EXHIBIT 4.3.5
FORM OF DEED OF TRUST,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING [SERIES __]
(containing a supplemental indenture)
dated as of April 1, 1994
among
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, as trustor;
STEWART TITLE OF CALIFORNIA, a California
corporation, as trustee;
and
WILMINGTON TRUST COMPANY,
a Delaware banking corporation,
the Indenture Trustee, as beneficiary
___________________
SMITH'S FOOD & DRUG CENTERS, INC.
Leveraged Lease of [One (1) Food and Drug Store]
[One (1) Distribution Center]
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING [SERIES __], dated as of April 1, 1994 (the "Second
Supplemental Indenture"), containing the Second Supplemental Indenture to
the Trust Indenture and Security Agreement, dated as of December 21, 1993
(the "Original Indenture," as supplemented by the Deed of Trust, Assignment
of Leases and Rents, Security Agreement and Fixture Filing [Series J- __]
(containing Supplemental Indenture) dated as of December 21, 1993 (the
"First Supplemental Indenture [Series J-__]"), and, together with any
additional supplemental indentures including this Second Supplemental
Indenture, the "Indenture"), by 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 with the Owner Participant in favor of Stewart Title of
California, a California corporation ("Trustee"), for the benefit of
Wilmington Trust Company, a Delaware banking corporation as trustee for the
benefit of the Noteholders, as beneficiary hereunder (the "Indenture
Trustee").
RECITALS:
(a) The Owner Trustee has heretofore executed and delivered to
the Indenture Trustee the Original Indenture to provide for the issuance
from time to time of notes to be issued in one or more series (the
"Notes");
(b) Sections 2.13 and 11.1 of the Original Indenture provide,
among other things, that the Owner Trustee and the Indenture Trustee may
enter into indentures supplemental to the Original Indenture for, among
other things, the purpose of establishing the form and terms of Notes of
any series as permitted by Sections 2.13 and 11.1 of the Original
Indenture;
(c) The Owner Trustee has heretofore executed and delivered the
First Supplemental Indenture [Series J-__] to provide for the issuance of
subseries J-__ Notes of the Series J Notes, which First Supplemental
Indenture [Series J-__] was recorded on December __, 1993 in the Official
Records of _______ County, California in Book ____ at Page _____;
(d) As contemplated by Section 7.2 of the Original Indenture and
Section 2.6 of the Participation Agreement, the Owner Trustee (i) desires
to issue a series of Notes to be designated as "Series __ Notes" (the
"Series __ Notes") in order to refinance the Outstanding J-__ Notes, and
(ii) has requested the Indenture Trustee to enter into this Second
Supplemental Indenture for the purpose of establishing the form and terms
of the Series __ Notes;
(e) All action on the part of the Owner Trustee necessary to
authorize the issuance of the Series __ Notes, the redemption of the J-__
Notes and the release of the lien of the First Supplemental Indenture
(Series J-__) under the Original Indenture and this Second Supplemental
Indenture has been duly taken; and
(f) All acts and things necessary to make the Series __ Notes,
when executed by the Owner Trustee and authenticated and delivered by the
Indenture Trustee as provided in the Original Indenture, the legal, valid
and binding obligations of the Owner Trustee, and to constitute a valid and
binding supplemental indenture, deed of trust, leasehold deed of trust,
assignment of leases and rents and security agreement according to its
terms, have been done and performed, and the execution of this Second
Supplemental Indenture and the creation and issuance under the Indenture of
the Series __ Notes have in all respects been duly authorized, and the
Owner Trustee, in the exercise of the legal right and power vested in it,
executes this Second Supplemental Indenture and proposes to create,
execute, issue and deliver the Series __ Notes;
NOW, THEREFORE, this Second Supplemental Indenture witnesseth
that, in order to release the lien of the First Supplemental Indenture
(Series J-___), establish the form and terms of and to authorize the
authentication and delivery of the Series __ Notes and to grant security
for the payment thereof, and in consideration of the premises and of other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged:
GRANTING CLAUSE:
The Owner Trustee hereby irrevocably grants, transfers, assigns,
mortgages, warrants, aliens, demises, releases, transfers, sets over,
delivers and conveys to the Trustee, in trust, with power of sale and right
of entry, for the benefit of the Indenture Trustee, its successors and
assigns, upon the terms and conditions of this Second Supplemental
Indenture, the following described property, rights and privileges, whether
now owned or held or hereafter acquired (herein called the "Indenture
Estate [Series __]"), to wit:
(a) all right, title and interest of the Owner Trustee, now
existing or hereafter arising, in and to the Related Lessor Interest in
respect of Property __ as more fully described in Exhibit A attached hereto
and incorporated herein;
(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 Property , 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 Lease __, payments pursuant to Section 16 of 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 [Series __] 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 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 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 the Original 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 or under the Original Indenture;
(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 Second 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 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 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 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 Second Supplemental Indenture as
then supplemented;
(f) all right, title and interest of the Owner Trustee, now
existing or hereinafter arising, in and to the Tripartite Agreement to the
extent such Tripartite Agreement relates to Property ___; and
(g) all proceeds of any of the foregoing.
BUT EXCLUDING, HOWEVER, from the Indenture Estate [Series __] 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 (or, in the case of amendments, modifications, waivers,
discharges, supplements, terminations or consents described below to any of
Section 2(b), Section 3(b), Section 3(c)(i) or Section 3(c)(ii) of the
Related Lease, unanimous consent), 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 time 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 the 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; and provided, further,that no such modification, amendment,
supplement, consent or waiver shall without the consent of each Noteholder
affect thereby, modify, amend or supplement, or give any consent in respect
of or waive any provision of, the Related Lease in such manner (A) 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 (B) 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 (A) above of this proviso.
(bb) During the continuance of any Indenture Event of
Default caused by an Event of Default under 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 Lease __; provided,
that in so enforcing any such covenant, the Owner Trustee may not exercise
any remedies under Section 16(a) (i) of 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
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 Second
Supplemental Indenture or the Original 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, Lease __ in such manner (i) as to reduce the amounts payable
by the Lessee under 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 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 Lease __ and intended to be used to
pay the principal of, Premium, if any, or interest on the Notes, in
any manner inconsistent with clause (i) above.
To the extent any portion of the Indenture Estate [Series ]
constitutes personal property under Applicable Law, the Owner Trustee
hereby grants to the Indenture Trustee a security interest in such property
and the proceeds thereof and the Indenture Trustee shall have, in addition
to all rights and remedies provided herein and in the Original Indenture,
all rights and remedies of a "secured party" under the Uniform Commercial
Code and this Second Supplemental Indenture shall also be deemed to be a
"security agreement" for purposes of the Uniform Commercial Code. This
Second Supplemental Indenture, in addition to constituting a security
agreement covering any personal property that is part of the Indenture
Estate [Series __], constitutes (i) a deed of trust and an absolute
assignment of rents with respect to all estates in land, fixtures,
leaseholds, easements or other interests in real property that are part of
the Indenture Estate [Series __] and the rents, issues and profits thereof
and (ii) a financing statement filed as a fixture filing under Section
9402(b) of the California Uniform Commercial Code, as amended or recodified
from time to time, covering any portion of the Indenture Estate which is
now or later may become fixtures. For purposes of such fixture filing, the
"debtor" is the Owner Trustee whose address is State Street Bank and Trust
Company of California, National Association, 725 South Figueroa Street, Los
Angeles, California 90017 and the "secured party" is the Indenture Trustee
whose address is Wilmington Trust Company, Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890.
OBLIGATIONS SECURED:
This Second Supplemental Indenture is given for the purpose of
securing payment and performance of the following obligations
(collectively, the "Secured Obligations"): (a) the payment of the
principal of, Premium, if any, and interest on the Series __ Notes
outstanding from time to time hereunder according to their tenor and
effect; (b) the performance and observance by the Owner Trustee of all the
covenants, agreements and provisions contained herein and in the Series __
Notes; and (c) all present and future obligations of the Owner Trustee
under this Second Supplemental Indenture.
PROVIDED, HOWEVER, that if the principal of, Premium, if any, and
interest on the Series __ Notes, and all other amounts payable under or
secured by this Second Supplemental Indenture shall have been paid pursuant
to Section 3.1 of the Original Indenture or otherwise and the Owner Trustee
shall have performed and complied with all the covenants, agreements, terms
and provisions of the Indenture and this Second Supplemental Indenture,
then the Indenture and the rights hereby and thereby granted and assigned
with respect to the Series __ Notes shall terminate with respect to the
Series __ Notes.
IT IS HEREBY COVENANTED AND AGREED that all the Series __ Notes
are to be issued and delivered, and that all property, rights and
privileges subject or to become subject to this Second Supplemental
Indenture, are to be held subject to the further covenants, conditions,
uses and trusts herein and therein 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 Series __ Notes from
time to time, and the Indenture Trustee agrees to accept the trust and
duties herein set forth, as follows:
ARTICLE 1
THE NOTES
SECTION 1.1 Definitions. Appendix A to the Original Indenture
is hereby amended as set forth in Appendix A to this Second Supplemental
Indenture. Unless the context shall otherwise require, each of the
capitalized terms used in this Second Supplemental Indenture and not
otherwise defined in this Second Supplemental Indenture shall have the
meaning assigned to it in Appendix A as so amended and the rules of usage
set forth in Appendix A as so amended shall apply thereto. As used in this
Second Supplemental Indenture, the term "parties" means, collectively, the
Owner Trustee and the Indenture Trustee. Unless otherwise indicated,
references in this Second Supplemental Indenture to articles, sections,
paragraphs, clauses, appendices, schedules and exhibits are to the same
contained in or attached to this Second Supplemental Indenture. For
purposes of this Second Supplemental Indenture, the "principal amount" of
any Series_ Note during the applicable Pre-Commencement Date Period shall
mean and be the Accreted Value of such Series _ Note.
SECTION 1.2 Designation of the Notes. There is hereby created
the Series __ Notes, in such subseries as designated in Section 1.3. The
Series __ Notes may forthwith be executed by the Owner Trustee and
delivered to the Indenture Trustee for authentication and delivery by the
Indenture Trustee in accordance with the provisions of Section 2.11 of the
Original Indenture.
SECTION 1.3 Maximum Principal Amount. Except as otherwise
provided in the Indenture, the Series ___ Notes shall be limited in
aggregate Relevant Principal Amount to [$ ] of which [$ ]
shall have a Stated Maturity of [ ] (the "__-1 Notes"), [$
] shall have a Stated Maturity of [ ] (the "__-2 Notes") and
[$ ] shall have a Stated Maturity of [ ] (the "__ -3
Notes").
SECTION 1.4 Maturities, Accretion and Interest Rates. The
Series __ Notes shall be dated the date hereof, shall have stated
maturities on the dates and years set forth below (each such subseries of
Series __ Note to have a Stated Maturity no later than the Stated Maturity
of the Related J-__ Notes being redeemed in connection with the issuance of
the Series __ Notes), shall have aggregate Relevant Principal Amounts as
set forth below and shall bear interest at the rates per annum specified
below:
Aggregate Aggregate
Relevant Original AOIP as
Principal Issue Pr Percenta
Stated Amount ice ge Interest
Note Maturity ("ARPA") ("AOIP") of ARPA Rate
__-1
__-2
__-3
Pursuant to the terms of the Participation Agreement, the Series __ Notes
shall be initially issued to the Pass Through Trustee.
SECTION 1.5 Denominations. The Series __ Notes shall be issued
in denominations of $1,000 of Relevant Principal Amount or integral
multiples thereof.
SECTION 1.6 Principal and Interest Payments.
(a) Each of the Series __ Notes shall bear interest on the
Relevant Principal Amount specified in each such Series __ Note from time
to time outstanding in respect of the period commencing on and including
the Commencement Date and ending on the date when the principal amount of
such Series __ Note shall have been paid in full, such being interest
payable on each Installment Payment Date; provided, however, that, if the
Accreted Value of any Series __ Note is not paid when due (upon redemption
or acceleration or otherwise) during the Pre-Commencement Date Period,
interest on the Accreted Value of such Series __ Note as at the date such
Accreted Value was not paid shall accrue (and be payable on demand) at the
interest rate per annum specified in Section 1.4 from such date until such
Accreted Value shall have been paid in full.
(b) During the Pre-Commencement Period, Original Issue Discount
shall accrue on each Series __ Note at the interest rate specified in
Section 1.4, on a semi-annual bond equivalent basis using a 360-day year
composed of twelve 30-day months.
(c) The principal of each Series __ Note shall be payable in
installments, on each Installment Payment Date and at Stated Maturity, in
amounts equal to the Installment Payment Amount for each Installment
Payment Date and Stated Maturity, as provided in Schedule 1.6 hereto.
(d) Payment on Series __ Notes in respect of interest and
Installment Payment Amounts, if any, payable on any Installment Payment
Date (other than the Stated Maturity of the Series __ Notes) shall be on
each Installment Payment Date (other than the Stated Maturity of the Series
__ Notes) to the holder of record on the relevant Record Date. With
respect to the Series __ Notes, "Record Date" for the interest or
Installment Payment Amounts payable on any Installment Payment Date, shall
mean the calendar day (whether or not a Business Day) which is 15 calendar
days prior to the related Installment Payment Date.
(e) The principal of, Premium, if any, and interest on the
Series __ Notes shall be payable in immediately available funds at the
principal corporate trust office of the Indenture Trustee or at any office
or agency maintained for such purpose pursuant to Section 5.3 of the
Original Indenture, or as otherwise directed in the manner herein provided.
Notwithstanding the foregoing or any provision in any Series __ Note to the
contrary, the Indenture Trustee will pay, or cause to be paid, if so
requested by any Holder of Series __ Notes by written notice to the Owner
Trustee and the Indenture Trustee, all amounts payable by the Owner Trustee
hereunder to such Holder of Series __ Notes or a nominee therefor either
(i) by transferring by wire in immediately available funds to an account
maintained by such Holder of Series __ Notes with a bank in the United
States the amount to be distributed to such Noteholder or (ii) by mailing a
check denominated in U.S. dollars to such Holder of Series __ Notes at such
address as such Holder of Series __ Notes shall have specified in such
notice, in any case without any presentment or surrender of any Series __
Notes, except that any Holder of Series __ Notes shall surrender any Series
__ Note to the Indenture Trustee upon payment in full of the principal
amount of and interest on such Series __ Note and such other sums payable
to such Holder hereunder or under the Series __ Note.
SECTION 1.7 Optional Redemption. All of the Series __ Notes
are subject to redemption, in whole or by subseries, pursuant to Section
2.5 of the Participation Agreement. Notice of any such redemption shall be
given in accordance with Sections 6.2 and 6.4 of the Original Indenture.
The Redemption Price of each such Series __ Note to be redeemed shall be
equal to the aggregate unpaid principal amount of such Series __ Note, plus
Premium, if any, together with accrued but unpaid interest thereon to, but
not including, the applicable Redemption Date.
SECTION 1.8 Special Redemptions.
(a) If an Event of Loss under Lease __ shall occur, the Series
__ Notes are subject to redemption as set forth in Section 6.1(b)(i) of the
Original Indenture.
(b) If Lease __ shall be terminated pursuant to Section 14
thereof, the Series __ Notes are subject to redemption as set forth in
Section 6.1(b)(ii) of the Original Indenture.
(c) The Series __ Notes are also subject to purchase at the
option of the Owner Trustee in accordance with the terms of Section 8.10(c)
of the Original Indenture.
SECTION 1.9 Paying Agent and Note Registrar. The initial Paying
Agent and Note Registrar for the Series __ Notes shall be the Indenture
Trustee.
SECTION 1.10 Form of the Series __ Notes. The Series__ -1 Notes
shall be issued in substantially the form attached as Exhibit B-1 hereto
and the Series __ -2 Notes and Series __ -3 Notes shall be issued in
substantially the form attached as Exhibit B-2 hereto.
SECTION 1.11 Certificate of Authentication. The form of the
certificate of authentication for the Series __ Notes to be executed by the
Indenture Trustee shall be as set forth at the end of Exhibit B-1 or B-2,
as the case may be. The alternate form of certificate of authentication
for the Series __ Notes to be executed by an Authenticating Agent on behalf
of the Indenture Trustee shall be as set forth in Section 9.10 of the
Original Indenture.
SECTION 1.12 Other Terms. The Series __ Notes shall have and be
subject to such other terms not inconsistent with the terms of this Second
Supplemental Indenture as are set forth in the Original Indenture.
SECTION 1.13 Series of Notes. Subject to the satisfaction or
waiver of the requirements of Section 2.5 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)
sufficient funds to redeem the principal amount of Related Notes of any
series or subseries theretofore authenticated and delivered hereunder, or
(b) all or a portion of the amount necessary to finance any Modification;
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, or
(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
and (ii) the Installment Payment Dates and the Record Dates for all
Series__ Notes shall not differ. The Indenture Trustee shall authenticate
and deliver all Series__ Notes subject to the conditions of Section 2.13 of
the Original Indenture.
SECTION 1.14 Equally and Ratably Secured Notes. All Outstanding
Series___ Notes shall be equally and ratably secured by the Indenture, this
Second Supplemental Indenture and the Indenture Estate [Series ___],
without preference, priority or distinction on account of the date or dates
or the actual time or times of the issue or Stated Maturity, so that all
Outstanding Series ___ Notes shall have the same right, lien and preference
under and by virtue of the Original Indenture, this Second Supplemental
Indenture and the Indenture Estate [Series ___].
SECTION 1.15 Indenture Estate. Neither the Owner Participant
nor any Holder of a Series ___ Note shall have legal title to any part of
the Indenture Estate [Series ___]. No transfer, by operation of law or
otherwise, of any Series ___ Note or other right, title or interest of the
Owner Participant or of any Holder of a Series ___ Note in and to the
Indenture Estate [Series ___] or hereunder shall operate to terminate the
Indenture, or the trust hereunder or entitle any successor or transferee of
the Owner Participant or of such Holder of a Series ___ Note to any
accounting or to the transfer to it of legal title to any part of the
Indenture Estate [Series ___], other than as set forth in the Original
Indenture and in this Second Supplemental Indenture, and such restriction
shall run with the land and survive any termination of the original
Indenture and this Second Supplemental Indenture [Series ___] in violation
thereof.
SECTION 1.16 Assignment of Rents. Owner Trustee irrevocably and
absolutely grants, transfers and assigns to Indenture Trustee, for so long
as any of the Series __ Notes remain outstanding, all of Owner Trustee's
right, title and interest in and to the Rent under Lease __. Nothing
contained in this Second Supplemental Indenture, nor the exercise of the
right by Indenture Trustee to collect the Rent under Lease __, shall be
deemed to make Indenture Trustee a "mortgagee in possession" or shall be,
or be construed to be, an affirmation by Indenture Trustee of, or an
assumption of liability by Indenture Trustee under, or a subordination of
the lien of this Second Supplemental Indenture to, any tenancy, lease or
option.
SECTION 1.17 Default; Remedies. Upon the occurrence of any
Indenture Event of Default, but subject to the terms of the Original
Indenture, including, but not limited to, Sections 8.2, 8.3, 8.10 and 8.15
of the Original Indenture: (a) the Owner Trustee shall be in default under
this Second Supplemental Indenture, and upon acceleration of the maturity
of any Secured Obligations in accordance with the terms of the Series __
Notes and the Original Indenture, all Secured Obligations shall immediately
become due and payable without further notice to the Owner Trustee and (b)
the Indenture Trustee may, without notice to or demand upon the Owner
Trustee, which are expressly waived by the Owner Trustee (except for
notices or demands otherwise required by Applicable Law to the extent not
effectively waived by the Owner Trustee and any notices or demands
specified below), and without releasing the Owner Trustee from any of the
Secured Obligations, exercise any one or more of the following remedies as
Indenture Trustee may determine:
(i) the Indenture Trustee may, either directly or through an
agent or court-appointed receiver, and without regard to the
adequacy of any security for the Secured Obligations, but subject
to Sections 8.3(a) and 8.10 of the Original Indenture, exercise
any or all of the rights and powers and pursue any or all of the
remedies under the Lease affecting Property (including
Section 16 thereof) and, in connection therewith, corresponding
remedies under this Section 1.19 and may take possession of all
or any part of the Indenture Estate [Series ___] and may exclude
the Owner Trustee and the Lessee and, to the extent permitted by
Applicable Law, all persons claiming under either of them wholly
or partly therefrom;
(ii) the Indenture Trustee may execute and deliver to
Trustee written declaration of default and demand for sale and
written notice of default and of election to cause all or any
part of the Indenture Estate [Series __] to be sold, which notice
Trustee shall cause to be filed for record; and after the lapse
of such time as may then be required by law following the
recordation of such notice of default, and notice of sale having
been given as then required by law, Trustee, without demand on
the Owner Trustee, shall sell such property at the time and place
fixed by it in such notice of sale, either as a whole or in
separate parcels and in such order as the Indenture Trustee may
direct (the Owner Trustee waiving any right to direct the order
of sale), at public auction to the highest bidder for cash in
lawful money of the United States (or cash equivalents acceptable
to Trustee to the extent permitted by applicable law), payable at
the time of sale. Trustee may postpone the sale of all or any
part of the Indenture Estate [Series __] by public announcement
at such time and place of sale, and from time to time after any
such postponement may postpone such sale by public announcement
at the time fixed by the preceding postponement. Trustee shall
deliver to the purchaser at such sale its deed conveying the
property so sold, but without any covenant or warranty, express
or implied, and the recitals in such deed of any matters or facts
shall be conclusive proof of the truthfulness thereof. Any
person, including Trustee or the Indenture Trustee, may purchase
at such sale, and any bid by the Indenture Trustee may be, in
whole or in part, in the form of cancellation of all or any part
of the Secured Obligations. Any such sale shall be free and
clear of any interest of the Owner Trustee and any lease,
encumbrance or other matter affecting the property so sold which
is subject or subordinate to this Second Supplemental Indenture,
except that any such sale shall not result in the termination of
any such lease (A) if and to the extent otherwise provided in any
estoppel or other agreement executed by the tenant and the
Indenture Trustee (or executed by the tenant in favor of, and
accepted by, the Indenture Trustee), or (B) if the purchaser at
such sale gives written notice to the tenant, within 30 days
after date of sale, that the lease will continue in effect;
(iii) with respect to any personal property secured hereby,
the Indenture Trustee shall have in any jurisdiction where
enforcement of this Second Supplemental Indenture is sought all
remedies of a secured party under the UCC and may require the
Owner Trustee, on demand, to assemble all personal property
secured hereby and make it available to the Indenture Trustee at
places that the Indenture Trustee may select that are reasonably
convenient for both parties, whether at the premises of the Owner
Trustee or elsewhere; and
(iv) the Indenture Trustee may proceed to protect, exercise
and enforce any and all other remedies provided under the Series
___ Notes, the Original Indenture or by applicable laws.
Each of the remedies provided in this Second Supplemental
Indenture is cumulative and not exclusive of, and shall not prejudice, any
other remedy provided in this Second Supplemental Indenture or by
applicable laws or under any other Transaction Document. Each remedy may
be exercised from time to time as often as deemed necessary by Trustee and
the Indenture Trustee, and in such order and manner as the Indenture
Trustee may determine. This Second Supplemental Indenture is independent
of any other security for the Secured Obligations, and upon the occurrence
of an Indenture Event of Default, Trustee or the Indenture Trustee may
proceed in the enforcement of this Second Supplemental Indenture
independently of any other remedy that Trustee or the Indenture Trustee may
at any time hold with respect to the Indenture Estate [Series __] or the
Secured Obligations or any other security. The Owner Trustee, for itself
and for any other person claiming by or through the Owner Trustee, waives,
to the fullest extent permitted by applicable laws, all rights to require a
marshalling of assets by Trustee or the Indenture Trustee or to require
Trustee or the Indenture Trustee to first resort to any particular portion
of the Indenture Estate [Series __] or any other security (whether such
portion shall have been retained or conveyed by the Owner Trustee) before
resorting to any other portion, and all rights of redemption, stay and
appraisal.
Anything to the contrary provided in this Second Supplemental
Indenture or the Original Indenture notwithstanding, the Indenture Trustee
shall not exercise any remedy hereunder other than the commencement of an
action for judicial foreclosure of the lien of this Second Supplemental
Indenture unless the Indenture Trustee shall either (i) simultaneously and
in conjunction with the exercise of such remedy, commence and pursue an
action for judicial foreclosure of the lien of this Second Supplemental
Indenture or (ii) deliver to the Owner Trustee an Opinion of Counsel in
form and from counsel reasonably satisfactory to the Owner Trustee that the
exercise of such remedy in the absence of a concurrent action for judicial
foreclosure will not impair the exercise of any rights or remedies reserved
to the Owner Trustee pursuant to clause (bb) of the Granting Clauses of
this Second Supplemental Indenture or Section 8.15 of the Original
Indenture.
Section 1.18 Costs, Fees and Expenses. The Owner Trustee shall
pay, on demand, all costs, fees, expenses, advances, charges, losses and
liabilities of Trustee and the Indenture Trustee under or in connection
with this Second Supplemental Indenture or the enforcement of, or the
exercise of any remedy or any other action taken by Trustee or the
Indenture Trustee under, this Second Supplemental Indenture or the
collection of the Secured Obligations, in each case including (a)
reconveyance and foreclosure fees of Trustee, (b) costs and expenses of the
Indenture Trustee or Trustee or any receiver appointed under this Second
Supplemental Indenture in connection with the operation, maintenance,
management, protection, preservation, collection, sale or other liquidation
of the Indenture Estate [Series __] or foreclosure of this Second
Supplemental Indenture, (c) advances made by the Indenture Trustee to
complete or partially construct all or any part of any construction which
may have commenced on the Indenture Estate [Series __] or otherwise to
protect the security of this Second Supplemental Indenture, (d) cost of
evidence of title, and (e) the reasonable fees and disbursements of
Trustee's and the Indenture Trustee's legal counsel and other out-of-pocket
expenses, and the reasonable charges of the Indenture Trustee's internal
legal counsel; together with interest on all such amounts until paid (i) at
the Overdue Interest Rate in the case of any such interest payable to the
Indenture Trustee, and (ii) at the rate provided by law in the case of any
such interest payable to Trustee.
Section 1.19 Substitution of Trustee. The Indenture
Trustee may from time to time, by instrument in writing, substitute a
successor or successors to any Trustee named in or acting under this Second
Supplemental Indenture, which instrument, when executed by the Indenture
Trustee and duly acknowledged and recorded in the office of the recorder of
the county or counties where the real property secured hereby is situated,
shall be conclusive proof of proper substitution of such successor Trustee
or Trustees who shall, without conveyance from the predecessor Trustee,
succeed to all of its title, estate, rights, powers and duties. Such
instrument must contain the name of the original Owner Trustee, Trustee and
the Indenture Trustee, the book and page where this Second Supplemental
Indenture is recorded (or the date of recording and instrument number) and
the name and address of the new Trustee.
ARTICLE 2
Release of First Supplemental Indenture
Section 2.1 Release of First Supplemental Indenture. For good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Indenture Trustee hereby authorizes and directs Trustee
to release for all purposes from the lien of First Supplemental Indenture
the property described on Exhibit "A" attached hereto and made a part
hereof (the "Release Parcel").
The Release granted by the Trustee pursuant to this Article
2 shall affect only the lien of the First Supplemental Indenture. Such
release does not constitute satisfaction or forgiveness of all or any
portion of the indebtedness evidenced by the Series ___ Notes or secured by
this Second Supplemental Indenture. This Second Supplemental Indenture
shall continue to be in full force and effect, encumbering all property
described therein.
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 Satisfaction and Discharge. The Series __ Notes
shall be subject to satisfaction and discharge as provided in Section 3.1
of the Original Indenture.
SECTION 3.2 Execution as Supplemental Indenture. This Second
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Second Supplemental Indenture forms a part thereof.
SECTION 3.3 Responsibility for Recitals, Etc. The recitals
contained herein and in the Series __ Notes, except the Indenture Trustee's
certificate of authentication, shall be taken as the statements of the
Owner Trustee, and the Indenture Trustee assumes no responsibility for the
correctness of the same.
SECTION 3.4 GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF CALIFORNIA WITHOUT REFERENCE TO THE CHOICE OF LAW DOCTRINE OF SUCH
STATE.
SECTION 3.5 Ratification of Indenture. As supplemented by this
Second Supplemental Indenture, the Original Indenture is in all respects
ratified and confirmed and the Original Indenture as so supplemented by
this Second Supplemental Indenture shall be read, taken and construed as
one and the same instrument. The provisions of this Second Supplemental
Indenture supersede in all respects the First Supplemental Indenture.
SECTION 3.6 Counterparts. This Second Supplemental Indenture
may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original; but all such counterparts shall
together constitute but one and the same instrument.
SECTION 3.7 Request for Notice. The Owner Trustee requests that
a copy of any notice of default and a copy of any notice of sale be mailed
to the Owner Trustee at the Owner Trustee's address set forth above.
SECTION 3.8 Declaration of Trust. The Owner Trustee hereby
declares the creation of this Trust (the "1994 Series __ Trust") for the
benefit of the Holders of the Series __ Notes, and the Pass Through
Trustee, as the initial Holder of the Series __ Notes, as the grantor of
the 1994 Series __ Trust, by its acceptance of the Series __ Notes, joins
in the creation of this 1994 Series __ Trust with the Trustee.
IN WITNESS WHEREOF, the parties have caused this Second
Supplemental Indenture to be duly executed as of the date 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: __________________________
Name:
Title:
WILMINGTON TRUST COMPANY, as
Indenture Trustee
By: ________________________
Name:
Title:
State of Delaware )
)
County of New Castle )
On __________________________ before me, ____________________________,
Notary Public, personally appeared
______________________________________________________ personally known to
me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal
SIGNATURE [seal]
State of __________ )
)
County of ___________ )
On __________________________ before me, ____________________________,
Notary Public, personally appeared
______________________________________________________ personally known to
me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal
SIGNATURE [seal]
SCHEDULE 1.6
Installment Payment Dates and
Installment Payment Percentages
__-1 Notes due [ ]
Installment Payment Installment Payment Installment Payment
Date Percentage Payment Amount
100%
__-2 Notes due [ ]
Installment Payment Installment Payment Installment Payment
Date Percentage Payment Amount
_-3 Notes due [ ]
Installment Payment Installment Payment Installment Payment
Date Percentage Payment Amount
EXHIBIT B-1 to
Second Supplemental Indenture [Series __]
FORM OF SERIES __ NOTE
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.
No.______
$ _________ (________ United States Dollars) ("Original Issue Price")
$ _________ (________ United States Dollars) ("Relevant Principal Amount")
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
under the Trust Agreement
dated as of December 21, 1993
SERIES __-__ NOTE
INTEREST RATE: [ ]
STATED MATURITY: [ ]
REGISTERED NOTEHOLDER: [ ]
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, NATIONAL
ASSOCIATION, a national banking association, not in its individual
capacity, but solely as Owner Trustee under the Trust Agreement
(hereinafter called the "Owner Trustee," which term includes any successor
corporation under the Indenture referred to herein) dated as of December
21, 1993, with the Owner Participant named therein (together with its
permitted successors and assigns, hereinafter called the "Owner
Participant"), for value received and intending to be legally bound, hereby
promises to pay to the Registered Noteholder named above, or registered
assigns, the principal sum in Dollars equal to the Relevant Principal
Amount as set forth herein below due and payable at Stated Maturity
specified above (provided, however, that if the obligations evidenced by
this Series __ Note shall become due and payable (upon redemption or
acceleration or otherwise) during the Pre-Commencement Period, the
principal amount thereof to be paid shall be the Accreted Value of such
date of redemption, acceleration or payment of this Series __ Note) and to
pay interest (computed on the basis of a 360-day year of twelve 30-day
months) at the interest rate per annum specified above on the principal
amount from time to time Outstanding in respect of the period commencing on
and including the Commencement Date and ending on the date when the
principal amount hereof shall have been paid in full; provided, however,
that, if the Accreted Value of this Series __ Note is not paid when due
(upon redemption or acceleration or otherwise) during the Pre-Commencement
Date Period, interest on the Accreted Value of this Series __ Note as at
the date such Accreted Value was not paid shall accrue (and be payable on
demand) at the interest rate per annum specified above from such date until
such Accreted Value shall have been paid in full. Original Issue Discount
(the difference between Original Issue Price and Relevant Principal Amount
of this Series __ Note) shall accrue on this Series __ Note at the interest
rate specified above, on a semi-annual bond equivalent basis using a 360-
day year composed of twelve 30-day months, during the Pre-Commencement Date
Period. The principal amount evidenced by this Series __ Note at the date
of issuance shall be deemed to be an amount equal to the Original Issue
Price specified above. As at the Commencement Date, the principal amount
evidenced hereby shall be the Relevant Principal Amount specified above.
All amounts payable by the Owner Trustee hereunder and under the Trust
Indenture and Security Agreement, dated as of December 21, 1993, between
the Owner Trustee and Wilmington Trust Company, as Indenture Trustee
(herein called the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture (as defined below)), as supplemented
by the First Supplemental Indenture [Series __], dated as of December 21,
1993, which was recorded in the Official Records of _______ County,
California, and by the Second Supplemental Indenture [Series __], dated as
of April 1, 1994, which Second Supplemental Indenture [Series __] is
intended to be recorded forthwith in such Official Records (the Trust
Indenture and Security Agreement (the "Original Indenture"), together with
all indentures supplemental thereto, herein called the "Indenture"), shall
be made only from assets subject to, or intended to be subject to the lien
of the Indenture, the income and all payments of principal and interest
shall be made in accordance with the terms of the Indenture. Each
Noteholder, by its acceptance of this Series __ Note, agrees that (a)
except as otherwise expressly provided in the Indenture, it will look
solely to the assets subject to or intended to be subject to the lien of
the Indenture or the income and proceeds received by the Indenture Trustee
therefrom to the extent available for distribution to the Noteholder as
provided in the Indenture and (b) neither the Owner Participant nor, except
as otherwise expressly provided in the Indenture and the other Transaction
Documents, the Owner Trustee, in its individual capacity, is liable to the
Noteholder for any amounts payable under this Series __ Note or the
Indenture. Without in any way affecting the limitations on liability set
forth in Sections 1.13 and 2.12 of the Original Indenture, Article II of
the Participation Agreement and Sections 4 and 21(i) of Lease __, the
Indenture Trustee, and each Noteholder by accepting this Series __ Note,
hereby acknowledge and agree that none of the Owner Trustee, the Owner
Participant, or any director, officer, employee, stockholder, agent or
Affiliate of the Owner Trustee or the Owner Participant (the "Exculpated
Persons") shall have any obligation, duty or liability of any kind
whatsoever to the Indenture Trustee or any such Noteholder in connection
with the exercise by any Exculpated Person of any rights of the Owner
Trustee under Section 8 of Lease __, or the taking of any action or the
failure to take any action by any Exculpated Person in connection with any
rights of the Owner Trustee under Section 8 of Lease __, and the Indenture
Trustee and each such Noteholder hereby waives and releases, to the extent
permitted by Applicable Law, each Exculpated Person of any and all such
obligations, duties or liabilities.
The interest so payable, and punctually paid or duly provided for, on
the applicable Interest Payment Date, as provided in the Indenture, shall
be paid to the Person in whose name this Series __ Note is registered at
the close of business on the Record Date for such Interest Payment Date,
which shall be the fifteenth day (whether or not a Business Day) next
preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the
registered Noteholder on such Record Date and may be paid to the Person in
whose name this Series __ Note is registered at the close of business on a
subsequent Record Date for the payment of such Defaulted Interest to be
fixed by the Indenture Trustee (which date shall be not less than 10
Business Days prior to the payment of such Defaulted Interest), notice of
which shall be given to Noteholders entitled thereto not less than 15 days
preceding such subsequent Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Series __ Notes may be listed, and upon
such notice as may be required by such exchange, all as more fully provided
in the Indenture.
The principal of, Premium, if any, and interest on this Series __ Note
shall be payable in immediately available funds at the principal corporate
trust office of the Indenture Trustee or at any office or agency maintained
for such purpose pursuant to Section 5.3 of the Original Indenture, or as
otherwise directed in the manner provided in the Indenture.
Notwithstanding the foregoing or any provision herein to the contrary, the
Indenture Trustee will pay, or cause to be paid, if so requested by any
Holder of this Series __ Note by written notice to the Owner Trustee and
the Indenture Trustee, all amounts payable by the Owner Trustee hereunder
to such Holder of this Series __ Note or a nominee therefor either (i) by
transferring by wire in immediately available funds to an account
maintained by such Holder with a bank in the United States the amount to be
distributed to such Holder or (ii) by mailing a check denominated in U.S.
dollars to such Holder at such address as such Holder of this Series __
Note shall have specified in such notice, in any case without any
presentment or surrender of this Series __ Note except that the Holder
shall surrender this Series __ Note to the Indenture Trustee upon payment
in full of the principal amount of and interest on this Series __ Note and
such other sums as may then be payable to such Holder under the Indenture
or under this Series __ Note.
Capitalized terms used in this Series __ Note which are not otherwise
defined herein shall have the meanings ascribed thereto in Appendix A to
the Original Indenture, as amended. Reference is made to the Indenture and
all supplements and amendments thereto (a copy of which is on file with the
Indenture Trustee at its principal corporate trust office) for a more
complete statement of the terms and provisions thereof, including a
statement of the properties thereby conveyed, pledged, mortgaged and
assigned, the nature and extent of the security, the respective rights
thereunder of the Owner Trustee, the Indenture Trustee and the Noteholders
and the terms upon which the Series __ Notes are, and are to be, executed
and delivered, as well as a statement of the terms and conditions of the
trust created by the Indenture, to all of which terms and conditions in the
Indenture each Holder agrees by its acceptance of this Series __ Note.
Except as provided in the Indenture, the Series __ Notes are limited in
aggregate Relevant Principal Amount Outstanding to [ ] and all of
which will have a Stated Maturity on [ ].
All of the Relevant Principal Amount of this Series Note will be due
and payable at the Stated Maturity set forth above.
As more fully provided in the Indenture, the Series __ Notes are
subject to redemption under the circumstances set forth in Article 6 of
the Original Indenture.
If an Indenture Event of Default shall occur and be continuing, the
Accreted Value (at any date prior to the Commencement Date) on the Relevant
Principal Amount (at any date thereafter), as the case may be, and any
interest accrued hereon of the Series __ Notes may, subject to certain
rights of the Owner Trustee or the Owner Participant (or both) contained or
referred to in the Indenture, be declared due and payable in the manner and
with the effect provided in the Indenture. If, and only if, such an
Indenture Event of Default constitutes an Event of Default by the Lessee
under Lease __, subject to the provisions of the Indenture, including
certain specified limitations, the Indenture Trustee may declare Lease __
to be in default, and may exercise one or more of the remedies of the Owner
Trustee provided in Lease __. Such remedies include the right to
terminate Lease __ and repossess and use or relet the Lessor Interest
originally leased under Lease __, to sell such Lessor Interest or any part
thereof free and clear of the Lessee's rights and retain the proceeds and,
so long as the Owner Trustee has not sold such Lessor Interest, to require
the Lessee to pay as liquidated damages for loss of bargain and not as a
penalty (in lieu of Basic Rent due after the payment date) and, in the case
of a payment under clause (d) below, as consideration for the Owner
Trustee's obligation to transfer such Lessor Interest to the Lessee and to
surrender certain unpaid Rent under Lease __.
The Owner Trustee or the Owner Participant may cure any default by the
Lessee under Lease __ arising from the failure of the Lessee to make any
payment of Basic Rent under Lease __, provided that such failure of the
Lessee is not the third consecutive such failure, or the sixth cumulative
such failure. In the event of any default by the Lessee of any obligation
under Lease __ (other than the obligation to pay Basic Rent), the Owner
Trustee or the Owner Participant may (but are not obligated to, to the
extent not prohibited by Applicable Law), make any payment or perform or
comply with any such agreement as the Lessee shall be obligated to pay,
perform or comply with under Lease __.
The right of the Holder of this Series __ Note to institute action for
any remedy under the Indenture, including the enforcement of payment of any
amount due hereon, is subject to certain restrictions specified in the
Indenture.
The Indenture contains provisions for defeasance at any time of the
entire principal of all the Series__ Notes upon compliance by the Owner
Trustee with certain conditions set forth therein.
Following an Indenture Event of Default, the Owner Trustee may,
subject to the conditions specified in the Indenture, purchase all of the
Notes in accordance with the terms of the Indenture. Each Noteholder, by
accepting this Series __ Note, agrees, subject to the provisions of the
Indenture, that, upon payment to the Indenture Trustee of the aggregate
unpaid principal amount of the Outstanding Notes, without premium or
penalty, together with accrued but unpaid interest thereon to the date of
such payment (as well as any interest on overdue principal and, to the
extent permitted by Applicable Law, overdue interest) and any other amounts
due and payable to the Noteholders, and upon satisfaction of all of the
conditions contained in the Indenture pertaining to the purchase of the
Notes by the Owner Trustee, such Holder shall be deemed to have sold this
Series __ Note to the Owner Trustee or its designee.
As provided in the Indenture and subject to certain limitations
therein set forth, this Series __ Note is transferable on the Note
Register, upon surrender of this Series __ Note for registration of
transfer at the office or agency of the Note Registrar to be maintained for
that purpose in Wilmington, Delaware or at any other office or agency of
the Note Registrar maintained for that purpose, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Note Registrar duly executed by the Noteholder or his attorney duly
authorized in writing, and thereupon one or more new Series __ Notes of the
same series with the same interest rate and Stated Maturity as the Series
__ Notes so to be transferred; of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Series __ Notes are issuable only in registered form in
denominations of $1,000 or integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Series
__ Notes are exchangeable at the office or agency of the Note Registrar
maintained for that purpose for an equal aggregate principal amount of
Series __ Notes of the same series with the same interest rate and Stated
Maturity and of a different authorized denomination or denominations, as
requested by the Series __ Noteholder surrendering the same.
No service charge will be made to any Noteholder for any such transfer
or exchange, but the Note Registrar may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentation of this Note for registration or transfer,
the Person in whose name this Series __ Note is registered shall be deemed
to be the absolute owner hereof for the purpose of receiving payment as
herein provided and for all other purposes whether or not this Series __
Note shall be overdue, regardless of any notice to anyone to the contrary.
THE SERIES __ NOTES 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.
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
duly executed.
Date: April , 1994 STATE STREET
BANK AND TRUST COMPANY OF CALIFORNIA,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as
Owner Trustee
By:______________________
Name:
Title:
EXHIBIT B-2 to
Second Supplemental Indenture [Series __]
FORM OF SERIES __ NOTE
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.
No.______
$ _________ (________ United States Dollars) ("Original Issue Price")
$ _________ (________ United States Dollars) ("Relevant Principal Amount")
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
under the Trust Agreement
dated as of December 21, 1993
SERIES __-__ NOTE
INTEREST RATE: [ ]
STATED MATURITY: [ ]
REGISTERED NOTEHOLDER: [ ]
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, NATIONAL
ASSOCIATION, a national banking association, not in its individual
capacity, but solely as Owner Trustee under the Trust Agreement
(hereinafter called the "Owner Trustee," which term includes any successor
corporation under the Indenture referred to herein) dated as of December
21, 1993, with the Owner Participant named therein (together with its
permitted successors and assigns, hereinafter called the "Owner
Participant"), for value received and intending to be legally bound, hereby
promises to pay to the Registered Noteholder named above, or registered
assigns, the principal sum in Dollars equal to the Relevant Principal
Amount specified above in installments on each Installment Payment Date as
set forth herein below with the final installment due and payable at Stated
Maturity specified above (provided, however, that if the obligations
evidenced by this Series __ Note shall become due and payable (upon
redemption or acceleration or otherwise) during the Pre-Commencement
Period, the principal amount thereof to be paid shall be the Accreted Value
of such date of redemption, acceleration or payment of this Series __ Note)
and to pay interest (computed on the basis of a 360-day year of twelve 30-
day months) at the interest rate per annum specified above on the principal
amount from time to time Outstanding in respect of the period commencing on
and including the Commencement Date and ending on the date when the
principal amount hereof shall have been paid in full, payable on each
Installment Payment Date; provided, however, that, if the Accreted Value of
this Series __ Note is not paid when due (upon redemption or acceleration
or otherwise) during the Pre-Commencement Date Period, interest on the
Accreted Value of this Series __ Note as at the date such Accreted Value
was not paid shall accrue (and be payable on demand) at the interest rate
per annum specified above from such date until such Accreted Value shall
have been paid in full. Original Issue Discount (the difference between
Original Issue Price and Relevant Principal Amount of this Series __ Note)
shall accrue on this Series __ Note at the interest rate specified above,
on a semi-annual bond equivalent basis using a 360-day year composed of
twelve 30-day months, during the Pre-Commencement Date Period. The
principal amount evidenced by this Series __ Note at the date of issuance
shall be deemed to be an amount equal to the Original Issue Price specified
above. As at the Commencement Date, the principal amount evidenced hereby
shall be the Relevant Principal Amount specified above.
All amounts payable by the Owner Trustee hereunder and under the Trust
Indenture and Security Agreement dated as of December 21, 1993, between the
Owner Trustee and Wilmington Trust Company, as Indenture Trustee (herein
called the "Indenture Trustee", which term includes any successor Indenture
Trustee under the Indenture (as defined below)), as supplemented by the
First Supplemental Indenture [Series __], dated as of December 21, 1993,
which was recorded in the Official Records of ________ County, California,
and by the Second Supplemental Indenture [Series __], dated as of April 1,
1994, which Second Supplemental Indenture [Series __] is intended to be
recorded forthwith in such Official Records (the Trust Indenture and
Security Agreement (the "Original Indenture"), together with all indentures
supplemental thereto, herein called the "Indenture"), shall be made only
from assets subject to, or intended to be subject to the lien of the
Indenture, the income and all payments of principal and interest shall be
made in accordance with the terms of the Indenture. Each Noteholder, by
its acceptance of this Series __ Note, agrees that (a) except as otherwise
expressly provided in the Indenture, it will look solely to the assets
subject to or intended to be subject to the lien of the Indenture or the
income and proceeds received by the Indenture Trustee therefrom to the
extent available for distribution to the Noteholder as provided in the
Indenture and (b) neither the Owner Participant nor, except as otherwise
expressly provided in the Indenture and the other Transaction Documents,
the Owner Trustee, in its individual capacity, is liable to the Noteholder
for any amounts payable under this Series __ Note or the Indenture. Without
in any way affecting the limitations on liability set forth in Sections
1.13 and 2.12 of the Original Indenture, Article II of the Participation
Agreement and Sections 4 and 21(i) of Lease __, the Indenture Trustee, and
each Noteholder by accepting this Series __ Note, hereby acknowledge and
agree that none of the Owner Trustee, the Owner Participant, or any
director, officer, employee, stockholder, agent or Affiliate of the Owner
Trustee or the Owner Participant (the "Exculpated Persons") shall have any
obligation, duty or liability of any kind whatsoever to the Indenture
Trustee or any such Noteholder in connection with the exercise by any
Exculpated Person of any rights of the Owner Trustee under Section 8 of
Lease __, or the taking of any action or the failure to take any action by
any Exculpated Person in connection with any rights of the Owner Trustee
under Section 8 of Lease __, and the Indenture Trustee and each such
Noteholder hereby waives and releases, to the extent permitted by
Applicable Law, each Exculpated Person of any and all such obligations,
duties or liabilities.
The interest or Installment Payment Amount (other than that payable on
the Stated Maturity hereof) so payable, and punctually paid or duly
provided for, on the applicable Installment Payment Date, as provided in
the Indenture, shall be paid to the Person in whose name this Series __
Note is registered at the close of business on the Record Date for payment
of such interest or Installment Payment Amount, which shall be the
fifteenth day (whether or not a Business Day) next preceding such Interest
Payment Date or Installment Payment Date, as the case may be. Any such
interest or Installment Payment Amount not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered
Noteholder on such Record Date and may be paid to the Person in whose name
this Series __ Note is registered at the close of business on a subsequent
Record Date for the payment of such Defaulted Interest or Defaulted
Installment to be fixed by the Indenture Trustee (which date shall be not
less than 10 Business Days prior to the payment of such Defaulted Interest
or Defaulted Installment), notice of which shall be given to Noteholders
entitled thereto not less than 15 days preceding such subsequent Record
Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Series __ Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The principal of, Premium, if any, and interest on this Series __ Note
shall be payable in immediately available funds at the principal corporate
trust office of the Indenture Trustee or at any office or agency maintained
for such purpose pursuant to Section 5.3 of the Original Indenture, or as
otherwise directed in the manner provided in the Indenture.
Notwithstanding the foregoing or any provision herein to the contrary, the
Indenture Trustee will pay, or cause to be paid, if so requested by any
Holder of this Series __ Note by written notice to the Owner Trustee and
the Indenture Trustee, all amounts payable by the Owner Trustee hereunder
to such Holder of this Series __ Note or a nominee therefor either (i) by
transferring by wire in immediately available funds to an account
maintained by such Holder with a bank in the United States the amount to be
distributed to such Holder or (ii) by mailing a check denominated in U.S.
dollars to such Holder at such address as such Holder of this Series __
Note shall have specified in such notice, in any case without any
presentment or surrender of this Series __ Note except that the Holder
shall surrender this Series __ Note to the Indenture Trustee upon payment
in full of the principal amount of and interest on this Series __ Note and
such other sums as may then be payable to such Holder under the Indenture
or under this Series __ Note.
Capitalized terms used in this Series __ Note which are not otherwise
defined herein shall have the meanings ascribed thereto in Appendix A to
the Original Indenture, as amended. Reference is made to the Indenture and
all supplements and amendments thereto (a copy of which is on file with the
Indenture Trustee at its principal corporate trust office) for a more
complete statement of the terms and provisions thereof, including a
statement of the properties thereby conveyed, pledged, mortgaged and
assigned, the nature and extent of the security, the respective rights
thereunder of the Owner Trustee, the Indenture Trustee and the Noteholders
and the terms upon which the Series __ Notes are, and are to be, executed
and delivered, as well as a statement of the terms and conditions of the
trust created by the Indenture, to all of which terms and conditions in the
Indenture each Holder agrees by its acceptance of this Series __ Note.
Except as provided in the Indenture, the Series __ Notes are limited in
aggregate Relevant Principal Amount Outstanding to [ ] of which
[$ ] shall have a Stated Maturity on [ ], [$ ]
shall have a Stated Maturity on [ ] and [ ] shall have a
Stated Maturity on [ ].
On each Installment Payment Date, the Holder hereof will receive a
payment of principal equal to the Installment Payment Percentage for such
Installment Payment Date multiplied by the Relevant Principal Amount of
this Series __ Note which is set forth on the face hereof.
Installment Installment
Payment Payment
Date Percentage
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
_______%
As more fully provided in the Indenture, the Series __ Notes are
subject to redemption under the circumstances set forth in Article 6 of
the Original Indenture.
If an Indenture Event of Default shall occur and be continuing, the
principal amount remaining unpaid and any interest accrued hereon of the
Series __ Notes may, subject to certain rights of the Owner Trustee or the
Owner Participant (or both) contained or referred to in the Indenture, be
declared due and payable in the manner and with the effect provided in the
Indenture. If, and only if, such an Indenture Event of Default constitutes
an Event of Default by the Lessee under Lease __, subject to the provisions
of the Indenture, including certain specified limitations, the Indenture
Trustee may declare Lease __ to be in default, and may exercise one or more
of the remedies of the Owner Trustee provided in Lease __. Such remedies
include the right to terminate Lease __ and repossess and use or relet the
Lessor Interest originally leased under Lease __, to sell such Lessor
Interest or any part thereof free and clear of the Lessee's rights and
retain the proceeds and, so long as the Owner Trustee has not sold such
Lessor Interest, to require the Lessee to pay as liquidated damages for
loss of bargain and not as a penalty (in lieu of Basic Rent due after the
payment date) and, in the case of a payment under clause (d) below, as
consideration for the Owner Trustee's obligation to transfer such Lessor
Interest to the Lessee and to surrender certain unpaid Rent under Lease __.
The Owner Trustee or the Owner Participant may cure any default
by the Lessee under Lease __ arising from the failure of the Lessee to make
any payment of Basic Rent under Lease __, provided that such failure of the
Lessee is not the third consecutive such failure, or the sixth cumulative
such failure. In the event of any default by the Lessee of any obligation
under Lease __ (other than the obligation to pay Basic Rent), the Owner
Trustee or the Owner Participant may (but are not obligated to, to the
extent not prohibited by Applicable Law), make any payment or perform or
comply with any such agreement as the Lessee shall be obligated to pay,
perform or comply with under Lease __.
The right of the Holder of this Series __ Note to institute
action for any remedy under the Indenture, including the enforcement of
payment of any amount due hereon, is subject to certain restrictions
specified in the Indenture.
The Indenture contains provisions for defeasance at any time of
the entire principal of all the Series__ Notes upon compliance by the Owner
Trustee with certain conditions set forth therein.
Following an Indenture Event of Default, the Owner Trustee may,
subject to the conditions specified in the Indenture, purchase all of the
Notes in accordance with the terms of the Indenture. Each Noteholder, by
accepting this Series __ Note, agrees, subject to the provisions of the
Indenture, that, upon payment to the Indenture Trustee of the aggregate
unpaid principal amount of the Outstanding Notes, without premium or
penalty, together with accrued but unpaid interest thereon to the date of
such payment (as well as any interest on overdue principal and, to the
extent permitted by Applicable Law, overdue interest) and any other amounts
due and payable to the Noteholders, and upon satisfaction of all of the
conditions contained in the Indenture pertaining to the purchase of the
Notes by the Owner Trustee, such Holder shall be deemed to have sold this
Series __ Note to the Owner Trustee or its designee.
As provided in the Indenture and subject to certain limitations
therein set forth, this Series __ Note is transferable on the Note
Register, upon surrender of this Series __ Note for registration of
transfer at the office or agency of the Note Registrar to be maintained for
that purpose in Wilmington, Delaware or at any other office or agency of
the Note Registrar maintained for that purpose, duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Note Registrar duly executed by the Noteholder or his attorney duly
authorized in writing, and thereupon one or more new Series __ Notes of the
same series with the same interest rate and Stated Maturity as the Series
__ Notes so to be transferred; of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Series __ Notes are issuable only in registered form in
denominations of $1,000 or integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Series
__ Notes are exchangeable at the office or agency of the Note Registrar
maintained for that purpose for an equal aggregate principal amount of
Series __ Notes of the same series with the same interest rate and Stated
Maturity and of a different authorized denomination or denominations, as
requested by the Series __ Noteholder surrendering the same.
No service charge will be made to any Noteholder for any such
transfer or exchange, but the Note Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentation of this Note for registration or
transfer, the Person in whose name this Series __ Note is registered shall
be deemed to be the absolute owner hereof for the purpose of receiving
payment as herein provided and for all other purposes whether or not this
Series __ Note shall be overdue, regardless of any notice to anyone to the
contrary.
THE SERIES __ NOTES 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.
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument
to be duly executed.
Date: April , 1994 STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Owner
Trustee
By:______________________
Name:
Title:
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Series __ Notes, due [ ] described in the
within mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Indenture Trustee
By:________________________
Authorized Officer
APPENDIX A
"Commencement Date" shall mean ______________, _______________ with respect
to each Series ___ Note maturing _______________, _______________;
_______________, _______________ with respect to each Series ___ Note
maturing _______________, _______________; and _______________,
_______________ with respect to each Series ___ Note maturing
_______________, _______________.