EXHIBIT 4.3.6
[Form of 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.
$
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 __________________
INTEREST RATE: SEE ANNEX A HERETO
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 (hereinafter called the "Owner
Trustee," which term includes any successor corporation under the Indenture
referred to herein) under the Trust Agreement 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 $_____________ in
installments on each Installment Payment Date as set forth in Annex A
hereto with the final installment due and payable at Stated Maturity
Specified above 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 in
Annex A hereto on the principal amount from time to time Outstanding in
respect of the period commencing on and including the date hereof and
ending on and excluding the date when the principal amount hereof shall
have been paid in full, payable on each Series __ Interest Payment Date as
set forth in Annex A hereto.
All amounts payable by the Owner Trustee hereunder and under the
Indenture and Security Agreement dated as of _________________ (the
"Original Indenture"), 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)), which Original Indenture, as supplemented by the Deed of
Trust, Assignment of Leases and Rents, Security Agreement and Fixture
Filing (containing a supplemental indenture) [Series __-1], dated as of
________________ (the "Second Supplemental Indenture [Series __-1]), which
Second Supplemental Indenture [Series __-1] is intended to be recorded
forthwith in the Official Records (the Original Indenture together with the
Second Supplemental Indenture [Series __-1] and all other 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 __-1 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 in
respect of the Indenture Estate [Series __-1] 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 __-1 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 __-1 Note, hereby acknowledges and agrees 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 the
Leases, 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 Series __ Interest Payment Date or
Installment Payment Date, as the case may be, as provided in the Indenture,
shall be paid to the Person in whose name this __-1 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 Series __ 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 __-1 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 __-1 Note 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 __-1 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 __-1 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 __-1 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 __-1 Note
shall have specified in such notice, in any case without any presentment or
surrender of this __-1 Note except that the Holder shall surrender this __-
1 Note to the Indenture Trustee upon payment in full of the principal
amount of and interest on this __-1 Note and such other sums as may then be
payable to such Holder under the Indenture or under this __-1 Note.
Capitalized terms used in this __-1 Note which are not otherwise
defined herein shall have the meanings ascribed thereto in Appendix A to
the Original Indenture. Reference is made to the Original Indenture and all
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 __-1
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 __-1 Note.
As more fully provided in the Indenture, the __-1 Notes are
subject to redemption under the circumstances set forth in Article 6 of the
Original Indenture and under the circumstances set forth in Article 7 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 __-1 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 under Lease __ by the Lessee, 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 __-1 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 Notes of any or all series (including 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 __-1 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
__-1 Note to the Owner Trustee or its designee.
As provided in the Indenture and subject to certain limitations
therein set forth, this __-1 Note is transferable on the Note Register,
upon surrender of this __-1 Note for registration of transfer at the office
or agency of the Note Registrar to be maintained for that purpose in the
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 __-1 Notes of the same series with the same
interest rate and Stated Maturity as the __-1 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 __-1 Notes are issuable only in registered form in
denominations of $1,000 or integral multiples thereof except that one __-1
Note of each maturity may be in a denomination other than an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, the __-1 Notes are exchangeable at the
office or agency of the Note Registrar maintained for that purpose for an
equal aggregate principal amount of __-1 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 __-1 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 __-1 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 __-1 Note
shall be overdue, regardless of any notice to anyone to the contrary.
THIS __-1 NOTE 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.
ANNEX A TO __-1 NOTE
Principal
Each Holder of a __-1 Note will receive a payment of principal
equal to the Installment Payment Percentage for such Installment Payment
Date multiplied by the principal amount of the respective __-1 Note which
is set forth on the face thereof on each Installment Payment Date set forth
below:
Interest
Interest shall accrue and be payable on the __-1 Note as follows:
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument
to be duly executed.
Date:_________ STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Owner
Trustee
By:______________________
Name:
Title: