
to have been cured for every purpose of this Indenture and such
Supplemental Indenture, but no such waiver shall extend to any subsequent
or other Indenture Default or impair any right consequent thereon;
provided, however, that, in the absence of written instructions from the
Noteholders of all Related Notes then Outstanding, the Indenture Trustee
shall not waive any Indenture Default in the payment of the principal of,
Premium, if any, or interest on, or other amounts due under, any Related
Note then Outstanding, or in respect of a covenant or provision hereof
that, under Article 11, cannot be modified or amended without the consent
of each Related Noteholder.
SECTION 8.10 Right of Owner Trustee to Pay Interest, Principal,
etc.; Note Purchase.
(a)(1) In the event of any default by the Lessee in the payment
of any installment of Basic Rent due under any Lease, the Owner Trustee or
the Owner Participant, without the consent of the Indenture Trustee or any
Noteholder, may pay to the Indenture Trustee for application in accordance
with Section 4.1, a sum equal to the amount of all (but not less than all)
principal and interest as shall then be due and payable on the Related
Notes, together with any interest on account of such payment being overdue
as provided in Article 4.
(2) In the event of any default by the Lessee in the
performance of any obligation under any Lease (other than the obligation to
pay Basic Rent) or any other Transaction Document, the Owner Trustee or the
Owner Participant, without the consent of the Indenture Trustee or any
Noteholder, may exercise the Lessor's rights under Section 19 of such Lease
to perform such obligation on behalf of the Lessee.
(3) Solely for the purpose of determining whether there
exists an Indenture Event of Default, (i) any payment by the Owner Trustee
or the Owner Participant pursuant to, and in compliance with, Section
8.10(a) (l) shall, for the purposes of this Indenture and the Related
Supplemental Indenture, be deemed to remedy any default by the Lessee in
the payment of installments of Basic Rent theretofore due and payable under
the applicable Lease and to remedy any default by the Owner Trustee in the
payment of any amount due and payable under the Related Notes and (ii) any
performance by the Owner Trustee or the Owner Participant of any obligation
of the Lessee under any Lease pursuant to, and in compliance with, Section
8.10(a) (2) shall, for the purposes of this Indenture and the Related
Supplemental Indenture, be deemed to remedy any default by the Lessee in
the performance of such obligation under the applicable Lease and to remedy
any related default by the Owner Trustee under this Indenture and the
Related Supplemental Indenture.
(4) Until 15 Business Days after the Owner Trustee and the
Owner Participant shall have been given notice by the Indenture Trustee of
the occurrence of an Indenture Event of Default that may be cured under
this Section 8.10(a), the Indenture Trustee shall not exercise any rights
as assignee of the Owner Trustee's rights under the applicable Lease or
declare the Related Notes to be due and payable pursuant to Section 8.2 as
a result of such Indenture Event of Default.
(5) This Section 8.10(a) shall not apply to any default by
the Lessee in the payment of any installment of Basic Rent due under any
Lease, if default by the Lessee in the payment of three or more consecutive
installments of Basic Rent, or in the payment of a total of six or more
installments of Basic Rent under such Lease, shall have been cured by the
Owner Trustee or the Owner Participant pursuant to the foregoing provisions
of this Section 8.10(a).
(6) Upon the exercise of any cure right under this Section
8.10(a), neither the Owner Trustee nor the Owner Participant shall obtain
any Lien on any part of the Related Indenture Estate on account of any
payment made or the costs and expenses incurred in connection therewith nor
shall any claim of the Owner Trustee or the Owner Participant against the
Lessee or any other Person for the repayment thereof impair the prior right
and security interest of the Indenture Trustee in and to the Related
Indenture Estate under Section 8.10(a) (1).
(b) (1) Upon the exercise of any cure right the Owner
Participant or the Owner Trustee, as the case may be, shall be subrogated
to the rights of the Related Noteholders to receive from the Indenture
Trustee the installment of Basic Rent with respect to which the Owner
Trustee or the Owner Participant effected such a cure (including interest
on account of such installment being overdue) in the manner set forth in
Section 8.10(b) (2).
(2) If the Indenture Trustee shall thereafter receive such
installment of Basic Rent, then, notwithstanding the requirements of
Section 4.1, the Indenture Trustee forthwith shall remit such installment
of Basic Rent to the Owner Trustee or the Owner Participant, as the case
may be, in reimbursement for the funds so advanced by either of them;
provided, however, that, if any Indenture Event of Default pursuant to the
Related Supplemental Indenture shall have occurred and be continuing, such
installment of Basic Rent shall not be remitted to the Owner Trustee or the
Owner Participant but shall be held by the Indenture Trustee as security
for the obligations secured hereby with respect to the Related Notes and by
such Related Supplemental Indenture and distributed in accordance with
Section 4.1(b), as appropriate; and provided further, that, if the
principal of and interest on the Related Notes shall have become due and
payable pursuant to Section 8.2, such installment of Basic Rent shall be
distributed by the Indenture Trustee in accordance with Section 4.3.
(c) The Indenture Trustee agrees that if, after the occurrence
and continuation of an Indenture Event of Default with respect to any
Supplemental Indenture, the Indenture Trustee intends either to declare the
Related Notes to be accelerated or to exercise other substantial rights or
remedies under this Indenture, under the Related Supplemental Indenture or
under the Related Lease, the Indenture Trustee shall give notice of such
intention to the Owner Trustee and the Owner Participant at least 10 (but
not more than 30) Business Days prior to the making of such declaration or
the exercising of such right or remedy. No declaration of acceleration by
Noteholders holding Notes issued under the Related Supplemental Indenture
pursuant to Section 8.2 shall be effective unless the Owner Trustee and the
Owner Participant are given at least 10 (but not more than 30) Business
Days' prior written notice of their intention to make such declaration of
acceleration. Each Noteholder shall be deemed to agree by its acceptance
of its Note that if, after the giving of any such notice of intention by
the Indenture Trustee or such Noteholders, as the case may be, the Owner
Trustee shall give notice to the Indenture Trustee of the Owner Trustee's
intention to purchase all of the Outstanding Related Notes in accordance
with this Section 8.10(c), accompanied by assurances reasonably
satisfactory to the Indenture Trustee of the Owner Trustee's ability to
purchase the Related Notes, then neither the Indenture Trustee nor such
Noteholders shall thereafter accelerate the Related Notes or exercise other
substantial rights or remedies under the Indenture with respect to the
Related Notes, under the Related Supplemental Indenture or under the
Related Lease unless the Indenture Trustee shall not receive within 10
Business Days of the giving of such notice by the Indenture Trustee or such
Noteholders, as the case may be, an amount equal to the aggregate unpaid
principal amount of any unpaid Related Notes then Outstanding, without
Premium or penalty, together with accrued but unpaid interest thereon to
the date of such receipt (as well as any interest on overdue principal and,
to the extent permitted by Applicable Law, overdue interest as provided in
Article 4) and any other amounts then due and payable to each Related
Noteholder hereunder. Upon payment to the Indenture Trustee of such
amount, each Related Noteholder will be deemed to sell, assign, transfer
and convey to the Owner Trustee (without recourse or warranty of any kind
other than of title to the Notes so conveyed) all of the right, title and
interest of such Noteholder in and to the Related Indenture Estate, this
Indenture, the Related Indenture Supplement, and all Related Notes held by
such Noteholder. On and after the date of payment of such amount to the
Indenture Trustee, the Indenture Trustee shall no longer treat the former
Noteholders as the "Noteholders," except for purposes of the Noteholders'
right to receive their respective portions of the amounts paid to the
Indenture Trustee as aforesaid, and on such date the Note Registrar shall
register the transfer of ownership of the Related Notes into the name of
the Owner Trustee.
SECTION 8.11 Right of Noteholders to Receive Payment Not To Be
Impaired. Anything in this Indenture to the contrary notwithstanding, the
right of any Noteholder to receive payment of the principal of, Premium, if
any, and interest on, such Note, on or after the respective due dates
expressed in such Note (or, in case of redemption, on the Redemption Date
fixed for such Note subject, however, in the case of an optional redemption
or redemption pursuant to Section 6.1(b) (ii), to Section 6.5(c)), or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such Noteholder; provided, however, that such Noteholder shall not have the
right to institute any such suit, if and to the extent that the institution
or prosecution thereof or the entry of judgment therein would, under
Applicable Law result in the surrender, impairment, waiver or loss of the
Lien of the Related Supplemental Indenture upon the Related Indenture
Estate or any part thereof.
SECTION 8.12 No Action Contrary to Lessee's Rights Under the
Leases. Notwithstanding the granting clause or any other provision of this
Indenture or any Supplemental Indenture or any provision of any other
Transaction Document, the Indenture Trustee warrants, covenants and agrees
that, unless an Event of Default shall have occurred and be continuing
under any Lease, the Indenture Trustee shall not (i) name the Lessee as a
party in any action or procedures to foreclose the lien of the Related
Supplemental Indenture, unless such joinder shall be required under
Applicable Law, and in which case Indenture Trustee shall not seek
affirmative relief from the Lessee in such action nor shall the Related
Lease be cut or terminated nor the Lessee's possession thereunder be
disturbed in any such action or proceeding, and (ii) subject to the next
succeeding sentence of this Section 8.12, the Indenture Trustee will
recognize the Related Lease and the Lessee's rights thereunder. Without in
any way limiting the requirements of Section 8.14, upon any acquisition by
the Indenture Trustee or any purchaser at foreclosure or transferee
pursuant to a plan of reorganization under Chapter 11 of the Bankruptcy
Code (collectively, a "Successor Landlord") of the Owner Trustee's interest
in any Lease, such Lease shall continue as a direct Lease between the
Successor Landlord and the Lessee upon all terms, covenants and conditions
set forth in such Lease, except that the Successor Landlord shall not be
(A) liable for any previous act or omission of the Lessor under such Lease,
(B) subject to any offsets, claims, defenses or counterclaims the Lessee
may have against the Owner Trustee, (C) be bound by any prepayment of Rent
not actually received by the Successor Landlord or (D) bound by any
amendment to such Lease requiring Indenture Trustee's consent unless such
consent was obtained.
SECTION 8.13 Waiver of Stay. To the extent it may lawfully do
so, the Owner Trustee, for itself and for any Person who may claim through
or under it, hereby:
(a) agrees that neither it nor any such Person will set up,
plead, claim or in any manner whatsoever take advantage of, any statute or
rule of law now or hereafter in force providing for any stay, moratorium,
extension, appraisement, valuation or redemption or any statute of
limitations or any rights to require a marshalling of
assets which may delay, prevent or otherwise hinder (i) the performance or
enforcement or foreclosure of this Indenture or any Supplemental Indenture,
(ii) the sale of any of the Indenture Estate, or (iii) the putting of the
purchaser or purchasers thereof into possession of such property
immediately after the sale thereof;
(b) waives and releases all benefit or advantage of such
laws; and
(c) consents and agrees that all the Indenture Estate may at
any such sale be sold by the Indenture Trustee in parcels or as an
entirety.
SECTION 8.14 Right of Indenture Trustee to Perform Covenants
etc. If the Owner Trustee shall fail to make any payment required to be
made or to perform any act required to be performed by it hereunder or
under any Lease, the Indenture Trustee, without notice to or demand upon
the Owner Trustee and without waiving or releasing any obligation or
default, may (but shall be under no obligation to) at any time thereafter
make such payment or perform such act for the account and at the expense of
the Related Indenture Estate. All sums so paid by the Indenture Trustee and
all costs and expenses (including, without limitation, reasonable fees and
expenses of legal counsel and other professionals) so incurred together
with interest thereon from the date of payment or occurrence, shall
constitute additional indebtedness secured by this Indenture and shall be
paid from the Related Indenture Estate to the Indenture Trustee on demand.
The Indenture Trustee shall not be liable for any damages resulting from
any such payment or action unless such damages shall be a consequence of
willful misconduct or negligence on the part of the Indenture Trustee.
SECTION 8.15 Certain Other Rights of Owner Trustee. The
Indenture Trustee shall not modify, waive, amend or supplement any Granting
Clause Document (other than the Indenture) or deliver any notices,
consents, determinations, demands, approvals, requests, directions or
releases in respect of any such other Granting Clause Document so as to
release the Lessee from any of its obligations in respect of the payment of
Basic Rent, Supplemental Rent, Casualty Value, Termination Value or any
other payments in respect of the Properties as set forth in any Lease, or
reduce the amount of, or change the time or manner of payment of or the
absolute and unconditional character of, such payment obligations of the
Lessee as set forth in any Granting Clause Document or impose or create any
obligation on the part of the Owner Trustee or the Owner Participant under
any Lease or extend or shorten the duration of the Basic Term or any
Renewal Term of any Lease; provided, that adjustments to amounts payable in
respect of the Lessor Interests under any Lease may be made in accordance
with Section 3(e) or 8(f) of such Lease at any time this Agreement is in
effect, at the times and in the manner contemplated by such Lease. Nothing
in this Section 8.15 shall prevent the Indenture Trustee from exercising
remedies in accordance with such Lease and this Indenture so long as such
exercise does not involve a modification to a Granting Clause Document that
has the effect outlined above prior to such time as the Indenture Trustee
shall be entitled pursuant to Section 8.3 hereof to exercise remedies that
would result in the exclusion of the Owner Trustee from all or any
substantial part of the Related Indenture Estate.
SECTION 8.16 Restoration of Rights and Remedies. In case the
Indenture Trustee shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture or any Supplemental Indenture
by foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason or shall have been determined
adversely to the Indenture Trustee, then and in every such case the Owner
Trustee, the Owner Participant, the Indenture Trustee, the Related
Noteholders and the Lessee shall be restored to their former positions and
rights hereunder with respect to the Related Indenture Estate, and all
rights, powers and remedies of the Indenture Trustee shall continue as if
no such proceedings had been taken.
SECTION 8.17 Rights and Remedies Cumulative. Each and every
right, power and remedy herein specifically given to the Indenture Trustee
under this Indenture and the Supplemental Indentures shall be cumulative
and shall be in addition to every other right, power and remedy herein
specifically given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether specifically
herein given or otherwise existing may be exercised from time to time and
as often and in such order as may be deemed expedient by the Indenture
Trustee and the exercise or the beginning of the exercise of any right,
power and remedy shall not be construed to be a waiver of the right to
exercise at the same time or thereafter any other right, power or remedy.
No delay or omission by the Indenture Trustee in the exercise of any right,
power or remedy or in the pursuance of any remedy shall impair any such
right, power or remedy or be construed to be a waiver of any default on the
part of the Owner Trustee or the Owner Participant or to be an acquiescence
therein.
ARTICLE 9
THE INDENTURE TRUSTEE
SECTION 9.1 Certain Rights and Duties of Indenture Trustee.
(a) The Indenture Trustee may rely and shall be protected in
acting or refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties.
(b) Any request or direction of the Owner Trustee mentioned
herein shall be sufficiently evidenced by an Owner Trustee Request or an
Officers' Certificate of the Owner Trustee.
(c) Whenever in the administration of this Indenture or any
Supplemental Indenture the Indenture Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder the Indenture Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate of the Owner Trustee.
(d) The Indenture Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(e) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture or any
Supplemental Indenture at the request or direction of any of the
Noteholders pursuant to this Indenture, unless such Noteholders shall have
offered to the Indenture Trustee reasonable security or indemnity
(including, without limitation, the advancement of monies for out-of-pocket
costs) against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(f) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document; but
the Indenture Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Indenture Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the relevant books, records
and premises of the Owner Trustee, personally or by agent or attorney.
(g) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
indirectly or by or through agents or attorneys and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it.
(h) The Indenture Trustee shall not be personally liable for
debts, contracts, liabilities or damages (collectively, "Liabilities")
incurred in the management or operation of the Indenture Estate, except
such Liabilities which result from its gross negligence or willful
misconduct.
(i) For all purposes of this Indenture, in the absence of
actual knowledge of a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall not be deemed to have knowledge of an Indenture
Default under any Supplemental Indenture (except the failure of the Lessee
to pay any installment of Basic Rent when the same shall become due) unless
notified in writing by any Related Noteholder, the Owner Participant, the
Owner Trustee or the Lessee.
(j) Except during the continuance of an Indenture Event of
Default or an Event of Default:
(1) The Indenture Trustee need perform only those
duties that are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee.
(2) In the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein and the genuineness
of all such writings, upon certificates or opinions furnished to the
Indenture Trustee and substantially conforming to the requirements of this
Indenture. However, the Indenture Trustee shall examine these certificates
and opinions to determine whether or not they substantially conform to the
requirements of this Indenture.
(k) If an Indenture Event of Default in respect of any
Supplemental Indenture has occurred and is continuing, the Indenture
Trustee shall exercise its rights and powers under this Indenture and the
Related Supplemental Indenture, and shall use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(l) No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own grossly negligent
action, its own grossly negligent failure to act or its own wilful
misconduct (or, with respect to the handling of funds, its own negligent
action or its own negligent failure to act) except that:
(i) this Section 9.1(l) shall not be construed to
limit the provisions of paragraph (j);
(ii) the Indenture Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Indenture Trustee, unless it
shall be proved that the actions of such Responsible Officer
were grossly negligent (or negligent in the case of a matter
relating to the handling of funds) with respect to
ascertaining pertinent facts;
(iii) the Indenture Trustee shall not be liable
with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of a
Majority in Interest of Noteholders relating to the time,
method and place of conducting any proceedings for any
remedy available to the Indenture Trustee, or exercising any
trust or power conferred upon the Indenture Trustee, under
this Indenture; and
(iv) no provision of this Indenture shall require
the Indenture Trustee (A) to do anything contrary to law or
to the provisions of any Transaction Document to which it is
a party, (B) to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to
it or (C) to execute any document or take any action that it
shall reasonably determine, or shall have been advised by
counsel, is likely to result in personal liability on the
part of Indenture Trustee, unless it shall be indemnified to
its satisfaction.
SECTION 9.2 Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein, in any Supplemental Indenture and in the
Notes, except the Indenture Trustee's certificates of authentication, shall
not be taken as the statements of the Indenture Trustee, and the Indenture
Trustee assumes no responsibility for their correctness. The Indenture
Trustee makes no representations as to the validity or sufficiency of this
Indenture, the Indenture Estate or the Notes, except that the Indenture
Trustee in its individual capacity hereby represents and warrants that this
Indenture has been executed and delivered by one of its officers who is
duly authorized to execute and deliver such document on its behalf and that
it has power to perform hereunder.
SECTION 9.3 Indenture Trustee and Authorized Agents May Hold
Notes. The Indenture Trustee, any Paying Agent, Note Registrar or any
other agent of the Indenture Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal
with the Owner Trustee and the Lessee with the same rights it would have if
it were not Indenture Trustee, Paying Agent, Note Registrar or such other
agent.
SECTION 9.4 Funds May Be Held by Indenture Trustee or Paying
Agent; Investments.
(a) Subject to Section 5.2 and subsection (b) of this
Section 9.4, any moneys held by the Indenture Trustee or the Paying Agent
hereunder as part of the Indenture Estate may until paid out by the
Indenture Trustee or the Paying Agent as herein provided, be carried by the
Indenture Trustee or the Paying Agent on deposit with itself, and neither
the Indenture Trustee nor the Paying Agent shall have any liability for
interest upon any such moneys except as otherwise agreed in writing with
the Owner Trustee or the Lessee.
(b) At any time and from time to time (subject to Section
3.1), the Indenture Trustee shall, provided no Event of Default or Special
Default has occurred and is continuing, at the proper and timely request
(given directly by the Lessee to the Indenture Trustee) of the Lessee
acting as the agent of the Owner Trustee, invest and reinvest in Permitted
Investments as specified in such request any moneys at the time on deposit
with the Indenture Trustee as part of the Related Indenture Estate,
together with any income and gains from the investment and reinvestment
thereof, and sell any Permitted Investments, in either case, including
accrued interest, as are set forth in such Request, and such Permitted
Investments shall be held by the Indenture Trustee until so sold in trust
as part of the Related Indenture Estate; provided that the Lessee, on
behalf of the Owner Trustee, as agent of the Owner Trustee, shall upon
demand pay to the Indenture Trustee the amount of any loss realized upon
maturity, sale or other disposition of any such Permitted Investment and,
so long as no Event of Default shall have occurred and be continuing, be
entitled to receive from the Indenture Trustee, and the Indenture Trustee,
on behalf of the Owner Trustee, shall promptly pay to the Lessee any
profit, income, interest, dividend or gain realized upon maturity, sale or
other disposition of any Permitted Investment. If any Event of Default
shall have occurred and be continuing, any net income, profit, interest,
dividend or gain realized a upon maturity, sale or other disposition of any
Permitted Investment shall be held as part of the Related Indenture Estate
and shall be applied by the Indenture Trustee at the same time, on the same
conditions and in the same manner as the amounts in respect of which some
income, profit, interest, dividend or gain was realized are required to be
held. The Indenture Trustee shall not be responsible for any losses on any
investments or sales of Permitted Investments made pursuant to the
procedure specified in this Section.
SECTION 9.5 Compensation, Reimbursement and Indemnification.
(a) It is understood that, pursuant to the terms of Section 10.01 of the
Participation Agreement, the Owner Trustee will pay all Transaction
Expenses incurred by the Indenture Trustee and that, pursuant to Section
10.02 of the Participation Agreement, the Lessee will pay the reasonable on-
going fees and expenses of the Indenture Trustee (including reasonable
legal fees) incurred in connection with the performance of the Indenture
Trustee's duties under this Indenture and the other Transaction Documents.
With respect to any Supplemental Indenture, to the extent that the Owner
Trustee and the Lessee do not fulfill their respective obligations with
respect to the compensation and reimbursement of the Indenture Trustee, the
Indenture Trustee shall have, and the Owner Trustee hereby grants to the
Indenture Trustee, a lien on the Trust Estate with respect to the Related
Lessor Interest, second only to the lien created by this Indenture and such
Supplemental Indenture in favor of the Related Noteholders, to secure the
payment of such compensation and expense reimbursement to the Indenture
Trustee.
(b) The Owner Trustee hereby agrees to indemnify, or cause to be
indemnified, each of the Indenture Trustee, in its individual capacity, any
predecessor Indenture Trustee and any Authorized Agent for, and to hold it
harmless against, any loss, liability or expense incurred without gross
negligence, willful misconduct or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trusts created
under each Supplemental Indenture or the performance of its duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder but only to the extent such loss, liability
or expense is indemnified by the Lessee pursuant to Article VII of the
Participation Agreement and only if the Lessee has failed to pay such loss,
liability or expense. To the extent that the Owner Trustee does not
fulfill its obligations set forth in the preceding sentence with respect to
the indemnification of the Indenture Trustee, the Indenture Trustee shall
have, and the Owner Trustee hereby grants to the Indenture Trustee, a lien
on the Trust Estate with respect to the Related Lessor Interest, second
only to the lien created by the Related Supplemental Indentures in favor of
the Related Noteholders, to secure the payment of such compensation and
expense reimbursement to the Indenture Trustee.
SECTION 9.6 Corporate Indenture Trustee Required; Eligibility.
There shall at all times be an Indenture Trustee hereunder, which shall be
a Person that has a combined capital and surplus of at least $100,000,000,
and is subject to supervision or examination by Federal or State authority.
If such Person publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 9.6, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
The Owner Trustee may not, nor may any Person directly or indirectly
controlling, control led by, or under common control with the Owner
Trustee, serve as Indenture Trustee. If at any time the Indenture Trustee
shall cease to be eligible in accordance with the provisions of this
Section 9.6, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 9.7 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no appointment
of a successor Indenture Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Indenture
Trustee under Section 9.8.
(b) The Indenture Trustee may resign at any time by giving
written notice thereof to the Owner Trustee and the Lessee. If an
instrument of acceptance by a successor Indenture Trustee shall not have
been delivered to the Owner Trustee, the Lessee and the Indenture Trustee
within 30 days after the giving of such notice of resignation, the
resigning Indenture Trustee may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee or any
Noteholder who has been a Noteholder for at least six months may, subject
to the provisions of Sections 8.8 and 8.11, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor Indenture Trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, appoint a successor Indenture
Trustee.
(c) The Indenture Trustee may be removed at any time by a
Directive delivered to the Indenture Trustee, the Owner Trustee and the
Lessee.
(d) If at any time:
(i) the Indenture Trustee shall cease to be eligible
under Section 9.6 and shall fail to resign after written request
therefor by the Owner Trustee or by such Noteholder, or
(ii) the Indenture Trustee shall become incapable of
acting or shall be adjudged a bankrupt or a insolvent, or a
receiver of the Indenture Trustee or of its property shall be
appointed, or any public officer shall take charge or control of
the Indenture Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Owner Trustee, acting after consultation
with the Lessee, may remove the Indenture Trustee or (ii) subject to
Sections 8.8 and 8.11, unless the Indenture Trustee's duty to resign is
stayed as provided in the Trust Indenture Act, any Noteholder who has been
a bona fide Noteholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the appointment
of a successor Indenture Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor Indenture Trustee.
(e) If the Indenture Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Indenture Trustee for any cause, the Owner Trustee, acting after
consultation with the Lessee, shall promptly appoint a successor Indenture
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Indenture
Trustee shall be appointed pursuant to a Directive of a majority in
principal amount of the Outstanding Notes delivered to the Owner Trustee,
the Lessee and the retiring Indenture Trustee, the successor Indenture
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Indenture Trustee and supersede the
successor Indenture Trustee appointed by the Owner Trustee. If no
successor Indenture Trustee shall have been so appointed by the Owner
Trustee (acting after consultation with the Lessee) or the Noteholders and
accepted appointment in the manner provided in Section 9.8, any Noteholder
who has been a bona fide Noteholder for at least six months may, subject to
the provisions of Sections 8.8 and 8.11, on behalf of himself and all other
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee. Such court may thereupon
after such notice, if any, as it may deem proper or prescribe, appoint a
successor Indenture Trustee.
(f) The Owner Trustee shall give notice of each resignation
and each removal of the Indenture Trustee and each appointment of a
successor Indenture Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to the Noteholders as their names and
addresses appear in the Note Register. Each notice shall include the name
of the successor Indenture Trustee and the address of its Indenture Trustee
Office.
SECTION 9.8 Acceptance of Appointment by Successor. Every
successor Indenture Trustee appointed hereunder shall execute, acknowledge
and deliver to the Owner Trustee, the Lessee and to the retiring Indenture
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Indenture Trustee shall become
effective and such successor Indenture Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Indenture Trustee; but on request of the Owner
Trustee or the successor Indenture Trustee, such retiring Indenture Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Indenture Trustee all the rights, powers and
trusts of the retiring Indenture Trustee, and he shall duly assign,
transfer and deliver to such successor Indenture Trustee all property and
money held by such retiring Indenture Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 9.5. Upon
request of any such successor Indenture Trustee, the Owner Trustee shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Indenture Trustee all such rights, powers and
trusts.
No successor Indenture Trustee shall accept its appointment
unless at the time of such acceptance such successor Indenture Trustee
shall be qualified and eligible under this Article.
SECTION 9.9 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Indenture 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
Indenture Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Indenture Trustee,
shall be the successor of the Indenture Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Indenture Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Indenture Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Indenture Trustee
had itself authenticated such Notes.
SECTION 9.10 Maintenance of Agencies.
(a) Any Paying Agent (other than the Indenture Trustee) from
time to time appointed hereunder shall execute and deliver to the Indenture
Trustee an instrument in which said Paying Agent shall agree with the
Indenture Trustee, subject to the provisions of this section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of
principal of, Premium, if any, and interest on Notes in trust for
the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Indenture Trustee within five days
thereafter notice of any default in the making of any payment of
principal, Premium, if any, or interest on the Notes; and
(3) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in trust
by such Paying Agent.
Notwithstanding any other provision of this Indenture, any payment required
to be made to or received or held by the Indenture Trustee may, to the
extent authorized by written instructions of the Indenture Trustee, be made
to or received or held by a Paying Agent for the account of the Indenture
Trustee.
(b) From time to time the Indenture Trustee for the Notes of
any series may, subject to its sole discretion, appoint one or more
Authenticating Agents with respect to the Notes of such series, with power
to act on the Indenture Trustee's behalf and subject to its discretion in
the authentication and delivery of the Notes of such
series in connection with transfers and exchanges under Sections 2.5, 2.6,
2.11 and 6.7 as fully to all intents and purposes as though such
Authenticating Agent had been expressly authorized by those Sections of the
Indenture to authenticate and deliver the Notes of such series. For all
purposes of the Indenture, the authentication and delivery of Notes of such
series by an Authenticating Agent for such Notes pursuant to this Section
9.10 shall be deemed to be authentication and delivery of such Notes "by
the Indenture Trustee." Any such Authenticating Agent shall at all times
be a Person that is eligible to act as an Indenture Trustee hereunder
pursuant to the provisions of Section 9.6. If at any time an
Authenticating Agent for any the provisions of Section 9.6, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section 9.10.
(c) If an appointment of an Authenticating Agent with
respect to one or more series of Notes is made pursuant to this Section
9.10, the Notes may have endorsed thereon, in addition to the Indenture
Trustee's certification of authentication, an alternate certificate of
authentication in the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the _______________________ Notes, Series
___, Due ___________, described in the within-mentioned
Supplemental Indenture.
as Indenture Trustee
By____________________________________
As Authenticating Agent
By____________________________________
As Authorized Officer
(d) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or conversion to which
any Authorized a Agent shall be a party, or any corporation succeeding to
the corporate trust business of any Authorized Agent shall be the successor
of such Authorized Agent hereunder, if such successor corporation is
otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authorized Agent or such successor corporation.
(e) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Indenture Trustee and the Owner
Trustee. The Owner Trustee, may, and at the request of the Indenture
Trustee shall, at any time, terminate the agency of any Authorized Agent by
giving written notice of termination to such Authorized Agent and to the
Indenture Trustee. Upon the resignation or termination of an Authorized
Agent or in case at any time any such Authorized Agent shall cease to be
eligible under this Section (which, in either case, no other Authorized
Agent performing the functions of such Authorized Agent shall have been
appointed), the Owner Trustee shall promptly appoint one or more qualified
successor Authorized Agents approved by the Indenture Trustee and the Owner
Trustee to perform the functions of the Authorized Agent who has resigned
or whose agency has been terminated or who shall have ceased to be eligible
under this Section. The Indenture Trustee shall give written notice of any
such appointment to all Noteholders as their names and addresses appear on
the Note Register.
SECTION 9.11 Co-Indenture Trustee or Separate Trustee. (a) If
at any time or times it shall be necessary or prudent in order to conform
to any law of any jurisdiction in which property shall be held subject to
the lien of any Supplemental Indenture, or the Indenture Trustee shall be
advised by counsel, satisfactory to it, that it is necessary, prudent or
convenient in the interest of the Noteholders, or upon receipt of a
Directive, the Indenture Trustee and the Owner trustee shall execute and
deliver all instruments and agreements necessary or proper to constitute
another bank or trust company or one or more Persons approved by the
Indenture Trustee either to act as co-trustee or co-trustees of all or any
part of the Indenture Estate jointly with the Indenture Trustee originally
named herein or any successor or successors, or to act as separate trustee
or trustees of all or any such property. In the event the Owner Trustee
shall have not joined in the execution of such instruments and agreements
within 10 days after the receipt of a written request from the Indenture
Trustee to do so, or in case an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee may act under the
foregoing provisions of this Section without the concurrence of the Owner
Trustee upon giving written notice to the Owner Trustee of the name and
address of such proposed additional trustee; and the Owner Trustee hereby
appoints the Indenture Trustee its agent and attorney to act for it under
the foregoing provisions of this Section in either of such contingencies;
provided, however, that within 90 days following any appointment of an
additional trustee without the concurrence of the Owner Trustee, the Owner
Trustee may, after consultation with the Lessee, if there shall not have
occurred and be continuing an Indenture Event of Default, remove such
additional trustee by written notice to the Indenture Trustee, the
additional trustee and the Lessee.
(b) Every additional trustee hereunder shall, to the extent
permitted by law, be appointed and act, and such additional trustee and its
successors shall act, subject to the following provisions and conditions,
namely:
(1) the Notes shall be authenticated and delivered,
and all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the custody, control and
management of moneys, papers or securities, shall be exercised,
solely by the Indenture Trustee;
(2) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the
Indenture Trustee and such additional trustee or trustees
jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such additional trustee or trustees;
(3) no power given hereby to, or which it is provided
hereby may be exercised by, any such additional trustee or
trustees, shall be exercised hereunder by such additional trustee
or trustees, except jointly with, or with the consent in writing
of, the Indenture Trustee, anything herein contained to the
contrary notwithstanding;
(4) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(5) after consultation with the Lessee, the Owner
Trustee and the Indenture Trustee, at any time by an instrument
in writing, executed by them jointly, may remove any such
additional trustee, and in that case, by an instrument in writing
executed by them jointly, may appoint a successor or successors
to such additional trustee or trustees, as the case may be,
anything herein contained to the contrary notwithstanding. In
the event that the Owner Trustee shall not have joined in the
execution of any such instrument within 10 days after the receipt
of a written request from the Indenture Trustee to do so, the
Indenture Trustee shall have the power to remove any such
additional trustee and to appoint a successor additional trustee
without the concurrence of the Owner Trustee; and the Owner
Trustee hereby appoints the Indenture Trustee, its agent and
attorney to act for it in such connection in such contingency;
provided, however, that, if there shall not have occurred and be
continuing an Indenture Event of Default, within 90 days
following any appointment of a successor additional trustee
without the concurrence of the Owner Trustee, the Owner Trustee
may, after consultation with the Lessee, remove such successor
additional trustee by written notice to the Indenture Trustee and
the successor additional trustee. In the event that the
Indenture Trustee alone shall have appointed an additional
trustee or trustees as above provided, it may at any time, by an
instrument in writing, remove any such additional trustee, the
successor to any such additional trustee so removed to be
appointed by the Owner Trustee and the Indenture Trustee, or by
the Indenture Trustee alone, as hereinbefore in this Section
provided, subject to the aforesaid right of Owner Trustee, if
there shall not have occurred and be continuing an Indenture
Event of Default, to remove, after consultation with the Lessee,
such additional trustee within 90 days after such appointment.
SECTION 9.12. Withholding Taxes. The Indenture Trustee, as
agent for the Owner Trustee, shall exclude and withhold from each payment
of principal, premium, if any, and interest and other amounts due hereunder
or under the Notes any and all withholding taxes applicable thereto as
required by law. The Indenture Trustee agrees to act as such withholding
agent and, in connection therewith, whenever any present or future taxes or
similar charges are required to be withheld with respect to any amounts
payable in respect of the Notes, to withhold such amounts and timely pay
the same to the appropriate authority in the name and on behalf of the
Holders of the Notes, that it will file any necessary withholding tax
returns or statements when due, and that, as promptly as possible after the
payment thereof, it will deliver to each holder of a Note appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such holders may reasonably request from time to
time.
ARTICLE 10
NOTEHOLDERS' LISTS
SECTION 10.1 List of Names and Addresses of Noteholders. The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list delivered to it pursuant to this Section
10.1, as the case may be, of the names and addresses of the Noteholders.
If the Indenture Trustee is not the Note Registrar, the Note Registrar will
furnish or cause to be furnished to the Indenture Trustee semiannually, on
a date not more than 15 days after each regular Record Date with respect to
an Interest Payment Date, in each year, and at such other times as the
Indenture Trustee may request in, writing, within 30 days after receipt by
the Note Registrar of any such request, a list, in such form as the
Indenture Trustee may reasonably require, containing all of the information
in the possession or control of the Note Registrar as to the names and
addresses of the Noteholders, in each case as of a date not more than 15
days prior to the time such list is furnished. The Indenture Trustee may
destroy any list furnished to it as provided in this Section 10.1, as the
case may be, upon receipt of a new list so furnished.
ARTICLE 11
SUPPLEMENTAL INDENTURES
SECTION 11.1 Supplemental Indentures Without Consent of
Noteholders. Without the consent of any of the Noteholders, each of the
Owner Trustee and the Indenture Trustee shall enter into one or more
Supplemental Indentures, in form satisfactory to the Indenture Trustee, for
the following purposes:
(a) to effect the issuance of Notes in the circumstances
contemplated by Sections 2.4, 2.5 and 2.6 of the Participation Agreement
and Section 8(f) of each Lease;
(b) subject to the provisions of the Transaction Documents,
to evidence the succession of another corporation to the Lessee or to
evidence the succession of another corporation to the Owner Trustee, and
the assumption by any such successor of the covenants of the Owner Trustee
contained herein and in the Notes;
(c) to add to the covenants of the Owner Trustee, for the
benefit of the Noteholders, or to surrender any right or power herein
conferred upon the Owner Trustee;
(d) to convey, transfer and assign to the Indenture Trustee,
as the case may be, liens and security interests on, in and to additional
properties, and to correct or amplify the description of any property at
any time subject to the lien of any prior Supplemental Indenture or to
assure, convey and confirm unto the Indenture Trustee, as the case may be,
any property included or required to be included in the Related Indenture
Estate;
(e) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to qualify this Indenture
(including any Supplemental Indenture) under the Trust Indenture Act, or
under any similar Federal statute hereafter enacted;
(f) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein;
(g) to establish the form or terms of the Notes of any
series as permitted by Section 2.13;
(h) to permit or facilitate the issuance of Notes in
uncertificated form;
(i) to change or amend any provision hereof; provided that
such change or amendment shall become effective only when there is no
Outstanding Note of any series created prior to the execution of such
Supplemental Indenture which is entitled to the benefit of such provision;
(j) to evidence the succession of a new Indenture Trustee
hereunder or add a co-trustee or separate trustee and to make provisions as
to the rights and duties of such additional trustee and as to the
appointment and dismissal of any such additional trustee;
(k) to make any other amendments or provisions with respect
to matters or questions arising under this Indenture, provided such action
shall not adversely affect the interest of the Noteholders; or
(l) in the event of a substitution pursuant to Section
14(d) of any Lease, to subject the Substitute Parcel and Related Lessor
Interest to the Liens and security interests contemplated by this Indenture
and release the Related Indenture Estate subject to such original
Supplemental Indenture.
Notwithstanding the foregoing, no Supplemental Indenture shall
become effective except with the consent of the Noteholders of all Related
Notes then Outstanding if as a result thereof the amounts payable to the
Owner Trustee under a Lease (other than Excepted Payments) and assigned to
the Indenture Trustee hereunder shall not be sufficient to pay when due the
principal of, Premium, if any, and interest on all Outstanding Related
Notes. In the case of clause (l) above, all provisions of this Indenture
shall apply with respect to such Substitute Parcel and Related Indenture
Estate as if they had constituted a part of the original Related Indenture
Estate.
SECTION 11.2 Amendments with Consent of Noteholders. With
respect to any Supplemental Indenture, with the consent of a Majority in
Interest of Noteholders, by Directive delivered to the Owner Trustee and
the Indenture Trustee, the Owner Trustee may, and the Indenture Trustee,
subject to Section 11.3, shall, enter into amendments to such Supplemental
Indenture for the purpose of adding any provisions to or changing in any
manner the rights and obligations of such Noteholders and of the Owner
Trustee under this Indenture and such Supplemental Indenture; provided,
however, that no such amendment shall, without the consent of the holder of
each Outstanding Related Note affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of interest on, or the dates or circumstances of
payment of Premium, if any, on, any Related Note, or reduce the
principal amount thereof or the interest thereon or any amount
payable upon the redemption thereof, or change the circumstances
for redemption or change the place of payment where, or the coin
or currency in which, any Related Note or the Premium, if any, or
the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment of principal or
interest on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date subject, however,
to Section 6.5(c)) or such payment of Premium, if any, on or
after the date such Premium becomes due and payable or change the
dates or the amounts of payments to be made through installment
payments in respect of a Note of any series,
(2) permit the creation of any Lien prior to or
(except in respect of any Related Additional Notes) pari passu
with the lien of the Related Supplemental Indenture with respect
to any of the Related Indenture Estate, or terminate the lien of
the Related Supplemental Indenture on any of the Related
Indenture Estate or deprive any Related Noteholder of the
security afforded by the lien of the Related Supplemental
Indenture except as may be required to effectuate Article 12,
(3) terminate the Related Lease, reduce the amounts
payable under the Related Lease assigned to the Indenture Trustee
or change the time for the payment thereof so that such payments
are less than the amounts necessary to pay when due the principal
of, Premium, if any, and interest on the Outstanding Related
Notes,
(4) reduce the percentage in principal amount of the
Outstanding Related Notes, the consent of whose holders is
required for any such amendment, or the consent of whose holders
is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(5) modify any of the provisions of this Section 11.2,
except to increase any such percentage or to provide that certain
other provisions of this Indenture or the Related Supplemental
Indenture cannot be modified or waived without the consent of
each Noteholder affected thereby.
Upon receipt by the Indenture Trustee of an Officers' Certificate
of the Owner Trustee and such other documentation as the Indenture Trustee
may reasonably require and upon the filing with the Indenture Trustee of
evidence of the Act of such Noteholders, the Indenture Trustee shall join
in the execution of such amendment or other instrument, as the case may be,
subject to the provisions of Section 11.3.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Owner Trustee, the Lessee and the
Indenture Trustee of any amendment pursuant to the provisions of this
Section 11.2, the Owner Trustee shall transmit a written notice, setting
forth in general terms the substance of such amendment, to all Related
Noteholders, as the names and addresses of such Noteholders appear on the
Note Register. Any failure of the Owner Trustee to mail such notice, or
any defeat therein, shall not, however, in any way impair or affect the
validity of any such amendment.
SECTION 11.3 Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any Supplemental
Indenture or amendment permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Indenture Trustee
shall be entitled to receive, and shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such Supplemental
Indenture or amendment is authorized or permitted by this Indenture.
SECTION 11.4 Effect of Supplemental Indentures. Upon the
execution of any Supplemental Indenture permitted under this Article, this
Indenture shall be modified in accordance therewith, and each Supplemental
Indenture shall form a part of this Indenture for all purposes; and every
holder of Related Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound to this Indenture as so supplemented.
SECTION 11.5 Reference Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any Supplemental
Indenture pursuant to this Article may, and shall if required by the Owner
Trustee, bear a notation in form approved by the Owner Trustee and the
Indenture Trustee as to any matter provided for in such Supplemental
Indenture; and, in such case, suitable notation may be made upon
Outstanding Notes after proper presentation and demand. If the Owner
Trustee shall so determine, new Notes so modified as to conform, in the
opinion of the Owner Trustee and the Indenture Trustee, to any such
Supplemental Indenture may be prepared and executed by the Owner Trustee
and authenticated and delivered by the Indenture Trustee or other
Authorized Agent in exchange for Outstanding Notes.
ARTICLE 12
SUBORDINATION OF PROPERTY
SECTION 12.1 Subordination of Security Interest in Indenture
Estate for Reasons Other Than Condemnation. Subject to Section 12.2, the
Indenture Trustee shall subordinate the lien of the applicable Supplemental
Indenture to any easements or rights-of-way granted pursuant to Section 20
of the Related Lease upon receipt by the Indenture Trustee of an Owner
Trustee Request or a Lessee Request requesting such subordination.
SECTION 12.2 Removal of Property Without Release. The Owner
Trustee may remove, or permit the removal of, any property described in
Section 8(g) of any Lease in accordance with such Section 8(g) free from
the lien of the Related Supplemental Indenture and without any release from
or consent by the Indenture Trustee. All replacement parts shall
immediately become subject to the lien of such Supplemental Indenture.
The Indenture Trustee shall from time to time execute any written
instrument to confirm the propriety of any action taken by the Owner
Trustee under this Section 12.2 upon receipt by the Indenture Trustee of an
Owner Trustee Request requesting the same, together with an Officers'
Certificate of the Lessee stating that said action was duly taken by the
Owner Trustee in conformity with this Section 12.2 and that the execution
of such written instrument is appropriate to confirm the propriety of such
action under this Section 12.2.
SECTION 12.3 Purchasers Not Bound to Inquire. In no event shall
any purchaser or purchasers in good faith of any property purported to be
released hereunder be bound to ascertain the authority of the Indenture
Trustee to execute a release, or to inquire as to any facts required by the
provisions hereof for the exercise of such authority, or to see to the
application of the purchase moneys.
SECTION 12.4 Appoint Indenture Trustee Attorney-in-Fact. For
the purpose of executing and delivering any subordination agreement
described in this Article 12, the Indenture Trustee is hereby irrevocably a
constituted as agent and attorney-in-fact for the Noteholders and to that
end may execute, sign, seal, acknowledge and deliver all necessary
instruments of release as may be requested by the Lessee or the Owner
Trustee.
ARTICLE 13
EXCHANGE AND ASSUMPTION OF NOTES
SECTION 13.1 Exchange of Obligations of Owner Trustee for
Unsecured Obligations of the Lessee. Upon the termination of any Lease
pursuant to Section 14 thereof and the sale of the Leased Property pursuant
to Section 14(c)(iii) thereof, the Lessee may, pursuant to Section 9.1 of
the Participation Agreement and subject to the satisfaction of the
conditions set forth in (a) through (g) below, satisfy all of the rights
and obligations of the Owner Trustee under this Indenture in respect of the
Related Notes as contemplated in Section 14(c)(i)(B) of such Lease. In
such event, the Related Notes shall be exchanged for unsecured, full
recourse securities of the Lessee to be issued under a new indenture, as
described below. Such new securities will be issued on the Termination
Date (such date being referred to hereinafter as the "Exchange Date"). The
following shall be conditions to the issuance of any new securities in
exchange for the Related Notes:
(a) The Lessee shall have paid all amounts of accrued Rent
then due and owing and any other amounts due to the Owner Participant and
the Owner Trustee under the Related Lease and the other Related Transaction
Documents through the Exchange Date;
(b) The securities issued in exchange for the Notes shall be
issued in the same aggregate principal amount as the Related Notes then
Outstanding after giving effect to all payments of Rent being made in
connection with such exchange, bear the same interest rate, be payable in
installments in the same manner, if applicable, have the same Stated
Maturity and otherwise have substantially the same terms as the Related
Notes, except that in the case of such new securities shall not contain any
provisions relating to any security interest or deed of trust in respect of
the Related Lessor Interests;
(c) The new securities shall be issued under an indenture
reasonably satisfactory to the Indenture Trustee and the Lessee;
(d) The Lessee shall have delivered to the Indenture Trustee
an Officers' Certificate, dated the Exchange Date, stating that the Lessee
has paid to the Owner Trustee and the Owner Participant all amounts
required to be paid to the Owner Trustee and the Owner Participant pursuant
to the Transaction Documents in connection with such exchange;
(e) The exchange shall comply in all material respects with
applicable securities laws;
(f) The Indenture Trustee shall have received, on or prior
to the Exchange Date, evidence of all corporate action referred to in the
Opinion or Opinions of Counsel referred to below;
(g) The Indenture Trustee and the Owner Trustee shall have
received an Opinion or Opinions of Counsel for the Lessee, dated the
Exchange Date, which, subject to customary qualifications, shall be to the
effect that, after giving effect to the new indenture:
(i) such indenture constitutes the legal, valid and
binding obligation of the Lessee, enforceable against the Lessee
in accordance with its terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally and
by general principles of equity, and except as limited by
applicable laws which may affect the remedies provided for in
this Indenture;
(ii) if any Pass Through Trust holds any Related Notes,
the exchange will not cause, nor can it be reasonably foreseen to
cause, any such Pass Through Trust to become an "investment
company," as defined in the Investment Company Act of 1940, as
amended;
(iii) (A) no Related Noteholder will be required to
recognize income, gain or loss for tax purposes in connection
with such exchange; and (B) such exchange will not cause any
adverse tax consequences to the holders of the Related Notes (or,
so long as any Pass Through Certificates remain outstanding, to
the holders of such Pass Through Certificates); and
(iv) to such other effect as shall be customary in
opinions delivered to such persons in connection with the
issuance of similar unsecured debt securities.
If all of the foregoing conditions are satisfied, then, automatically and
without the requirement of further action by any Person, effective as of
the Exchange Date, the Owner Trustee shall be released from all of its
obligations under this Indenture in respect of the exchanged Notes or
otherwise (other than any obligations or liabilities of the Owner Trustee
in its individual capacity incurred on or prior to the Exchange Date or
arising out of or based upon events occurring on or prior to the Exchange
Date, which obligations and liabilities shall remain the sole
responsibility of the Owner Trustee). Any Related Notes that are not
actually surrendered and cancelled shall be deemed to have been so
surrendered and cancelled and exchanged for the new securities issued in
accordance with this Section 13.1.
SECTION 13.2 Exchange of Obligations of Owner Trustee for
Secured Obligations of the Lessee. Upon the termination of any Lease
pursuant to Section 14 thereof and the Lessee and the Lessor have failed to
sell the Related Leased Property and the Lessor shall be deemed to have
elected to sell the Related Leased Property to the Lessee pursuant to
Section 14(c)(i) thereof, the Lessee may, pursuant to Section 9.1 of the
Participation Agreement and subject to the satisfaction of the conditions
set forth in (a) through (g) below, satisfy all of the rights and
obligations of the Owner Trustee under this Indenture in respect of the
Related Notes. In such event, the Related Notes shall be exchanged for
secured, full recourse securities of the Lessee to be issued under a new
indenture, as described below. Such new securities will be issued on the
Termination Date (such date being referred to hereinafter as the "Exchange
Date"). The following shall be conditions to the issuance of any new
securities in exchange for the Related Notes:
(a) The Lessee shall have paid all amounts of accrued Rent
then due and owing and any other amounts due to the Owner Participant and
the Owner Trustee under the Related Lease and the other Related Transaction
Documents through the Exchange Date;
(b) The securities issued in exchange for the Related Notes
shall be issued in the same aggregate principal amount as the Related Notes
then Outstanding after giving effect to all payments of Rent being made in
connection with such exchange, bear the same interest rate, be payable in
installments in the same manner, if applicable, have the same Stated
Maturity and otherwise have substantially the same terms as the Related
Notes;
(c) The new securities shall be issued under an indenture
reasonably satisfactory to the Indenture Trustee and the Lessee;
(d) The Lessee shall have delivered to the Indenture Trustee
an Officers' Certificate, dated the Exchange Date, stating that the Lessee
has paid to the Owner Trustee and the Owner Participant all amounts
required to be paid to the Owner Trustee and the Owner Participant pursuant
to the Related Transaction Documents in connection with such exchange;
(e) The exchange shall comply in all material respects with
applicable securities laws;
(f) The Indenture Trustee shall have received, on or prior
to the Exchange Date, evidence of all corporate action referred to in the
Opinion or Opinions of Counsel referred to below;
(g) The Indenture Trustee and the Owner Trustee shall have
received an Opinion or Opinions of Counsel for the Lessee, dated the
Exchange Date, which, subject to customary qualifications, shall be to the
effect that, after giving effect to the new indenture:
(i) such indenture constitutes the legal, valid and
binding obligation of the Lessee, enforceable against the Lessee
in accordance with its terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally and
by general principles of equity, and except as limited by
applicable laws which may affect the remedies provided for in
this Indenture;
(ii) if any Pass Through Trust holds any Related Notes,
the exchange will not cause, nor can it be reasonably foreseen to
cause, any such Pass Through Trust to become an "investment
company," as defined in the Investment Company Act of 1940, as
amended;
(iii) (A) no Related Noteholder will be required to
recognize income, gain or loss for tax purposes in connection
with such exchange; and (B) such exchange will not cause any
adverse tax consequences to the holders of the Related Notes (or,
so long as any Pass Through Certificates remain outstanding, to
the holders of such Pass Through Certificates);
(iv) to such other effect as shall be customary in
opinions delivered to such persons in connection with the
issuance of similar unsecured debt securities; and
(h) No Lien other than Permitted Liens shall exist upon any
of the Related Leased Properties subject to Section 14(c)(i) of such Lease
and the Indenture Trustee and the Pass Through Trustee shall have received
a supplemental title insurance policy or endorsement to the then existing
policy, in either case, evidencing that the condition of the first clause
of this Section 13.2(h) has been met.
If all of the foregoing conditions are satisfied, then, automatically and
without the requirement of further action by any Person, effective as of
the Exchange Date, the Owner Trustee shall be released from all of its
obligations under this Indenture in respect of the exchanged Notes or
otherwise (other than any obligations or liabilities of the Owner Trustee
in its individual capacity incurred on or prior to the Exchange Date or
arising out of or based upon events occurring on or prior to the Exchange
Date, which obligations and liabilities shall remain the sole
responsibility of the Owner Trustee). Any Related Notes that are not
actually surrendered and cancelled shall be deemed to have been so
surrendered and cancelled and exchanged for the new securities issued in
accordance with this Section 13.2.
ARTICLE 14
SUNDRY PROVISIONS
SECTION 14.1 Execution in Counterparts. This instrument may be
executed in any number of counterparts, each of which when so executed
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 14.2 Lessee Not Liable. In no event shall any provision
of this Indenture or the Notes constitute a guaranty or assumption by the
Lessee of the Notes or the indebtedness represented thereby.
SECTION 14.3 Limitation of Liability.
It is expressly understood and agreed by the parties hereto that
(a) each of the representations, undertakings and agreements herein made on
the part of the Indenture Trustee is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company
but is made and intended for the purpose for binding only the Indenture
Estate and (b) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of the
Indenture Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Indenture
Trustee under this Indenture (except as otherwise expressly provided herein
or in the Transaction Documents).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers thereunto duly
authorized, and their respective corporate seal to be hereunto affixed, all
as of the day and year first above written.
STATE STREET BANK AND
TRUST COMPANY OF CALIFORNIA, NATIONAL
ASSOCIATION, not in its individual
capacity except to the extent set forth
herein, but as Owner Trustee under the
Trust Agreement
By: /s/ W. Jeffrey Kramer
Name:
Title:
WILMINGTON TRUST COMPANY, as Indenture
Trustee
By: /s/ Emmett R. Harmon
Name:
Title:
The address of the within
named mortgagee is:
____________________________________
on behalf of Mortgagee
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing Trust Indenture was acknowledged before me, the
undersigned Notary Public, in the County of New York this 27 day of
December 1993, by __________________________, as _________________________
of STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, NATIONAL ASSOCIATION,
not in its individual capacity, except as expressly set forth in the
foregoing Indenture but solely as Owner Trustee, on behalf of the Owner
Trustee.
(Notarial Seal)
______________________________________
Notary Public
My commission expires:________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing Trust Indenture was acknowledged before me, the
undersigned Notary Public, in the County of New York this 27 day of
December 1993, by _____________________ __ as ______________________ of
Wilmington Trust Company, on behalf of the Indenture Trustee.
(Notarial Seal)
______________________________________
Notary Public
My commission expires:_______________