Conformed Copy
Exhibit 10.1
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TRUST INDENTURE, MORTGAGE,
ASSIGNMENT OF LEASE AND SECURITY AGREEMENT
(1996-A)
among
WILMINGTON TRUST COMPANY,
as Corporate Grantor Trustee
THOMAS P. LASKARIS,
as Individual Grantor Trustee
The Bank of New York,
as Corporate Indenture Trustee
FREDERICK W. CLARK,
as Individual Indenture Trustee
Dated as of November 15, 1996
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................................................................. 5
SECTION 1.01. Definitions......................................................................................... 5
ARTICLE II THE SECURED NOTES........................................................................................... 6
SECTION 2.01. Secured Notes....................................................................................... 6
SECTION 2.02. Payments from Indenture Estate Only................................................................. 7
SECTION 2.03. Method of Payment................................................................................... 7
SECTION 2.04. Note Register....................................................................................... 9
SECTION 2.05. Registered Owners................................................................................... 9
SECTION 2.06. Transfer, Exchange and Replacement of Notes......................................................... 9
SECTION 2.07. New Notes; Payment of Expenses...................................................................... 11
SECTION 2.08. Additional Notes.................................................................................... 11
SECTION 2.09. Termination of Interest in Indenture Estate......................................................... 15
SECTION 2.10. Equally and Ratably Secured......................................................................... 15
SECTION 2.11. CUSIP or CINS Numbers............................................................................... 15
ARTICLE III REDEMPTION AND REFUNDING.................................................................................... 16
SECTION 3.01. Generally........................................................................................... 16
SECTION 3.02. Mandatory Redemption................................................................................ 16
SECTION 3.03. [Intentionally Omitted]............................................................................. 19
SECTION 3.04. Assumption of Obligations of the Grantor Trustee by the Lessee...................................... 19
SECTION 3.05. Refunding........................................................................................... 22
SECTION 3.06. Grantor Trustee's and Owner Participant's Option to Redeem or Purchase Secured Notes................ 22
SECTION 3.07. Deposited Redemption or Purchase Moneys............................................................. 24
SECTION 3.08. Acquisition of Secured Notes........................................................................ 25
SECTION 3.09. Condition to Redemption and Refunding............................................................... 25
SECTION 3.10. Notice of Certain Redemptions....................................................................... 25
ARTICLE IV RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE INDENTURE ESTATE................................... 27
SECTION 4.01. Basic Rent Distribution............................................................................. 27
SECTION 4.02. Certain Distributions............................................................................... 28
SECTION 4.03. Distributions After Indenture Event of Default...................................................... 29
SECTION 4.04. Application of Payments on Secured Notes............................................................ 31
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SECTION 4.05. Application of Payments According to Applicable Operative Document Provisions....................... 31
SECTION 4.06. Amounts Received for Which No Provision Is Made..................................................... 33
SECTION 4.07. Payment Procedures.................................................................................. 33
ARTICLE V COVENANTS OF GRANTOR TRUSTEE; CERTAIN AGREEMENTS; INDENTURE EVENTS OF DEFAULT; REMEDIES OF INDENTURE
TRUSTEE................................................................................................. 34
SECTION 5.01. Covenants of Grantor Trustee; Certain Agreements.................................................... 34
SECTION 5.02. Indenture Event of Default.......................................................................... 36
SECTION 5.03. Certain Rights...................................................................................... 38
SECTION 5.04. Remedies............................................................................................ 40
SECTION 5.05. Suit; Possession; Title; Sale of Indenture Estate................................................... 43
SECTION 5.06. Remedies Cumulative................................................................................. 47
SECTION 5.07. Discontinuance of Proceedings....................................................................... 47
SECTION 5.08. Waiver of Past Defaults............................................................................. 48
SECTION 5.09. No Action Contrary to Lessee's Rights Under the Lease............................................... 48
SECTION 5.10. Rights of Holders of Secured Notes.................................................................. 48
SECTION 5.11. Limitation on Suits by Holders...................................................................... 49
SECTION 5.12. Trustee May File Proofs of Claim.................................................................... 49
ARTICLE VI DUTIES OF THE INDENTURE TRUSTEE............................................................................. 50
SECTION 6.01. Certain Actions..................................................................................... 50
SECTION 6.02. Action Upon Instructions............................................................................ 50
SECTION 6.03. Release of Lien of Indenture........................................................................ 51
SECTION 6.04. Indemnification..................................................................................... 52
SECTION 6.05. No Implied Duties................................................................................... 53
SECTION 6.06. Duties to Remove Certain Liens...................................................................... 53
SECTION 6.07. No Action Except Under Operative Documents or Instructions.......................................... 53
SECTION 6.08. Certain Rights of the Grantor Trustee and the Owner Participant..................................... 54
SECTION 6.09. Filing of Financing and Continuation Statements..................................................... 55
SECTION 6.10. Furnishing of Notices............................................................................... 55
SECTION 6.11. Taxes; Withholdings; Information Reporting.......................................................... 56
ARTICLE VII THE INDENTURE TRUSTEE AND THE GRANTOR TRUSTEE............................................................... 56
SECTION 7.01. Acceptance of Trusts and Duties..................................................................... 56
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SECTION 7.02. Absence of Duties Except as Specified............................................................... 57
SECTION 7.03. No Representations or Warranties.................................................................... 57
SECTION 7.04. No Segregation of Moneys; No Interest; Investments.................................................. 58
SECTION 7.05. Reliance; Agents; Advice of Counsel................................................................. 58
SECTION 7.06. No Compensation from Holders or Indenture Estate.................................................... 59
SECTION 7.07. Right of the Indenture Trustee to Perform Covenants, Etc............................................ 60
SECTION 7.08. Moneys for Payments in Respect of Notes to be Held in Trust......................................... 60
SECTION 7.09. Disposition of Moneys Held for Payments of Notes.................................................... 61
ARTICLE VIII SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES................................................................ 61
SECTION 8.01. Notice of Successor Grantor Trustees................................................................ 61
SECTION 8.02. Resignation of Indenture Trustee; Appointment of Successor.......................................... 61
SECTION 8.03. Co-Trustees and Separate Trustees................................................................... 63
ARTICLE IX SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS............................................ 66
SECTION 9.01. Indenture Supplements Without Consent of Holders.................................................... 66
SECTION 9.02. Supplements and Amendments to Indenture with Consent of Holders of Notes............................ 68
SECTION 9.03. Execution of Indenture Supplement, Amendments, Etc.................................................. 73
SECTION 9.04. Effect of Indenture Supplement...................................................................... 74
SECTION 9.05. Reference in Secured Notes to Indenture Supplements................................................. 74
SECTION 9.06. Notices of Indenture Supplements and Amendments, Etc................................................ 74
SECTION 9.07. Lessee Rights....................................................................................... 74
ARTICLE X MISCELLANEOUS................................................................................................ 75
SECTION 10.01. Termination of Indenture........................................................................... 75
SECTION 10.02. No Legal Title to Indenture Estate in Holders...................................................... 75
SECTION 10.03. Power of Attorney.................................................................................. 75
SECTION 10.04. Regarding the Grantor Trustee...................................................................... 76
SECTION 10.05. Notices............................................................................................ 77
SECTION 10.06. Severability of Provisions......................................................................... 77
SECTION 10.07. No Oral Modification or Continuing Waivers......................................................... 77
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SECTION 10.08. Successors and Assigns............................................................................. 78
SECTION 10.09. Headings; Table of Contents........................................................................ 78
SECTION 10.10. Normal Commercial Relations........................................................................ 78
SECTION 10.11. Governing Law...................................................................................... 78
SECTION 10.12. Execution.......................................................................................... 78
SECTION 10.13. Security Agreement................................................................................. 79
SECTION 10.14. Benefits of Indenture.............................................................................. 79
SECTION 10.15. Personal Property.................................................................................. 79
SECTION 10.16. Individual Indenture Trustee....................................................................... 79
SECTION 10.17. Special Louisiana Provisions....................................................................... 79
Appendix A.............Definitions
Schedule 1.............Description of Undivided Interest in Production System
Schedule 2.............Resolution
Exhibit A..............Form of Secured Note
Exhibit B..............Principal Amounts of Secured Notes, Interest Rate and Amortization Schedule
Exhibit C..............Relevant Amendment
Exhibit D..............Form of Indenture Supplement
Exhibit E..............Form of Relevant Date Supplement
Exhibit F..............N/A
Exhibit G ............ Form of Naval Mortgage
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TRUST INDENTURE, MORTGAGE, ASSIGNMENT OF LEASE
AND SECURITY AGREEMENT
(1996-A)
BE IT KNOWN, that on the date hereinafter set forth, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the State
of New York, and in the presence of the undersigned, competent witnesses,
personally came and appeared: WILMINGTON TRUST COMPANY, a Delaware banking
corporation, not in its individual capacity, except as expressly provided
herein, but solely as Corporate Grantor Trustee under the Trust Agreement
(together with its successors and permitted assigns, the "Corporate Grantor
Trustee") represented herein by its undersigned, James P. Lawler, appearing
herein by resolution of its Board of Directors, a certified copy of which is
annexed hereto as Schedule 2, Thomas P. Laskaris, an individual, not in his
individual capacity, except as expressly provided herein, but solely as
Individual Grantor Trustee under the Trust Agreement (together with his
successors and permitted assigns, the "Individual Grantor Trustee"; together
with the Corporate Owner Trustee, the "Grantor Trustee"), The Bank of New York,
a New York banking corporation, not in its individual capacity, except as
expressly provided herein, but solely as Corporate Indenture Trustee (together
with its successors and permitted assigns, the "Corporate Indenture Trustee"),
and Frederick W. Clark, an individual, not in his individual capacity, except as
expressly provided herein, but solely as Individual Indenture Trustee (together
with his successors and permitted assigns, the "Individual Indenture Trustee";
together with the Corporate Indenture Trustee, the "Indenture Trustee") who each
being duly sworn, did declare and say as follows:
W I T N E S S E T H :
WHEREAS, the Owner Participant, Laskaris and the Corporate Grantor
Trustee have heretofore entered into the Trust Agreement, whereby, among other
things, Laskaris and the Trust Company each in its or his capacity as Grantor
Trustee thereunder has declared a certain trust for the use and benefit of the
Owner Participant, subject, however, to the Lien of this Indenture, and the
Grantor Trustee is authorized and directed to execute and deliver this
Indenture;
WHEREAS, the Grantor Trustee, desires by this Indenture, to provide
among other things (i) for the issuance by the Grantor Trustee to the Pass
Through Trustee the Secured Notes specified in Exhibit A hereto upon payment by
such Pass Through Trustee of the principal amount of such Secured Notes, and
(ii) for the assignment, mortgage and pledge by the Grantor Trustee to the
Indenture Trustee, as part of the Indenture Estate hereunder, among other
things, of all of the right, title and interest of the Grantor Trustee, other
than Excepted Payments, in, to and under, as the case may be, the Undivided
Interest, the Lease, the Head Lease, the Assignment and Assumption Agreement,
the Agency and
Support Agreement, the Ship Mortgage and all payments and other amounts received
thereunder, other than Excepted Payments, in accordance with the terms thereof,
as security for, among other things, the Grantor Trustee's obligations to the
Indenture Trustee, the Loan Participants and the other Holders and for the
benefit and security of the Loan Participants and such Holders;
WHEREAS, all things have been done to make the Secured Notes, when
executed by the Grantor Trustee and authenticated, issued and delivered
hereunder, the legal, valid, binding and enforceable obligations of the Grantor
Trustee in accordance with their terms; and
WHEREAS, all things necessary to make this Indenture the legal, valid,
binding and enforceable obligation of the Grantor Trustee, for the uses and
purposes herein set forth, in accordance with its terms, have been done and
performed and have happened, and the Indenture Trustee has duly accepted the
trust created hereby and as evidence thereof has joined in the execution hereof;
NOW, THEREFORE, THIS TRUST INDENTURE, MORTGAGE, ASSIGNMENT OF LEASE
AND SECURITY AGREEMENT, WITNESSETH, that, to secure (i) the prompt payment when
and as due and payable of the principal of, Make-Whole Amount, if any, and
interest on, all the Secured Notes from time to time Outstanding hereunder and
of all other amounts payable to the Holders (whether as Holders or Loan
Participants) hereunder, under the Secured Notes and under the other Operative
Documents (other than the Tax Indemnity Agreement and other than Section 12 of
the Participation Agreement), (ii) the performance and observance by the Grantor
Trustee of all the provisions, covenants and agreements for the benefit,
directly or indirectly, of the Indenture Trustee or the Holders herein, in the
Participation Agreement, in the Secured Notes and in the other Operative
Documents (other than the Tax Indemnity Agreement), and (iii) the performance
and observance by the Owner Participant of its covenants and agreements for the
benefit, directly or indirectly, of the Indenture Trustee or the Holders in the
Operative Documents (other than the Tax Indemnity Agreement) (the obligations
described in the above clauses (i), (ii) and (iii) collectively, the "Indenture
Indebtedness"), and for the uses and purposes and subject to the terms and
provisions hereof, and in consideration of the premises and of the covenants
herein contained and of the acceptance of the Secured Notes by the Holders
thereof:
GRANTING CLAUSE
The Grantor Trustee, for valuable consideration, and in order to
secure the payment and performance of the Indenture Indebtedness, hereby agrees
to irrevocably mortgage, hypothecate and pledge unto the Indenture Trustee and
to create a security interest in, to and for the benefit of the Corporate
Indenture Trustee or, to the extent set forth in Section 8.03 below, the
Individual Indenture Trustee, and upon delivery
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of Indenture Supplement No. 1, shall have irrevocably mortgaged, hypothecated,
and pledged unto the Indenture Trustee and created a security interest to and
for the benefit of the Corporate Indenture Trustee or, to the extent set forth
in Section 8.03 below, the Individual Indenture Trustee, all of the right, title
and interest of the Grantor Trustee in and to the following property, rights and
privileges, other than Excepted Payments, now owned or in the future acquired by
the Grantor Trustee or in which the Grantor Trustee now has or may in the future
acquire any estate, right, title or interest (which collectively, excluding
Excepted Payments but including all property hereafter subjected to the Lien of
this Indenture, shall constitute the "Indenture Estate"), to wit:
(a) the Undivided Interest described in Schedule 1, including without
limitation the Lessor's Share of any Component or Replacement Component or
Modification to the Production System which, pursuant to the terms of the
Lease, are the property of the Grantor Trustee;
(b) the Assignment and Assumption Agreement, Head Lease, the Ship
Mortgage, and all rights, powers and remedies of the Grantor Trustee
pursuant thereto, whether arising thereunder or by statute, at law, in
equity or otherwise;
(c) the Lease including, without limitation, (i) all amounts of Rent,
insurance proceeds and requisition, indemnity or other payments of any kind
for or with respect to any asset leased or subleased thereunder, (ii) all
right of the Grantor Trustee to exercise any election or option, or to give
any notice, consent, waiver or approval under or in respect of the Lease,
or to accept any surrender or enter into any modification thereof, as the
case may be, and (iii) all rights, powers and remedies of the Grantor
Trustee pursuant to the Lease, whether arising thereunder or by statute, at
law, in equity or otherwise, including, without limitation, the right to
possession of any asset demised thereunder;
(d) the Agency and Support Agreement, including without limitation (i)
all amounts payable thereunder, (ii) all right of the Grantor Trustee to
exercise any election or option, or to give any notice, consent, waiver or
approval under or in respect of the Agency and Support Agreement, or to
accept any surrender or enter into any modification thereof, as the case
may be, and (iii) all rights, powers and remedies of the Grantor Trustee
pursuant to the Agency and Support Agreement, whether arising thereunder or
by statute, at law, in equity or otherwise;
(e) all moneys and securities now or hereafter paid or deposited or
required to be paid or deposited to or with the Indenture Trustee pursuant
to any term of any Operative Document, and held or required to be held by
the Indenture Trustee hereunder;
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(f) to the extent assignable, any and all permits, certificates,
approvals and authorizations, however characterized, issued or in any way
furnished in connection with the Undivided Interest, whether necessary or
not for the operation and use of the Undivided Interest;
(g) all the tolls, rents, issues, profits, products, revenues and
other income of the property subjected or required to be subjected to the
Lien of this Indenture; and
(h) all rights or property which may be received upon the exercise of
any remedy or option contained in any of the above-described instruments
and all proceeds in whatever form of all or any part of any of the
foregoing;
EXCLUDING, HOWEVER, from the foregoing grant, and thereby from the
Lien of this Indenture and from the Indenture Estate any and all Excepted
Payments; and
SUBJECT to the rights of the Grantor Trustee and the Owner Participant
hereunder;
TO HAVE AND TO HOLD the aforesaid property unto the Corporate
Indenture Trustee, or the Individual Indenture Trustee, as the case may be, its
or his successors and assigns, for the benefit and security of the Holders,
without any priority of any one Secured Note over any other except as expressly
provided herein with respect to Additional Notes, and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture. This
Indenture is a mortgage given to secure the payment and performance of the
Indenture Indebtedness and this Indenture is also intended to operate as, among
other things, a security agreement and an assignment of leases and rents.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Grantor Trustee shall remain liable under the
Lease and the other Operative Documents to perform all of the obligations of the
Grantor Trustee thereunder, all in accordance with and pursuant to the terms and
provisions of each thereof, and the Holders and, except as expressly provided
herein, the Indenture Trustee shall have no obligation or liability under any
Operative Document by reason of or arising out of this Indenture. None of the
Indenture Trustee or any Holder shall be required or obligated in any manner to
perform or fulfill any obligation of the Grantor Trustee under or pursuant to
any Operative Document or, except as herein expressly provided, to make any
payment, or to make any inquiry as to the nature or sufficiency of any payment
received by them, or to present or file any claim, or to take any action to
collect or enforce the payment of any amounts which may have been assigned to
them or to which they may be entitled at any time.
Accordingly, the Grantor Trustee and the Indenture Trustee
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hereby agree for themselves and for the benefit and security of the Holders as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined herein, for the
purposes hereof, capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in Appendix A. References in this Indenture
to Sections, subsections, paragraphs, Schedules, Appendices and Exhibits are to
Sections, subsections and paragraphs in, and Schedules, Appendices and Exhibits
to, this Indenture unless otherwise indicated.
ARTICLE II
THE SECURED NOTES
SECTION 2.01. Secured Notes. (a) Generally. Except for Secured Notes
issued pursuant to Section 2.06 or 2.08, Secured Notes may be issued only on the
Closing Date. On the Closing Date, the Secured Notes to be issued on such Date
pursuant to Section 2.2 of the Participation Agreement shall be duly executed by
the Grantor Trustee by manual or facsimile signature, duly authenticated and
made available for delivery by the Corporate Indenture Trustee and registered in
the name of the Loan Participant to which such Secured Note is being issued and
shall have attached thereto the Amortization Schedule for such Secured Note.
Receipt by the Corporate Indenture Trustee of Secured Notes duly executed by the
Grantor Trustee shall be accompanied by an Officer's Certificate of the Grantor
Trustee instructing the Corporate Indenture Trustee to authenticate, register
and make available for delivery such Secured Notes on the Closing Date.
(b) The Secured Notes shall:
(i) be limited in aggregate original principal amount to the
amount specified in Exhibit B hereto;
(ii) be issuable only as registered Secured Notes in denominations
of at least $1,000, or if the remaining principal amount thereof shall be
less than $1,000, such remaining principal amount;
(iii) be dated the Closing Date;
(iv) bear interest on the unpaid principal amount thereof from the
date of such Secured Notes at the rate specified in
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Exhibit B (computed on the basis of a 360-day year consisting of twelve 30-
day months);
(v) be due and payable as to principal and interest as specified
herein and therein;
(vi) be prepayable only as provided in Article III; and
(vii) be substantially of the tenor and in the form set forth in
Exhibit A.
(c) Each Secured Note shall be signed on behalf of the Corporate
Grantor Trustee by a Responsible Officer of the Corporate Grantor Trustee, and
on behalf of the Individual Grantor Trustee, by Laskaris, manually or in
facsimile. No Secured Note shall be secured by or entitled to any benefit under
this Indenture, or be valid for any purpose, unless there appears thereon a
certificate of authentication executed by or on behalf of the Corporate
Indenture Trustee by the manual or facsimile signature of a Responsible Officer
of the Corporate Indenture Trustee, and such certificate on any Secured Note
shall be conclusive evidence that such Secured Note has been duly authenticated
and made available for delivery hereunder.
SECTION 2.02. Payments from Indenture Estate Only. All payments of
principal, Make-Whole Amount, if any, and interest to be made by the Grantor
Trustee and, except as otherwise provided in the Operative Documents, all
payments of any other amounts payable by or on behalf of the Grantor Trustee
under the Secured Notes and this Indenture, shall be made only from the income
and proceeds from the Indenture Estate, and only to the extent that the
Indenture Trustee shall have received sufficient income or proceeds from the
Indenture Estate to make such payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Secured Note, agrees that it will look solely to
the income and proceeds from the Indenture Estate to the extent available for
payment as herein provided and that (a) none of the Grantor Trustee or the
Indenture Trustee (whether in its individual or trust capacity) shall be
personally liable to such Holder for any amounts payable under the Secured
Notes, nor, except as specifically provided herein or in the other Operative
Documents, for any amounts payable or any liability under this Indenture and (b)
the Owner Participant shall not be liable to the Indenture Trustee or to any
Holder under any circumstances for any reason whatsoever except to the extent
expressly provided herein or in any other Operative Document.
SECTION 2.03. Method of Payment. (a) The principal of, and Make-Whole
Amount, if any, and interest, on each Secured Note shall be payable in
immediately available funds, the receipt of which has been confirmed by a
Responsible Officer of the Corporate Indenture Trustee (which shall be done
promptly upon receipt thereof) on or before
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1:00 p.m., New York time, at the place of receipt, on the due date therefor, to
the Corporate Indenture Trustee at the corporate trust office of the Corporate
Indenture Trustee. Amounts so received by the Indenture Trustee shall be paid by
the Indenture Trustee to each Holder on the due date therefor without any
presentment or surrender of any Secured Note held by such Holder by whichever of
the following methods shall be specified by prior written notice from such
Holder to the Indenture Trustee: (i) by transferring prior to 2:00 p.m., New
York City time, on such date, such payment to such Holder in immediately
available funds by crediting the amount to be distributed to such Holder to any
account maintained by such Holder with the Indenture Trustee or (ii) by
initiating a wire transfer prior to the time set forth in clause (i) of this
Section 2.03(a) of such amount in immediately available funds to a banking
institution designated in such notice with bank wire transfer facilities for the
account of such Holder, in all cases without any presentment or surrender of any
Secured Note, except that on the date of the final maturity thereof (whether at
scheduled maturity, upon prepayment, acceleration or otherwise), payment of
principal of such Secured Note shall be made only upon presentation and
surrender of such Secured Note at the corporate trust office of the Corporate
Indenture Trustee. In the event the Indenture Trustee shall fail to make any
payment as provided in the preceding sentence after its receipt of funds at the
place and on or before the time specified in this Section 2.03(a), the Corporate
Indenture Trustee in its individual capacity agrees to compensate each Holder
for loss of use of funds in an amount equal to the interest (computed at the
then prevailing rate of overnight Permitted Investments) which could have been
earned on such funds had they been timely paid to such Holder.
(b) Whenever any payment to be made hereunder or pursuant to the
terms of any Secured Note shall be stated to be due on a day which is not a
Business Day, such payment shall be due and payable on the next succeeding
Business Day with the same force and effect as if made on such scheduled date
and (provided such payment is timely made on such succeeding Business Day) no
interest shall accrue on the amount of such payment from and after such
scheduled date.
(c) If payment of any installment of principal payable in accordance
with the terms hereof and of the Secured Notes is not paid in full when due,
whether as scheduled or upon acceleration and whether before or after the
maturity date of the Secured Notes, such overdue amount of principal shall (to
the extent not prohibited by applicable law) bear interest, payable on demand,
for each day from and including the date payment thereof was due to the actual
date of payment, at the Overdue Rate.
(d) Subject to Section 6.11, the Holder of any Secured Note shall be
entitled to the principal of, and Make-Whole Amount, if any, and interest on
such Secured Note free from all rights of set-off or counterclaims of the
Grantor Trustee, the Indenture Trustee or any prior
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Holder of such Secured Note. Nothing set forth in this Section 2.03(d) shall
impair the right of the Grantor Trustee to receive a return from the Indenture
Trustee of any amount intentionally overpaid by the Grantor Trustee in respect
of a Secured Note.
SECTION 2.04. Note Register. The Indenture Trustee shall cause to be
kept at the Corporate Indenture Trustee's corporate trust office a register (the
"Note Register") for the registration of Secured Notes and for the registration
of transfer of Secured Notes. The Note Register shall be maintained by the
Corporate Indenture Trustee, and the names and addresses of the registered
Holders of the Secured Notes, transfers of the Secured Notes and the names and
addresses of the transferees of the Secured Notes shall be entered in the Note
Register under such reasonable regulations as the Corporate Indenture Trustee
may prescribe. Each Loan Participant shall be provided reasonable opportunity to
inspect the Note Register from time to time.
SECTION 2.05. Registered Owners. The Grantor Trustee and the
Indenture Trustee shall deem and treat any registered Holder as the absolute
owner of any Secured Note held by such Holder, as indicated in the Note
Register, for the purpose of receiving payment of all amounts payable with
respect to such Secured Note and for all other purposes, and neither the Grantor
Trustee nor the Indenture Trustee shall be affected by any notice to the
contrary. All such payments so made shall be valid and effectual to satisfy and
discharge the liability of the Grantor Trustee upon such Secured Note to the
extent of the sum or sums so paid.
SECTION 2.06. Transfer, Exchange and Replacement of Notes. (a)
Secured Notes may be transferred only on the Note Register. Any secured Note may
be transferred on the Note Register if such Secured Note is surrendered for
cancellation at the corporate trust office of the Corporate Indenture Trustee
and is accompanied by an instrument of transfer in form and substance reasonably
satisfactory to the Corporate Indenture Trustee, which Secured Note or Secured
Notes shall be canceled by the Indenture Trustee. A new Secured Note or Secured
Notes of the same series, duly executed by the Grantor Trustee and registered in
the name of the transferee or transferees in a principal amount or amounts equal
to the principal amount of such transferred Secured Note, shall be duly
authenticated by the Corporate Indenture Trustee and delivered to the transferee
or transferees named by the Holder of such transferred Secured Note in exchange
for such transferred Secured Note. Promptly after registration of the transfer
of any Secured Note, the Corporate Indenture Trustee shall give notice thereof
to the Lessee and the Grantor Trustee specifying the name and address for
notices of the transferee or transferees.
(b) Any Secured Note may be exchanged for a new Secured Note if such
Secured Note to be so exchanged is surrendered for cancellation at the corporate
trust office of the Corporate Indenture Trustee and is accompanied by the
request of the Holder thereof specifying
8
the denomination of the new Secured Note (which shall be in denominations of at
least $1,000 or if less, the then unpaid principal amount thereof) to be issued
in exchange therefor. Upon instructions from the Indenture Trustee, the Grantor
Trustee shall deliver to the Indenture Trustee a new Secured Note, hereunder in
replacement therefor, duly executed by the Grantor Trustee and registered in the
name of such Holder in the denominations so requested and in an aggregate
principal amount equal to the aggregate principal amount of such Secured Note to
be so exchanged, and such new Secured Note shall be duly authenticated by the
Corporate Indenture Trustee and delivered by the Corporate Indenture Trustee to
such Holder in exchange for such Secured Note to be so exchanged, which Secured
Note shall be canceled by the Corporate Indenture Trustee.
(c) If any Secured Note shall become mutilated or be destroyed, lost
or stolen, upon request of the Holder thereof, a new Secured Note, duly executed
by the Grantor Trustee and registered in the name of such Holder of like tenor
and principal amount as the Secured Note so mutilated, destroyed, lost or
stolen, shall be duly authenticated and delivered by the Corporate Indenture
Trustee to such Holder in exchange for such Secured Note, if mutilated, or in
substitution for such Secured Note, if destroyed, lost or stolen. In the case of
a mutilated Secured Note, such Secured Note shall be surrendered for
cancellation at the corporate trust office of the Corporate Indenture Trustee
and shall be canceled by the Corporate Indenture Trustee. In the case of a
destroyed, lost or stolen Secured Note, the Holder thereof shall furnish to the
Grantor Trustee and the Indenture Trustee (i) evidence to their reasonable
satisfaction of the destruction, loss or theft of such Secured Note and
ownership thereof, and (ii) such security or indemnity as may be reasonably
required by them to save them harmless; provided that if the affected Holder is
a Pass Through Trustee, the written agreement of such Holder to indemnify the
Grantor Trustee and the Indenture Trustee (in their respective individual and
trust capacities) with respect to such destroyed, lost or stolen Secured Note,
together with written notice of ownership and destruction, loss or theft
thereof, shall satisfy the conditions of this sentence.
SECTION 2.07. New Notes; Payment of Expenses. (a) Each new Secured
Note (a "New Note") issued pursuant to Section 2.06 upon transfer of, in
exchange for or in substitution for a Secured Note (an "Old Note") shall be
dated as of the transfer date of such Old Note. The Indenture Trustee shall mark
on each New Note (i) the date to which principal and interest have been paid on
the applicable Old Note and (ii) all payments and prepayments of principal made
on such Old Note which are allocable to such New Note. Interest shall be deemed
to have been paid on such New Note to the date to which interest was paid on the
applicable Old Note, and all payments and prepayments of principal required to
have been marked on such New Note, as provided in clause (ii) of the preceding
sentence, shall be deemed to have been made thereon. All New Notes issued
pursuant to Section 2.06 in exchange for or in substitution for or in lieu of
Old Notes shall be valid obligations of the Grantor Trustee evidencing the same
debt as such Old Notes and shall be
9
entitled to the benefits and security of this Indenture to the same extent as
such Old Notes. Issuance of any New Note shall not for any purposes be deemed a
further advance of funds to the Grantor Trustee and the perfection and priority
of the security interest in the Indenture Estate applicable to such New Note
shall for all purposes be the same as that applicable to the Secured Note
replaced by such New Note.
(b) Upon the issuance of a New Note or New Notes pursuant to Section
2.06, the Grantor Trustee may require from the party requesting such New Note or
New Notes payment of a sum to reimburse the Grantor Trustee for, or to provide
funds for, the payment of any tax or other governmental charge or any other
charge or expense paid or payable with respect to such transfer by the Grantor
Trustee or the Indenture Trustee, without any right of reimbursement under any
Operative Document with respect to such payments.
SECTION 2.08. Additional Notes. (a) So long as no Lease Event of
Default or default of the nature set forth in paragraphs (a), (b), (c) or (g) of
the definition of Lease Event of Default in Section 15 of the Lease, or
Indenture Event of Default shall have occurred and be continuing, Additional
Notes of one or more series may be issued under and secured by this Indenture at
any time or from time to time, subject to the conditions hereinafter provided in
this Section 2.08 and the conditions provided in Section 14.1 to the
Participation Agreement, for the purpose of financing the Lessor's Share of the
cost of any Non-Severable Modification or any Severable Modification required by
law to the Production System as provided in Section 14 of the Participation
Agreement.
(b) Prior to the issuance of any Additional Notes pursuant to this
Section 2.08, the Grantor Trustee shall have received from the Owner Participant
and delivered to the Indenture Trustee, not less than forty-five (45) days prior
to the proposed date of issuance of such Additional Notes, a request and
authorization to issue Additional Notes (a "Request"), which Request shall
include the amount of such Additional Notes, the proposed date of issuance of
such Additional Notes, and other details with respect thereto which are not
inconsistent with this Section 2.08. Such Additional Notes shall have a
designation so as to distinguish such Additional Notes from the Initial Secured
Notes and any other Additional Notes that may have been issued theretofore, but
otherwise shall be substantially similar in form to the Initial Secured Notes,
with such omissions therefrom, variations therein and additions thereto as shall
be appropriate. Such Additional Notes shall not rank senior in any respect to
other Secured Notes issued pursuant to the terms hereof but may rank junior in
right of payment and security.
(c) The terms, conditions and designations of such Additional Notes
(which shall be consistent with the Request and with the terms of this Indenture
and of the Participation Agreement and such terms, conditions and designations
shall be in form and substance acceptable to
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the Owner Participant, the Grantor Trustee and the Indenture Trustee) shall be
set forth in a supplement to this Indenture, substantially in the form of
Exhibit C, which shall be executed by the Grantor Trustee and the Indenture
Trustee. Such indenture supplement shall set forth:
(i) the text of such Additional Notes (which, except for the
terms of payment thereof, shall be of substantially the same effect as the
text of the Initial Secured Notes set forth in this Indenture, with such
changes as are consistent with and permitted by this Indenture and which in
all events shall provide that such Additional Notes are never more than
pari passu in priority of payment, in right of security and in all other
respects with the Initial Secured Notes);
(ii) the date of maturity of such Additional Notes (which shall be
no later than the latest scheduled maturity date of the Secured Notes then
Outstanding);
(iii) the date from which, and the date or dates on which, interest
is payable (which shall be Interest Payment Dates);
(iv) the terms for the repayment of the principal amount of such
Additional Notes (each regularly scheduled payment of principal shall be an
Interest Payment Date);
(v) the terms, if any, as to prepayment or redemption of such
Additional Notes at the option of the Grantor Trustee, and as to the
premium, if any, payable on any redemption or prepayment of such Additional
Notes; and
(vi) any other terms and agreements in respect thereof provided or
permitted by this Trust Indenture or necessary to specify the terms and
conditions on which such Additional Notes shall be issued.
(d) Such Additional Notes shall be executed by the Grantor Trustee as
provided in Section 2.01 and deposited with the Corporate Indenture Trustee for
authentication and delivery, but before such Additional Notes shall be
authenticated and delivered by the Corporate Indenture Trustee, there shall be
delivered to or deposited with the Corporate Indenture Trustee the following:
(i) the Request;
(ii) such supplement to this Indenture, duly executed by the
Grantor Trustee;
(iii) a supplement to the Lease, duly authorized, executed and
delivered by the Lessee and the Grantor Trustee,
11
providing for adjustments to the Basic Rent Percentages, Stipulated Loss
Value Percentages and Termination Value Percentages, and the definition of
Lessor's Cost under the Lease required to ensure that payments of such
amounts will be adequate to provide for payments required hereunder and
under the Secured Notes, after giving effect to the issuance of such
Additional Notes, together with such instruments of conveyance, assignment
and transfer, if any, necessary to subject such supplement to the Lease to
the Lien and security interest of this Indenture and to perfect such Lien
and security interest subject to no Liens other than Permitted Liens, and
evidence as to the due recording or filing of each thereof or of financing
or similar statements with respect thereto;
(iv) such instruments of conveyance, assignment and transfer
(including, without limitation, contractors' waivers) duly executed and
delivered by the respective parties thereto, and such evidence of the due
filing thereof or of financing statements or other collateral documents
with respect thereto, as may be required to convey to the Grantor Trustee
all property included in the Lessor's Share of such Modification, if any,
and to subject such property to the Lien of this Indenture, subject to no
Liens except Permitted Liens;
(v) originals or certified copies of all corporate actions
necessary for the due and valid issue of such Additional Notes, the due and
valid authorization, execution, delivery and performance by the Grantor
Trustee of the supplement to this Indenture relating thereto, and the due
and valid authorization, execution, delivery and performance by the Lessee
and the Grantor Trustee of the supplement to the Lease and the creation of
the Lien and security interest thereon referred to above, all of which
corporate actions shall have been duly obtained and shall be in full force
and effect; together with evidence as to the due occurrence of all such
authorization, execution, delivery and performance;
(vi) documentation, duly executed and delivered by the respective
parties thereto whereby the proposed holders of the Additional Notes agree
to be bound by the terms of the Operative Documents (including, without
limitation, representations and covenants corresponding to those contained
in Section 7 of the Participation Agreement);
(vii) an Officer's Certificate of the Lessee certifying (1) as to
the cost of the Lessor's Share of such Modification and (2) that all
conditions precedent to the issuance of the Additional Notes contained in
this Section 2.08 and in Section 14 of the Participation Agreement have
been satisfied unless such conditions have been waived in writing by the
Indenture Trustee and Grantor Trustee; and
(viii) such opinions of counsel as are customary in
12
transactions of this type, including, without limitation, opinions as to
the due authorization, execution, delivery and enforceability and the
creation and perfection of the security interest in the Lessor's Share of
such Modification (subject to usual or customary exceptions, qualifications
and assumptions) of such supplement to this Indenture and such Additional
Notes, and such other certificates and other documents as may be reasonably
requested by the Indenture Trustee to evidence the validity and binding
effect of such supplement to this Indenture and such Additional Notes and
compliance with this Section 2.08.
(e) When the documents referred to in Section 2.08(d) shall have been
delivered to or deposited with the Indenture Trustee and when such Additional
Notes described in the Request and the supplement to this Indenture have been
executed by the Grantor Trustee as required by this Indenture, the Corporate
Indenture Trustee shall authenticate and deliver such Additional Notes in the
manner described in such Request, but only upon payment to the Grantor Trustee
of the sum or sums specified in such Request, whereupon the Grantor Trustee
shall pay such sum or sums to the Lessee.
SECTION 2.09. Termination of Interest in Indenture Estate. A Holder
shall have no further interest in, or other right with respect to, the Indenture
Estate upon the payment of principal of, Make-Whole Amount, if any, and interest
on, any Secured Notes held by such Holder and all other sums payable to such
Holder hereunder and under such Secured Notes with respect to any such Secured
Notes.
SECTION 2.10. Equally and Ratably Secured. Except as otherwise
expressly provided in this Indenture, all Secured Notes at any time Outstanding
under this Indenture shall be equally and ratably secured by this Indenture
without preference, priority or distinction on account of the designation, date,
time of issue or maturity of such Secured Notes. All Additional Notes at any
time Outstanding under this Indenture shall be equally and ratably secured by
this Indenture without preference, priority or distinction on account of the
designation date, time of issue or maturity of such Additional Notes.
SECTION 2.11. CUSIP or CINS Numbers. The Grantor Trustee in issuing
the Secured Notes may use "CUSIP" or CINS numbers (if then generally in use),
and, if so, the Indenture Trustee shall use "CUSIP" or CINS numbers, as the case
may be, in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Secured Notes or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Secured Notes, and any such redemption
shall not be affected by any defect in or omission of
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such numbers. The Grantor Trustee will promptly notify the Indenture Trustee of
any change in the CUSIP and CINS numbers.
ARTICLE III
REDEMPTION AND REFUNDING
SECTION 3.01. Generally. The Secured Notes may not be redeemed or
prepaid except to the extent and in the manner expressly permitted or required
by this Indenture. Except as otherwise expressly provided in this Indenture, any
amount prepaid in partial redemption of the Secured Notes Outstanding shall be
distributed by the Indenture Trustee to all Holders ratably, without priority of
any Holder over any other Holder, in the proportion that the principal amount of
Secured Notes held by such Holder bears to the principal amount of all Secured
Notes then Outstanding.
SECTION 3.02. Mandatory Redemption. (a) Casualty Redemption. If an
Event of Loss pursuant to Section 12 of the Lease shall occur as to which a
Stipulated Loss Value payment is due under such Section 12, then the Grantor
Trustee shall redeem the Secured Notes Outstanding, without the Make-Whole
Amount or any other premium, on the date on which such Stipulated Loss Value is
paid by the Lessee pursuant to the Lease (the date of any such redemption
hereunder being a "Casualty Redemption Date"), as follows: (i) if an Event of
Loss described in Section 12.2(a) of the Lease shall have occurred and a
Stipulated Loss Value payment is due and owing under the Lease, the entire
unpaid principal amount of the Secured Notes Outstanding on such Casualty
Redemption Date shall be redeemed at a redemption price equal to 100% of the
unpaid principal amount of such Secured Notes, together with any accrued and
unpaid interest thereon to such Casualty Redemption Date; and (ii) if an Event
of Loss described in Section 12.2(b) of the Lease and a Stipulated Loss Value
payment for less than the full Undivided Interest is due and owing under the
Lease, such of the unpaid principal amount of the Secured Notes Outstanding on
such Casualty Redemption Date (assuming, only for purposes of this calculation,
that if such Casualty Redemption Date is coincident with an Installment Payment
Date or a Maturity Date, the scheduled principal payment due, if any, on such
Casualty Redemption Date on the Secured Notes is paid prior to the time the
Redemption Price is calculated pursuant to this Section 3.02(a)(ii) and applied
to principal in accordance with Section 4.01) as shall be equal to the product
of (x) the entire unpaid principal amount of the Secured Notes Outstanding on
such Casualty Redemption Date (assuming, only for purposes of this calculation,
that if such Casualty Redemption Date is coincident with an Installment Payment
Date or a Maturity Date, the scheduled principal payment due, if any, on such
Casualty Redemption Date on the Secured Notes is paid prior to the time the
Redemption Price is calculated pursuant to this Section 3.02(a)(ii) and applied
to principal in accordance with Section 4.01) and (y) a fraction, the numerator
of which
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shall be the Original Cost of the Significant Portion of the Undivided Interest
suffering such Event of Loss and the denominator of which shall be Lessor's
Cost), at a redemption price equal to 100% of such unpaid principal amount of
the Secured Notes to be redeemed on such Casualty Redemption Date pursuant to
the terms of this Section 3.02(a)(ii), together with any accrued and unpaid
interest thereon to such Casualty Redemption Date (assuming, only for purposes
of this calculation, that if such Casualty Redemption Date is coincident with an
Interest Payment Date, the interest due on such Interest Payment Date is paid
prior to the time the Redemption Price is calculated pursuant to this Section
3.02(a)(ii) and applied to interest in accordance with Section 4.01); provided
that each Holder of a Secured Note shall receive, as to the principal thereof,
the same portion of such Redemption Price in its entirety as the principal value
of such Secured Note at such Casualty Redemption Date represents of the total
value of the principal value of all Secured Notes at such Casualty Redemption
Date.
(b) Early Termination Redemption. In the event that the Lease is
terminated with respect to the Undivided Interest or a Significant Portion
thereof pursuant to Section 7 of the Lease, the Grantor Trustee shall redeem on
the applicable Termination Date (the date of any redemption under this Section
3.02(b) being herein called a "Termination Redemption Date") (i) if the
termination is with respect to the Undivided Interest, the entire unpaid
principal amount of the Secured Notes Outstanding on such Termination Redemption
Date, at a redemption price equal to 100% of such unpaid principal amount of
such Secured Notes, together with any accrued and unpaid interest thereon to
such Termination Redemption Date plus, in the event any of the Secured Notes is
redeemed prior to the Premium Termination Date applicable to such Secured Note,
a premium, equal to the Make-Whole Amount, if any, with respect to such Secured
Note and otherwise without premium and (ii) if the termination is with respect
to a Significant Portion of the Undivided Interest, such of the unpaid principal
amount of the Secured Notes Outstanding on such Termination Redemption Date
(assuming, only for purposes of this calculation, that if such Termination
Redemption Date is coincident with an Installment Payment Date or a Maturity
Date, the scheduled principal payment due, if any, on such Termination
Redemption Date on the Secured Notes is paid prior to the time the Redemption
Price is calculated pursuant to this Section 3.02(b)(ii) and applied to
principal in accordance with Section 4.01) as shall be equal to the product of
(x) the entire unpaid principal amount of the Secured Notes Outstanding on such
Termination Redemption Date (assuming, only for purposes of this calculation,
that if such Termination Redemption Date is coincident with an Installment
Payment Date or a Maturity Date, the scheduled principal payment due, if any, on
such Termination Redemption Date on the Secured Notes is paid prior to the time
the Redemption Price is calculated pursuant to this Section 3.02(b)(ii) and
applied to principal in accordance with Section 4.01) and (y) a fraction, the
numerator of which shall be the Original Cost of such Significant Portion and
the denominator of which shall be Lessor's Cost, at a redemption price equal to
100% of the unpaid principal amount of the Secured Notes
15
to be redeemed on such Termination Redemption Date pursuant to the terms of this
Section 3.02(a)(ii), together with any accrued and unpaid interest thereon to
such Termination Redemption Date (assuming, only for purposes of this
calculation, that if such Termination Redemption Date is coincident with an
Interest Payment Date, the interest due on such Interest Payment Date is paid
prior to the time the Redemption Price is calculated pursuant to this Section
3.02(b)(ii) and applied to interest in accordance with Section 4.01) plus, in
the case of a redemption pursuant to this Section 3.02(b)(ii) prior to the
Premium Termination Date applicable to such Secured Note, a premium, equal to
the Make-Whole Amount, if any, with respect to the portion of such Secured Note
which is to be so redeemed and otherwise without premium; provided that each
Holder of a Secured Note shall receive, as to the principal thereof, the same
portion of such Redemption Price in its entirety as the principal value of such
Secured Note at such Casualty Redemption Date represents of the total value of
the principal value of all Secured Notes at such Termination Redemption Date.
(c) Purchase Redemption. (i) In the event that the Lessee shall
purchase the Lessor's Interest in the Undivided Interest pursuant to Section
6.1(c), 6.1(d), 6.1(e) or 6.1(f) of the Lease prior to the date of expiration of
the Basic Lease Term, and the Lessee shall not have assumed the obligations of
the Grantor Trustee under the Secured Notes pursuant to Section 11.6 of the
Participation Agreement or purchased the Lessor's Interest in the Undivided
Interest pursuant to Sections 16.1 and l6.2 of the Participation Agreement, the
Grantor Trustee shall redeem on the date of purchase (the date of any redemption
under this Section 3.02(c) being herein called a "Purchase Redemption Date"),
the entire unpaid principal of the Secured Notes Outstanding on such Purchase
Redemption Date at a redemption price equal to 100% of the unpaid principal
amount of the Secured Notes together with any accrued and unpaid interest
thereon to such Purchase Redemption Date plus, in the case of each Secured Note
redeemed prior to the Premium Termination Date applicable to such Secured Note,
a premium equal to the Make-Whole Amount, if any, with respect to such Secured
Note and otherwise without premium.
(d) Special Redemption. If the Grantor Trustee or the Owner
Participant has drawn on the Letter of Credit (or any other letter of credit
naming the Lessor and/or the Owner Participant as a beneficiary as contemplated
by Section 10.14 of the Participation Agreement) or received payment under the
Surety Bond (or any other surety bond held by the Lessor and/or the Owner
Participant as contemplated by Section 10.14 of the Participation Agreement),
and the Lessee shall not have assumed the obligations of the Grantor Trustee
under the Secured Notes pursuant to Section 11.6 of the Participation Agreement,
then the Grantor Trustee shall redeem the Secured Notes Outstanding, on the date
on which the remaining portion of Stipulated Loss Value is required to be paid
by the Lessee pursuant to the Lease (the date of any such redemption hereunder
being a "Special Redemption Date"), at a redemption price equal to 100% of the
unpaid principal amount of such Secured Notes, together with any
16
accrued and unpaid interest thereon to such Special Redemption Date but without
the Make-Whole Amount or any other premium.
SECTION 3.03. [Intentionally Omitted].
SECTION 3.04. Assumption of Obligations of the Grantor Trustee by the
Lessee. In the event that the Lessee shall have elected to assume all of the
rights and obligations of the Grantor Trustee under this Indenture in respect of
the Secured Notes in connection with the purchase by the Lessee of the Lessor's
Interest in the Undivided Interest pursuant to Section 6.1(c), (d), (e), (f) or
(g) of the Lease or pursuant to Section 16.2(d) of the Participation Agreement
(the date of any such assumption being referred to hereinafter as the "Relevant
Date") and, if on or prior to the Relevant Date:
(a) the Lessee shall have delivered to the Indenture Trustee an
Officer's Certificate of the Lessee, dated the Relevant Date, stating that
the Lessee has paid to the Grantor Trustee all amounts required to be paid
to the Grantor Trustee pursuant to the Lease, in connection with such
purchase or termination and assumption;
(b) no Indenture Event of Default after giving effect to the Relevant
Amendment (as defined below) shall have occurred and be continuing
immediately subsequent to such purchase or termination, or assumption and
the Indenture Trustee shall have received an Officer's Certificate, dated
the Relevant Date, of the Lessee to such effect;
(c) the Indenture Trustee shall have received a (i) supplement to
this Indenture, substantially in the form of Exhibit E (the "Relevant Date
Supplement"), duly executed by the Lessee, which shall provide that the
Lessee agrees that it is acquiring, subject to the security interest and
Lien thereon granted to the Indenture Trustee under this Indenture and the
Ship Mortgage, all of Lessor's right, title and interest in and to the
Undivided Interest, as provided in Section 2 of the form of Relevant Date
Supplement attached as Exhibit E and (ii) a ship mortgage, substantially in
the form attached as Exhibit G (the "New Ship Mortgage");
(d) the Indenture Trustee shall have received, on or prior to the
Relevant Date, evidence of all filings, recordings and other action
referred to in the opinion of counsel referred to below; and
(e) the Indenture Trustee shall have received opinions of counsel as
are customary for transactions of this type, subject to usual or customary
qualifications, exceptions and assumptions, and shall include opinions,
subject to such qualifications, exceptions and assumptions, to the effect
that, after giving effect to the
17
Relevant Amendment (as defined below):
(i) on the Relevant Date, this Indenture, as supplemented by the Relevant
Date Supplement and as amended by the Relevant Amendment and the Secured
Notes issued thereunder constitute the legal, valid and binding obligations
of the Lessee, enforceable against the Lessee in accordance with their
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and by general principles of equity, and except as
limited by applicable laws which may affect the remedies provided for in
this Indenture as so supplemented, which laws, however, do not in the
opinion of such counsel make the remedies provided for in this Indenture
inadequate for the practical realization of the rights and benefits
provided for in this Indenture as so supplemented; and
(ii) the Liens of this Indenture on the Undivided Interest and the New
Ship Mortgage have been perfected and creates a security interest in the
Indenture Estate and all filings and recordings and other action necessary
or appropriate to perfect the interests of the Indenture Trustee have been
accomplished;
then, simultaneously with the delivery of such documents, the Indenture Trustee
shall execute and deliver the Relevant Date Supplement, and automatically and
without the requirement of further action by any person, effective as of the
Relevant Date:
(x) this Indenture shall be deemed to have been amended as provided
for in Exhibit C hereto (the "Relevant Amendment"); and
(y) the Grantor Trustee shall be released from all of its obligations
under this Indenture in respect of the Secured Notes or otherwise (other
than any obligations or liabilities of the Grantor Trustee in its or his
individual capacity incurred on or prior to the Relevant Date or arising
out of or based upon events occurring on or prior to the Relevant Date,
which obligations and liabilities shall remain the sole responsibility of
the Grantor Trustee) and there shall be immediately distributed any funds
then being retained hereunder that are distributable to the Grantor Trustee
or the Owner Participant.
SECTION 3.05. Refunding. (a) Subject to the terms and conditions of
Section 15 of the Participation Agreement, the Grantor Trustee from time to time
may after January 2, 2001, take such steps as may be necessary to refund or
refinance in whole all Outstanding Secured Notes at the redemption price equal
to 100% of the unpaid principal amount of the Secured Notes to be redeemed
pursuant to this Section 3.05, together with any accrued and unpaid interest
thereon to the date of redemption plus, in the case of a redemption prior to the
Premium
18
Termination Date applicable to such Secured Notes, a premium equal to the Make-
Whole Amount, if any, with respect to such Secured Notes and otherwise without
premium.
(b) The terms, conditions and designations of any such Refunding
Secured Notes (to the extent not inconsistent with this Indenture) shall be set
forth in a supplement to this Indenture reasonably satisfactory to the Indenture
Trustee and the Grantor Trustee (a "Refunding Indenture") which shall be
executed by the Grantor Trustee and the Indenture Trustee.
(c) The Corporate Indenture Trustee shall authenticate and deliver
Refunding Secured Notes in accordance with the provisions of any Refunding
Indenture upon receipt by the Indenture Trustee of the following:
(i) a counterpart of the applicable Refunding Indenture duly
executed by the Grantor Trustee; and
(ii) any opinions, certificates or additional documents as
reasonably shall be required to be delivered to or deposited with the
Indenture Trustee by the applicable Refunding Indenture, Section 15 of the
Participation Agreement or for transactions of this type.
SECTION 3.06. Grantor Trustee's and Owner Participant's Option to
Redeem or Purchase Secured Notes. In the event that (a) at any time one or more
Lease Events of Default shall have occurred and any such Lease Event of Default
shall have continued for a period of less than 270 days, during which time the
Secured Notes could but shall not have been accelerated pursuant to Section
5.04, or (b)(i) the Indenture Trustee has given the Grantor Trustee or the Owner
Participant notice of the intent to accelerate the Secured Notes pursuant to
Section 5.04, (ii) the Secured Notes shall have been accelerated pursuant to
Section 5.04 but not yet paid or (iii) at any time one or more Lease Events of
Default shall have occurred and any such Lease Event of Default shall have
continued for a period of 270 days or more during which time the Secured Notes
could, but shall not have been, accelerated pursuant to Section 5.04, the
Grantor Trustee or the Owner Participant may, at its option, give at least 30
days' prior irrevocable notice to the Indenture Trustee that it will redeem (or
purchase in lieu of redemption) all Secured Notes then Outstanding, which
redemption or purchase shall be at a redemption or purchase price equal to 100%
of the unpaid principal amount of such Secured Notes, together with any accrued
and unpaid interest thereon, plus in the case of any redemption or purchase
pursuant to clause (a) above prior to the applicable Premium Termination Date a
premium equal to the Make-Whole Amount, if any, with respect to such Secured
Notes but otherwise without premium. On or prior to the Business Day preceding
the Redemption Date set forth in the notice, the Grantor Trustee or the Owner
Participant will deposit with the Indenture Trustee an amount sufficient
19
to redeem or purchase at the applicable Redemption Price all Secured Notes then
Outstanding (including, in the case of a redemption or purchase pursuant to
clause (a) above, a good faith estimate of the premium computed as provided for
herein) plus an amount equal to all other sums then due and payable to a Loan
Participant hereunder, and to pay the Indenture Trustee all amounts then due it
hereunder, which funds shall be held by the Indenture Trustee as provided in
Section 7.04. Upon the giving of such notice and the receipt by the Indenture
Trustee of such deposit, the Indenture Trustee shall deem all instructions
received from the Grantor Trustee or the Owner Participant as having been given
by the Loan Participants of 100% of the Outstanding principal amount of Secured
Notes for all purposes of this Indenture. If such notice is given, the Grantor
Trustee further agrees that it will deposit or cause to be deposited with the
Indenture Trustee, on or prior to the Business Day preceding the applicable
Redemption Date, whether or not an Indenture Event of Default is then
continuing, funds sufficient, when added to the funds already held by the
Indenture Trustee for such purpose, to redeem or purchase at the applicable
Redemption Price (including the premium actually payable in respect thereof
computed as provided for herein), on such Redemption Date all Secured Notes then
Outstanding, to pay all other sums then due and payable to a Loan Participant
hereunder and to pay the Indenture Trustee all amounts then due it hereunder. In
the event the Grantor Trustee shall have given any such notice to purchase or
redeem, unless the Grantor Trustee shall have consented thereto, the Indenture
Trustee shall not during the period from such notice to the Redemption Date
specified therein institute any new remedy or proceeding in respect of any new
remedy under this Indenture, and the Indenture Trustee shall, to the extent the
same may be accomplished without prejudicing the rights of the Indenture Trustee
hereunder, take such actions and forbear from taking actions, in each case
sufficient to maintain the status quo with respect to any pending remedies or
proceedings in respect thereof being then pursued hereunder; provided, however,
that in no event shall the Indenture Trustee sell or assign any portion of the
Indenture Estate during the period from such notice to the Redemption Date
specified therein. In the event the Grantor Trustee shall have given any such
notice to purchase or redeem, and the Grantor Trustee has deposited with the
Indenture Trustee the amounts required to be deposited pursuant to this Section
3.06, then on the Redemption Date, each Loan Participant will be deemed to sell,
assign, transfer and convey to the Grantor Trustee or its designee (without
recourse or warranty of any kind other than of title to the Secured Notes so
conveyed) all of the right, title and interest of such Loan Participant in and
to the Secured Note held by such Loan Participant. On and after such Redemption
Date and receipt of amounts required to be deposited pursuant to this Section
3.06, the Indenture Trustee shall no longer treat the former Loan Participants
as the "Loan Participants", except for purposes of the Loan Participants' right
to receive their respective portions of the amounts paid to the Indenture
Trustee as aforesaid and all other amounts due to such Loan Participants
hereunder and, to the extent secured hereby, under the Operative Documents with
respect to acts, events, circumstances or conditions occurring or existing prior
to such Redemption Date, and on
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such date the Corporate Indenture Trustee shall register the transfer of
ownership of the Secured Notes into the name of the Grantor Trustee or its
designee. If the Grantor Trustee elects to purchase the Secured Notes under this
Section 3.06, nothing herein, including the use of the terms "Redemption Date"
and "Redemption Price," shall be deemed to result in a redemption of the Secured
Notes.
SECTION 3.07. Deposited Redemption or Purchase Moneys. Moneys held by
the Indenture Trustee for the redemption or purchase of any Secured Note issued
hereunder as provided in this Article III shall be held by the Indenture Trustee
as a separate fund in trust for the account of the respective Holders of the
Secured Notes to be redeemed, shall be invested in accordance with the
provisions of Section 7.04 and shall be delivered to them respectively in
accordance with Section 2.03 on the Redemption Date. Any amounts so held by the
Indenture Trustee shall be deemed paid for purposes of Section 2.09, of all
amounts of principal of, Make-Whole Amount, if any, and interest on, and all
other amounts due and payable under any such Secured Notes, the Holders thereof
shall be paid to such Holder's agent upon delivery of such Secured Notes to the
Indenture Trustee for cancellation.
SECTION 3.08. Acquisition of Secured Notes. The Grantor Trustee
covenants that it will not, directly or indirectly, acquire or make any offer to
acquire any Secured Note except pursuant to the provisions of this Indenture.
SECTION 3.09. Condition to Redemption and Refunding. It shall be a
condition to any redemption, refinancing or refunding of Secured Notes effected
under this Article III other than under Section 3.06 that all amounts of
principal of, Make-Whole Amount, if any, and interest on, and all other amounts
then due and payable under the Secured Notes which are to be the subject of such
redemption, refinancing or refunding, as the case may be, as well as all other
amounts due and payable to the Holders of such Secured Notes as are to be the
subject of such redemption, refinancing or refunding shall have been paid as
specified herein or therein or in any other Operative Document.
SECTION 3.10. Notice of Certain Redemptions. In connection with a
redemption of any of the Secured Notes pursuant to Section 3.02 or Section 3.05,
the Grantor Trustee shall give irrevocable (except with respect to redemption
notices given pursuant to Section 3.02(b) which may be withdrawn) notice of such
redemption at least 25 days and not more than 60 days prior to the Redemption
Date to each Loan Participant of such Secured Notes to be redeemed, at such Loan
Participant's address appearing in the Note Register.
Any such notice of redemption shall state (including the CUSIP or CINS
number, if any):
(i) the Redemption Date (which shall be a Stipulated
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Loss Value Determination Date;
(ii) the applicable basis for determining the redemption price
pursuant to Section 3.02 or Section 3.05 (the "Redemption Price");
(iii) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Secured Note, and that, if any such
Secured Notes are then Outstanding, interest on such Secured Notes shall
cease to accrue on and after such Redemption Date; and
(iv) the place or places where such Secured Notes are to be
surrendered for payment of the Redemption Price.
SECTION 3.11. Termination of Head Lease. The Grantor Trustee shall
notify the Indenture Trustee in writing at least 5 days before exercising its
option to purchase the Undivided Interest pursuant to Section 10.2 of the Head
Lease. With such notice the Grantor Trustee shall deliver to the Indenture
Trustee:
(a) a ship mortgage substantially in the form of the Ship Mortgage but
securing the Indenture Indebtedness rather than the obligations of the
Lessee under the Head Lease (the "Direct Ship Mortgage");
(b) on or prior to the Relevant Date, evidence of all filings,
recordings and other action referred to in the opinion of counsel referred
to below; and
(c) opinions of counsel as are customary for transactions of this
type, subject to usual or customary qualifications, exceptions and
assumptions, and shall include opinions, subject to such qualifications,
exceptions and assumptions, to the effect that, after giving effect to the
execution and delivery of the Ship Mortgage and any necessary filings,
recordings and other actions that:
(i) the Direct Ship Mortgage constitutes the legal, valid and binding
obligation of the Grantor Trustee, enforceable against the Grantor Trustee
in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and by general principles
of equity, and except as limited by applicable laws which may affect the
remedies provided for in the Direct Ship Mortgage, which laws, however, do
not in the opinion of such counsel make the remedies provided for in the
Direct Ship Mortgage inadequate for the practical realization of the rights
and benefits provided for in the Direct Ship Mortgage; and
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(ii) the Direct Ship Mortgage has been filed and creates a valid lien in
the Platform and other property described therein and all filings and
recordings and other action necessary or appropriate to make such lien
valid against third parties have been accomplished.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE INDENTURE ESTATE
SECTION 4.01. Basic Rent Distribution. (a) Generally. Except as
otherwise provided in Sections 4.01(c) and 4.03, each installment of Basic Rent
(other than any portion thereof constituting an Excepted Payment), any payment
of Supplemental Rent representing interest on overdue installments of Basic Rent
(other than any portion thereof constituting an Excepted Payment) and any
payment received by the Indenture Trustee as contemplated by Section 5.03 shall
be promptly distributed by the Indenture Trustee on the date such payment is due
from the Lessee (or as soon thereafter as such payment shall be received by the
Indenture Trustee) in the following order of priority:
first, in accordance with Section 4.04, so much of such installment or
payment as shall be required to pay in full the aggregate amount of the
payment or repayment of principal, interest and other amounts then due
under all Secured Notes shall be distributed to the Holders of such Secured
Notes ratably, without priority of one Holder over any other Holder, in the
proportion that the amount of such payment or payments then due under each
such Secured Note bears to the aggregate amount of the payments then due
under all such Secured Notes; and
second, subject to Section 4.01(c), the balance, if any, of such
installment remaining thereafter shall be distributed to the Grantor
Trustee for distribution pursuant to the Trust Agreement.
(b) Application of Certain Amounts Held by the Indenture Trustee upon
Certain Defaults. If as a result of any default by the Lessee in the performance
of its obligations under any Operative Document, the Indenture Trustee shall not
have received for distribution on any Basic Rent Payment Date (or the Indenture
Trustee shall be prevented from distributing on such date) the full amount then
distributable pursuant to clause "first" of Section 4.01(a), the Indenture
Trustee shall distribute any Rent, any proceeds of the Indenture Estate, and
amounts described in Section 12.5 of the Lease then held by it or thereafter
received by it (and any earnings thereon that constitute part of the Indenture
Estate as provided in Section 7.04) to the Holders to the extent necessary to
make all distributions then due pursuant to such clause "first".
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(c) Retention of Amounts by the Indenture Trustee. If, at the time of
receipt by the Indenture Trustee of an installment of Basic Rent (whether or not
then overdue) or of payment of Supplemental Rent representing interest on any
overdue installment of Basic Rent, the Indenture Trustee shall have Actual
Knowledge that there shall have occurred and be continuing an Indenture Event of
Default, the Indenture Trustee shall retain and not distribute any amount
otherwise required to be distributed pursuant to clause "second" of Section
4.01(a), and (i) at such time as there shall not be continuing any Indenture
Event of Default or (ii) on the first Business Day occurring more than 180 days
after the receipt of such amount, whichever shall first occur, the Indenture
Trustee shall distribute such amount pursuant to clause "second" of Section
4.01(a) unless prior thereto (1) the Indenture Trustee (as assignee of the
Grantor Trustee) shall have given notice to declare the Lease to be in default
in accordance with Section 16.1 thereof, (2) the Indenture Trustee shall have
given notice to the Grantor Trustee pursuant to the first proviso to Section
5.04(a) of the Indenture Trustee's intent to declare the Secured Notes due and
payable or (3) any of the Secured Notes shall have been declared or otherwise
shall have become immediately due and payable pursuant to Section 5.04, in which
case such amount shall be distributed by the Indenture Trustee forthwith in
accordance with the terms of Section 4.03.
SECTION 4.02. Certain Distributions. (a) Any payment received by the
Indenture Trustee (i) pursuant to Section 12 of the Lease as a result of the
occurrence of an Event of Loss, with respect to the Undivided Interest or a
Significant Portion thereof, (ii) pursuant to Section 6 of the Lease as a result
of the sale of the Lessor's right, title and interest in the Undivided Interest,
(iii) upon the termination of the Lease with respect to the Undivided Interest
or a Significant Portion thereof pursuant to Section 7 of the Lease, (iv) in
connection with the refunding of the Secured Notes pursuant to Section 3.05, or
(v) in connection with any drawing on a letter of credit or payment on a surety
bond maintained pursuant to Section 4.02 of the Participation Agreement shall be
distributed forthwith in the following order of priority:
first, in the manner provided in clause "first" of Section 4.03;
second, in the manner provided in clause "third" of Section 4.03 but
only with respect to those Secured Notes to be redeemed pursuant to Section
3.02 as a result of such Event of Loss, sale, termination, drawing or
payment, as the case may be;
third, in the manner provided in clause "second" of Section 4.03;
fourth, in the manner provided in clause "fourth" of Section 4.03; and
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fifth, in the manner provided in clause "fifth" of Section 4.03.
(b) The portion of each payment referred to in this Section 4.02
distributed to a Holder on account of principal, interest or the Make-Whole
Amount, if any, on any Secured Note held by such Holder shall be applied by such
Holder in payment of such Secured Note in accordance with the terms of Section
4.04.
SECTION 4.03. Distributions After Indenture Event of Default. If (a)
an Indenture Event of Default shall have occurred and be continuing, and (b)(i)
the Indenture Trustee (as assignee of the Grantor Trustee) shall have given
notice to declare the Lease to be in default pursuant to Section 16.1 thereof,
(ii) the Indenture Trustee shall have given notice to the Grantor Trustee
pursuant to the first proviso to Section 5.04(a) of the Indenture Trustee's
intent to declare the Secured Notes due and payable or (iii) any of the Secured
Notes shall have been declared or otherwise shall have become immediately due
and payable pursuant to Section 5.04, then, to the extent that each such notice
or declaration shall not have been rescinded or the Secured Notes shall remain
immediately due and payable, (i)(A) all amounts (other than Excepted Payments)
then held by the Indenture Trustee in accordance with Section 4.05 or 4.06 (in
each case not excluded from the operation of this Section 4.03), (B) then
otherwise held by the Indenture Trustee hereunder or (C) under any Operative
Document (other than amounts held for its own account) (and, in each case, all
earnings thereon that constitute part of the Indenture Estate as provided in
Section 7.04), and (ii) all payments and amounts thereafter realized by the
Indenture Trustee through the exercise of remedies hereunder or under any of the
agreements assigned or pledged to the Indenture Trustee under this Indenture or
otherwise as trustee under this Indenture (for purposes of this Section 4.03,
all such amounts and payments held or realized being herein called "proceeds"),
other than amounts expressly paid to it for its own account and other than
Excepted Payments, shall be distributed forthwith by the Indenture Trustee as
provided in the next sentence; provided, however, in the event of an Indenture
-------- -------
Event of Default that is not a Lease Event of Default, any amounts held by the
Indenture Trustee hereunder or under any Operative Document on behalf of or in
trust for the Lessee, shall not, until and unless such amounts are applied
against the Lessee's payment obligations under the Lease, be subject to
distribution under Section 4.03. Distributions shall be made in the following
order of priority:
first, so much of such proceeds as shall be required to reimburse the
Indenture Trustee for any unpaid fees for its services under this Indenture
and any unreimbursed tax, expense (including reasonable legal fees) or
other loss incurred by it (in each case to the extent reimbursable under
the Operative Documents) shall be distributed to the Indenture Trustee for
application to itself;
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second, so much of the remaining proceeds as shall be required to
reimburse the then existing or prior Holders for amounts paid or advanced
by the Holders pursuant to Section 6.04 (to the extent not previously
reimbursed), shall be distributed to the then existing and prior Holders as
their respective interests may appear, and if the proceeds remaining are
insufficient to pay all such amounts in full, they shall be distributed
ratably, without priority of any recipient over any other recipient (except
as otherwise expressly provided herein), in the proportion the aggregate
amount due each such Person under this clause "second" bears to the
aggregate amount and interest due all such Persons under this clause
"second";
third, so much of the proceeds remaining as shall be required to pay
in full the aggregate unpaid principal amount of each Secured Note then
Outstanding and Make-Whole Amount, if any, and all accrued but unpaid
interest thereon to the date of distribution, shall be distributed to the
Holder of such Secured Note, and if the proceeds remaining are insufficient
to pay all such amounts in full, they shall be distributed to all Holders
ratably, without priority of any Holder over any other Holder (except as
otherwise expressly provided herein), in the proportion that the aggregate
amount due each such Holder under this clause "third" bears to the
aggregate amount due all such Holders under this clause "third";
fourth, so much of the proceeds remaining as shall be required to pay
to each Holder all other amounts that are secured hereby, that remain
unpaid and that are payable pursuant to any provision of any Operative
Document shall be distributed to such Holder for distribution to itself and
its predecessors, as their respective interests may appear, and if the
proceeds remaining are insufficient to pay all such amounts in full, they
shall be distributed ratably, without priority of any Holder over any other
Holder (except as otherwise expressly provided herein), in the proportion
that the aggregate amount due each such Holder under this clause "fourth"
bears to the aggregate amount due all such Holders under this clause
"fourth"; and
fifth, the balance, if any, of the proceeds remaining shall be
distributed to the Grantor Trustee for distribution pursuant to the Trust
Agreement.
All amounts distributed to any Holder pursuant to clause "third" of
this Section 4.03 shall be applied by such Holder in payment of the Secured
Notes held by it in accordance with the terms of Section 4.04.
SECTION 4.04. Application of Payments on Secured Notes. Each payment
on a Secured Note shall be applied, first, to the payment of accrued interest on
such Secured Note to the date of such payment,
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second, to the payment of Make-Whole Amount, if any, on such Secured Note due on
the date of such payment, third, to the payment of any principal on such Secured
Note then due thereunder, and fourth, to the payment of the installments of
principal remaining unpaid on such Secured Note in the inverse order of the
installment due date thereof.
SECTION 4.05. Application of Payments According to Applicable
Operative Document Provisions. (a) Any payments or amounts (other than Excepted
Payments) received by the Indenture Trustee, provision for the application of
which is made in any Operative Document (including, without limitation, any
provision providing that the Indenture Trustee shall hold such amount in trust
for the Lessee), shall be applied promptly as provided in such Operative
Document, unless (i) in the case of payments or amounts that would be payable to
the Lessee upon satisfaction of any applicable conditions, a Lease Event of
Default shall have occurred and be continuing at the time the Indenture Trustee
receives such payment and the Indenture Trustee has Actual Knowledge of such
Lease Event of Default, in which case the Indenture Trustee shall hold such
payments and amounts as cash collateral security for the obligations of the
Lessee under the Operative Documents and shall invest such payments and amounts
in accordance with the terms of Section 7.04, and, subject to earlier
distribution thereof by the Indenture Trustee under Section 4.03 if the Lease
shall have been declared in default in accordance with Section 16.1 thereof, or
under Section 4.01(b) (subject to Section 4.05(b)), such payments and amounts,
and the proceeds of any investment thereof, shall be paid by the Indenture
Trustee to the Lessee at such time as any applicable conditions shall have been
satisfied and no Lease Event of Default shall be continuing, and (ii) in the
case of any other payments and amounts that are not payable to the Lessee upon
satisfaction of any applicable conditions in the other Operative Documents, an
Indenture Event of Default shall have occurred and be continuing at the time the
Indenture Trustee receives such payment and the Indenture Trustee has Actual
Knowledge of such Indenture Event of Default, in which case the Indenture
Trustee shall hold such payment as part of the Indenture Estate, as cash
collateral security hereunder for the performance of the Indenture Indebtedness
and on the earlier of the next Business Day on which no Indenture Event of
Default shall have occurred and be continuing or the first Business Day
occurring more than 180 days after the receipt of such payment, and, subject to
any prior application of such payment pursuant to Section 4.01(b) or 4.03, the
Indenture Trustee shall apply such payment, and the proceeds of any investment
thereof, to the purpose for which it was made.
(b) Notwithstanding any other provision of this Indenture to the
contrary, and whether or not any such provision refers to this Section 4.05, any
Excepted Payment or other amount expressly provided by the terms of this
Indenture to be paid directly to the Grantor Trustee or to the Owner Participant
shall be paid or distributed immediately by the Indenture Trustee to the Grantor
Trustee or the Owner Participant, as the case may be.
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SECTION 4.06. Amounts Received for Which No Provision Is Made. (a)
Any payment received or amounts realized by the Indenture Trustee for which no
provision as to the application thereof is made elsewhere in this Indenture or
any other Operative Document shall be held by the Indenture Trustee as part of
the Indenture Estate in a cash collateral account maintained under Section 7.04,
and (b) all payments received and amounts realized by the Indenture Trustee
under the Lease, including without limitation, Section 11.7(b) of the Lease, or
otherwise with respect to the Undivided Interest, to the extent received or
realized at any time after payment in full of the principal of and interest on
all Secured Notes issued hereunder, as well as any other amounts remaining as
part of or as proceeds of the Indenture Estate after payment in full of the
principal of, Make-Whole Amount, if any, and interest on all such Secured Notes,
shall be distributed forthwith by the Indenture Trustee in the order of priority
set forth in Section 4.03, omitting clause "third" thereof. The Indenture
Trustee shall give prompt notice to the Grantor Trustee and each Holder of the
receipt of any moneys by the Indenture Trustee subject to the provisions of this
Section 4.06.
SECTION 4.07. Payment Procedures. All amounts which are distributable
from time to time by the Indenture Trustee to the Grantor Trustee, the Owner
Participant or any Holder shall be paid by the Indenture Trustee in immediately
available funds promptly after such amounts become immediately available to it,
and the Indenture Trustee shall not be obligated to see to the application of
any such payment made by it. All payments made by the Indenture Trustee to the
Owner Participant or to the Grantor Trustee shall be made in the manner and to
the address set forth in Schedule 1 to the Participation Agreement or to such
other address as may be specified from time to time by notice to the Indenture
Trustee from the Owner Participant or the Grantor Trustee.
ARTICLE V
COVENANTS OF GRANTOR TRUSTEE; CERTAIN AGREEMENTS; INDENTURE EVENTS OF DEFAULT;
REMEDIES OF INDENTURE TRUSTEE
SECTION 5.01. Covenants of Grantor Trustee; Certain Agreements. (a)
Subject to Section 2.02, the Grantor Trustee will duly and punctually perform
and observe all covenants and conditions to be performed and observed by it
pursuant to the terms of any Operative Document. Except as permitted by this
Indenture or the terms of any Operative Document, the Grantor Trustee will take
no action and will cooperate with the Indenture Trustee so as to permit no
action to be taken by others which will release, or which may be construed as
releasing, the Grantor Trustee or the Lessee from any of its or the Lessee's, as
the case may be, obligations or liabilities under any Operative Document, or
which may result in the termination, amendment or modification, or impair the
validity, of any such Operative Document.
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(b) If the Grantor Trustee has Actual Knowledge of any Indenture
Event of Default, Indenture Default, Lease Event of Default or Event of Loss,
the Grantor Trustee will give prompt written notice thereof to the Indenture
Trustee, the Lessee and the Owner Participant if such notice shall not already
have been given to such party. The notice shall set forth in reasonable detail
the circumstances of such default or loss known to the Grantor Trustee.
(c) [Intentionally Omitted.]
(d) The Grantor Trustee does hereby warrant and represent that it has
not assigned or pledged, and hereby covenants that except as provided in or
permitted by the other Operative Documents it will not assign or pledge, so long
as this Indenture shall remain in effect, any of the Grantor Trustee's right,
title or interest hereby assigned to anyone other than the Indenture Trustee,
and that the Grantor Trustee will not (other than in respect of Excepted
Payments), except as provided in or permitted by this Indenture or any other
Operative Document, (i) accept any payment from the Lessee, (ii) terminate or
consent to the cancellation or surrender of the Lease or accept any prepayment
of Rent under the Lease, (iii) enter into any agreement amending or
supplementing any Operative Document, (iv) execute or grant any waiver or
modification of, or consent under, the terms of any Operative Document, (v)
settle or compromise any claim arising under any Operative Document, or (vi)
submit or consent to the submission of any dispute, difference or other matter
arising under or in respect of any Operative Document to arbitration thereunder.
(e) The Grantor Trustee does hereby ratify and confirm the Lease, and
does hereby agree that it will not, except as provided in or permitted by this
Indenture or the terms of any other Operative Document, take or omit to take any
action, the taking or omission of which might result in an alteration or
impairment of the Lease or any other Operative Document, or of any of the rights
created by the Lease or any Operative Document, or the assignment hereunder or
thereunder, as the case may be.
(f) The Corporate Grantor Trustee will, in its individual capacity
and at its own cost and expense, promptly take such action as may be necessary
to discharge any Lessor's Lien on any of the Grantor Trustee's estate, right,
title or interest in the Trust Estate (including the Louisiana Trust Estate as
defined in Section 8.03 hereof) so pledged or assigned or intended to be
conveyed, pledged or assigned under this Indenture.
(g) Until the release of the security interest in the Indenture
Estate pursuant to Section 6.03, all payments due or to become due under any
Operative Document to the Grantor Trustee that are part of the Indenture Estate
shall be made directly to the Indenture Trustee or in accordance with the
Indenture Trustee's instructions, and the Grantor Trustee shall give all notices
as shall be required under each Operative Document to direct that such payments
be made to the Indenture Trustee.
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Promptly on receipt thereof, the Grantor Trustee will transfer to the Indenture
Trustee any and all moneys from time to time received by it and constituting
part of the Indenture Estate or otherwise assigned or pledged to the Indenture
Trustee hereunder, in each case for application by the Indenture Trustee
pursuant to this Indenture, except that the Grantor Trustee shall accept for
distribution pursuant to the terms of the Trust Agreement any amounts
distributed to it by the Indenture Trustee under this Indenture.
(h) An executed counterpart of each amendment or supplement to the
Trust Agreement shall be delivered within 20 Business Days after the execution
thereof to the Indenture Trustee, provided that any amendment or supplement
under which a successor trustee is appointed shall be mailed to the Indenture
Trustee within 10 days after the execution thereof. The Lien of this Indenture
or the Ship Mortgage shall not be affected by any amendment or supplement to the
Trust Agreement or by any other action taken under or in respect of the Trust
Agreement. Without the prior written consent of the Indenture Trustee, the Trust
Agreement may not in any event be terminated or revoked by the Owner Participant
prior to the termination of this Indenture. In the case of any appointment of a
successor to any Grantor Trustee pursuant to the Trust Agreement or any merger,
conversion, consolidation or transfer of all or substantially all of the
corporate trust business of the Corporate Grantor Trustee pursuant to the Trust
Agreement, the successor Grantor Trustee shall give prompt notice thereof to the
Indenture Trustee.
SECTION 5.02. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any
Governmental Rule):
(a) any Lease Event of Default (other than a Lease Event of Default
arising from the failure of the Lessee to make an Excepted Payment) shall
have occurred and be continuing; or
(b) any payment of principal of, Make-Whole Amount, if any, or
interest on any Secured Note shall not have been made when due and such
default shall continue unremedied for ten (10) Business Days after the same
shall have become due and payable; or
(c) the failure by either of the Owner Participant or the Grantor
Trustee, as the case may be, to perform or observe in any material respect
any covenant or agreement to be performed or observed by it under this
Indenture or any other Operative Document (other than the Tax Indemnity
Agreement), (i) which failure shall continue for a period of thirty (30)
days after the receipt by the Owner Participant or the Grantor Trustee of a
notice from the Indenture Trustee or any Holder of a Secured Note
specifying such
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failure and requiring it be remedied or (ii) which failure, if such failure
is remediable and the Owner Participant or the Grantor Trustee is
diligently attempting to remedy such failure, shall continue for a period
of 180 days after receipt of such notice; or
(d) any representation or warranty made by either of the Owner
Participant or the Grantor Trustee pursuant to Section 6 or 8, as the case
may be, of the Participation Agreement shall prove to have been inaccurate
in any material respect when made, unless such inaccurate representation or
warranty shall not be material to the recipient at the time when the notice
referred to below shall have been received by the Owner Participant or the
Grantor Trustee or any material adverse impact thereof shall have been
cured within thirty (30) days after receipt by the Owner Participant or the
Grantor Trustee of a written notice thereof from the Indenture Trustee or
any Holder of a Secured Note; provided that if such material adverse impact
is remediable and the Owner Participant or Grantor Trustee is diligently
attempting to remedy such impact, the Owner Participant or Grantor Trustee
shall have 90 days after receipt of such written notice thereof to remedy
any such material adverse impact; or
(e) either of the Owner Participant or the Grantor Trustee shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of its or any substantial part of its property, or
shall consent to any such relief or to the appointment or taking possession
by any such official or agency in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall take any corporate action to authorize any of the
foregoing, or an involuntary case or other proceeding shall be commenced
against either of the Owner Participant or the Grantor Trustee seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official or agency of its or any substantial
part of its part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of ninety
(90) days, or if, under the provisions of any law providing for
reorganization or winding-up of corporations which may apply to the Grantor
Trustee or the Owner Participant, any court of competent jurisdiction shall
assume jurisdiction, custody or control of the Indenture Estate, the
Grantor Trustee or the Owner Participant or of any substantial part of its
property and such jurisdiction, custody or control shall remain in force
unrelinquished, unstayed or unterminated for a period of ninety (90) days.
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SECTION 5.03. Certain Rights. (a) If the Lessee shall fail to make
any payment of Basic Rent under the Lease when the same shall become due, and if
such failure of the Lessee to make such payment of Basic Rent shall not
constitute the fourth consecutive such failure or the seventh or subsequent
cumulative such failure, then as long as no Indenture Event of Default (other
than arising from a Lease Event of Default not involving any failure to make any
payments to which the Indenture Trustee or any Loan Participant is entitled
hereunder when due) shall have occurred and be continuing, the Owner Participant
or the Grantor Trustee may (but need not), without consent or concurrence of the
Indenture Trustee or any Holder, pay to the Indenture Trustee, in the manner
provided in Section 2.03, for application in accordance with Section 4.01, at
any time prior to the day which is the 11th day subsequent to the expiration of
the grace period provided for in Section l5(a) of the Lease with respect to the
payment of Basic Rent (and the Indenture Trustee shall not, without the prior
written consent of the Grantor Trustee, declare the Lease in default pursuant to
Section 16 thereof or exercise any of the rights, powers or remedies pursuant to
such Section 16 or Section 5.04 hereof prior to the occurrence of such later
date), an amount equal to such payment of Basic Rent sufficient to pay the
principal and interest then due on the Secured Notes, together with any interest
due thereon on account of the delayed payment thereof to the date of such
payment in accordance with Section 2.03(c) hereof, and such payment by the Owner
Participant or the Grantor Trustee shall be deemed to cure as of the date of
such payment any Indenture Event of Default which arose from such failure of the
Lessee (including any Lease Event of Default arising from the Lessee's failure
to pay interest in respect of such overdue Basic Rent for the period commencing
on the date of such payment), but such cure shall not relieve the Lessee of any
of its obligations. If the Lessee shall fail to perform or observe any covenant,
condition or agreement to be performed or observed by it under the Lease or any
other Lease Event of Default shall exist (other than the failure to pay Basic
Rent), and if (but only if) the performance or observance of such covenant,
condition or agreement or the cure of such Lease Event of Default can be
effected by the payment of money alone (it being understood that actions such as
the obtaining of insurance can be so effected), then as long as no other
Indenture Event of Default (other than those arising from a Lease Event of
Default) shall have occurred and be continuing, the Owner Participant or the
Grantor Trustee may (but need not), without consent or concurrence of the
Indenture Trustee or any Holder, pay to the Indenture Trustee (or to such other
person as may be entitled to receive the same), at any time prior to the day
which is the later of (x) the 11th day subsequent to notice of such failure or
such Lease Event of Default by the Indenture Trustee to the Grantor Trustee or
the Owner Participant and (y) the 11th day subsequent to the expiration of the
grace period, if any, provided with respect to such failure or such Lease Event
of Default on the part of the Lessee in Section 15 of the Lease (and the
Indenture Trustee shall not (without the prior written consent of the Grantor
Trustee) declare the Lease in default pursuant to Section 16 thereof or exercise
any of the rights, powers or remedies
32
pursuant to such Section 16 or Section 5.04 hereof prior to the occurrence of
such later date), all sums necessary to effect the performance or observance of
such covenant or agreement of the Lessee or to cure such Lease Event of Default,
together with any interest due thereon on account of the delayed payment thereof
to the date of such payment, and such payment by the Owner Participant or the
Grantor Trustee shall be deemed to cure as of the date of such payment any
Indenture Event of Default which arose from such failure of the Lessee or such
Lease Event of Default (including any Lease Event of Default arising from the
Lessee's failure to pay interest in respect of such overdue payment for the
period commencing on the date of such payment), but such cure shall not relieve
the Lessee of any of its obligations; provided that the Grantor Trustee and the
Owner Participant, collectively, shall not be entitled to cure any such Lease
Event of Default if the total amount outstanding and not reimbursed to such
parties exceeds in the aggregate $10,000,000.
(b) To the extent of any payment made by the Grantor Trustee or the
Owner Participant pursuant to Section 5.03(a), the Grantor Trustee or the Owner
Participant, as the case may be, shall be subrogated to the rights of the
Holders hereunder to receive from the Indenture Trustee the payment of Basic
Rent or other amount for which such payment was made by the Grantor Trustee or
the Owner Participant, as the case may be, and the Grantor Trustee or the Owner
Participant, as the case may be, shall be entitled to receive such payment from
the Indenture Trustee upon receipt thereof by the Indenture Trustee; provided,
however, that no such amount shall be paid to the Grantor Trustee or the Owner
Participant, as the case may be, unless all principal of and interest on the
Secured Notes then due and payable and any other amounts then due and payable
under the Secured Notes and this Indenture shall have been paid in full and no
Indenture Default shall have occurred and be continuing.
(c) The Grantor Trustee, upon exercising cure rights under Section
5.03(a) or rights under Section 6.08(a)(iii) or under Section 18.1 of the Lease
shall not obtain any Lien on any part of the Indenture Estate or Trust Estate
(including the Louisiana Trust Estate) on account of such payment for the costs
and expenses incurred in connection therewith nor shall any claims of the
Grantor Trustee against the Lessee or any other Person for the repayment thereof
impair the prior right and security interest of the Indenture Trustee in and to
the Indenture Estate or otherwise related to the Indenture Estate.
(d) If there shall occur an Indenture Event of Default pursuant to
Section 5.02(a) arising as a result of a failure by the Lessee to make any
payment of Rent when due, the Indenture Trustee shall so notify the Grantor
Trustee in writing promptly upon such occurrence.
SECTION 5.04. Remedies. (a) If an Indenture Event of Default shall
have occurred and be continuing and so long as the same shall be unremedied,
then and in every such case the Indenture Trustee, subject to Sections 5.03,
5.04(d), 5.05, 5.09, 6.01 and 6.08, may
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exercise any or all of the rights and powers and pursue any and all of the
remedies herein provided or available under applicable law; provided, however,
the Indenture Trustee must give the Grantor Trustee at least 10 Business Days'
(or 5 Business Days in the case of acceleration of the Secured Notes other than
an automatic acceleration of the Secured Notes as provided in Section 5.04(c))
prior written notice of its intention to exercise remedies pursuant to this
Section 5.04 (it being understood that such notice may be given concurrently
with any notice of default given hereunder or under the Lease and prior to the
expiration of any applicable grace periods). Notwithstanding any contrary
provision herein, upon the occurrence and during the continuance of an Indenture
Event of Default, the Indenture Trustee may exercise, subject to Sections
5.03(a), 5.05, 5.09, 5.10 and 6.08, all rights and remedies of the Grantor
Trustee to the exclusion of the Grantor Trustee under the Lease (other than
those rights and remedies to the extent relating to Excepted Payments),
including without limitation the right to take possession of all or any part of
the Indenture Estate and exclude the Grantor Trustee and all Persons (including
the Lessee except to the extent of the Lessee's rights under the Agency and
Support Agreement) claiming under the Grantor Trustee wholly or partly
therefrom. In addition to and without limiting the foregoing, the Indenture
Trustee, upon at least twenty-five (25) days' prior written notice to the
Grantor Trustee and the Owner Participant, may invoke and exercise the power of
sale and sell any or all of the Indenture Estate in the manner required by law
at public auction, or in any other manner which shall be in accordance with
applicable law, or, in lieu of sale pursuant to the power of sale, the Indenture
Estate may be foreclosed, and the Indenture Trustee has and may exercise all
rights and remedies of a secured party under the Uniform Commercial Code as in
effect in any applicable jurisdiction or under Panamanian law, provided,
however, that if an Indenture Event of Default has occurred and is continuing
solely by virtue of one or more Lease Events of Default (at a time when no other
Indenture Events of Default shall have occurred and be continuing), the
Indenture Trustee shall not exercise foreclosure remedies under this Indenture
without exercising material remedies seeking to dispossess the Lessee under the
Lease, unless exercising such remedies under the Lease shall be prohibited by
law, governmental authority or court order, in which case the Indenture Trustee
shall not exercise foreclosure remedies under the Indenture until the expiration
of a period of 180 days from the commencement of such prohibition; provided,
further, that notwithstanding any provision herein to the contrary, the
Indenture Trustee shall not sell, assign, transfer or deliver any of the
Indenture Estate or take possession of the Indenture Estate unless the Secured
Notes shall have been accelerated pursuant to Section 5.04(b) or 5.04(c);
provided, further, that included in any such notice shall be a statement as to
the Indenture Trustee's intention to foreclose the Lien of this Indenture under
executory process pursuant to Title II of Book IV of the Louisiana Code of Civil
Procedure and any other related provision of law as such provision may be
amended from time to time. The Indenture Trustee shall notify the Grantor
Trustee, the Owner Participant and the Lessee as soon as is reasonably
practicable after its commencement of the exercise of any remedy pursuant to
this Section 5.04.
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(b) If an Indenture Event of Default (other than an Indenture Event
of Default specified in Section 5.02(e) or an Indenture Event of Default of the
type specified in Section 5.02(a) which arises as a result of any Lease Event of
Default other than such Lease Event of Default as is specified in Section 15(f)
of the Lease) shall have occurred and be continuing, then, subject to Sections
5.03, 6.01 and 6.08, the Indenture Trustee may at any time, by five (5) days'
written notice to the Grantor Trustee, declare all (but not less than all) of
the Secured Notes to be due and payable. Upon such declaration the unpaid
principal of all Secured Notes then Outstanding, together with accrued but
unpaid interest thereon and any other amounts due thereunder, but without the
Make-Whole Amount or any other premium, shall immediately become due and payable
without presentment, demand, protest or notice, all of which are hereby waived.
(c) If an Indenture Event of Default of the type specified in Section
5.02(e), or an Indenture Event of Default of the type specified in Section
5.02(a) which arises as a result of any Lease Event of Default specified in
Section 15(f) of the Lease shall have occurred and be continuing, the principal
of all Secured Notes then Outstanding, together with accrued but unpaid interest
thereon and any other amounts due thereunder, but without the Make-Whole Amount
or any other premium, shall become and be due and payable automatically, without
declaration, notice, demand or any other action on the part of the Indenture
Trustee or any Holder, all of which are hereby waived. Each of Section 5.04(b)
and this Section 5.04(c), however, is subject to the condition that, if at any
time after the principal of the Secured Notes shall have become due and payable
upon a declared or automatic acceleration thereof as provided herein, and before
any judgment or decree for the payment of the money so due, or any portion
thereof, shall be entered, all overdue payments of interest upon the Secured
Notes and all other amounts payable under the Secured Notes (except the
principal of the Secured Notes which by such declaration shall have become
payable) shall have been duly paid, and every other Indenture Event of Default
with respect to any covenant or provision of this Indenture shall have been
cured, then in every such case a Majority in Interest of Holders of Notes, by
written instrument filed with the Indenture Trustee, may (but shall not be
obligated to) rescind and annul the Indenture Trustee's declaration and its
consequences; but no such rescission or annulment shall extend to or affect any
subsequent Event of Default or impair any right consequent thereon.
(d) Notwithstanding any provision in any document or instruction that
purports to require the Indenture Trustee to acquire title to any or all of the
Indenture Estate upon foreclosure, or pursuant to instructions, the Indenture
Trustee shall not be obligated to acquire any such title unless: (i) the
Indenture Trustee is provided with such security or indemnity as it shall deem
satisfactory to it, (ii) such acquisition of title complies with all applicable
Operative Documents, laws, rules and regulations, which shall be evidenced by an
opinion of counsel to such effect in form and substance satisfactory to the
Indenture
35
Trustee and (iii) the Indenture Trustee shall have obtained such executed
certificates, instruments or other documents, in accordance with its reasonable
inquiries or requests.
SECTION 5.05. Suit; Possession; Title; Sale of Indenture Estate. (a)
The Grantor Trustee agrees that, if an Indenture Event of Default shall have
occurred and be continuing and the Indenture Trustee shall be entitled to
exercise remedies hereunder as provided in Section 5.04, the Indenture Trustee
may take possession of all or any part of the Indenture Estate and may exclude
the Grantor Trustee, and all Persons claiming under the Grantor Trustee, wholly
or partly therefrom; provided, however, that at least 30 Business Days' prior
notice of such taking of possession shall be given to the Grantor Trustee. If an
Indenture Event of Default shall have occurred and be continuing and the
Indenture Trustee shall be entitled to exercise remedies hereunder as provided
in Section 5.04, at the request of the Indenture Trustee, the Grantor Trustee
shall promptly execute and deliver to the Indenture Trustee such instruments of
title and other documents as the Indenture Trustee may deem necessary or
advisable to enable the Indenture Trustee or any agent or representative
designated by the Indenture Trustee, at such time or times and place or places
as the Indenture Trustee may specify, to obtain possession of all or any part of
the Indenture Estate to which the Indenture Trustee shall at the time be
entitled hereunder. If the Grantor Trustee shall for any reason fail to execute
and deliver such instruments and documents after such request by the Indenture
Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the
Indenture Trustee the right to immediate possession of any property comprising a
portion of the Indenture Estate and requiring the Grantor Trustee to execute and
deliver such instruments and documents to the Indenture Trustee, or (ii) pursue
all or part of such property wherever it may be found, and the Indenture Trustee
may enter any of the premises where such property or any portion thereof may be
or is supposed to be and search for such property. All expenses of obtaining
such judgment or of pursuing, searching for and taking such property shall,
until paid, be secured by the Lien of this Indenture and the Ship Mortgage.
(b) Upon every such taking of possession, the Indenture Trustee may
make, from time to time and at the expense of the Indenture Estate, such
expenditures for maintenance, insurance, repairs, replacements, alterations,
additions and improvements to and of the Indenture Estate as it may deem proper.
In each such case, the Indenture Trustee shall have the right to maintain, use,
operate, store, lease, control or manage the Indenture Estate and to exercise
all rights and power of the Grantor Trustee relating to the Indenture Estate as
the Indenture Trustee shall deem to be in the best interest of the Holders. The
Indenture Trustee shall be entitled to collect and receive directly all tolls,
rents (including Rent), revenue, issues, income, products and profits of the
Indenture Estate and every part thereof, other than Excepted Payments. Such
tolls, rents (including Rent), revenue, issues, income, products and profits
shall be applied (i) to pay the
36
expenses of the use, operation, storage, leasing, control, management or
disposition of the Indenture Estate, (ii) to pay the expense of all maintenance,
repairs, replacements, alterations, additions and improvements, (iii) to make
all payments which the Indenture Trustee may be required or may elect to make,
if any, for taxes, assessments, insurance or other proper charges upon the
Indenture Estate or any portion thereof, including without limitation the
employment of engineers and accountants to examine, inspect and make reports
upon the properties and books and records of the Grantor Trustee, and (iv) to
pay amounts owing in respect of the Secured Notes in accordance with the
provisions thereof and hereof and to make all other payments which the Indenture
Trustee may be required or authorized to make under any provision of this
Indenture or the Ship Mortgage, as well as just and reasonable compensation for
the services of the Indenture Trustee and of all Persons properly engaged and
employed by the Indenture Trustee.
(c) Any of the Indenture Trustee, any Holder, the Grantor Trustee or
the Owner Participant may be a purchaser of the Indenture Estate or any portion
thereof or any interest therein at any sale thereof, whether pursuant to
foreclosure or power of sale or otherwise. The Indenture Trustee may apply
against the purchase price thereof or the amount then due to it hereunder or
under any of the Secured Notes secured hereby and any Holder may apply against
the purchase price therefor the amount then due to it hereunder or under the
Secured Notes held by such Holder, to the extent of such portion of the purchase
price as it would have received had it been entitled to share in any
distribution thereof. The Indenture Trustee or any Holder or any nominee of any
such Holder shall acquire, upon any such purchase, good title to the property so
purchased, free of the Lien of this Indenture and, to the extent permitted by
applicable law, free of all rights of redemption in the Grantor Trustee in
respect of the property so purchased.
(d) Any sale or other conveyance of any of the Indenture Estate by
the Indenture Trustee made pursuant to the terms of this Indenture or the Ship
Mortgage, or the Lease shall bind the Grantor Trustee, the Holders and the Owner
Participant and shall be effective to transfer or convey all right, title and
interest of the Indenture Trustee, the Grantor Trustee, the Holders and the
Owner Participant in and to such Indenture Estate or portion thereof, as the
case may be. No purchaser or other grantee shall be required to inquire as to
the authorization, necessity, expediency or regularity of such sale or
conveyance, or as to the application of any sale or other proceeds with respect
thereto by the Indenture Trustee. In the event of any such sale, the Grantor
Trustee shall execute any and all such bills of sale, instruments of conveyance
and assignment and other documents, and perform and do all other acts and things
requested by the Indenture Trustee in order to permit continuation of such sale
and to effectuate the transfer or conveyance referred to in the first sentence
of this Section 5.05(d). The Grantor Trustee shall ratify and confirm any such
sale or sales by executing and delivering to the Indenture Trustee or to such
purchaser or purchasers all instruments as may reasonably be requested for such
37
purpose. Any such sale or sales made hereunder shall operate to divest all the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of the Grantor Trustee in and to the properties and rights so sold,
and shall be a perpetual bar both at law and in equity against the Grantor
Trustee and against any and all persons claiming or who may claim the same, or
any part thereof from, through or under the Grantor Trustee. Upon any sale or
other disposition of the Indenture Estate by the Indenture Trustee, the
Indenture Trustee will promptly account in writing, in reasonable detail, to the
Grantor Trustee for the amount of such sale, the costs and expenses incurred in
connection therewith and any surplus proceeds.
(e) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver or a keeper pursuant to the terms and provisions
of La. R.S. 9:5136 et seq. (who may be the Indenture Trustee or any successor or
nominee thereof), at any time after an Indenture Event of Default either before
or after declaring due and payable the principal of all Secured Notes then
Outstanding, together with accrued but unpaid interest thereon and any other
amounts due thereunder, for all or any portion of the Indenture Estate, whether
such receivership or keepership be incidental to a proposed sale of the
Indenture Estate or the taking of possession thereof or otherwise, and the
Grantor Trustee hereby consents to the appointment of such a receiver or keeper,
and agrees that it will not oppose any such appointment. Any receiver or keeper
appointed for all or any portion of the Indenture Estate shall be entitled in
addition to any powers available under applicable law, to exercise all the
rights and powers of the Indenture Trustee with respect to the Indenture Estate.
(f) To the extent now or at any time hereafter enforceable under
applicable law, the Grantor Trustee covenants that it will not (i) at any time,
insist upon or plead, or in any manner whatsoever claim or take any benefit or
advantage of any stay, extension, moratorium, any exemption from execution or
sale or other similar law or from any law now or hereafter in force providing
for the valuation or appraisement of the Indenture Estate or any part thereof,
prior to any sale or sales thereof to be made pursuant to any provision herein
contained, or prior to any applicable decree, judgment or order of any court of
competent jurisdiction, nor (ii) after such sale or sales, claim or exercise any
right under any statute now or hereafter made or enacted by any state or any
right to have a portion of the Indenture Estate or the security for the Secured
Notes marshalled or otherwise redeem the property so sold or any part thereof,
and hereby expressly waives, for itself and on behalf of each and every Person
who may claim through or under it, except decree or judgment creditors of the
Grantor Trustee acquiring any interest in or title to the Indenture Estate or
any part thereof subsequent to the date of this Indenture, all benefit and
advantage of any such law or laws, and covenants that it will not invoke or use
any such law or laws, but will suffer and permit the execution of every such
power as though no such law or laws had been made or enacted. Nothing in this
Section 5.05(f) shall be deemed to be a waiver by the Grantor Trustee of its
rights under
38
Sections 5.03 or 5.04 hereof.
The Indenture Trustee may maintain such a pleading, or, in any manner
whatsoever, claim or take any benefit or advantage of or from any law now or
hereafter in force even if it does not possess any of the Secured Notes or does
not produce any of them in the proceeding. A delay or omission by the Indenture
Trustee or any Holder in exercising any right or remedy accruing upon an
Indenture Event of Default under this Indenture shall not impair the right or
remedy or constitute a waiver of or acquiescence in such Indenture Event of
Default.
(g) The Indenture Trustee may adjourn from time to time any sale to
be made under or by virtue of this Indenture for such sale or for such adjourned
sale or sales, and, except as otherwise provided by any applicable provision of
law, the Indenture Trustee, without further notice or publication, may make such
sale at the time and place to which the same shall be so adjourned.
(h) Any recovery of any judgment by the Indenture Trustee under the
Secured Notes and any levy of any execution under any such judgment upon the
Indenture Estate shall not affect in any manner or to any extent the security
title and security interest conveyed hereby upon the Indenture Estate or any
part thereof, or any conveyances, powers, rights and remedies or the Indenture
Trustee hereunder, but such conveyances, powers, rights and remedies shall
continue unimpaired as before.
(i) Notwithstanding anything contained herein, so long as the Pass
Through Trustee is a registered Holder, the Indenture Trustee is not authorized
or empowered to acquire title to all or any portion of the Indenture Estate or
take any action with respect to all or any portion of the Indenture Estate so
acquired by it if such acquisition or action would cause the Pass Through Trust
to fail to qualify as a "grantor trust" for federal income tax purposes.
SECTION 5.06. Remedies Cumulative. Each and every right, power and
remedy provided the Indenture Trustee specifically or otherwise in this
Indenture shall be cumulative and shall be in addition to every right, power and
remedy herein specifically provided or now or hereafter existing at law, in
equity or otherwise. Each and every such right, power and remedy may be
exercised from time to time and as often and in such order as may be deemed
expedient by the Indenture Trustee, and the exercise or the beginning of the
exercise of any such right, power or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any other right,
power or remedy. No delay or omission by the Indenture Trustee in the exercise
of any right or power or in the pursuit of any remedy shall impair any such
right, power or remedy, or be construed to be a waiver of any Indenture Event of
Default or to be an acquiescence therein.
SECTION 5.07. Discontinuance of Proceedings. In case
39
the Indenture Trustee shall have instituted any proceeding to enforce any right,
power or remedy under this Indenture by foreclosure, entry or otherwise, and
such proceeding shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Indenture Trustee, then and in every
such case the Grantor Trustee, the Indenture Trustee and the Lessee shall,
subject to any determination in such proceeding, be restored to their former
positions and rights hereunder with respect to the Indenture Estate, and all
right, powers and remedies of the Indenture Trustee shall continue as if no such
proceeding had been instituted.
SECTION 5.08. Waiver of Past Defaults. Upon written instruction of a
Majority in Interest of Holders of Notes, the Indenture Trustee shall waive any
Indenture Event of Default specified in such instruction and its consequences,
and upon any such waiver such Indenture Event of Default shall cease to exist
for every purpose of this Indenture; provided, however, that no such waiver
shall extend to any subsequent or other Indenture Event of Default or impair any
right or consequence thereof; and provided further, however, that in the absence
of the written instruction of the Holders of all Secured Notes then Outstanding,
the Indenture Trustee shall not waive any Indenture Event of Default arising
from a default (i) in the payment of the principal of, Make-Whole Amount, if
any, or interest on, or other amounts due under, any Secured Note then
Outstanding, or (ii) in respect of a covenant or provision hereof which pursuant
to the terms of Article IX cannot be modified or amended without the consent of
each Holder of a Secured Note then Outstanding.
SECTION 5.09. No Action Contrary to Lessee's Rights Under the Lease.
Notwithstanding any other provision of any Operative Document, (i) unless a
Lease Event of Default shall have occurred and be continuing and the Lease shall
have been declared to be in default pursuant to Section 16.1 thereof, the
Indenture Trustee shall not take or cause to be taken any action contrary to the
Lessee's rights under the Lease, including without limitation the rights of the
Lessee under Section 9.1 thereof and (ii) the Indenture Trustee shall not take
or cause to be taken any action contrary to the rights of the Other Owner and
its successors and assigns under Section 9.1 of the Lease.
SECTION 5.10. Rights of Holders of Secured Notes. Notwithstanding any
provision herein (including Section 5.11) to the contrary, the Holder of a
Secured Note shall have the absolute and unconditional right to receive payment
from the Indenture Estate of the principal of and interest on such Secured Note
on the dates and as specified in such Secured Note, and to institute suit
against the Grantor Trustee for the enforcement of any such payment, subject to
Section 2.02, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.11. Limitation on Suits by Holders. A Holder may pursue a
remedy under this Indenture or under a Secured Note only if:
40
(i) the Holder gives to the Indenture Trustee written notice of a
continuing Indenture Event of Default under this Indenture;
(ii) the Holders of at least 25 percent (25%) of the Outstanding
principal amount of the Secured Notes instruct the Indenture Trustee to
pursue the remedy;
(iii) such Holder or Holders offer to the Indenture Trustee
indemnity satisfactory to the Indenture Trustee against any loss, liability
or expense to be, or which may be, incurred by the Indenture Trustee in
pursuing the remedy;
(iv) the Indenture Trustee does not comply with the request within
60 days after receipt of the instructions and the offer of indemnity; and
(v) during such 60-day period, a Majority in Interest of Holders
do not give the Indenture Trustee an instruction inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 5.12. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceedings, or any voluntary or involuntary case under United States bankruptcy
laws, as now or hereafter constituted, relative to the Grantor Trustee or the
Lessee, if obligated on the Secured Notes, the Indenture Trustee (irrespective
of whether the principal of the Secured Notes shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Grantor Trustee or the Lessee, as the
case may be, for the payment of overdue principal, Make-Whole Amount, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise, to file and prove a claim for the whole amount of principal (and the
Make-Whole Amount, if any) and interest owing and unpaid in respect of the
Secured Notes, to file such other papers or documents and to take such other
actions, including participating as a member or otherwise in any official
committee of creditors appointed in the matter, as may be necessary or advisable
in order to have the claims of the Trustee and the Holders allowed in such
judicial proceeding.
ARTICLE VI
DUTIES OF THE INDENTURE TRUSTEE
41
SECTION 6.01. Certain Actions. If the Indenture Trustee shall have
Actual Knowledge of any Indenture Event of Default or any Indenture Default or
any failure on the part of the Lessee to make any payment of Rent when due or
any Event of Loss or any other material fact relating to the Undivided Interest,
the Indenture Trustee shall (a) give prompt telephonic notice (promptly
confirmed in writing) to the Grantor Trustee, the Owner Participant and the
Lessee and (b) within 90 days after obtaining such Actual Knowledge, mail to
each Holder, notice of all Indenture Events of Default unless, in each case,
such Indenture Event of Default has been remedied before the giving of such
notice and the Indenture Trustee has Actual Knowledge that such Indenture Event
of Default has been so remedied; provided, however, that the failure by the
Indenture Trustee to provide such notice shall not invalidate any actions
subsequently taken by the Indenture Trustee in connection with such Indenture
Event of Default. Except in the case of a default in the payment of the
principal or interest on any Secured Note, the Indenture Trustee shall be
protected in withholding the notice required under clause (b) above if and so
long as Responsible Officers of the Indenture Trustee in good faith determine
that withholding such notice is in the interest of the Holders. Notwithstanding
any other provision hereof, the Indenture Trustee shall not be required to make
any determination of materiality pursuant to Section 5.02(c) or (d).
SECTION 6.02. Action Upon Instructions. (a) The Indenture Trustee
shall, upon the written instruction at any time and from time to time of a
Majority in Interest of Holders of Notes, give such notice, consent or direction
or exercise such right, remedy or power hereunder or under the Lease or any
other agreement constituting part of the Indenture Estate as shall be specified
in such instruction; provided, however, that nothing set forth in this Section
6.02(a) shall entitle the Holders to cause the Indenture Trustee to give any
notice or exercise any right, power or remedy that is not elsewhere authorized
by, or is otherwise restricted or prohibited by, this Indenture. If the
Indenture Trustee shall not have received instructions as above provided within
twenty (20) calendar days after mailing of the notice pursuant to Section 6.01
to the Holders, the Indenture Trustee may take such action, or refrain from
taking such action, but shall be under no duty to take or refrain from taking
any action, with respect to such Indenture Default, Indenture Event of Default,
Event of Loss or fact as it shall determine to be advisable and in the best
interest of the Holders. If the Indenture Trustee receives any instructions
after the expiration of the aforementioned twenty day period, the Indenture
Trustee shall use its best efforts to conform any action being taken to comply
with those instructions.
(b) The Indenture Trustee shall not consent to the assignment by the
Lessee of all or any material portion of its right, title and interest in, to
and under the Lease, except (i) with respect to an assignment permitted under
Section 14.2 of the Lease or (ii) upon the written instruction at any time and
from time to time of a Majority in
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Interest of Holders of Notes. Nothing set forth herein shall be construed to
permit such assignment without the consent of the Grantor Trustee or to
adversely affect any right of the Grantor Trustee.
SECTION 6.03. Release of Lien of Indenture. (a) Release of Indenture
Estate. Upon satisfaction of the conditions for termination of this Indenture
set forth in Section 10.01, the Indenture Trustee, upon the written request of
the Grantor Trustee, shall execute and deliver to, or as directed by, the
Grantor Trustee, all appropriate instruments (in due form for recording or
filing) releasing the Indenture Estate from the Lien of this Indenture, and the
Indenture Trustee shall pay all moneys or other properties or proceeds held by
it under this Indenture to the Grantor Trustee and shall give notice to the
Lessee of such payment. The cost and expense associated with any action taken by
the Indenture Trustee pursuant to the provisions of this Section 6.03(a) shall
be borne by the Lessee.
(b) Release of the Undivided Interest Upon Transfer. Upon any
transfer by the Grantor Trustee of the Lessor's Interest in the Undivided
Interest or a Significant Portion thereof pursuant to Section 6.1, 7, 11.7(b) or
12 of the Lease or any retention by the Grantor Trustee of the Lessor's Interest
in the Undivided Interest pursuant to Section 7 of the Lease and receipt by the
Indenture Trustee of all amounts of Rent therefor that constituted a part of the
Indenture Estate due and payable by the Lessee and the concurrent redemption of
Secured Notes as set forth in Sections 3.02 and 4.02 and the payment of any
other amounts then due and owing hereunder, the Indenture Trustee, upon the
written request of the Grantor Trustee, shall execute and deliver to, or as
directed by, the Grantor Trustee, all appropriate instruments (in due form for
recording or filing) releasing the Undivided Interest or such Significant
Portion, as the case may be, and the Grantor Trustee's interest therein and all
other property solely relating thereto and then constituting a portion of the
Indenture Estate (or if not solely relating thereto, but such other property can
be reasonably partitioned without undue burden or delay, such other property),
as the case may be, from the Lien of this Indenture. The cost and expense
associated with any action taken by the Indenture Trustee pursuant to the
provisions of this Section 6.03(b) shall be borne by the Lessee.
(c) Release of Lien upon Full Payment of Secured Notes. Upon payment
in full of the principal of and interest on and all other amounts due and
payable under the Secured Notes, and all other amounts due and payable to any
Holder or the Indenture Trustee hereunder or, to the extent secured hereby,
under any other Operative Document, the Indenture Trustee, upon the written
request of the Grantor Trustee, shall execute and deliver to, or as directed by,
the Grantor Trustee, all appropriate instruments (in due form for recording or
filing) releasing the Undivided Interest, and the Lessor's Interest therein, and
all other property relating thereto and then constituting a portion of the
Indenture Estate from the Lien of this Indenture. The cost and expense
associated with any action taken by the Indenture Trustee pursuant to the
provisions of
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this Section 6.03(c) shall be borne by the Lessee.
SECTION 6.04. Indemnification. The Indenture Trustee shall not be
required to take any action or refrain from taking any action instructed to be
taken or refrained from being taken pursuant to Section 6.02 or under Article V
unless the Indenture Trustee shall have been offered reasonable security or
indemnity against any liability (including without limitation environmental
liability), cost or expense (including without limitation the reasonable fees
and expenses of counsel) which may be incurred in connection therewith, other
than any such liability, cost or expense which results from the willful
misconduct or gross negligence of the Indenture Trustee or from the failure of
the Corporate Indenture Trustee to exercise ordinary care in distributing funds
in accordance with the terms of the Operative Documents. Except with respect to
actions required by the first sentence of Section 6.01 hereof, the Indenture
Trustee shall be under no obligation to take any action under this Indenture and
nothing contained in this Indenture shall require the Indenture Trustee to
expend or risk the Indenture Trustee's own funds or otherwise incur any
financial liability or any other liability (including without limitation
environmental liability) in the performance of any of the Indenture Trustee's
duties hereunder or in the exercise of any of the Indenture Trustee's rights or
powers if it shall have reasonable grounds for believing that repayment of such
funds or adequate security or indemnity against such risk or liability is not
reasonably assured to it. The Indenture Trustee shall not be required to take
any action under Section 6.02 or Article V, nor shall any other provision of
this Indenture be deemed to impose a duty on the Indenture Trustee to take any
action, if the Indenture Trustee shall have reasonably determined or been
advised in writing by its counsel that such action is contrary to the terms
hereof or of any other Operative Document, or is contrary to applicable law.
SECTION 6.05. No Implied Duties. Except during the continuance of an
Indenture Event of Default known to the Indenture Trustee, the Indenture Trustee
need perform only those duties as are specifically set forth in this Indenture
and no others and no implied duties or obligations of the Indenture Trustee
shall be read into this Indenture.
SECTION 6.06. Duties to Remove Certain Liens. The Corporate Indenture
Trustee and the Individual Indenture Trustee, each in its individual capacity,
shall comply with Section 11.4(a) of the Participation Agreement.
SECTION 6.07. No Action Except Under Operative Documents or
Instructions. The Grantor Trustee and the Indenture Trustee agree that they will
not use, operate, store, lease, control, manage, sell, dispose of or otherwise
deal with the Undivided Interest or any other part of the Indenture Estate
except (a) in accordance with the terms of the Lease or the other Operative
Documents or (b) in accordance with the
44
powers granted to, or the authority conferred upon, the Grantor Trustee and the
Indenture Trustee pursuant to the express terms of this Indenture and the Trust
Agreement.
SECTION 6.08. Certain Rights of the Grantor Trustee and the Owner
Participant. Notwithstanding any provision in this Indenture to the contrary:
(a) each of the Grantor Trustee and the Owner Participant shall have
the right, to the exclusion of the Indenture Trustee, whether or not an
Indenture Event of Default is continuing and whether or not the Indenture
Trustee has foreclosed on the Lien of the Indenture, (i) to receive
Excepted Payments, (ii) to demand, collect, sue for or give any notice of
default or Lease Event of Default with respect to Excepted Payments, (iii)
prior to the foreclosure of the Lien of the Indenture and subject to
Section 5.03(c), to declare the Lease in default in respect of Excepted
Payments, (iv) to enforce the payment of Excepted Payments due and payable
to it by appropriate judicial proceedings and to exercise other remedies as
provided under any Operative Document to the extent and with respect to any
portion of the Indenture Estate which shall have been released pursuant to
the terms of this Indenture and (v) to exercise all rights with respect to
Credit Support (or any letter of credit that names the Owner Participant or
the Lessor as a beneficiary or any surety bond issued to the Owner
Participant or the Lessor), including the right to receive all payments
with respect thereto and to amend, supplement, waive or modify any
agreements constituting Credit Support (or any letter of credit that names
the Owner Participant or the Lessor as a beneficiary or any surety bond
issued to the Owner Participant or the Lessor); provided that the rights
referred to in this Section 6.08(a)(iii) and (iv) shall not be deemed to
include the exercise of any remedies provided for in Section 16 of the
Lease other than the remedies provided in Section 16.1(g) of the Lease and
the right to proceed by appropriate court action or actions, either at law
or in equity, to enforce performance by the Lessee of the applicable
covenants or to recover damages for breach thereof;
(b) at all times prior to the foreclosure of the Lien of the
Indenture, whether or not an Indenture Event of Default is continuing, each
of the Grantor Trustee and the Owner Participant shall have the right, but
not to the exclusion of the Indenture Trustee, (i) to receive from the
Lessee all notices, financial statements, certificates, opinions of counsel
and other documents and information which the Lessee is permitted or
required to give or furnish to the Grantor Trustee or the Owner Participant
pursuant to the terms of any Operative Document, (ii) to retain all rights
with respect to liability insurance which Section 13 of the Lease
specifically confers upon the Grantor Trustee or the Owner Participant, or
other insurance under Section 13.4 of the Lease
45
purchased for the benefit of the Grantor Trustee or the Owner Participant
(subject, however to the provisions of the definition of "Excepted
Payments") and (iii) to exercise inspection rights pursuant to Section 10.7
of the Participation Agreement and Section 11.2 of the Lease;
(c) prior to the foreclosure of the Lien of the Indenture and whether
or not an Indenture Event of Default shall have occurred and be continuing,
the Grantor Trustee shall have the right, to the exclusion of the Indenture
Trustee, to adjust Basic Rent Percentages, Stipulated Loss Value
Percentages and Termination Value Percentages and the Early Buy-Out
Percentage pursuant to Section 4 of the Lease but subject to the
limitations set forth in Section 3.5 of the Lease; and
(d) So long as no Indenture Event of Default shall have occurred and
be continuing (subject to Section 9.02), the Grantor Trustee shall retain
(to the exclusion of the Indenture Trustee) all rights of the "Lessor"
under the Lease, other than the Indenture Trustee's right to receive any
funds assigned to the Indenture Trustee under the terms of this Indenture.
SECTION 6.09. Filing of Financing and Continuation Statements. The
Indenture Trustee shall, at the expense of the Grantor Trustee, execute and file
any continuation or similar statement or document delivered to it by the Grantor
Trustee or the Lessee in a form reasonably satisfactory to the Indenture Trustee
and proper for filing.
SECTION 6.10. Furnishing of Notices. The Indenture Trustee will
furnish to the Grantor Trustee and the Owner Participant, promptly, but in any
event within 30 days, upon receipt thereof, a duplicate or copy of each report,
notice, request, demand, instruction, certificate, financial statement or other
instrument furnished to the Indenture Trustee hereunder or under any other
Operative Document, unless such report, notice, request, demand, instruction,
certificate, financial statement or other instrument is required to be furnished
directly to the Grantor Trustee or the Owner Participant under any Operative
Document.
SECTION 6.11. Taxes; Withholdings; Information Reporting. The
Indenture Trustee shall exclude and withhold from each distribution of principal
and interest and other amounts due hereunder or under the Secured Notes any and
all withholding taxes applicable thereto as required by law. The Indenture
Trustee agrees (a) to act as such withholding agent and, in connection
therewith, whenever any present or future taxes or similar charges are required
to be withheld with respect to any amounts payable in respect of the Secured
Notes or otherwise due hereunder, to withhold such taxes or charges and timely
pay the same to the appropriate authority in the name of and on behalf of the
Loan Participants, (b) that it will file any necessary withholding tax returns
46
or statements when due and (c) that, as promptly as possible after the payment
of such withheld amounts, it will deliver to each Loan Participant appropriate
documentation showing the payment of such withheld amounts, together with such
additional documentary evidence as such Loan Participants may reasonably request
from time to time. The Indenture Trustee agrees to file any other information
reports as it may be required to file under United States law. No withholding or
action with respect thereto hereunder shall constitute or give rise to any
Indenture Event of Default or any other claims against the Owner Participant or
the Grantor Trustee. Any tax withheld by the Indenture Trustee pursuant to this
Section 6.11 shall be deemed for all purposes of this Indenture and the Secured
Notes to have been paid to the Holder with respect to which such tax was
withheld.
ARTICLE VII
THE INDENTURE TRUSTEE AND THE GRANTOR TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties. The Indenture Trustee
accepts the duties hereby created and applicable to it and agrees to perform the
same upon the terms and conditions set forth in this Indenture and the
Participation Agreement. The Corporate Indenture Trustee further agrees to
receive and disburse all moneys constituting part of the Indenture Estate in
accordance with the terms hereof. The Indenture Trustee shall not be answerable
or accountable in its individual capacity under any circumstances, except (a)
for its willful misconduct or gross negligence, (b) for its failure to exercise
and use the care and skill in safeguarding the security held by it pursuant to
the terms hereof that a prudent person would exercise or use under the
circumstances in the conduct of his own affairs, (c) in the case of the
inaccuracy of any representations or warranties made by the Indenture Trustee in
its individual capacity and contained in the Participation Agreement or any
other Operative Document or referred to by reference in Section 7.03 hereof, (d)
as provided in Sections 2.03 and 6.06, (e) for any Tax based on or measured by
any fees, commissions or compensation received by it for acting as trustee
hereunder, or (f) except as otherwise expressly provided herein for its failure
to use reasonable care in disbursing funds in accordance with the terms hereof.
SECTION 7.02. Absence of Duties Except as Specified. Except in
accordance with written instructions furnished pursuant to Section 6.01 or 6.02,
and except as provided in, and without limiting the generality of, Sections
6.04, 6.05, 6.06 and 6.07, the Indenture Trustee shall have no duty (a) to
record or file the Lease or this Indenture or any other document, or to maintain
any such recording or filing, or to rerecord or refile any such document, (b) to
effect or maintain any insurance required under the Lease with respect to the
Undivided Interest, whether or not the Lessee shall be in default with respect
thereto, (c) to discharge any Lien of any kind against any part of the Trust
Estate (including the Louisiana Trust Estate) or the
47
Indenture Estate, or (d) to inspect the Undivided Interest at any time, or to
ascertain or inquire as to the performance or observance of any of the Lessee's
covenants pursuant to the terms of the Lease.
SECTION 7.03. No Representations or Warranties. NEITHER THE GRANTOR
TRUSTEE NOR THE INDENTURE TRUSTEE MAKES (IN ITS INDIVIDUAL OR TRUST CAPACITY)
(a) ANY REPRESENTATION OR WARRANTY, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED,
AS TO THE VALUE, COMPLIANCE WITH SPECIFICATIONS, DURABILITY, OPERATION,
CONSTRUCTION, PERFORMANCE, DESIGN OR CONDITION OF THE PRODUCTION SYSTEM OR ANY
PART THEREOF, THE MERCHANTABILITY THEREOF OR THE FITNESS THEREOF FOR ANY
PARTICULAR PURPOSE, TITLE TO THE PRODUCTION SYSTEM OR ANY COMPONENT OF THE
PRODUCTION SYSTEM, THE QUALITY OF THE MATERIALS OR WORKMANSHIP THEREOF OR
CONFORMITY THEREOF TO SPECIFICATIONS, OR THE PRESENCE OR ABSENCE OF ANY LATENT
OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, OR ANY OTHER REPRESENTATION OR
WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTION SYSTEM,
OR ANY COMPONENT OF THE PRODUCTION SYSTEM, or (b) any representation or warranty
as to the validity, legality or enforceability of this Indenture, any of the
other Operative Documents or the Secured Notes, or as to the correctness of any
statement contained in any thereof, except as set forth in Sections 8 and 9 of
the Participation Agreement and Section 7.3 of the Trust Agreement.
SECTION 7.04. No Segregation of Moneys; No Interest; Investments. Any
moneys paid to or retained by the Indenture Trustee pursuant to any provision
hereof and not then required to be distributed to the Holders, the Lessee or the
Grantor Trustee shall be deposited in a separate, interest bearing cash
collateral account; provided that any payments received or applied hereunder by
the Indenture Trustee shall be accounted for by the Indenture Trustee so that
any portion thereof paid or applied pursuant hereto shall be identifiable as to
the source thereof. Any amounts held by the Indenture Trustee pursuant to the
express terms of this Indenture or any other Operative Document shall be
invested and reinvested by the Indenture Trustee from time to time in Permitted
Investments at the direction of (i) the Lessee if such amounts would be payable
to the Lessee upon satisfaction of any applicable conditions; or (ii) the Owner
Participant in the case of the remaining portion of such amounts; provided,
however, that in the event there shall be continuing any Indenture Event of
Default such directions may be given exclusively by a Majority in Interest of
Holders of Notes. The Indenture Trustee shall have no liability for any loss
resulting from any investment required to be made hereunder other than by reason
of its own willful misconduct or negligence in failing to comply with such
instructions. Any net income or gain realized as a result of any such investment
or reinvestment shall be held as part of the Indenture Estate and shall be
applied by the Indenture Trustee at the same time, on the same conditions and in
the same manner as the amounts in respect of which such income or gain was
realized are required to be distributed in accordance with the provisions
hereof. Any
48
Permitted Investment may be sold or otherwise reduced to cash (without regard to
maturity) by the Indenture Trustee whenever necessary to make any application as
required by the terms of this Indenture or of any applicable Operative Document.
SECTION 7.05. Reliance; Agents; Advice of Counsel. Neither the
Grantor Trustee nor the Indenture Trustee (in their respective individual or
trust capacities for the purposes of this Section 7.05) shall incur any
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper reasonably believed by it to be genuine and believed by it to
be signed by the proper party or parties. Either of the Grantor Trustee or the
Indenture Trustee may accept a copy of a resolution of the Board of Directors or
other governing body of any party to the Participation Agreement or other
Operative Agreement, certified by the Secretary or any Assistant Secretary
thereof as duly adopted and in full force and effect, as conclusive evidence
that such resolution has been duly adopted and that the same is in full force
and effect. As to any fact or matter relating to the Lessee the manner of
ascertainment of which is not specifically described herein, the Grantor Trustee
and the Indenture Trustee may for all purposes hereof rely on an Officer's
Certificate of the relevant party as to such fact or matter, and such Officer's
Certificate shall constitute full protection to the Grantor Trustee or the
Indenture Trustee (in its individual or trust capacities), as the case may be,
for any action taken or omitted to be taken by it in good faith in reliance
thereon. The Indenture Trustee shall assume, and shall be fully protected in
assuming, that the Grantor Trustee is authorized by the Trust Agreement to enter
into this Indenture and to take all action to be taken by the Grantor Trustee
pursuant to the provisions hereof, and shall not inquire into the authorization
of the Grantor Trustee with respect thereto. The Grantor Trustee shall assume,
and shall be fully protected in assuming, that the Indenture Trustee is
authorized to enter into this Indenture and to take all action to be taken by
the Indenture Trustee pursuant to the provisions hereof, and shall not inquire
into the authorization of the Indenture Trustee with respect thereto. In the
administration of the trusts hereunder, the Indenture Trustee may execute any of
the trusts or powers hereof and perform its powers and duties hereunder directly
or through agents or attorneys and at the expense of the Indenture Estate may
consult with counsel, accountants and other skilled Persons to be selected and
retained by it, and the Indenture Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written advice or
written opinion of any such counsel, accountant or other skilled Person acting
within such Person's area of competence (so long as the Indenture Trustee shall
have exercised due care in selecting such Person).
SECTION 7.06. No Compensation from Holders or Indenture Estate.
Notwithstanding any other provision hereof, the Indenture Trustee shall have no
right against the Holders, the Grantor Trustee, the Owner Participant or, except
as otherwise provided in Section 4.03, the Indenture Estate for any fee as
compensation for its services hereunder.
49
SECTION 7.07. Right of the Indenture Trustee to Perform Covenants,
Etc. If the Grantor Trustee or the Lessee shall fail to make any payment or
perform any act required to be made or performed by it hereunder or under any
Operative Document to which it is a party or if the Grantor Trustee or the
Lessee shall fail to release any Lien affecting the Indenture Estate which it is
required to release by the terms of this Indenture or any other Operative
Document to which it is a party, the Indenture Trustee, after notice to and
demand upon the Grantor Trustee or the Lessee and affording the Grantor Trustee
and the Lessee a reasonable opportunity to cure, and without waiving or
releasing any obligation or Lease Event of Default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account of and at the expense of the Indenture Estate, and may enter upon
any property for such purpose and take all such action with respect thereto as,
in the Indenture Trustee's opinion, may be necessary or appropriate therefor. No
such entry shall be deemed an eviction. All sums so paid by the Indenture
Trustee and all costs and expenses including taxes (other than taxes based upon
or measured by or determined by the income of the Indenture Trustee (including,
without limitation, legal fees and expenses of counsel of its selection) so
incurred, shall constitute additional indebtedness secured by this Indenture and
shall be paid from the Indenture Estate to the Indenture Trustee on demand. The
Indenture Trustee shall not be liable for any damages resulting from any such
payment or action unless such damages shall be a consequence of willful
misconduct or gross negligence on the part of the Indenture Trustee.
SECTION 7.08. Moneys for Payments in Respect of Notes to be Held in
Trust. In case the Holder of any Secured Note shall fail to present the same for
payment on any date on which the principal thereof becomes payable, the
Indenture Trustee may set aside in trust the moneys then due thereon uninvested
and shall pay such moneys to any Holder of such Secured Note upon due
presentation for surrender thereof in accordance with the provisions of this
Indenture, subject to the provisions of Section 7.09.
SECTION 7.09. Disposition of Moneys Held for Payments of Notes. Any
money set aside under Section 7.08 and not paid to Holders under Section 7.08
shall be held by the Indenture Trustee in trust until the latest of (a) the date
three years after the date of such setting aside, (b) the date all other Holders
(other than other Holders for which the Indenture Trustee is holding such moneys
pursuant to Section 7.08) of the Secured Notes shall have received full payment
of all principal of and interest and other sums payable to them on such Secured
Notes or the Indenture Trustee shall hold (and shall have notified such Persons
that it holds) in trust an amount sufficient to make full payment thereof when
due, and (c) the date the Grantor Trustee shall have fully performed and
observed all its covenants and obligations contained in this Indenture with
respect to the Secured Notes; and thereafter shall be paid to the Grantor
Trustee by the Indenture Trustee who then shall be released from all further
liability with respect to such moneys, and thereafter the
50
Holders of the Secured Notes in respect of which such moneys were so paid to the
Grantor Trustee shall have no rights in respect thereof except to obtain payment
of such moneys from the Grantor Trustee.
ARTICLE VIII
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
SECTION 8.01. Notice of Successor Grantor Trustees. In the case of
any appointment of a successor to the Grantor Trustee pursuant to the Trust
Agreement, or any merger, conversion or consolidation or transfer of
substantially all of the corporate trust business of the Grantor Trustee, the
successor Grantor Trustee shall give prompt written notice thereof to the
Indenture Trustee.
SECTION 8.02. Resignation of Indenture Trustee; Appointment of
Successor. (a) The Indenture Trustee or any successor thereto may resign at any
time without cause by giving at least thirty (30) days prior written notice to
the Grantor Trustee, the Owner Participant, the Lessee and each Holder, such
resignation to be effective upon the acceptance of the trusteeship by a
successor Indenture Trustee as provided in Section 8.02(b); provided such
resignation has no material effect on the Indenture Estate. In addition, a
Majority in Interest of Holders of Notes may at any time remove the Indenture
Trustee without cause by an instrument in writing delivered to the Grantor
Trustee, the Owner Participant, the Lessee and the Indenture Trustee, such
removal to be effective upon the acceptance of the trusteeship by a successor
Indenture Trustee as provided in Section 8.02(b). In the case of the resignation
or removal of the Indenture Trustee, the Grantor Trustee may appoint a successor
Indenture Trustee reasonably satisfactory to the Owner Participant. If a
successor Indenture Trustee shall not have been appointed within thirty (30)
days of such notice of resignation or removal, the Indenture Trustee, the
Grantor Trustee, the Owner Participant, the Lessee or a Majority in Interest of
Holders may apply to any court of competent jurisdiction to appoint a successor
Indenture Trustee qualified under Section 8.02(c) to act until such time, if
any, as a successor shall have been appointed as above provided in this Section
8.02. The successor Indenture Trustee so appointed by such court shall
immediately and without further act be superseded by any successor Indenture
Trustee appointed as above provided in this Section 8.02.
(b) Any successor Indenture Trustee, however appointed, shall execute
and deliver to the Grantor Trustee and to the predecessor Indenture Trustee
(with a copy to each Holder) an instrument accepting such appointment, and shall
give the Owner Participant, the Holders and the Lessee written notice of such
acceptance. Upon the execution and delivery of such instrument, such successor
Indenture Trustee, without further act, shall become vested with all the
estates, properties, rights, powers and duties of the predecessor Indenture
Trustee hereunder with like effect as if originally named the Indenture Trustee
herein.
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Notwithstanding and without limiting the foregoing, the predecessor Indenture
Trustee, upon the written request of the successor Indenture Trustee, shall
execute and deliver an instrument transferring to such successor Indenture
Trustee, upon the trusts herein expressed applicable to it, all the estates,
properties, rights and powers of such predecessor Indenture Trustee, and such
predecessor Indenture Trustee shall duly assign, transfer, deliver and pay over
to such successor Indenture Trustee all moneys or other property then held by
such predecessor Indenture Trustee hereunder.
(c) There shall at all times be a Corporate Indenture Trustee
hereunder which shall be a bank or trust company organized and doing business
under the laws of the United States of America or of any State thereof,
authorized under such laws to exercise corporate trust powers, subject to
supervision or examination by Federal or State authority, having a combined
capital and surplus of at least $100,000,000, regularly engaged in or having
expertise in leveraged leasing. If such bank or trust company publishes reports
of condition at least annually, pursuant to applicable law or to the
requirements of the aforesaid supervising or examining authority, then for
purposes hereof the combined capital and surplus of such bank or trust company
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(d) Any corporation into which the Corporate Indenture Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Corporate
Indenture Trustee shall be a party, or any corporation to which substantially
all the corporate trust business of the Corporate Indenture Trustee may be
transferred, shall, subject to the terms of paragraph (c) of this Section 8.02,
be the Corporate Indenture Trustee under this Indenture without further act.
SECTION 8.03. Co-Trustees and Separate Trustees. (a) In order to
comply with the provisions of La. R.S. 9:1783 and other provisions of Louisiana
law (to the extent the same may be applicable), the Corporate Indenture Trustee
and the Grantor Trustee hereby appoint Frederick W. Clark, a resident of the
State of New York, as the Individual Indenture Trustee hereunder. For such
purposes, the Individual Indenture Trustee shall act as mortgagee, assignee and
secured party solely with respect to that portion of the Indenture Estate
subject to the laws of the State of Louisiana and as to which the Corporate
Indenture Trustee is not qualified to act as mortgagee, assignee or secured
party under such laws (the "Louisiana Indenture Estate"). Further, if at any
time (i) the Grantor Trustee or any Holder shall have notified the Indenture
Trustee in writing that it shall be necessary or prudent in order to conform to
any law of any jurisdiction in which property shall be held subject to the Lien
of this Indenture, (ii) the Indenture Trustee shall be advised by counsel that
it is so necessary or prudent in the interest of the Holders, or (iii) a
Majority in Interest of Holders of Notes in writing shall so request the
Indenture Trustee and
52
the Grantor Trustee, in each case the Indenture Trustee and the Grantor Trustee
shall notify the Lessee in writing of such event and shall execute and deliver
all instruments and agreements necessary or proper either (x) to constitute
another bank or trust company or one or more Persons approved by the Indenture
Trustee and the Grantor Trustee, either to act as co-trustee or co-trustees of
all or any portion of the Indenture Estate, jointly with the Indenture Trustee
originally named herein or any successor or successors, or to act as separate
trustee or trustees of all or any such portion of the Indenture Estate in each
case with such rights, powers, duties and obligations as may be provided in such
supplemental indenture or such instrument of appointment as the Indenture
Trustee or a Majority in Interest of Holders of Notes may deem necessary or
advisable, or (y) to clarify, add to or subtract from the rights, powers, duties
and obligations theretofore granted any such additional or separate trustee,
subject in each case to the remaining provisions of this Section 8.03. In the
event that the Grantor Trustee shall not have joined in the execution of such
instruments and agreements within fifteen (15) days after the receipt of a
written request from the Indenture Trustee to do so, or if an Indenture Event of
Default shall have occurred and be continuing, the Indenture Trustee may act
under the foregoing provisions of this Section 8.03 without the concurrence of
the Grantor Trustee; and the Grantor Trustee hereby appoints the Indenture
Trustee its agent and attorney-in-fact to act for it under the foregoing
provisions of this Section 8.03(a) in either of such contingencies. The
Indenture Trustee may, in such capacity, execute, deliver and perform any such
supplemental indenture, or any such instrument, as may be required for the
appointment of any such co-trustee(s) or separate trustee(s) or for the
clarification of, addition to or subtraction from the rights, powers, duties or
obligations theretofore granted to any such co-trustee(s) or separate
trustee(s). In case any co-trustee(s) or separate trustee(s) appointed under
this Section 8.03(a) shall die, become incapable of acting, resign or be
removed, all the assets, property, rights, powers, trusts, duties and
obligations of such co-trustee(s) or separate trustee(s) shall revert to and
shall vest in and may be exercised by the Indenture Trustee, to the extent
permitted by law, until a successor, additional or separate trustee is appointed
as provided in this Section 8.03(a). The reasonable cost and expense of any
action taken by the Indenture Trustee or the Grantor Trustee pursuant to this
Section 8.03(a) shall be borne by the Lessee; provided that the Lessee has
received the notice referred to herein.
(b) The Individual Indenture Trustee shall accept the benefits of the
mortgages, assignments and security interest granted herein to the extent the
same cover and affect the Louisiana Indenture Estate and, in such capacity,
shall have full power and authority to foreclose the Lien hereof to the extent
the same covers and affects the Louisiana Indenture Estate subject to the terms
and provisions hereof; provided, further, that to the extent permitted from time
to time by Louisiana law, the Individual Indenture Trustee shall confer with and
obtain the concurrence of the Corporate Indenture Trustee prior to taking any
such action. Every other co-trustee and separate trustee hereunder and, to the
extent not inconsistent with the immediately preceding
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sentence, the Individual Indenture Trustee, shall, to the extent permitted by
law and except as otherwise expressly provided in any Operative Document, be
appointed and act, and the Indenture Trustee and its successors shall act,
subject to the following provisions and conditions:
(i) the Secured Notes shall be authenticated and made available
for delivery by the Corporate Indenture Trustee, and all powers, duties,
obligations and rights conferred upon the Indenture Trustee in respect of
the receipt, custody, control, payment and management of moneys, papers or
securities, shall be exercised, solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such co-trustee or co-
trustees or separate trustee or trustees jointly, except to the extent that
under any applicable law or in any jurisdiction in which any particular act
or acts are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such co-
trustee or co-trustees or separate trustee or trustees; but subject to the
same limitations in any exercise of his, her or its power and authority as
those to which the Indenture Trustee is subject under the terms of this
Indenture;
(iii) notwithstanding anything herein contained to the contrary, no
power given hereby to, or which it is provided hereby may be exercised by,
any such co-trustee or co-trustees or separate trustee or trustees, except
jointly with, or with consent in writing of, the Indenture Trustee;
(iv) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder;
(v) the powers of any co-trustee(s) or separate trustee(s)
appointed pursuant to this Section 8.03 shall not in any case exceed those
of the Indenture Trustee hereunder; and
(vi) the Grantor Trustee and the Indenture Trustee, at any time,
by an instrument in writing executed by them jointly, may remove any such
trustee, and in that case, by an instrument in writing executed by them
jointly, may appoint a successor or successors to such co-trustee or co-
trustees or separate trustee or trustees, as the case may be. In the event
that the Grantor Trustee shall not have joined in the execution of any such
instrument within fifteen (15) days after the receipt of a written request
from the Indenture Trustee to do so, the Indenture Trustee shall have the
power to remove any such co-trustee or separate
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trustee and to appoint a successor co-trustee or separate trustee without
the concurrence of the Grantor Trustee. In the event that the Indenture
Trustee alone shall have appointed a separate trustee or trustees or co-
trustee or co-trustees as above provided in this Section 8.03, it may at
any time, by an instrument in writing, remove any such separate trustee or
co-trustee, the successor to any such separate trustee or co-trustee so
removed to be appointed by the Grantor Trustee and the Indenture Trustee,
or by the Indenture Trustee alone, as provided in this Section 8.03.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS
SECTION 9.01. Indenture Supplements Without Consent of Holders. The
Grantor Trustee and the Indenture Trustee, without the consent of any Holder and
at any time and from time to time, may enter into one or more amendments or
supplements to this Indenture, in form satisfactory to each of the Grantor
Trustee and Indenture Trustee, for any of the following purposes:
(a) to subject to the Lien of this Indenture additional property
constituting part of the Indenture Estate pursuant to a supplement to this
Indenture;
(b) to correct or amplify the description of any property at any time
subject to the Lien of this Indenture;
(c) to add to the covenants of the Grantor Trustee for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Grantor Trustee, the Owner Participant or the Lessee;
(d) to cure any ambiguity, to correct or supplement any provision
herein or in the Secured Notes which may be defective or inconsistent with
any other provisions of this Indenture, provided that such action shall not
adversely affect the interests of any Holder;
(e) to provide for the assumption by the Lessee of the obligations of
the Grantor Trustee hereunder in accordance with the terms and conditions
applicable thereto specified in Section 3.04, including without limitation,
such amendments to Exhibit C as may be necessary or desirable in order to
effectuate such assumption and accomplish the purposes thereof (provided
that such amendments to Exhibit C shall not adversely affect the interests
of the Loan Participants);
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(f) to evidence the succession of a new Grantor Trustee in accordance
with the Trust Agreement or the succession of a new Indenture Trustee
hereunder or the appointment or removal of any co-trustee or separate
trustee thereunder or hereunder;
(g) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee or to make any other provisions with respect
to matters or questions arising hereunder so long as such action shall not
adversely affect the interests of the Loan Participants;
(h) to add to the rights of the Loan Participants;
(i) to include on the Secured Notes any legend as may be required by
law; or
(j) to provide for the establishment and issuance of (i) Additional
Notes pursuant to Section 14 of the Participation Agreement or Section 2.08
or (ii) Refunding Secured Notes in connection with a refunding or
refinancing pursuant to Section 15 of the Participation Agreement or
Section 3.05.
SECTION 9.02. Supplements and Amendments to Indenture with Consent of
Holders of Notes. (a) Without the consent of a Majority in Interest of Holders
of Notes, the respective parties to the Trust Agreement and the Operative
Documents (other than the Tax Indemnity Agreement, the Letter of Credit and the
Reimbursement Agreement) may not modify, amend or supplement any of such
agreements, or give any consent, waiver, authorization or approval thereunder in
each case other than with respect to matters relating solely to Excepted
Payments, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder; provided, however, that the actions
specified in Section 9.02(c) may be taken without the consent of the Indenture
Trustee or any Holder.
(b) Except as provided in Section 9.01 or 9.02(c) or 9.02(d), at any
time and from time to time, with the consent of a Majority in Interest of
Holders of Notes and upon the written request of the Grantor Trustee, the
Indenture Trustee (x) shall execute an amendment or supplement to this Indenture
for the purpose of adding provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture, or (y) shall execute an
amendment or supplement to, or give a consent, waiver, authorization or
approval, for the purposes of adding any provisions to or changing in any manner
or eliminating any of the provisions of, the Participation Agreement, or (z)
shall consent to any amendment or supplement to, or give a consent, waiver,
authorization or approval, for the purposes of adding any provisions to or
changing in any manner or eliminating any of the provisions of, any of the other
Operative Documents; provided, however,
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that no such amendment or supplement to this Indenture, or consent, waiver,
authorization, approval, amendment or supplement to the Participation Agreement
or any such other Operative Document (whether pursuant to subsection (a) or (c)
of this Section 9.02, and anything in such subsections or elsewhere in this
Indenture to the contrary notwithstanding) shall, without the consent of each
Holder of a Secured Note then Outstanding:
(i) change the stated maturity of the principal of, or any
installment of interest on, or any mandatory or optional repayment,
purchase or redemption provision with respect to, any Secured Note, or
change the principal amount thereof or any other amount payable in respect
thereof or reduce the Make-Whole Amount, if any, or interest thereon, or
change the place of payment where, or the coin or currency in which, any
Secured Note or the interest thereon is payable;
(ii) permit the creation of any Lien on the Indenture Estate not
otherwise permitted hereunder or deprive any Holder of the benefit of the
Lien of this Indenture upon the Indenture Estate, or any portion thereof,
for the security of its Secured Notes;
(iii) change the percentage of the aggregate principal amount of
Secured Notes required to take or approve any action hereunder or under any
other Operative Document;
(iv) modify the definitions of "Indenture Default", "Indenture
Event of Default", "Majority in Interest of Holders of Notes", "Lease
Default" or "Lease Event of Default";
(v) modify the order of priorities in which distributions are to
be made under Article IV;
(vi) reduce the amount or change the time of any payment of Basic
Rent, Stipulated Loss Value, Early Buy-Out Purchase Price or Termination
Value, except as expressly permitted pursuant to the terms of the Lease or
the Participation Agreement as executed on the date hereof, so that such
payments would be insufficient to pay principal of and interest on the
outstanding Secured Notes as they become due hereunder, or change any of
the circumstances under which Stipulated Loss Value, Early Buy-Out Purchase
Price or Termination Value is payable or reduce the amount or change the
time or any of the circumstances of payment of Supplemental Rent pursuant
to Section 3.2(b) of the Lease;
(vii) [Intentionally Omitted];
(viii) modify, amend or supplement any of the provisions of this
Section 9.02;
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(ix) modify, amend or supplement the Lease, or consent to any
assignment of the Lease (other than an assignment pursuant to Section 14.2
of the Lease), in either case releasing the Lessee from its obligations in
respect of the payment of Basic Rent, Stipulated Loss Value, Early Buy-Out
Purchase Price or Termination Value, or changing the absolute and
unconditional character of such obligations as set forth in Section 3.6 of
the Lease; or
(x) adversely affect any indemnities in favor of any Holder as
provided pursuant to the terms of any Operative Document, except as may be
consented to by each Person adversely affected thereby.
(c) Notwithstanding anything to the contrary contained in Section
9.02(b) (except as provided in the proviso to Section 9.02(b)), (x) without the
necessity of the consent of any of the Holders or the Indenture Trustee, the
Grantor Trustee may and (y) in the case of clauses (iii) and (iv) of this
Section 9.02(c), without the consent of any of the Holders, the Indenture
Trustee may:
(i) so long as no Indenture Event of Default shall have occurred
and be continuing, modify, amend or supplement the Lease, or give any
consent, waiver, authorization or approval with respect thereto, except
that without compliance with Section 9.02(b), the Grantor Trustee shall not
modify, amend or supplement, or give any consent, waiver, authorization or
approval for the purposes of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the respective parties thereunder, with respect to the
following provisions of the Lease as originally executed: Section 2 (if the
result thereof would be to shorten the term of the Lease to a period
shorter than the period ending with the maturity date of the Secured
Notes), Section 3.1, 3.2, Section 3.3, Section 3.5, Section 3.6, Section 6,
Section 7 (except that the procedures for soliciting bids may be modified
and further restrictions may be imposed on the ability of the Lessee to
terminate the Lease pursuant to such Section 7), Section 9.1, Section 10,
Sections 11.1 through 11.7 (other than Section 11.5(c)), Section 12,
Section 13 (except that additional insurance requirements may be imposed on
the Lessee), Section 14, Section 15, Section 16, Section 18.1, Section 19.3
and any definition of terms used in the Lease, to the extent that any
modification of such definition would result in a modification of the Lease
not permitted pursuant to this Section 9.02(b), provided that, subject to
the next proviso, in the event an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee shall have all rights of
the Grantor Trustee as "Lessor" under the Lease to modify, amend or
supplement the Lease or give any consent, waiver, authorization or approval
thereunder, for the
58
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the "Lessor" thereunder; provided further that, without the prior
consent of the Grantor Trustee and the Owner Participant, and subject to
the Indenture Trustee's rights to exercise remedies under Section 16 of the
Lease without the prior consent of the Grantor Trustee, whether or not an
Indenture Event of Default shall have occurred and be continuing, no such
action shall be taken with respect to any of the provisions of Sections 1
(if any modification of a definition contained therein would result in a
modification of the Lease not permitted by this proviso), 2, 3, 4, 5, 6, 7,
8, 10, 11, 12, 13 (except to increase the amounts or types of insurance the
Lessee must provide thereunder at its expense), 14, 15, 16, 17, 18 and 19
of the Lease, or any other Section of the Lease to the extent such action
shall affect the amount or timing of any amounts payable by the Lessee
under the Lease as originally executed (or as subsequently modified with
the consent of the Grantor Trustee) which, absent the occurrence and
continuance of an Indenture Event of Default, would be distributable to the
Grantor Trustee or the Owner Participant under Article IV;
(ii) modify, amend or supplement the Trust Agreement, or give any
consent, waiver, authorization or approval with respect thereto, except
that without compliance with Section 9.02(b), the Grantor Trustee shall not
modify, amend or supplement, or give any consent, waiver, authorization or
approval for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the respective parties thereunder, with respect to the
following provisions of the Trust Agreement as originally executed: Section
1, Section 3.2, Section 3.3, Section 5.1, Section 9.1, Section 10, Section
11.1, Section 12.7 and any definition of terms used in the Trust Agreement,
to the extent that any modification of such definition would result in a
modification of the Trust Agreement not permitted pursuant to this Section
9.02(c), and in each case only to the extent any such action shall
adversely impact the interests of the Holders;
(iii) modify, amend or supplement the Participation Agreement, or
give any consent, waiver, authorization or approval with respect thereto,
except that without compliance with Section 9.02(b), the Grantor Trustee
and the Indenture Trustee shall not modify, amend or supplement, or give
any consent, waiver, authorization or approval for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions thereof or of modifying in any manner the rights of the
respective parties thereunder, with respect to the following provisions of
the Participation Agreement as originally executed: Section 2, Section 3,
Section 4, Section 5, Section 6, Section 8, Section 10 (other than an
amendment to add to the covenants of the Lessee),
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Section 11.1, Section 11.2, Section 11.4, Section 11.6, Section 12 (insofar
as such Section 12 relates to the Indenture Trustee, the Indenture Estate
and the Holders) and, to the extent the Loan Participants would be
adversely affected thereby, Section 15 and Section 16 and any definition of
terms used in the Participation Agreement to the extent that any
modification of such definition would result in a modification of the
Participation Agreement not permitted pursuant to this Section 9.02(c); and
(iv) modify, amend or supplement any of said agreements in order
to cure any ambiguity, to correct or supplement any provisions thereof
which may be defective or inconsistent with any other provision thereof or
of any provision of this Indenture, or to make any other provision with
respect to matters or questions arising thereunder or under this Indenture
which shall not be inconsistent with the provisions of this Indenture,
provided the making of any such other provision shall not adversely affect
the interests of the Holders unless such provision corrects a mistake or
cures an ambiguity.
(d) The Indenture Trustee, without the consent of any Holder and at
any time and from time to time, may enter into one or more amendments or
supplements to the Participation Agreement, in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to add to the covenants of any other party thereto for the
benefit of the Indenture Trustee or the Holders or to surrender any right
or power therein conferred upon any other party thereto;
(ii) to cure any ambiguity, or to correct or supplement any
provision therein which may be defective or inconsistent with any other
provisions thereof, provided that such action shall not adversely affect
the interest of any Holder;
(iii) to provide for the assumption by the Lessee of the
obligations of the Grantor Trustee under this Indenture in accordance with
the terms and conditions applicable thereto specified in Section 3.04,
including without limitation, such amendments to Exhibit C to this
Indenture or the Participation Agreement as may be necessary or desirable
in order to effectuate such assumption and accomplish the purposes thereof
(provided that such amendments to such Exhibit C or the Participation
Agreement shall not adversely affect the interests of the Loan
Participants);
(iv) to evidence the succession of a new Grantor Trustee in
accordance with the Trust Agreement or the succession of a new Indenture
Trustee hereunder or the appointment or removal of any co-trustee or
separate trustee thereunder or hereunder;
60
(v) to make any other provisions with respect to matters or
questions arising under the Participation Agreement so long as such action
shall not adversely affect the interests of the Loan Participants;
(vi) to add to the rights of the Indenture Trustee or the
Holders; or
(vii) to provide for the establishment and issuance of (1)
Additional Notes pursuant to Section 14 of the Participation Agreement or
Section 2.08 or (2) Refunding Secured Notes in connection with a refunding
or refinancing pursuant to Section 15 of the Participation Agreement or
Section 3.05.
(e) It shall not be necessary for Holders to approve the particular
form of any proposed amendment or supplement to this Indenture, or any
amendment, consent, waiver or other modification of any other Operative
Document, but it shall be sufficient if such action shall approve the substance
thereof.
SECTION 9.03. Execution of Indenture Supplement, Amendments, Etc. In
executing or accepting the additional trusts created by any amendment or
supplement to this Indenture, or any amendment, consent, waiver or other
modification permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, each of the Indenture Trustee and the Grantor
Trustee shall be entitled to receive, and (subject to Section 6.01 and Section
6.02) shall be fully protected in relying upon, an opinion of independent
counsel stating that the execution of such amendment or supplement to this
Indenture, or of such amendment, consent, waiver or modification, is authorized
or permitted by this Indenture. Either of the Indenture Trustee or the Grantor
Trustee may, but shall not be obligated to, enter into any such amendment or
supplement to this Indenture which affects its own rights, duties or immunities
under this Indenture or otherwise.
SECTION 9.04. Effect of Indenture Supplement. Upon the execution of
any amendment or supplement to this Indenture pursuant to this Article IX, this
Indenture shall be modified in accordance therewith, and such amendment or
supplement shall form a part of this Indenture for all purposes; and every
Holder of a Secured Note theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. Reference in Secured Notes to Indenture Supplements.
Secured Notes authenticated and delivered after the execution of any amendment
or supplement pursuant to this Article IX may, and shall if required by the
Indenture Trustee, bear a notation in form approved by the Indenture Trustee as
to any matter provided for in such amendment or supplement. If the amendment or
supplement to this Indenture shall so provide, new Secured Notes so modified as
to conform,
61
in the opinion of the Indenture Trustee and the Grantor Trustee, to any such
amendment or supplement may be prepared and executed by the Grantor Trustee and
authenticated and delivered by the Corporate Indenture Trustee in exchange for
outstanding Secured Notes.
SECTION 9.06. Notices of Indenture Supplements and Amendments, Etc.
Promptly after the execution by the Grantor Trustee and the Indenture Trustee of
any amendment or supplement to this Indenture, or any amendment, consent, waiver
or other modification pursuant to the provisions hereof, the Indenture Trustee
shall send a conformed copy of such instrument to each Holder, the Lessee, the
Grantor Trustee and the Owner Participant but the failure of the Indenture
Trustee to send such a conformed copy shall not impair or affect the validity of
such document.
SECTION 9.07. Lessee Rights. Without the consent of the Lessee, no
amendment or supplement to this Indenture or amendment, waiver or other
modification of any provision of this Indenture shall alter or modify the
provisions of Section 5.09 or this Section 9.07.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Termination of Indenture. This Indenture and the
trusts created hereby shall terminate, and this Indenture shall be of no further
force or effect, upon the payment in full of the principal of and interest on
and all other amounts due and payable under all Secured Notes and all other
amounts due and payable to any Holder or the Indenture Trustee hereunder or, to
the extent secured hereby, under any other Operative Document. The foregoing
shall not impair any rights of a Holder in respect of indemnification or other
claims which may be available against any party under the terms of any other
Operative Document. Except as otherwise provided in the preceding sentence, this
Indenture and the trusts created hereby shall continue in full force and effect
in accordance with the terms hereof.
SECTION 10.02. No Legal Title to Indenture Estate in Holders. No
Holder shall have legal title to any part of the Indenture Estate. No transfer,
by operation of law or otherwise, of any Secured Note or other right, title and
interest of any Holder in and to the Indenture Estate or hereunder shall operate
to terminate this Indenture or entitle such Holder or any successor or
transferee of such Holder to an accounting or to the transfer to it of any legal
title to any part of the Indenture Estate.
SECTION 10.03. Power of Attorney. The Grantor Trustee does hereby
constitute the Indenture Trustee its true and lawful attorney-in-fact,
irrevocably and coupled with the interest of the Indenture Trustee created by
this Indenture, so long as any Secured Notes are
62
Outstanding and so long as there are any other amounts due hereunder, under any
other Operative Documents, or under the Secured Notes, with full power (in the
name of and as attorney-in-fact for the Grantor Trustee or otherwise) to ask
for, require, demand and receive any and all moneys and claims for moneys, and
all other property, which now or hereafter constitutes part of the Indenture
Estate, to endorse any checks or other instruments or orders in connection
therewith and, to the extent permitted or contemplated by the Indenture or the
other Operative Documents, to file any claims or to take any action, or to
institute any proceedings, which the Indenture Trustee may deem to be necessary
or advisable in the premises. The Grantor Trustee has directed the Indenture
Trustee to make all necessary conveyances, assignments, transfers and deliveries
of the Indenture Estate and any rights hereunder pursuant to the provisions of
this Indenture, and for that purpose the Indenture Trustee may execute all
necessary instruments of conveyance, assignment and transfer, and may substitute
one or more persons with like power, and the Grantor Trustee hereby ratifies and
confirms all that the Indenture Trustee, acting as its attorney, or any such
substitute, shall lawfully do by virtue hereof and whether pursuant to the
exercise of any remedies hereunder or otherwise.
SECTION 10.04. Regarding the Grantor Trustee. (a) Except as expressly
provided herein, all and each of the representations, warranties, undertakings
and agreements herein made on the part of the Grantor Trustee are made and
intended not as personal representations, warranties, undertakings and
agreements by or for the purpose or with the intention of binding the Grantor
Trustee personally but are made and intended for the purpose of binding only the
Trust Estate (including the Louisiana Trust Estate), and this Indenture is
executed and delivered by the Grantor Trustee solely in the exercise of the
powers expressly conferred upon it as trustee under the Trust Agreement; and no
personal liability or responsibility is assumed hereunder by, or at any time
shall be enforceable against, the Grantor Trustee or any successor in trust on
account of any representation, warranty, undertaking or agreement hereunder of
the Grantor Trustee, either expressed or implied, all such personal liability,
if any, being expressly waived by the Indenture Trustee; provided, however, that
(a) the Indenture Trustee or any Person claiming by, through or under it, making
claim hereunder, may subject to the terms and conditions hereof, look to the
Indenture Estate for satisfaction of such liability or responsibility and (b)
the Corporate Grantor Trustee and the Individual Grantor Trustee or its
respective successor in trust, as applicable, shall be personally liable,
jointly and severally, for its own and the Individual Grantor Trustee's gross
negligence and willful misconduct and for the matters described in clauses (i)
through (v) of the last sentence of Section 7.1 of the Trust Agreement. Subject
to the terms and conditions hereof, each time a successor Grantor Trustee is
appointed in accordance with the terms of the Trust Agreement, such successor
Grantor Trustee shall, without further act, succeed to all the rights, duties,
immunities and obligations of its predecessor Grantor Trustee hereunder and
under the other Operative Documents, and the predecessor Grantor Trustee shall
be released from all
63
further duties and obligations hereunder and under the other Operative
Documents, all without the necessity of any consent or approval by the Indenture
Trustee and without in any way altering the terms of this Indenture or such
other Operative Documents or the obligations of the Indenture Trustee hereunder
or thereunder.
(b) As to the aggregate unpaid principal amount of Secured Notes
Outstanding as of any date, the Grantor Trustee may rely on an Officer's
Certificate of the Corporate Indenture Trustee.
SECTION 10.05. Notices. All communications, notices and consents
provided for in this Indenture shall be in writing and shall be given in the
manner, and shall become effective in accordance with Section 17.3 of the
Participation Agreement.
SECTION 10.06. Severability of Provisions. Any provision of this
Indenture which may be determined by competent authority to be invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without invalidating or
rendering unenforceable any remaining terms and provisions hereof, and any such
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. The parties shall
negotiate in good faith to replace such provision with an appropriate legal
provision. To the extent permitted by applicable law, the parties hereto waive
any provision thereof that renders any term or provision hereof invalid or
unenforceable in any respect.
SECTION 10.07. No Oral Modification or Continuing Waivers. No term or
provision of this Indenture or the Secured Notes may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party or the person against whom enforcement of the change, waiver,
discharge or termination is sought; and any waiver of the terms hereof or of any
Secured Note shall be effective only in the specific instance and for the
specific purpose given.
SECTION 10.08. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon each of the parties hereto and their
respective successors and permitted assigns, and inure to the benefit of each of
the parties hereto and their respective successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of such
Holder. This Indenture and the Indenture Estate shall not be affected by any
amendment or supplement to the Trust Agreement or by any other action taken
under or in respect of the Trust Agreement, except as otherwise provided in or
permitted by this Indenture. Each Holder by its acceptance of a Secured Note
agrees to be bound by this Indenture and all provisions of the Operative
Documents applicable to it.
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SECTION 10.09. Headings; Table of Contents. The division of this
Indenture into Articles, Sections, subsections and paragraphs, the provision of
a table of contents and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation hereof.
SECTION 10.10. Normal Commercial Relations. Notwithstanding anything
contained in this Indenture to the contrary, any Participant, the Indenture
Trustee, the Grantor Trustee, or bank or other affiliate of any such Person may
conduct any banking or other financial transactions and have banking or other
commercial relationships with the Lessee, fully to the same extent as if this
Indenture were not in effect.
SECTION 10.11. Governing Law. THIS INDENTURE SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES EXCEPT TO THE EXTENT THAT
THE INTERNAL LAWS OF ANY OTHER JURISDICTION MAY BE MANDATORILY APPLICABLE.
SECTION 10.12. Execution. This Indenture may be executed in separate
counterparts by the parties hereto, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.13. Security Agreement. This Indenture shall constitute a
security agreement and, in addition to all other rights of the Indenture Trustee
hereunder, the Indenture Trustee shall have for the benefit of the Holders all
of the rights conferred upon secured parties by the UCC and any other similar
legislation as from time to time in effect in any applicable jurisdiction.
SECTION 10.14. Benefits of Indenture. Nothing in this Indenture,
whether express or implied, shall be construed to give to any Person other than
the parties hereto, the Holders and (to the extent expressly provided herein)
the Owner Participant any legal or equitable right, remedy or claim under or in
respect of this Indenture or the Secured Notes, and this Indenture shall be held
for the sole and exclusive benefit of the parties hereto, the Holders and (to
the extent expressly provided herein) the Owner Participant.
SECTION 10.15. Personal Property. Notwithstanding the recording of
this Indenture in the mortgage records of St. Mary Parishes, Louisiana, it is
intended by the parties hereto that, the Undivided Interest and every portion
thereof is moveable or personal property, and shall remain moveable or personal
property, to the maximum extent permitted by law. To the maximum extent
permitted by law, the parties agree that the Undivided Interest shall constitute
moveable or personal
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property and shall not become fixtures or otherwise become part of the real
estate or immovable property underneath the Production System.
SECTION 10.16. Individual Indenture Trustee. The Individual Indenture
Trustee signs this Indenture to accept the duties and responsibility granted
hereunder.
SECTION 10.17. Special Louisiana Provisions.
(a) The assignment of Lease and Rent provided in this Indenture is
made pursuant to La. R.S. 9:4401 et seq.
(b) Pursuant to the provisions of La. R.S. 9:5301 et seq., each of
the Holders has appointed the Indenture Trustee as agent, fiduciary and
mortgagee in the exercise of all of the Holder's rights and remedies under this
Indenture.
(c) The Secured Notes and other Indenture Indebtedness have not been
paraphed for identification with this Indenture.
(d) The taxpayer identification number of the Corporate Grantor
Trustee is 51-6506274, and the taxpayer identification number of the Individual
Grantor Trustee is 221-228535. The taxpayer identification number of the
Corporate Indenture Trustee is 13-5160382 and the taxpayer identification number
of the Individual Indenture Trustee is 156-343716.
(e) The maximum amount of the Indenture Indebtedness that this
Indenture (including the assignment of Lease and Rent contained herein) secures
that may be outstanding at any time and from time to time is fixed at
$1,000,000,000, and the maximum amount which the Indenture Trustee or the
Holders may claim for damages that the Indenture Trustee or the Holders may
suffer from a breach of any covenant, condition or agreement secured by this
Indenture (other than for the payment of money) is fixed at $1,000,000,000.
(f) For purposes of executory process, the Grantor Trustee
acknowledges the Indenture Indebtedness secured hereby, whether now existing or
to arise hereafter, and confesses judgment thereon if not paid when due. Upon
the occurrence of an Indenture Event of Default and at any time thereafter so
long as the same shall be continuing, and, so long as the Indenture Trustee has
complied with all of its obligations hereunder, including those set forth in
Section 5.04, in addition to all other rights and remedies granted to the
Indenture Trustee hereunder, it shall be lawful for and the Grantor Trustee
hereby authorizes the Indenture Trustee, without making a demand or putting the
Grantor Trustee into default, such putting in default being expressly waived, to
cause all and singular the Indenture Estate to be seized and sold after due
process of law, the Grantor Trustee waiving the benefit of any and all laws or
parts of laws relative to appraisement of property seized and sold under
executory process or other legal process, and consenting that the
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Indenture Estate be sold without appraisement, either in its entirety or in lots
or parcels, as the Indenture Trustee may determine, to the highest bidder for
cash or on such other terms as the Indenture Trustee in such proceeding may
direct. The Indenture Trustee shall be granted all rights and remedies granted a
mortgagee or secured party under applicable Louisiana law, including the Uniform
Commercial Code in effect in the State of Louisiana.
(g) The Grantor Trustee hereby waives: (i) the benefit of
appraisement provided for in articles 2332, 2336, 2723 and 2724 of the Louisiana
Code of Civil Procedure and all other laws conferring the same; (ii) the demand
and three days notice of demand as provided in articles 2629 and 2721 of the
Louisiana Code of Civil Procedure; and (iii) the three days delay provided for
in articles 2331 and 2722 of the Louisiana Code of Civil Procedure.
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THUS DONE AND PASSED on this 22 day of November, 1996, but effective
for all purposes as of November 15, 1996, before me, the undersigned Notary
Public, in and for the County of New York, State of New York, and in the
presence of the undersigned competent witnesses, who have hereunto signed their
names with the Corporate Grantor Trustee, the Individual Grantor Trustee, the
Corporate Indenture Trustee, the Individual Indenture Trustee and me, said
Notary, after reading of the whole.
WITNESSES TO ALL SIGNATURES: WILMINGTON TRUST COMPANY, not
in its individual capacity, except as
expressly provided herein, but solely
as Corporate Grantor Trustee
/s/ James P. Lawler
----------------------------------------
By: James P. Lawler
Its: Vice President
THOMAS P. LASKARIS, not in his
individual capacity, except as
expressly provided herein, but solely
as Individual Grantor Trustee
/s/ Thomas P. Laskaris
----------------------------------------
Thomas P. Laskaris
THE BANK OF NEW YORK, not in its
individual capacity, except as
expressly provided herein, but solely
as Corporate Indenture Trustee
/s/ Stephen J. Giurlando
----------------------------------------
By: Stephen J. Giurlando
Its: Assistant Vice President
FREDERICK W. CLARK, not in his
individual capacity, except as
expressly provided herein, but solely
as Individual Indenture Trustee
/s/ Frederick W. Clark
----------------------------------------
Frederick W. Clark
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WITNESSES:
/s/ Deepak Ghosh
- -------------------------------
Name: Deepak Ghosh
/s/ Chris R. Becker NOTARY PUBLIC
- -------------------------------
Name: Chris R. Becker Name: /s/ Elizabeth Casagrande
----------------------------------
[NOTARY SEAL] My Commission Expires:
Elizabeth Casagrande
Notary Public, State of New York
No. 43-4975014
Qualified in Richmond County
Certificate Filed in New York County
Commission Expires Nov. 26, 1996
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