EXHIBIT 4.6
THIS NOTES TO BE ISSUED HEREUNDER SHALL BE ISSUED WITH ORIGINAL ISSUE DISCOUNT
UNDER SECTION 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED. YOU MAY CONTACT THE CHIEF FINANCIAL OFFICER OF THE ISSUER, AT 50 West
San Fernando Street, San Jose, Ca 95113, WHO WILL PROVIDE YOU WITH ANY REQUIRED
INFORMATION REGARDING THE ORIGINAL ISSUE DISCOUNT.
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POWER CONTRACT FINANCING III, LLC,
Issuer,
and
WILMINGTON TRUST COMPANY,
Trustee, Accounts Agent, Paying Agent and Registrar
----------
INDENTURE
Dated as of June 2, 2004
Senior Secured Notes due 2010
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TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions...................................................1
SECTION 102. Compliance Certificates and Opinions..........................2
SECTION 103. Form of Documents Delivered to Trustee........................3
SECTION 104. Acts of Holders...............................................4
SECTION 105. Notices, Etc. to Trustee and Issuer...........................5
SECTION 106. Notice to Holders: Waiver.....................................5
SECTION 107. Effect of Headings and Table of Contents......................6
SECTION 108. Successors and Assigns........................................6
SECTION 109. Severability Clause...........................................6
SECTION 110. Benefits of Indenture.........................................6
SECTION 111. Conflict with Trust Indenture Act.............................6
SECTION 112. Governing Law; Consent to Jurisdiction and Service of
Process.......................................................6
SECTION 113. Legal Holidays................................................8
SECTION 114. Non-Recourse..................................................8
SECTION 115. Execution in Counterparts.....................................8
ARTICLE TWO FORM OF NOTES
SECTION 201. Form of Note..................................................8
SECTION 202. Restrictive Legends..........................................10
ARTICLE THREE THE NOTES
SECTION 301. Amount13
SECTION 302. Denominations................................................15
SECTION 303. Execution, Authentication, Delivery and Dating...............15
SECTION 304. Temporary Notes..............................................16
SECTION 305. Registration, Registration of Transfer and Exchange..........17
SECTION 306. Book Entry Provisions for Global Notes.......................18
SECTION 307. Special Transfer Provisions..................................19
SECTION 308. Mutilated, Destroyed, Lost and Stolen Notes..................22
SECTION 309. Payment on Notes; Rights Preserved...........................23
SECTION 310. Persons Deemed Owners........................................24
SECTION 311. Cancellation.................................................24
SECTION 312. CUSIP and CINS Numbers.......................................24
SECTION 313. Parity of Notes..............................................24
ARTICLE FOUR APPLICATION OF PROCEEDS FROM SALE OF NOTES
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SECTION 401. Application of Proceeds from Sale of Notes...................25
ARTICLE FIVE ACCOUNTS
SECTION 501. Establishment of Accounts....................................25
SECTION 502. Collections Account..........................................26
SECTION 503. Redemption Account and Working Capital Account...............27
SECTION 504. Statements; Investment of Funds..............................28
ARTICLE SIX SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Indenture......................29
SECTION 602. Application of Trust Money...................................30
ARTICLE SEVEN EVENTS OF DEFAULT AND REMEDIES
SECTION 701. Events of Default............................................30
SECTION 702. Acceleration of Maturity: Rescission and Annulment...........32
SECTION 703. Remedies upon an Event of Default............................32
SECTION 704. Certain Sales of Collateral..................................33
SECTION 705. No Marshaling................................................33
SECTION 706. Trustee May Recover Unpaid Indebtedness After Sale of
Collateral...................................................34
SECTION 707. Recovery of Judgment Does Not Affect Rights..................34
SECTION 708. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................34
SECTION 709. Trustee May File Proofs of Claim.............................35
SECTION 710. Trustee May Enforce Claims Without Possession of Notes.......36
SECTION 711. Application of Money Collected...............................36
SECTION 712. Limitation on Suits..........................................36
SECTION 713. Unconditional Right of Holders to Receive Principal and
Additional Interest..........................................37
SECTION 714. Restoration of Rights and Remedies...........................37
SECTION 715. Rights and Remedies Cumulative...............................37
SECTION 716. Delay or Omission Not Waiver.................................38
SECTION 717. Control by Holders...........................................38
SECTION 718. Waiver of Past Defaults......................................38
SECTION 719. Waiver of Force Majeure and Stay or Extension Laws...........39
SECTION 720. Trustee to Give Notice of Default, but May Withhold in
Certain Circumstances........................................39
SECTION 721. Undertaking for Costs........................................39
ARTICLE EIGHT THE TRUSTEE
SECTION 801. Duties and Responsibilities of the Trustee; During Default;
Prior to Default.............................................40
SECTION 802. Certain Rights of Trustee....................................41
SECTION 803. Trustee Not Responsible for Recitals or Issuance of Notes....42
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SECTION 804. May Hold Notes...............................................43
SECTION 805. Money Held In Trust..........................................43
SECTION 806. Compensation and Indemnification of Trustee, Accounts
Agent, Paying Agent and Registrar and Its Prior Claim........43
SECTION 807. Right of Trustee to Rely on Officer's Certificate, Etc.......44
SECTION 808. Corporate Trustee Required; Eligibility......................44
SECTION 809. Qualification of Trustee; Conflicting Interests..............45
SECTION 810. Resignation and Removal; Appointment of Successor Trustee....45
SECTION 811. Acceptance of Appointment by Successor.......................46
SECTION 812. Merger Conversion, Consolidation or Succession to Business...47
SECTION 813. Preferential Collection of Claims Against Issuer.............47
SECTION 814. No Liability for Clean-up of Hazardous Materials.............48
SECTION 815. Accounts Agent Registrar and Paving Agent....................48
SECTION 816. Filing Fees..................................................48
SECTION 817. Fee Agreement................................................48
ARTICLE NINE HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 901. Holder Lists.................................................48
SECTION 902. Disclosure of Names and Addresses of Holders.................49
SECTION 903. Reports by Trustee...........................................49
SECTION 904. Reports by Issuer............................................49
ARTICLE TEN SUPPLEMENTS AND AMENDMENTS TO INDENTURE AND SECURITY DOCUMENTS
SECTION 1001. Without Vote of Holders......................................50
SECTION 1002. With Consent of Holders......................................51
SECTION 1003. Execution of Supplemental Indentures.........................52
SECTION 1004. Effect of Supplemental Indentures............................52
SECTION 1005. Conformity with Trust Indenture Act..........................52
SECTION 1006. Reference in Notes to Supplemental Indentures................52
SECTION 1007. Notice of Supplemental Indentures............................53
ARTICLE ELEVEN AFFIRMATIVE COVENANTS
SECTION 1101. Distributions................................................53
SECTION 1102. Performance of Obligations...................................53
SECTION 1103. Compliance with the PCF Indenture............................53
SECTION 1104. Preservation of Rights.......................................53
SECTION 1105. Liens .......................................................53
SECTION 1106. Payment of Principal and Interest............................54
SECTION 1107. Maintenance of Office or Agency..............................54
SECTION 1108. Maintenance of Existence, Properties.........................54
SECTION 1109. Permits......................................................54
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SECTION 1110. Payments of Taxes and Other Claims...........................55
SECTION 1111. Notice of Certain Events.....................................55
SECTION 1112. Compliance with Laws and Other Agreements....................56
SECTION 1113. Maintenance of Books and Records.............................56
SECTION 1114. Rule 144A Information for the Holders........................56
SECTION 1115. Further Assurances...........................................57
SECTION 1116. Return of Monies Held by Trustee.............................57
ARTICLE TWELVE NEGATIVE COVENANTS
SECTION 1201. Liens .......................................................57
SECTION 1202. Indebtedness.................................................57
SECTION 1203. Transactions with Affiliates.................................58
SECTION 1204. Investments, Loans and Advances..............................58
SECTION 1205. Material Agreements and Financing Documents;
Additional Contracts.........................................58
SECTION 1206. Account......................................................58
SECTION 1207. Fundamental Change...........................................58
SECTION 1208. Restricted Payments..........................................59
SECTION 1209. Compliance with ERISA........................................59
SECTION 1210. Margin Stock.................................................59
SECTION 1211. Purchasing Notes.............................................59
ARTICLE THIRTEEN REDEMPTION OF NOTES
SECTION 1301. Applicability of Article.....................................59
SECTION 1302. Mandatory Redemption; Notice to Trustee......................59
SECTION 1303. Notice of Redemption.........................................60
SECTION 1304. Notes Payable on Redemption Date.............................60
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Issuer's Option to Effect Defeasance or Covenant
Defeasance...................................................61
SECTION 1402. Defeasance and Discharge.....................................61
SECTION 1403. Covenant Defeasance..........................................61
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..............62
SECTION 1405. Deposited Money to Be Held in Trust; Other Miscellaneous
Provisions...................................................63
SECTION 1406. Reinstatement................................................63
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF NOTES
SECTION 1501. Purposes for Which Holders' Meetings May Be Called...........64
SECTION 1502. Call of Meetings by Trustee..................................64
SECTION 1503. Issuer and Holders May Call Meeting..........................64
SECTION 1504. Persons Entitled to Vote at Meeting..........................64
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SECTION 1505. Determination of Voting Rights: Conduct and Adjournment
of Meeting...................................................65
SECTION 1506. Counting Votes and Recording Action of Meeting...............65
ARTICLE SIXTEEN COVENANTS OF HOLDERS OF NOTES
SECTION 1601. Treatment of Notes as Indebtedness for Tax Purposes..........66
EXHIBIT A Definitions
EXHIBIT B Form of Face of Note Power Contract Financing III, LLC
Senior Secured Note Due 2010
EXHIBIT C Form of Certificate to Be Delivered upon Termination of
Distribution Compliance Period on or after July 13, 2004
EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
EXHIBIT E Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S
EXHIBIT F Form of Issuer Order and Officer's Certificate of Power
Contract Financing III, LLC
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POWER CONTRACT FINANCING III, LLC
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of June 2, 2004
Trust Indenture Act Section Indenture Section
Section 310 (a)(1) ............................. 808
(a)(2) ............................. 808
(b) ............................. 808, 809, 810
Section 311 (a) ............................. 813
(b) ............................. 813
Section 312 (a) ............................. 901
(b) ............................. 902
(c) ............................. 902
Section 313 (a) ............................. 903
(b) ............................. 903
(c) ............................. 720, 903
(d) ............................. 903
Section 314 (a) ............................. 904, 1106
(b) ............................. 1111
(c)(1) ............................. 102
(c)(2) ............................. 102
(d) ............................. 1111
(e) ............................. 102
Section 315 (a) ............................. 801
(b) ............................. 720
(c) ............................. 801
(d) ............................. 801
(e) ............................. 721
Section 316 (a) (last sentence).............. 101 ("Outstanding")
(a)(1)(A) ............................. 717
(a)(1)(B) ............................. 718
(b) ............................. 713
(c) ............................. 104
Section 317 (a)(1) ............................. 708, 709
(a)(2) ............................. 709
(b) ............................. 1115
Section 318 (a) ............................. 111
(c) ............................. 111
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Note: This reconciliation and tie shall not, for any purpose, be deemed part
of the Indenture
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This INDENTURE, dated as of June 2, 2004 (this "Indenture"), is
made by and between Power Contract Financing III, LLC, a limited liability
company organized and existing under the laws of the State of Delaware, having
its principal executive offices at 50 West San Fernando Street, San Jose,
California 95113 (the "Issuer"), and WILMINGTON TRUST COMPANY, a Delaware
banking corporation (the "Trustee").
RECITALS
WHEREAS, the Issuer has duly authorized the execution and delivery
of this Indenture to provide for the creation and issuance on the Closing Date,
of Senior Secured Notes due February 5, 2010 in the aggregate principal amount
at maturity of $84,997,000 (the "Notes");
WHEREAS, all necessary actions to ensure that this Indenture is a
valid indenture and agreement according to its terms have been taken;
WHEREAS, as security for the payment and performance by the Issuer
of its obligations under this Indenture and the Notes, the Issuer has agreed to
assign and pledge the Collateral (as defined below) as collateral to the Trustee
for the benefit of the Trustee and the Holders (as defined below); and
WHEREAS, the Trustee has agreed to act as trustee, accounts agent,
paying agent and registrar under this Indenture on the following terms and
conditions.
NOW, THEREFORE, for and in consideration of the premises herein
contained and the purchase of the Notes by the Holders, it is mutually
covenanted and agreed, for the benefit of the parties hereto and the equal and
proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein shall have the respective
meanings assigned to them in Exhibit A;
(b) the terms defined in Exhibit A include the plural as well as
the singular;
(c) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(d) the words "herein," "hereof' and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
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(e) except as otherwise expressly provided herein, (i) all
accounting terms used herein shall be interpreted, (ii) all financial statements
and all certificates and reports as to financial matters required to be
delivered to the Trustee hereunder shall be prepared and (iii) all calculations
made for the purposes of determining compliance with this Indenture shall
(except as otherwise expressly provided herein) be made in accordance with, or
by application of, GAAP applied on a basis consistent with that used in the
preparation of the latest corresponding financial statements furnished hereunder
to the Trustee;
(f) all references in this Indenture to "Articles," "Sections,"
"Exhibits" and other subdivisions of this Indenture are to the designated
articles, sections and other subdivisions of, and the exhibits to, this
Indenture;
(g) unless otherwise expressly specified or the context otherwise
requires, all references in this Indenture or any Exhibit to any agreement,
contract or document (including this Indenture) shall include reference to all
exhibits to such agreement, contract or document;
(h) unless otherwise expressly specified or the context otherwise
requires, any agreement, contract or document defined or referred to herein
shall mean such agreement, contract or document as in effect as of the date
hereof, as the same may thereafter be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof and hereof;
(i) unless otherwise expressly specified or the context otherwise
requires, pronouns having a masculine or feminine gender shall be deemed to
include the other;
(j) any reference to any Person shall include its permitted
successors and assigns in accordance with the terms of this Indenture and the
other Financing Documents and, in the case of any Governmental Agency, any
Person succeeding to its functions and capacities; and
(k) the term "including" denotes an example and not a limitation.
SECTION 102. Compliance Certificates and Opinions. (a) Upon any
application or request by the Issuer to the Trustee to take any action under any
provision of this Indenture, the Issuer shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
(b) Every Officer's Certificate or Opinion of Counsel with respect
to compliance with a covenant or condition provided for in this Indenture shall
include: (i) a statement that each individual signing such Officer's Certificate
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or Opinion of Counsel has read such covenant or condition and the definitions
herein relating thereto; (ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions contained
in such Officer's Certificate or Opinion of Counsel are based; (iii) a statement
that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; (iv) a
statement as to whether, in the opinion of each such individual, such covenant
or condition has been complied with; and (v) a statement that, in the opinion of
each such individual, such Officer's Certificate or Opinion of Counsel complies
with the provisions of this Section 102 and that the Trustee may rely on such
Officer's Certificate or Opinion of Counsel.
(c) Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or Opinion of Counsel or representations by counsel (which shall also be
addressed to the Trustee and the Holders), unless such officer knows that the
certificate or Opinion of Counsel or representations with respect to the matters
upon which his certificate, statement or Opinion of Counsel will be based are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters or information which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
(d) Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of an Accountant in the employ of the Issuer
(which shall be additionally addressed to the Trustee and the Holders), unless
such officer or counsel, as the case may be, knows that the certificate or
opinion with respect to the accounting matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
(e) Any certificate or opinion of any Independent Accountant filed
with the Trustee shall contain a statement that such Accountant is Independent.
SECTION 103. Form of Documents Delivered to Trustee. (a) In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
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(b) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders may be embodied in and
evidenced by (i) one or more instruments of substantially similar tenor signed
by the Holders in person or by their respective agents or proxies duly appointed
in writing, (ii) the record of Holders voting in favor thereof, either in person
or by their respective agents or proxies duly appointed in writing, at any
meeting of Holders duly called and held in accordance with the provisions of
Article Fifteen, or (iii) a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is expressly required hereby, to the Issuer. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Note, shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the Issuer,
if made in the manner provided in this Section 104. The record of any meeting of
Holders shall be proved in the manner provided in Section 1506.
(b) The affidavit of a witness of such execution sworn to before a
notary public or other officer authorized by law to take acknowledgments of
deeds or administer oaths, or by a certificate of such notary or other officer,
certifying that the individual signing such instrument or writing acknowledged
to him the execution thereof shall be conclusive evidence of the fact and date
of execution by any Person of any such instrument or writing. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
(c) Entries in the Security Register shall be conclusive evidence
of the principal amount and serial numbers of Notes held by any Person, and the
date of holding the same, and the Trustee shall not be affected by notice to the
contrary.
(d) If the Issuer shall solicit from the Holders of the Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Issuer may, at its option, by or pursuant to a Management Committee's
Consent, fix in advance a record date for the determination of such Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Issuer shall have no obligation to do so.
Notwithstanding Trust Indenture Act Section 316(c), such record date shall be
the record date specified in or pursuant to such Management Committee's Consent,
which shall be a date not earlier than the date thirty (30) days prior to the
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first solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed unless otherwise specified herein.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Notes have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Notes shall
be computed as of such record date; provided, that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven (11) months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 105. Notices, Etc. to Trustee and Issuer. Any request,
demand, authorization, direction, notice, consent, waiver or other Act of
Holders or other documents provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Issuer shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office; or
(b) the Issuer by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Issuer addressed to it
at the address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the Trustee
by the Issuer.
SECTION 106. Notice to Holders: Waiver. (a) Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or delivered by overnight courier or facsimile, to
each Holder, at its address or facsimile number (as applicable) as it appears in
the Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. Where
this Indenture provides for notice in any manner, such notice and the manner of
its giving may be waived in writing by the Person entitled to receive such
notice, either before or after the event and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver. In any case where notice to Holders is given
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by mail or fax (as applicable), neither the failure to mail or fax such notice,
nor any defect in any notice so mailed or faxed (as the case may be), to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice that is mailed or faxed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
such Holder actually receives notice.
(b) In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail or deliver notice of any event to Holders when such notice is required
to be given pursuant to any provision of this Indenture, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice for every purpose hereunder.
SECTION 107. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the meaning or construction of any of the provisions
hereof.
SECTION 108. Successors and Assigns. All covenants, stipulations,
promises and agreements in this Indenture by or on behalf of each of the Trustee
and the Issuer shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
SECTION 109. Severability Clause. In case any provision in this
Indenture or in any Note shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto, any Accounts Agent, any Paying Agent, any Registrar, and their
successors and permitted assigns hereunder, and the Holders of Notes, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with the duties imposed by the Trust
Indenture Act Sections 310 to 318, inclusive, or conflicts with any provision of
the Trust Indenture Act that is required under the Trust Indenture Act to be a
part of and govern this Indenture, such duties or provision of the Trust
Indenture Act shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded by its terms, such provision shall be deemed to apply to this Indenture
as so modified or to be excluded, as the case may be.
SECTION 112. Governing Law; Consent to Jurisdiction and Service of
Process. (a) This Indenture and the Notes shall be governed by, and construed in
accordance with, the law of the State of New York without giving effect to the
principles thereof relating to conflicts of law except Section 5-1401 of the New
York General Obligations Law.
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(b) The Issuer consents to the non-exclusive jurisdiction of any
court of the State of New York or any United States federal court sitting in New
York County, New York, United States, and any appellate court from any thereof,
and waives any immunity from the jurisdiction of such courts over any suit,
action, or proceeding that may be brought in connection with this Indenture, the
Financing Documents or the Notes. The Issuer irrevocably waives, to the fullest
extent permitted by law, any objection to any suit, action, or proceeding that
may be brought in connection with this Indenture, the Financing Documents or the
Notes in such courts whether on the grounds of venue, residence or domicile or
on the ground that any such suit, action or proceeding has been brought in an
inconvenient forum. The Issuer agrees that final judgment in any such suit,
action or proceeding brought in such court shall be conclusive and binding upon
the Issuer and may be enforced in any court to the jurisdiction of which the
Issuer is subject by a suit upon such judgment.
The Issuer agrees that service of all writs, process, and summonses in any suit,
action, or proceeding brought in connection with this Indenture, the Financing
Documents or the Notes against the Issuer, or with respect to its property and
assets, in any court of the State of New York or any United States federal court
sitting in the Borough of Manhattan, New York City may be made upon Lord
Securities Corporation at 48 Wall Street - 27th Floor, New York, NY 10005,
Attention: Power Contract Financing III, LLC Program Manager, whom the Issuer
appoints as its authorized agent for service of process. The Issuer represents
and warrants that Lord Securities Corporation has agreed to act as the Issuer's
agent for service of process. The Issuer agrees that such appointment shall be
irrevocable for the term of the Administrative Services Agreement or until the
irrevocable appointment by the Issuer of a successor in New York City as its
authorized agent for such purpose and the acceptance (on terms reasonably
satisfactory to the Trustee) of such appointment by such successor. The Issuer
further agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment in
full force and effect as aforesaid. If Lord Securities Corporation shall cease
to act as the Issuer's agent for service of process, the Issuer shall appoint
without delay another such agent and provide prompt written notice to the
Trustee of such appointment. With respect to any such action in any court of the
State of New York or any United States federal court in the Borough of
Manhattan, New York City, service of process upon Lord Securities Corporation,
as the authorized agent of the Issuer for service of process, and written notice
of such service to the Issuer, shall be deemed in every respect effective
service of process upon the Issuer. Without prejudice to the foregoing, the
Issuer hereby irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to the Issuer at the
address of its principal office specified the first paragraph of this Indenture
or at any other address previously furnished in writing to the Trustee by the
Issuer.
(c) Nothing in this Section 112 shall affect the right of any
party to serve legal process in any other manner permitted by law or affect the
right of any party to bring any action or proceeding against any other party or
its property in the courts of other jurisdictions.
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SECTION 113. Legal Holidays. If any Payment Date, Redemption Date
or the Maturity Date, shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Note) payment
of Additional Interest, interest on accrued and unpaid Additional Interest or
principal need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Payment Date, Redemption Date, or Maturity
Date; provided, that no interest shall accrue on the amount then due for the
period from and after such Payment Date, Redemption Date, or Maturity Date, as
the case may be, to the date of such payment.
SECTION 114. Non-Recourse. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any Security
Document, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, past, present or future, member, manager, officer or director,
as such, of the Issuer or the Issuer's members, or of any successor, either
directly or through the Issuer or the Issuer's members, as the case may be, or
any successor, under any rule of law, statute, or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Notes by the Holders and as part of the consideration for the
issuance of the Notes. Nothing contained in this Section 114 shall, however,
limit the liability of any Person for any fraud, gross negligence or willful
misconduct on their part. The obligations to pay the principal of and all
accrued and unpaid Additional Interest (and interest on accrued and unpaid
Additional Interest) on the Notes are solely the Issuer's obligations and any
recourse against the Issuer for failure to satisfy its obligations under the
Notes is limited to the Collateral.
SECTION 115. Execution in Counterparts. This instrument may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
ARTICLE TWO
FORM OF NOTES
SECTION 201. Form of Note. (a) The Notes and the accompanying
Trustee's certificate of authentication shall be substantially in the form
annexed hereto as Exhibit B. The Notes may have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have letters, notations or other marks of identification
and such notations, legends or endorsements required by law, the rules of any
stock exchange, agreements to which the Issuer is subject or usage. Any portion
of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note. The Issuer shall approve
the form of the Notes and any notation, legend or endorsement on the Notes. Each
Note shall be dated the date of its authentication.
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(b) The definitive Notes shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner
permitted by the rules under any applicable securities laws, all as determined
by the officers of the Issuer executing such Notes, as evidenced by their
execution of such Notes.
(c) The terms and provisions contained in the form of the Notes
annexed hereto as Exhibit B shall constitute, and are hereby expressly made, a
part of this Indenture; provided, that to the extent any provision of any Note
conflicts with the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling. To the extent applicable, the Issuer
and the Trustee, by their execution and delivery of this Indenture, and the
Holders and beneficial owners of the Notes by their acceptance of the Notes
expressly agree to such terms and provisions and to be bound thereby.
(d) Notes offered and sold to QIBs in reliance on Rule 144A shall
be issued initially in the form of one or more permanent global Notes in
registered form, substantially in the form set forth in Exhibit B, (each, a
"Rule 144A Global Note"), deposited with the Trustee as custodian for DTC and
registered in the name of a nominee of DTC, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of each Rule 144A Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
DTC or its nominee, as hereinafter provided.
(e) Notes offered and sold in offshore transactions in reliance on
Regulation S shall be initially issued in the form of one or more temporary
global Notes in registered form, substantially in the form set forth in Exhibit
B (each, a "Temporary Regulation S Global Note"), deposited with the Trustee as
custodian for DTC and registered in the name of a nominee of DTC for the
accounts of Euroclear Bank, S.A./N.V., as operator of Euroclear and Clearstream
Luxembourg, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided. Each Temporary Regulation S Global Note will be
exchangeable for one or more permanent global Notes (each, a "Permanent
Regulation S Global Note"; and together with the Temporary Regulation S Global
Notes, the "Regulation S Global Notes") after the fortieth (40th) day following
the Closing Date, upon certification (substantially in the form of Exhibit C)
that the beneficial interests in such global Note are owned by either Non-U.S.
Persons or U.S. Persons who purchased such interests pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act. The aggregate principal amount of each Regulation S Global Note
may from time to time be increased or decreased by adjustments made in the
records of the Trustee, as custodian for DTC or its nominee, as herein provided.
(f) Notes offered and sold to institutional "accredited investors"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) who are
not QIBs (excluding Non-U.S. Persons) shall initially be issued in the form of
permanent certificated Notes in registered form in substantially the form of
Exhibit B ("U.S. Physical Notes"). Notes issued pursuant to Section 306 in
exchange for or upon transfer of interests in a Rule 144A Global Note or a
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Regulation S Global Note shall be in the form of U.S. Physical Notes and
permanent certificated Notes in registered form substantially in the form set
forth in Exhibit B (the "Regulation S Physical Note"), respectively.
(g) The U.S. Physical Notes and the Regulation S Physical Notes
are sometimes collectively herein referred to as the "Physical Notes." The
Regulation S Global Notes and the Rule 144A Global Notes are sometimes
collectively referred to as the "Global Notes."
SECTION 202. Restrictive Legends. (a) Unless and until a Note is
sold under an effective Registration Statement, (i) each Rule 144A Global Note
and each U.S. Physical Note shall bear the legend set forth below (the "Private
Placement Legend") on the face thereof, except as otherwise provided in Section
307(e), and (ii), and each Regulation S Global Note and each Regulation S
Physical Note shall bear the legend set forth below on the face thereof until at
least June 2, 2006, and receipt by the Issuer and the Trustee of a certificate
substantially in the form of Exhibit C:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED,
RESOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.
EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES
THAT ANY OFFER, SALE OR OTHER TRANSFER OF SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE
ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR
OF THIS NOTE) (THE "RESALE RESTRICTION TERMINATION
DATE"), SHALL ONLY BE MADE: (A) TO THE ISSUER OR ANY
SUBSIDIARY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
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STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER," AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS NOTE
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES ONLY AND NOT WITH A VIEW TO, OR FOR OFFER OR
RESALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE
TRUSTEE'S RIGHT, PRIOR TO ANY SUCH OFFER, RESALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF
THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
PURSUANT TO CLAUSE (E) OR (F) PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE, TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND FURTHER
SUBJECT, IN EACH OF THE FOREGOING CASES, EXCEPT (D), TO
COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS, AND
(ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS
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SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
(b) Each Global Note shall also bear the following legend on the
face thereof
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC)
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS
306 AND 307 OF THE INDENTURE. THE HOLDER OF THIS GLOBAL
NOTE REPRESENTS THAT (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") (AN "ERISA PLAN") OR OTHER PLAN, AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF ANY SUCH
ERISA PLAN OR OTHER PLAN OR A GOVERNMENTAL PLAN THAT IS
SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406
OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"), OR (ii) THE PURCHASE
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AND HOLDING BY IT OF THIS NOTE WILL NOT RESULT IN A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE (OR, IN THE CASE OF A
GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR FEDERAL,
STATE OR LOCAL LAW) FOR WHICH AN EXEMPTION IS NOT
AVAILABLE.
ARTICLE THREE
THE NOTES
SECTION 301. Amount. (a) The Notes to be issued under this
Indenture are hereby created. The maximum Principal Amount at ------ Maturity of
Notes that may be authenticated and delivered under this Indenture on the
Closing Date is $84,997,000.
(b) The Notes shall be known and designated as the "Senior Secured
Notes due 2010" of the Issuer. The Principal Amount at Maturity and accrued and
unpaid Additional Interest (and interest on accrued and unpaid Additional
Interest) shall be payable in full in cash on the Maturity Date of the Notes,
which shall be February 5, 2010. Prior to the Maturity Date, the aggregate
principal amount of the Notes will be deemed to be equal to the aggregate
accreted value of the Notes as set forth in the table below (the "Accreted
Value"):
For the period
--------------
Aggregate Accreted
Commencing on: Through: Value of the Notes:
---------------- --------------- -------------------
Date of offering August 5, 2004 $63,976,859
August 6, 2004 February 5, 2005 $65,271,638
February 6, 2005 August 5, 2005 $66,894,693
August 6, 2005 February 5, 2006 $68,291,596
February 6, 2006 August 5, 2006 $70,020,349
August 6, 2006 February 5, 2007 $71,526,650
February 6, 2007 August 5, 2007 $73,740,666
August 6, 2007 February 5, 2008 $75,755,380
February 6, 2008 August 5, 2008 $78,114,324
August 6, 2008 February 5, 2009 $80,282,117
February 6, 2009 August 5, 2009 $82,669,289
August 6, 2009 February 5, 2010 $84,997,000
All principal of the Notes that is not paid when due (whether on
the Maturity Date or following any redemption or acceleration of the Notes) will
bear interest (to the extent lawful) at a rate of 11% per annum, computed on the
basis of a 360-day year of twelve 30-day months.
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(c) Interest payments on the Notes ("Additional Interest") will be
payable on each of the dates set forth below (each, a "Payment Date") in an
amount equal to the amount set forth opposite the applicable Payment Date:
Additional Interest
Payment Date Payable Amount
---------------- --------------
August 5, 2004 .............. $929,064
February 5, 2005 .............. $944,411
August 5, 2005 .............. $661,453
February 5, 2006 .............. $944,411
August 5, 2006 .............. $661,453
February 5, 2007 .............. $944,411
August 5, 2007 .............. $289,417
February 5, 2008 .............. $566,209
August 5, 2008 .............. $292,494
February 5, 2009 .............. $566,209
August 5, 2009 .............. $422,702
February 5, 2010 .............. $565,714
Additional Interest will be paid in cash to the extent sufficient
funds are available in the Collections Account on such Payment Date to make such
Additional Interest payment. Any Additional Interest that is not paid in cash on
the applicable Payment Date will be added to the Additional Interest payable on
the next Payment Date. Such past due amounts will be payable (to the extent
sufficient funds are available in the Collections Account to make such payments)
prior to amounts then scheduled to be paid. All accrued Additional Interest that
is not paid when due (whether on the applicable Payment Date or following any
redemption or acceleration of the Notes) will bear interest (to the extent
lawful) at a rate of 11% per annum, computed on the basis of a 360-day year of
twelve 30-day months. On any date that Additional Interest is due and payable on
a day other than a Payment Date, the accrued and unpaid Additional Interest due
with respect to the period immediately preceding such date shall be prorated
based on the number of days elapsed from the last Payment Date to such date
divided by the number of days in the period from the last Payment Date through
and including the next Payment Date, based upon a 360-day year of twelve 30-day
months.
(d) The principal of and Additional Interest (and interest on
accrued and unpaid Additional Interest) on the Notes shall be payable, and the
Notes shall be exchangeable and transferable, at the office or agency of the
Issuer in New York County, New York, maintained for such purposes in accordance
with Section 309.
(e) The Notes shall be redeemable as provided in Article Thirteen.
(f) This Indenture shall, to the extent applicable, incorporate
and be governed by the provisions of the Trust Indenture Act that are required
to be part of and to govern indentures qualified under the Trust Indenture Act.
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SECTION 302. Denominations. The Notes shall be issuable only in
registered form without coupons and initially only in minimum denominations of
$100,000 and integral multiples of $1,000 in excess thereof; provided, that
initial purchases of the Notes by purchasers who are institutional "accredited
investors" who are not QIBs shall be in minimum amounts of $250,000; and
provided, further that after initial issuance, Notes may be issued upon exchange
or transfer in such amounts as may be necessary to evidence the entire unpaid
principal amount of any Note surrendered or exchanged.
SECTION 303. Execution, Authentication, Delivery and Dating. (a)
The Notes shall be executed on behalf of the Issuer by its President or a Vice
President and attested by a Vice President, its Secretary or an Assistant
Secretary. The signature of any of these officers on the Notes may be manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Notes.
(b) Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer
to the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Notes, directing the Trustee to authenticate
the Notes; and the Trustee, in accordance with such Issuer Order, shall
authenticate and deliver such Notes as in this Indenture provided and not
otherwise. Each such Issuer Order shall specify the amount of Notes to be
authenticated, the date on which the Notes are to be authenticated, whether the
Notes are to be Initial Notes or Unrestricted Notes and whether the Notes are to
be issued as Physical Notes or Global Notes or such other information as the
Trustee may reasonably request. The Trustee shall receive, as part of any such
Issuer Order, an Officer's Certificate certifying that all conditions precedent
to the issuance of Notes contained herein have been fully complied with. Any
Issuer Order and Officer's Certificate delivered by the Issuer to the Trustee
pursuant to this Section 303(c) shall be substantially in the form annexed
hereto as Exhibit F. The Trustee may also request an Opinion of Counsel of the
Issuer in connection with such authentication of Notes. Upon receipt of any such
Issuer Order, the Trustee shall, in accordance with such Issuer Order,
authenticate the Notes in the aggregate principal amount at maturity of
$84,997,000. The aggregate principal amount of Notes outstanding at any time may
not exceed $84,997,000.
(d) Each Note shall be dated the date of its authentication.
(e) The Trustee may appoint an authenticating agent or agents
reasonably acceptable to the Issuer to authenticate Notes. Unless limited by
terms of such appointment, an authenticating agent may authenticate Notes
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whenever the Trustee may do so. Any authenticating agent has the same rights as
an agent to deal with the Issuer or an Affiliate of the Issuer.
(f) No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for in Exhibit
B, as applicable duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
(g) In case the Issuer shall have executed an indenture
supplemental hereto with the Trustee pursuant to Section 1001(a), any of the
Notes authenticated or delivered prior to the assumption of the Issuer's
obligations by any successor Person, may, from time to time, at the request of
the successor Person, be exchanged for other Notes executed in the name of the
successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance and of like tenor as the Notes
surrendered for such exchange and of like principal amount, and the Trustee,
upon Issuer Request of the successor Person, shall authenticate and deliver
Notes as specified in such request for the purpose of such exchange. If Notes
shall at any time be authenticated and delivered in any new name of a successor
Person pursuant to this Section 303 in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at the option of
the Holders but without expense to them, shall provide for the exchange of all
Notes at the time Outstanding for Notes authenticated and delivered in such new
name.
SECTION 304. Temporary Notes. (a) Pending the preparation of
definitive Notes, the Issuer may execute, and upon an Issuer Order, the Trustee
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
(b) If temporary Notes are issued, the Issuer will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Issuer designated for such purpose pursuant to Section 1102, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order, shall authenticate and deliver, in exchange therefor a like
principal amount of definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.
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SECTION 305. Registration, Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept at the Corporate Trust Office of the
Registrar a register which, subject to such reasonable regulations as the Issuer
may prescribe, shall provide for the registration of Notes and for the
registration of transfers and exchanges of Notes, and the Trustee is hereby
appointed "Registrar" for the purposes of registering Notes and transfers and
exchanges of Notes as herein provided. This register shall be sometimes referred
to herein as the "Security Register," and shall be in written form or any other
form capable of being converted into written form within a reasonable time. At
all reasonable times, the Security Register shall be open to inspection by the
Trustee.
(b) The Notes shall be transferable only upon the surrender of a
Note to the Issuer for registration of transfer. Subject to the provisions of
Section 307, upon surrender for registration of transfer of any Note at the
office or agency of the Issuer designated pursuant to Section 1102, the Issuer
shall execute, and the Trustee, upon receipt of an Issuer Order, shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denomination or
denominations of a like aggregate principal amount.
(c) At the option of the Holder thereof, Notes may be exchanged
for other Notes to be registered in the name of such Holder, of authorized
denominations and of like tenor, maturity and aggregate principal amount, upon
surrender of the Notes to be exchanged at any office or agency maintained for
such purpose. Whenever any Notes are so surrendered for exchange, the Issuer
shall execute, and the Trustee, upon receipt of an Issuer Order, shall
authenticate and make available for delivery, the Notes which the Holder making
the exchange is entitled to receive.
(d) All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
(e) Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Issuer or the Registrar)
be duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Registrar, duly executed by the Holder
thereof or his or her attorney duly authorized in writing.
(f) No service charge shall be made for any registration of
transfer or exchange or redemption of Notes; provided, that the Issuer may
require payment in certain circumstances of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges pursuant to
Section 304, 1006 or 1307 not involving any transfer.
(g) The Issuer shall not be required (i) to issue, register the
transfer of or exchange any Notes during a period beginning at the opening of
business 15 days before the selection of Notes to be redeemed under Section 1303
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and ending at the close of business on the day of such mailing of the relevant
notice of redemption or (ii) to register the transfer of or exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
SECTION 306. Book Entry Provisions for Global Notes. (a) Each
Global Note initially shall (i) be registered in the name of Cede & Co., as
nominee of DTC (such nominee being referred to herein as the "Global Note
Holder"), (ii) be deposited with, or on behalf of, DTC or with the Trustee, as
custodian for DTC and (iii) bear legends as set forth in Section 202.
(b) Members of, or participants in, DTC (collectively, the
"Participants" or the "DTC Participants") shall have no rights under this
Indenture with respect to any Global Note held on their behalf by DTC, or the
Trustee as its custodian, or under any Global Note, and DTC may be treated by
the Issuer, the Trustee and any agent of the Issuer or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent
of the Issuer or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by DTC or shall impair, as between DTC
and its Participants, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(c) Transfers of any Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to DTC, its successors or their
respective nominees. Interests of beneficial owners in a Global Note may be
transferred in accordance with the applicable rules and procedures of DTC and
the provisions of Section 307. In addition, U.S. Physical Notes or Regulation S
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the Rule 144A Global Notes or Regulation S Global
Notes, respectively, if (i) the Issuer notifies the Trustee in writing that DTC
is unwilling or unable to continue as depository for the Global Notes or DTC
ceases to be a "Clearing Agency" registered under the Exchange Act and a
successor depository is not appointed by the Issuer within ninety (90) days or
(ii) the Issuer, at its option, notifies the Trustee in writing that it elects
to have the Physical Notes so issued.
(d) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(e) In connection with the transfer of an entire Rule 144A Global
Note or Regulation S Global Note to beneficial owners pursuant to paragraph (c)
of this Section 306, the Rule 144A Global Note or Regulation S Global Note, as
the case may be, shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order, shall authenticate and deliver, to each beneficial owner
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identified by DTC in exchange for its beneficial interest in the Rule 144A
Global Note or Regulation S Global Note, as the case may be, an equal aggregate
principal amount of Physical Notes of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest
in the Rule 144A Global Note pursuant to subsection (c) of this Section 306
shall, unless such exchange is made on or after the Resale Restriction
Termination Date for such Note, bear the Private Placement Legend.
(g) The registered Global Note Holder may grant proxies and
otherwise authorize any person, including DTC's Participants and persons that
may hold interests through DTC's Participants, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
(h) Any beneficial owner of interests in a Global Note may receive
Physical Notes (which shall bear the Private Placement Legend if required by
Section 202) in accordance with the procedures of DTC. In connection with the
execution, authentication and delivery of such Physical Notes in exchange for
beneficial interests in a Global Note pursuant to this paragraph (h) or
paragraph (c) above, the Registrar shall reflect on its books and records the
date and a decrease in the principal amount of the applicable Global Note in an
amount equal to the principal amount of the beneficial interest in such Global
Note to be transferred, and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order, shall authenticate and deliver, one or more Physical
Notes of like tenor and having an equal aggregate principal amount.
SECTION 307. Special Transfer Provisions. Unless and until a Note
is sold under an effective Registration Statement, the following provisions
shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Note to any institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Note,
whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is on or after the Resale Restriction Termination Date
or (y) the proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit D.
(ii) If the proposed transferor is a DTC Participant holding a
beneficial interest in the Rule 144A Global Note, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) above and
(y) instructions given in accordance with DTC's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the Rule 144A Global
Note in an amount equal to the principal amount of the beneficial interest
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in the Rule 144A Global Note to be transferred, and the Issuer shall
execute, and the Trustee, upon receipt of an Issuer Order, shall
authenticate and deliver, one or more Physical Notes of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Physical Note or
an interest in the Rule 144A Global Note to a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (x) a U.S.
Physical Note, the Registrar shall register the transfer and the Issuer
shall execute, and the Trustee shall authenticate and deliver, one or more
U.S. Physical Notes if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Note stating, or has
otherwise advised the Issuer and the Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Note stating, or has otherwise advised the Issuer and the Registrar in
writing, that it is purchasing the Note for its own account or an account
with respect to which it exercises sole investment discretion and that it,
or the Person on whose behalf it is acting with respect to any such
account, is a QIB within the meaning of Rule 144A, is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Issuer as it has requested pursuant
to Rule 144A or has determined not to request such information and that it
is aware that the transferor is relying upon its foregoing representations
in order to claim the exemption from registration provided by Rule 144A or
(y) an interest in a Rule 144A Global Note, the transfer of such interest
may be effected only through the book-entry system maintained by DTC.
(ii) If the proposed transferee is a DTC Participant, and the
Notes to be transferred consist of U.S. Physical Notes, upon receipt by the
Registrar of instructions given in accordance with DTC's and the
Registrar's procedures therefor, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the Rule
144A Global Note in an amount equal to the principal amount of the U.S.
Physical Notes to be transferred, and the Trustee shall cancel the U.S.
Physical Notes so transferred.
(c) Transfers of Interests in the Regulation S Global Note or
Regulation S Physical Notes to U.S. Persons. The following provisions shall
apply with respect to any transfer of interests in the Regulation S Global Note
or Regulation S Physical Notes to U.S. Persons:
(i) prior to the removal of the Private Placement Legend for
the Regulation S Global Notes or the Regulation S Physical Notes pursuant
to Section 202, the Registrar shall refuse to register such transfer; and
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(ii) after such removal pursuant to Section 202, the Registrar
shall register the transfer of any such Note without requiring any
additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Note to a Non-U.S.
Person:
(i) Prior to July 13, 2004, the Registrar shall register any
proposed transfer of a Note to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit E from the proposed
transferor and the Issuer shall execute, and the Trustee shall, upon
receipt of an Issuer Order, authenticate and deliver, one or more Temporary
Regulation S Global Notes of like tenor and amount.
(ii) On and after July 13, 2004, the Registrar shall register
any proposed transfer to any Non-U.S. Person (x) if the Note to be
transferred is a Regulation S Physical Note, (y) if the Note to be
transferred is a U.S. Physical Note or an interest in the Rule 144A Global
Note, upon receipt of a certificate substantially in the form of Exhibit E
from the proposed transferor and, (z) in the case of either clause (x) or
(y), the Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order, shall authenticate and deliver, one or more Physical Notes of like
tenor and amount.
(iii) If the proposed transferor is a DTC Participant holding
a beneficial interest in the Rule 144A Global Note, upon receipt by the
Registrar of (x) the document, if any, required by paragraph (i) and (y)
instructions in accordance with DTC's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the date and
a decrease in the principal amount of the Rule 144A Global Note in an
amount equal to the principal amount of the beneficial interest in the Rule
144A Global Note to be transferred and the Issuer shall execute, and the
Trustee, upon receipt of an Issuer Order, shall authenticate and deliver,
one or more Regulation S Global Notes or Physical Notes of like tenor and
amount.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend unless the
Issuer has reasonable cause to believe that a Note is a Restricted Security and
delivers to the Trustee an Issuer Order, in which case the Trustee shall
authenticate and deliver a new Note bearing a Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless either (i) the circumstances contemplated by paragraph (a)(i)(x) of this
Section 307 exist or (ii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Issuer and the Registrar to the effect
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that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture and such Note.
(g) Retention of Records. The Registrar shall retain until such
time as no Notes remain Outstanding copies of all letters, notices and other
written communications received pursuant to Section 306 or this Section 307. The
Issuer shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(h) No Duty to Monitor. Neither the Trustee nor the Registrar
shall have an obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Notes. (a) If
any mutilated Note is surrendered to the Trustee or the Registrar, the Issuer
shall execute, and the Trustee, upon receipt of an Issuer Order and such
security or indemnity as may be required by the Trustee, Registrar and the
Issuer to save each of them and any agent of theirs harmless, shall authenticate
and deliver, in exchange therefor a new Note of like tenor and principal amount
and bearing a number not contemporaneously Outstanding, or, in case any such
mutilated Note has become or is about to become due and payable, the Issuer in
its discretion may, instead of issuing a new Note, pay such Note.
(b) If there shall be delivered to the Issuer and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any Note
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Issuer or the Trustee that such Note has been acquired by a bona fide
purchaser, the Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order, shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Note, a new Note of like tenor and principal amount and bearing a number
not contemporaneously Outstanding, or, in case any such destroyed, lost or
stolen Note has become or is about to become due and payable, the Issuer in its
discretion may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section 308, the
Issuer may require the payment of a sum sufficient to cover any tax or other
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governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(d) Every new Note issued pursuant to this Section 308 in lieu of
any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes, duly issued hereunder.
(e) The provisions of this Section 308 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 309. Payment on Notes; Rights Preserved. (a) Principal of
the Notes that is payable will be paid to the Person in whose name such Note is
registered at the close of business on the Maturity Date, the Redemption Date or
the date of acceleration (as provided in Section 702), as applicable, upon
presentation and surrender of such Note at the office or agency of the Issuer in
New York County, New York, maintained for such purpose or such other place as
may be designated for such purpose pursuant to this Indenture, provided, that,
upon written request from any Holder of Outstanding Notes in the aggregate
principal amount of $1,000,000, payments of principal of such Notes shall be
made by wire transfer to such Holder.
(b) Additional Interest (and interest on accrued and unpaid
Additional Interest) on the Notes which is payable, and that is paid or duly
provided for, on any Payment Date, Redemption Date or date of acceleration (as
provided in Section 702) will be paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date applicable to such Payment Date, Redemption Date or date of
acceleration at the office or agency of the Issuer in New York County, New York,
maintained for such purposes pursuant to Section 1107 or, at the option of the
Issuer, may be paid by check mailed to the address of the Person entitled
thereto pursuant to Section 310 as such address appears in the Security
Register; provided, that (i) upon written request from any Holder of Outstanding
Notes in the aggregate principal amount of $1,000,000, all payments with respect
to the Global Notes and Physical Notes the Holders of which have given wire
transfer instructions to the Trustee by the Regular Record Date shall be
required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof; and (ii) the final payment of
Additional Interest (and interest on accrued and unpaid Additional Interest)
with respect to each Note shall only be made upon presentation and surrender of
such Note at the office or agency of the Issuer in New York County, New York,
maintained for such purposes pursuant to Section 1107 or such other place as may
be designated pursuant to this Indenture.
(c) Subject to the foregoing provisions of this Section 309, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
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SECTION 310. Persons Deemed Owners. (a) Prior to the due
presentment of a Note for registration of transfer, the Issuer, the Trustee and
any agent of the Issuer or the Trustee may treat the Person in whose name such
Note is registered as the owner of such Note for the purpose of receiving
payment of principal of and, subject to Section 309, Additional Interest (and
interest on accrued and unpaid Additional Interest) with respect to such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and
none of the Issuer, the Trustee or any agent of the Issuer or the Trustee shall
be affected by notice to the contrary.
(b) None of the Issuer, the Trustee and any agent of the Issuer or
the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Note in global form or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
SECTION 311. Cancellation. All Notes surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by the Trustee. The Issuer at any time may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever and any Notes previously authenticated
hereunder which the Issuer has not issued and sold, and all Notes so delivered
shall be promptly canceled by the Trustee. If the Issuer shall so acquire any of
the Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section 311, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures and certification of their disposal delivered to the
Issuer unless by Issuer Order the Issuer shall direct that canceled Notes be
returned to it; provided, that such Issuer Order is timely and the Notes have
not been previously disposed of by the Trustee; and provided further, that the
Trustee shall not be required to destroy such canceled Notes.
SECTION 312. CUSIP and CINS Numbers. The Issuer in issuing the
Notes may use "CUSIP" and "CINS" numbers (if then generally in use), and, if so,
the Trustee shall use "CUSIP" or "CINS" numbers in notices of redemption or
exchange as a convenience to Holders; provided, that any such notice shall state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption or exchange,
that reliance may be placed only on the other identification numbers printed on
the Notes and that any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 313. Parity of Notes. All Notes issued and Outstanding
hereunder, regardless of the time or times of their issuance, rank on a parity
with each other Note and each Note shall be secured equally and ratably by this
Indenture and the Security Documents with each other Note, without preference,
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priority or distinction of any one thereof over any other by reason of
difference in time of issuance or otherwise, and each Note shall be entitled to
the same benefits and security in this Indenture and the Security Documents as
each other Note.
ARTICLE FOUR
APPLICATION OF PROCEEDS FROM SALE OF NOTES
SECTION 401. Application of Proceeds from Sale of Notes. The
Issuer covenants to use the net proceeds from the issuance and sale of the Notes
(a) to purchase the member interests in PCF as set forth in the Member Interest
Purchase Agreement, (b) to pay for all costs, fees and expenses incurred in
connection with this offering, including any fees payable to Morgan Stanley &
Co. Incorporated for structuring the offering of the Notes and acting as initial
purchaser of the Notes in the offering and (c) to pay any remaining amounts to
its sole Member, CES.
ARTICLE FIVE
ACCOUNTS
SECTION 501. Establishment of Accounts. (a) Wilmington Trust
Company, a Delaware banking corporation, is hereby appointed as the "Accounts
Agent" and, in such capacity, will act, in accordance with Article 8 of the UCC,
as the "securities intermediary" with respect to any "securities accounts" and
as a "bank" with respect to any "deposit accounts" (as each such term is defined
in the UCC) in which a security interest may be granted under the UCC pursuant
hereto and pursuant to the Assignment and Security Agreement (together with its
successors and permitted assigns in each such capacity, the "Accounts Agent").
Pursuant hereto and to the Assignment and Security Agreement, the Accounts Agent
shall establish and maintain the following non-interest bearing accounts
(collectively, the "Accounts") in the name of the Trustee for the benefit of the
Trustee and the Holders as provided in this Indenture: (i) the Collections
Account, (ii) the Redemption Account and (iii) the Working Capital Account (each
as defined below). The Accounts Agent will invest funds in each such Account in
accordance with Section 504 and act with respect to all "financial assets" (as
such term is defined in Article 8 of the UCC) credited to the Accounts as a
"securities intermediary" (as such term is defined in Article 8 of the UCC). The
Accounts Agent shall hold and safeguard the Accounts during the term of this
Indenture and the Assignment and Security Agreement and shall treat the
"security entitlements" (as such term is defined in Article 8 of the UCC) in the
Accounts as security entitlements pledged by the Issuer to the Trustee for the
benefit of the Trustee and the Holders to be held in accordance with the
provisions of this Indenture and the Assignment and Security Agreement. Neither
the Issuer nor any Affiliate of the Issuer shall have any rights against the
Accounts Agent hereunder (other than rights which may arise as a result of the
Accounts Agent's gross negligence or willful misconduct as determined by a court
of competent jurisdiction in a final, non-appealable judgment), as a third-party
beneficiary or otherwise, including, any right to direct the Accounts Agent to
distribute or allocate any funds in the Accounts (except as expressly provided
herein or as provided in the Assignment and Security Agreement). The Accounts
Agent shall comply with Part 5 of Article 8 of the UCC.
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(b) All monies and Permitted Investments credited to the Accounts
from time to time shall constitute part of the Collateral and shall be
collateral security for the payment and performance by the Issuer of all its
obligations under the Financing Documents and, subject to the terms of this
Indenture, shall at all times be subject to the sole dominion and control of the
Trustee for the purposes and on the terms set forth in this Indenture and the
other Financing Documents. Until payment and performance of all the obligations
of the Issuer under the Financing Documents in accordance with the provisions
hereof, the Issuer shall have no right to the funds credited to the Accounts,
except as provided in this Article Five. If a Notice of an Actionable Event
shall have been given and be outstanding, the Trustee shall apply all or any of
the monies in the Accounts in accordance with the express terms of the Indenture
and in the order of priority set forth in Section 711.
SECTION 502. Collections Account. (a) On or prior to the Closing
Date, the Accounts Agent shall establish and maintain a segregated trust account
no. 066532-001, in the name of the Trustee in its trust capacity and entitled
"Collections Account" (the "Collections Account"). Thereafter, without
limitation of any other amounts required or permitted under this Indenture to be
deposited in the Collections Account (including any profit or interest earned on
the investment of moneys held in any Account pursuant to Section 504), all
Collections shall be deposited with the Accounts Agent for the benefit of the
Trustee in the Collections Account. The Issuer shall instruct each Person from
whom it receives or is entitled to receive Collections to pay such Collections
(identifying them as such in writing to the Trustee) directly to the Trustee for
deposit in the Collections Account, and the Trustee shall be entitled to receive
directly all Collections from the Persons owing the same. In the event that any
Collections are remitted directly to, or are otherwise received by, the Issuer,
all such Collections shall be held by the Issuer in trust for the Trustee, and
the Issuer shall promptly remit such Collections in the form received (with any
necessary endorsement) to the Trustee for deposit in the Collections Account.
(b) Unless a Notice of an Actionable Event shall have been given
in writing to the Trustee and be outstanding, in which case the provisions of
Section 711 shall be applicable, the Trustee shall apply amounts in the
Collections Account on the dates specified below and in the following order of
priority for payment to the appropriate Person, but in each case only to the
extent that all current and past due amounts ranking prior thereto have been
paid in full (if a date is specified and that date is not a Business Day, the
payment will be made on the next Business Day):
(i) FIRST, on the fifth day of August of each year, beginning
on August 5, 2005, to pay to the Trustee the amount of Trustee Fees due and
payable at such time in connection with the Notes;
(ii) SECOND, on the fifth day of each month, to pay to the
payee thereof all governmental fees and other expenses (including legal
fees and the expenses of the independent members of the Management
Committee, the Administrative Agent, and the Trustee, but excluding the
annual fees of any of the foregoing) required to be paid by the Issuer to
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third-parties in order for the Issuer to remain in compliance with its
obligations under this Indenture (as specified in an Officer's Certificate
of the Issuer delivered to the Trustee at least three Business Days prior
to the fifth day of each month);
(iii) THIRD, on the fifth day of August of each year
(beginning on August 5, 2005), to pay in advance to the Administrative
Agent an amount equal to the annual fees payable to the Administrative
Agent under the Administrative Services Agreement, to pay to our
Independent Managers an amount equal to the annual fees payable to the
Independent Managers under the Lord Engagement Letter and premiums, fees or
other charges for insurance (all as specified in an Officer's Certificate
of the Issuer delivered to the Trustee at least three Business Days prior
to the fifth day of August of each year);
(iv) FOURTH, on each Payment Date, to pay, on a pro rata basis
to the Holders, an amount equal to any accrued and unpaid Additional
Interest that was scheduled to be paid on a prior Payment Date, plus any
accrued and unpaid interest on such unpaid Additional Interest as provided
in Section 301(c);
(v) FIFTH, on each Payment Date, to pay, on a pro rata basis
to the Holders, an amount equal to the Additional Interest due and payable
at that time on the Notes;
(vi) SIXTH, on each Payment Date, provided, that (as specified
in an Officer's Certificate of the Issuer delivered to the Trustee no later
than 10:00 a.m. (EDT) on such Payment Date) (A) no Event of Default or
Default has occurred and is continuing on such Payment Date or would occur
as a result of the Trustee's application of funds according to this Section
502(b)(vi), (B) the Trustee's application of funds according to this
Section 502(b)(vi) complies with all legal requirements and (C) there has
been no optional redemption of the PCF Notes in full, at the Member's
election (as specified in the Officer's Certificate), to the Member, to PCF
or to the Working Capital Account. Notwithstanding the foregoing, if there
has been an optional redemption of the PCF Notes in full (as specified in
the Officer's Certificate) any amounts remaining in the Collections Account
following the application of clauses (i) through (v) of this Section 502(b)
shall be transferred to the Redemption Account.
SECTION 503. Redemption Account and Working Capital Account. (a)
On or prior to the Closing Date, the Accounts Agent shall establish and maintain
a segregated trust account no. 066532-002, in the name of the Trustee in its
trust capacity and entitled "Redemption Account" (the "Redemption Account"). The
Redemption Account shall be funded with all amounts distributed to the Issuer
which constitute PCF Reserve Proceeds and any amounts transferred from the
Collections Account in accordance with clause (vi) of Section 502(b). Amounts on
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deposit in the Redemption Account shall be applied in accordance with the
provisions of Article 13 hereof.
(b) On or prior to the Closing Date, the Accounts Agent shall
establish and maintain a segregated trust account no. 066532-003, in the name of
the Trustee in its trust capacity and entitled "Working Capital Account" (the
"Working Capital Account"). The Working Capital Account shall initially be
funded with any amounts remaining after application of the proceeds from the
sale of the Notes and shall thereafter be funded with amounts transferred at the
Member's election from the Collections Account in accordance with the provisions
of Section 502(b)(vi). Subject to Section 3(c)(v) of the Assignment and Security
Agreement, any amounts held in the Working Capital Account may be used by the
Issuer to purchase the member interests of PCF on the Closing Date or pursuant
to an Issuer Request to the Trustee at least three Business Days prior to the
requested fund transfer date, for reasonable working capital, including for
distribution to the Member, contribution to PCF or transfer to the Collections
Account. So long as no Event of Default has occurred and is continuing, the
Trustee shall not issue instructions or orders that are contrary to those issued
by the Issuer pursuant to an Issuer Request with respect to the Working Capital
Account and any funds held therein.
SECTION 504. Statements; Investment of Funds. On or before the
tenth (10th) Business Day of each calendar month the Trustee shall provide the
Issuer with a written statement of (a) the balances in each of the Accounts at
the end of the immediately preceding Payment Month, (b) the amounts deposited
into each of the Accounts for the immediately preceding Payment Month (and the
sources of such amounts) and (c) the application and payees of amounts withdrawn
from each of the Accounts for the immediately preceding Payment Month. Funds on
deposit in the Accounts shall be invested by the Trustee, as specified in an
Issuer Order, in Permitted Investments. The Issuer shall deliver to the Trustee
on the date hereof an Issuer Order specifying its initial investment
instructions which shall remain in effect until changed by a subsequent Issuer
Order given not less than five (5) Business Days before the effective date of
such change. All such Permitted Investments shall be maintained in the name of
the Trustee and pledged to the Trustee to be held by it as part of the
Collateral hereunder, and the Trustee shall be authorized to endorse any of such
Permitted Investments in a manner satisfactory to it, on behalf of the Issuer.
The Trustee and, as applicable, the Accounts Agent may rely and shall be fully
protected, as provided in Section 807, in their reliance on an Issuer Order that
complies with the provisions of this Section 504, and shall be indemnified as
provided in Section 806. All earnings on Permitted Investments in the
Collections Account and the Redemption Account shall be credited to the
Collections Account upon receipt thereof by the Trustee. All losses shall be
charged to the applicable Account. Whenever the Trustee or the Accounts Agent is
required or permitted to make any payment or transfer under this Indenture, the
Trustee or the Accounts Agent, as the case may be, shall have the right, and is
hereby irrevocably authorized, to sell or otherwise liquidate any Permitted
Investments to the extent necessary to make such payment or transfer and shall
have no liability for and shall be fully protected from and against any losses
incurred in connection with such sale or liquidation. The Trustee or the
Accounts Agent shall have no obligation to invest and reinvest any cash held in
the Accounts in the absence of timely and specific written investment direction
from the Issuer. Other than by reason of each of their own negligent failure to
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act or each of their own willful misconduct, in no event shall the Trustee or
the Accounts Agent, as the case may be, be liable for the selection of
investments or for investment losses incurred thereon. Other than by reason of
each of their own negligent failure to act or each of their own willful
misconduct, the Trustee or the Accounts Agent, as the case may be, shall have no
liability in respect of losses incurred as a result of the liquidation of any
investment prior to its stated maturity or the failure of the Issuer to provide
timely written investment direction.
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Indenture. (a) This
Indenture shall, upon receipt by the Trustee of an Issuer Request, cease to be
of further effect with respect to the Notes (except as to any surviving rights
of registration of transfer or exchange of Notes herein expressly provided for
and except as otherwise specifically provided in this Indenture) and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:
(i) either:
(A) all Notes theretofore authenticated and delivered
(other than (1) Notes which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 308
and (2) Notes for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Issuer and thereafter repaid
to the Issuer, as provided in Section 1402) have been delivered to
the Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee
for cancellation
(1) have become due and payable, or
(2) will become due and payable at the Maturity
Date within one year,
and the Issuer, in the case of (i)(B)(1) or (2) above, has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for cancellation, for
principal, Additional Interest, accrued and unpaid Additional Interest (and
interest on accrued and unpaid Additional Interest) and any other amount, in
each case to become due through the Maturity Date or Redemption Date, as the
case may be;
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(ii) the Issuer has paid or caused to be paid all other sums
then due and payable hereunder by the Issuer with respect to such Notes;
and
(iii) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to such Notes have been complied with.
(b) Notwithstanding the satisfaction and discharge of this
Indenture pursuant to this Article Six, the obligations of the Issuer to the
Trustee or any agent of the Trustee appointed in accordance with the provisions
hereof and the Paying Agent under Section 806 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (i) of this
Section 601, the obligations of the Trustee under Section 801 shall survive.
SECTION 602. Application of Trust Money. All money deposited with
the Trustee pursuant to Section 601 shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, Additional Interest and accrued and unpaid
Additional Interest (and interest on accrued and unpaid Additional Interest) for
whose payment such money has been deposited with the Trustee; provided, that
such money need not be segregated from other funds except to the extent required
in this Indenture or by law.
ARTICLE SEVEN
EVENTS OF DEFAULT AND REMEDIES
SECTION 701. Events of Default. "Event of Default," wherever used
herein, means the occurrence of any one of the following events with respect to
any Notes (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law (including, but not
limited to, force majeure and any other impossibility of performance) or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) the Issuer shall default in the payment of any principal with
respect to any Note when the same shall become due and payable; or
(b) the Issuer shall default in the payment of Additional Interest
(or interest on accrued and unpaid Additional Interest) required to be paid with
respect to any of the Notes at the Maturity Date, the Redemption Date or date of
acceleration (as provided in Section 702); or
(c) the Issuer shall default in the payment of any other fees,
costs, charges or sums due hereunder or under the other Financing Documents when
the same shall become due and payable (other than Additional Interest and
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interest on accrued and unpaid additional interest accrued in accordance with
Section 301(c)), and such failure continues for a period of five days; or
(d) any "event of default" (as defined in the PCF Indenture)
occurs under the PCF Indenture; or
(e) the Issuer shall fail to observe or perform any of the
covenants set forth in Section 1108(a) or Article 12 of this Indenture; or
(f) the Issuer shall fail to observe or perform any of the
covenants set forth in Section 1101 or Section 1102(a) of this Indenture, and
such failure shall continue unremedied for 5 days after the Issuer becomes aware
of such failure or receives written notice thereof from any Holder; or
(g) the Issuer shall fail to observe or perform any of the
covenants set forth herein or in any other Financing Document not otherwise
specifically provided for in this Section 701, and such failure shall continue
unremedied for 30 days after the Issuer becomes aware thereof or receives
written notice thereof from the Trustee or any Holder; or
(h) any Financing Document fails, except as the result of the acts
or omissions of the Trustee or the other Secured Parties, to provide to the
Trustee, for the benefit of the Secured Parties, the Liens, first priority
security interest, rights, titles, interest, remedies permitted by law, powers
or privileges intended to be created thereby or (except in accordance with its
terms) ceases to be in full force and effect, or the first priority or validity
thereof or the applicability thereof to the Notes or any other obligations
purported to be secured or guaranteed thereby or any part thereof are
disaffirmed by or on behalf of the Issuer; or
(i) the Issuer or PCF shall become subject to a Bankruptcy Event;
or
(j) at any time after the execution and delivery thereof, any
material provision of any of the Material Agreements or Financing Documents
ceases to be in full force and effect (other than by reason of the satisfaction
in full of the obligations thereof or any other termination in accordance
herewith or with the terms of the applicable Material Agreement or Financing
Document) or any of the Material Agreements or Financing Documents shall be
declared null and void by a Governmental Agency of competent jurisdiction; or
(k) any representation or warranty made or deemed made by the
Issuer in any Financing Document, or in any separate statement, certificate or
document delivered to the Trustee or any Holder under this Indenture or under
any other Financing Document to which such person is a party, is untrue or
misleading in any material respect as of the time made; or
(l) a judgment is or judgments are entered against the Issuer for
the payment of money in excess of $100,000 in the aggregate, other than (i) a
judgment which is fully covered by insurance or discharged within the later of
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60 days after its entry and the day before the next Payment Date, or (b) a
judgment, the execution of which is effectively stayed within 60 days after its
entry but only for 60 days after the later of the date on which such stay is
terminated or expires and the day before the next Payment Date; or
(m) PCF permits the PCF Indenture to be amended, modified or
supplemented or PCF enters into any new contract, lease, agreement or instrument
unless, in either case, doing so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 702. Acceleration of Maturity: Rescission and Annulment.
(a) If an Event of Default (other than a Bankruptcy Event of Default) occurs and
is continuing, then and in every such case the Trustee, upon the direction of
the Holders of no less than twenty-five percent (25%) principal amount of the
Outstanding Notes (for an Event of Default specified in clauses (a) or (b) of
Section 701) or the Majority Holders (for any other Event of Default other than
a Bankruptcy Event of Default), shall declare the then applicable principal
amount of all the Notes as of such date (as provided in Section 301(b)) to be
due and payable immediately, by a notice in writing to the Issuer (and to the
Trustee, if given by the Holders), and upon receipt of such notes the then
applicable principal amount of the Notes (as provided in Section 301(b)) and any
accrued and unpaid Additional Interest (and interest on accrued and unpaid
Additional Interest), and all other unpaid fees, costs, charges and other
amounts due under the Financing Documents, shall become immediately due and
payable.
(b) If a Bankruptcy Event of Default occurs, the then applicable
principal amount of the Notes (as provided for in Section 301(b)) and any
accrued and unpaid Additional Interest (and interest on accrued and unpaid
Additional Interest), and all other amounts payable under the Outstanding Notes,
shall become immediately due and payable.
(c) In addition, if one or more of the Events of Default (other
than a Bankruptcy Event of Default) shall have occurred and be continuing, the
Trustee may accelerate the maturity of the Notes as provided in clause (a) of
this Section 702 notwithstanding the absence of direction from the Holders if in
the judgment of the Trustee such action is necessary to protect the interests of
the Holders.
(d) At any time after the principal amount of the Notes shall have
become due and payable upon a declared acceleration as provided in this Section
702, and before any judgment or decree for the payment of the money so due, or
any portion thereof, shall be entered, the Majority Holders, by written notice
to the Issuer and the Trustee, may rescind and annul such declaration and its
consequences if all Events of Default giving rise to such acceleration have been
cured or waived.
SECTION 703. Remedies upon an Event of Default. If any Event of
Default shall have occurred and be continuing and acceleration shall have
occurred pursuant to Section 702, the Trustee may, subject in each case to the
provisions of Section 807, exercise any or all of the rights and remedies
granted to it in any Security Document. Without limiting the generality of the
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foregoing, the Issuer expressly agrees that in any such event the Trustee,
without demand of performance or any other demand, advertisement or notice of
any kind (except the notice specified below of the time and place of public or
private sale) to or upon the Issuer or any other Person (all and each of which
demands, advertisements and/or notices are hereby expressly waived to the extent
permitted by applicable law), may, and at the written instruction of the
Majority Holders shall, subject to the provisions of the Material Agreements and
to the provisions of any law or regulation having the force of law: (a) collect,
receive and appropriate any or all of the Collateral and exercise any right,
remedy, power or privilege of the Issuer in respect of the Collateral; (b) set
off against all amounts due and payable hereunder with funds held in the
Accounts; (c) proceed by suit at law or in equity to seek specific performance
of any obligation of the Issuer; (d) take possession of the Collateral forthwith
or any time thereafter, in which case the Issuer shall marshal and deliver the
Collateral to the Trustee or its designee at such time or times and such place
or places as the Trustee may reasonably specify; (e) subject to the provisions
of Section 704, forthwith sell, lease, assign, give an option or options to
purchase or otherwise dispose of and deliver all or any part of the Collateral
(or contract to do so) at one or more public or private sales, at any exchange,
broker's board or at any of the Trustee's offices or elsewhere at such prices as
it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk; or (f) proceed by suit at law or in equity to
foreclose upon, or appoint a receiver with respect to, the Collateral or
exercise any other right or remedy (including specific performance of the
Issuer's obligations under the Financing Documents) available under applicable
law. The Trustee may sell any or all of the Collateral as provided above at any
private or public sale, it being hereby agreed that twenty (20) Business Days'
notice by the Trustee to the Issuer shall be deemed to be reasonable notice of
any such sale. The Issuer hereby waives, to the extent permitted by applicable
law, any claims against the Trustee arising by reason of the fact that the price
at which Collateral may have been sold at any such private sale was less than
the price which might have been obtained at a public sale.
SECTION 704. Certain Sales of Collateral. In connection with the
exercise of any remedies under Section 703(e) the Trustee will not sell the
Collateral or any portion thereof without the written consent of all of the
Holders of the Notes Outstanding unless the proceeds of such sale will be
sufficient to satisfy all of the outstanding principal amount (as reflected by
the then applicable Accreted Value of the Notes), accrued and unpaid Additional
Interest (and interest on accrued and unpaid Additional Interest), and all other
amounts due and payable under the Notes.
SECTION 705. No Marshaling. To the extent that it lawfully may,
the Issuer hereby agrees that it will not at any time plead, claim or take the
benefit of any appraisement, valuation, stay, extension, moratorium or
redemption law now or hereafter in force and any requirement of marshaling in
the event of foreclosure of the security interests hereby created, the effect of
which might be to prevent or delay the enforcement of any Security Document or
the absolute sale of the whole or any part of the Collateral or the possession
thereof by the Trustee or any purchaser at any sale by the Trustee. The Issuer,
for itself and all who may claim under the Issuer, as far as the Issuer may
lawfully do so, hereby waives and releases the benefit of all such laws. Except
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as otherwise expressly provided in this Indenture, to the extent permitted by
applicable law, the Issuer hereby waives presentment, demand, protest or any
notice of any kind in connection with, and not expressly set forth in, any
Security Document or herein.
SECTION 706. Trustee May Recover Unpaid Indebtedness After Sale of
Collateral. Subject to Section 114, in the case of a sale of the Collateral and
of the application of the proceeds of such sale to the payment of the
indebtedness secured by this Indenture and the Security Documents, the Trustee
in its own name, and as trustee of an express trust, shall be entitled and
empowered, by any appropriate means, legal, equitable or otherwise to enforce
payment of, and to receive all amounts then remaining due and unpaid upon, all
or any of the Notes, for the benefit of the Holders thereof, and upon any other
portion of the indebtedness remaining unpaid, with interest at the rates
specified in Section 301(b) or Section 301(c), as applicable.
SECTION 707. Recovery of Judgment Does Not Affect Rights. No
recovery of any such judgment or final decree by the Trustee and no levy of any
execution under any such judgment upon any of the Collateral, or upon any other
property, shall in any manner or to any extent affect any rights, powers or
remedies of the Trustee, or any liens, rights, powers or remedies of the
Holders, but all such liens, rights, powers or remedies shall continue
unimpaired as before.
SECTION 708. Collection of Indebtedness and Suits for Enforcement
by Trustee. (a) The Issuer covenants that if:
(i) default is made in the payment of any accrued and unpaid
Additional Interest (and interest on accrued and unpaid Additional
Interest) on any Note at the Maturity Date, at the Redemption Date or upon
an acceleration pursuant to Section 702, as the case may be or
(ii) default is made in the payment of the principal of any
Note when such becomes due and payable,
the Issuer will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Notes, the whole amount then due and payable on such
Notes for principal (as reflected by the then Accreted Value of the Notes) and
Additional Interest, and interest on any overdue principal and upon any accrued
and unpaid Additional Interest, at the applicable rate specified in Section
301(b) or Section 301(c), as applicable, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
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(b) If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, at the
direction of the Holders as set forth herein, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same against the
Issuer or any other obligor upon the Notes and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Issuer or any other obligor upon the Notes, wherever situated.
(c) If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Notes by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 709. Trustee May File Proofs of Claim. (a) In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Notes or the
Property of the Issuer or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the 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 Issuer for the payment of
overdue principal, accrued and unpaid Additional Interest or interest on accrued
and unpaid Additional Interest shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal and accrued and unpaid Additional Interest (and interest on
accrued and unpaid Additional Interest) owing and unpaid in respect of the
Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 806.
(b) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
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Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 710. Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders.
SECTION 711. Application of Money Collected. Any money collected
by the Trustee pursuant to this Article Seven or the Security Documents shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, interest on
overdue principal, or Additional Interest (and interest on accrued and unpaid
Additional Interest), upon presentation of the Notes and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
(a) First, to the payment of all amounts due to the Trustee and
each predecessor Trustee, if any, under Section 806;
(b) Second, to the payment of the amounts then due and unpaid for
principal of and Additional Interest (and interest on overdue principal and
accrued and unpaid Additional Interest) on the Notes in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts then due and payable on such
Notes for principal and Additional Interest and interest thereon, respectively;
(c) Third, to the payment of all amounts due and payable to the
Administrative Agent under the Administrative Services Agreement, as set forth
in an Officer's Certificate from the Issuer, or as determined by a court of
competent jurisdiction; and
(d) Fourth, to the Issuer or to whoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
SECTION 712. Limitation on Suits. No Holder of any Note shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default, with respect to the Notes;
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(b) the Majority Holders of the Outstanding Notes shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for sixty (60) days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Majority Holders of the
Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all
Holders.
SECTION 713. Unconditional Right of Holders to Receive Principal
and Additional Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Fourteen), of the principal and Additional Interest on such Note and
(subject to Section 301) any interest on accrued and unpaid Additional Interest,
on the Maturity Date expressed in such Note (or, in the case of redemption, on
the Redemption Date), including any interest accrued during any grace period
provided in Section 701, and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 714. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Issuer, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 715. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in clause (e) of Section 308, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
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extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 716. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article Seven or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 717. Control by Holders. (a) The Majority Holders shall
have the right to direct in writing the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, provided, that such Majority Holders have
provided the Trustee with indemnity acceptable to the Trustee against the costs,
expenses (including reasonable attorneys' fees and expenses) and liabilities to
be incurred in following such direction and that direction shall not be in
conflict with any law and the provisions of this Indenture and provided,
further, that (subject to the provisions of Section 801) the Trustee shall have
the right to decline to follow any such direction if such directions are unclear
or inconsistent with any other directives given to the Trustee or if the
Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith by a
Responsible Officer of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forbearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders so affected not joining in the giving of said direction, it
being understood that (subject to Section 801) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders.
(b) Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by the Majority
Holders.
SECTION 718. Waiver of Past Defaults. (a) The Majority Holders of
the Outstanding Notes affected may on behalf of the Holders of all the Notes
waive any past default, except a default in the payment of the principal of or
Additional Interest (and interest on overdue principal and on accrued and unpaid
Additional Interest) with respect to any Note or in respect of a covenant or
provision hereof that cannot be modified or amended without the unanimous
affirmative vote of all Holders.
(b) Upon any such waiver, any such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture and the Trustee, Issuer and the Holders, as
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the case may be, shall be restored respectively to their former positions and
rights hereunder; provided, that no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
SECTION 719. Waiver of Force Majeure and Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any force majeure, impossibility of performance and any
stay or extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture, and the
Issuer (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such force majeure, impossibility or law and
covenants that the Issuer will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted or such force majeure or
impossibility grounds have occurred.
SECTION 720. Trustee to Give Notice of Default, but May Withhold
in Certain Circumstances. Within forty-five (45) days after a Responsible
Officer assigned to the Corporate Trust Office of the Trustee obtains actual
knowledge of the occurrence of any Default hereunder, the Trustee shall transmit
by mail to all Holders as their names shall appear on the Security Register, in
the manner and to the extent provided in Trust Indenture Act Section 313(c),
notice of such Default hereunder, unless such Default shall have been cured or
waived; provided, that except in the case of a Default in the payment of the
principal of or Additional Interest (and interest on accrued and unpaid
Additional Interest) with respect to any Note, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders.
SECTION 721. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs (including reasonable attorneys' fees
and expenses) against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act; provided, that the provisions of this
Section 721 shall not apply to any suit instituted by the Trustee, or the Issuer
to any suit instituted by any Holder or group of Holders, holding in the
aggregate more than ten percent (10%) in Principal Amount at Maturity of the
Outstanding Notes, or any suit instituted by any Holder for the enforcement of
the payment of the principal of or Additional Interest (and interest on overdue
principal and on accrued and unpaid Additional Interest) with respect to any
Note on or after the respective due dates expressed in such Note (or, in the
case of redemption, on or after the Redemption Date).
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ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. (a) The Trustee, prior to the occurrence of an Event
of Default and after the curing or waiving of all Events of Default that may
have occurred, shall undertake to perform such duties and only such duties as
are specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived) the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) during the continuance of an Event of Default:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any statements, certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
provided, that in the case of any such statements, certificates or
opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be conclusively determined by a court of competent
jurisdiction that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders pursuant to Section 717 relating to the time,
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method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
(c) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or indemnity satisfactory to it
against such liability is not assured to it. Notwithstanding anything to the
contrary contained herein, in no event shall the Trustee be liable under this
Indenture or any of the other Financing Documents to which it is a party for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits).
SECTION 802. Certain Rights of Trustee. Subject to the provisions
of Section 801:
(a) the Trustee and, as applicable, the Accounts Agent, may
conclusively rely and shall be fully protected in acting or refraining from
acting in reliance upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's Certificate,
Issuer Request or Issuer Order (unless other evidence in respect thereof be
herein specifically prescribed), and any Management Committee's Consent may be
sufficiently evidenced to the Trustee by a copy thereof certified by the
secretary or a member of the Issuer;
(c) the Trustee may consult with counsel of its selection and any
advice of counsel or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder or under any Security Document in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture or under any other Financing
Document at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, notice, security or other paper or document unless
requested in writing so to do by the Majority Holders; provided, that if the
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payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
indemnity satisfactory to it against such expenses or liabilities as a condition
to proceeding; the reasonable expenses of every such investigation shall be paid
by the Issuer or, if paid by the Trustee, any predecessor trustee or the Holders
of any Outstanding Notes, shall be repaid by the Issuer upon demand;
(f) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder or under any other Financing Document either
directly or by or through agents or attorneys not regularly in its employ and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(g) neither the Trustee nor the Accounts Agent shall be liable for
any action taken, suffered or omitted by either of them in good faith and
believed by the Trustee or the Accounts Agent, as the case may be, to be
authorized or within the discretion or rights or powers conferred upon the
Trustee or the Accounts Agent, as the case may be, by this Indenture;
(h) except during the continuance of an Event of Default, the
Trustee need perform only those duties as are specifically set forth in this
Indenture;
(i) the Trustee is hereby authorized and directed to enter into
the Security Documents;
(j) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture; and
(k) the rights, privileges, protections, immunities and benefits
given to the Trustee, including its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other Person employed to act hereunder and
under the Security Documents.
SECTION 803. Trustee Not Responsible for Recitals or Issuance of
Notes. Other than as specifically provided in the Trustee recitals of this
Indenture; the recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of any disclosure document or offering materials or of the Notes.
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Neither the Trustee nor its agents appointed in accordance with the provisions
hereof shall be accountable for the use or application by the Issuer of the
Notes or the proceeds thereof.
SECTION 804. May Hold Notes. The Trustee, any Paying Agent, the
Registrar or any other agent of the Issuer or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject to
Trust Indenture Act Sections 310(b) and 311, may otherwise deal with the Issuer
with the same rights it would have if it were not the Trustee, any Paying Agent,
the Registrar or any other agent of the Issuer or such agent and, subject to
Sections 809 and 813, if operative, may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee, any Paying Agent, the Registrar
or any other agent of the Issuer.
SECTION 805. Money Held In Trust. All moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any agent of
the Issuer shall be under any liability for interest on any moneys received by
it hereunder except as otherwise agreed with the Issuer.
SECTION 806. Compensation and Indemnification of Trustee, Accounts
Agent, Paying Agent and Registrar and Its Prior Claim. (a) The Issuer covenants
and agrees to pay to the Trustee, the Accounts Agent and to each Paying Agent
and Registrar, and the Trustee, the Accounts Agent and each Paying Agent and
Registrar shall be entitled to, such compensation as set forth in any fee
agreement between the Issuer and the Trustee entered into in connection with the
execution and delivery of this Indenture by the parties hereto or in connection
with the issuance of the Notes (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee, the Accounts Agent
and each Paying Agent and Registrar and their respective predecessors upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expenses, disbursement or advance as may arise
from its negligence or bad faith. As security for such payment and for all of
the other obligations of the Issuer set forth in this Section 806 (and any fees
referred to in Section 816), the Trustee shall have a security interest and Lien
prior to the Notes upon all Collateral. The provisions of this Section 806 shall
survive the resignation or removal of the Trustee and the termination of the
other provisions of this Indenture.
(b) The Issuer also covenants to indemnify the Trustee, the
Accounts Agent and each Paying Agent and Registrar and their respective
predecessors, officers, directors, employees, representatives and agents for,
and to hold it harmless against, any and all loss, liability, damage, claim or
expense, including taxes (other than taxes based on the income of the Trustee,
the Accounts Agent and each Paying Agent and Registrar and their respective
predecessors, officers, directors, employees, representatives and agents)
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incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance, administration or enforcement of this Indenture
and under the other Financing Documents or the trusts hereunder and its duties
hereunder and the other Financing Documents, including any liability which the
Trustee, the Accounts Agent or any Paying Agent or Registrar may incur as a
result of failure to withhold, pay or report any tax, assessment or other
governmental charge and the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The obligations of the
Issuer under this Section 806(b) to compensate and indemnify the Trustee, the
Accounts Agent and each Paying Agent and Registrar and their respective
predecessors and to pay or reimburse the Trustee, the Accounts Agent and each
Paying Agent and Registrar and their respective predecessors for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the termination, satisfaction and discharge of this Indenture.
References herein to the "Trustee" shall be deemed to also refer to the Trustee
acting in its capacity as Accounts Agent, Paying Agent, Registrar or in any
other capacity as contemplated herein or in any Financing Document.
(c) Where the Trustee incurs expenses or renders services in
connection with a Bankruptcy Event of Default, such expenses (including
reasonable attorneys' fees and expenses) and the compensation for the services
are intended to constitute expenses of administration under applicable federal
or state bankruptcy, insolvency or other law.
SECTION 807. Right of Trustee to Rely on Officer's Certificate,
Etc. Subject to Sections 801 and 802, whenever in the administration of the
trusts of this Indenture the Trustee, or in the carrying out of its duties under
Article Five, the Accounts Agent, shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of bad faith on the part of
the Trustee or the Accounts Agent, as the case may be, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to the
Trustee or the Accounts Agent, as the case may be, and such certificate, in the
absence of bad faith on the part of the Trustee or the Accounts Agent, as the
case may be, shall be full warranty to the Trustee or the Accounts Agent, as the
case may be, for any action taken, suffered or omitted by the Trustee or the
Accounts Agent, as the case may be, under the provisions of this Indenture upon
the faith thereof.
SECTION 808. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be eligible to act as Trustee
under Trust Indenture Act Section 310(a)(1) and (2) and which shall have a
combined capital and surplus of at least one hundred fifty million Dollars
($150,000,000). If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section 808, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Trustee shall comply
with the provisions of the Trust Indenture Act Section 310(b). If at any time
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the Trustee shall cease to be eligible in accordance with the provisions of this
Section 808, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article Eight.
SECTION 809. Qualification of Trustee; Conflicting Interests. If
the Trustee has or shall acquire any conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall, within 90 days after ascertaining
that it has a conflicting interest and if the Event of Default to which such
conflicting interest relates has not been cured or duly waived before the end of
such 90 day period, either eliminate such conflicting interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 810. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee may at anytime resign by giving written notice of
resignation to the Issuer and by mailing written notice thereof by first-class
mail, postage prepaid, to all Holders at their last addresses as they shall
appear on the Security Register specifying the day upon which the resignation is
to take effect, and such resignation will take effect immediately upon the later
of the appointment of a successor trustee pursuant to this Article Eight and
such specified day. Upon receiving such notice of resignation, the Issuer, by a
Management Committee's Consent, shall promptly appoint a successor trustee
satisfying the requirements of Section 808 by written instrument in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed and have accepted appointment within thirty (30) days after
the mailing of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee,
or any Holder who has been a bona fide Holder of a Note or Notes for at least
six (6) months may, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 809 and Trust Indenture Act Section 310(b) after written request
therefor by the Issuer or by any Holder who has been a bona fide Holder for
at least six (6) months, except when the Trustee's duty to resign is stayed
in accordance with the provisions of Trust Indenture Act Section 310(b); or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 808 and shall fail to resign after written
request therefor by the Issuer or by any Holder who has been a bona fide
Holder for at least six (6) months; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall
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take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may, by Management Committee's Consent,
remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, executed by order of the members, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 811, unless the Trustee's duty to
resign is stayed as provided herein, any Holder who has been a bona fide Holder
for at least six (6) months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee.
(c) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer, by a Management Committee's Consent, shall promptly appoint a successor
trustee satisfying the requirements of Section 808. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor trustee shall be appointed by an Act of the Majority Holders delivered
to the Issuer and the retiring Trustee, the successor trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
trustee and to that extent supersede the successor trustee appointed by the
Issuer. If no successor trustee shall have been so appointed by the Issuer or
the Holders and accepted appointment in the manner hereinafter provided within
60 days, any Holder who has been a bona fide Holder for at least six (6) months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor trustee.
(d) It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as an indenture
trustee in such jurisdiction.
(e) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee in the manner
provided for in Section 106. Each notice shall include the name of the successor
trustee and the address of its Corporate Trust Office.
(f) The Holders, by Act of the Majority Holders, may at any time
remove the Trustee and appoint a successor trustee by delivering to the Trustee
so removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 104 of the action in that regard taken by the Majority
Holders.
(g) No resignation or removal of the Trustee and no appointment of
a successor trustee pursuant to any of the provisions of this Section 810 shall
become effective until the acceptance of appointment by the successor trustee as
provided in Section 811.
SECTION 811. Acceptance of Appointment by Successor. (a) In case
of the appointment hereunder of a successor trustee, every such successor
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trustee so appointed shall execute, acknowledge and deliver to the Issuer and to
the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
provided, that on the request of the Issuer or the successor trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon request of any such successor trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in clause (a) of this Section 811.
(c) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article Eight.
(d) In no event shall the retiring Trustee be liable for the acts
or omissions of any successor trustee.
SECTION 812. Merger Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder; provided, that
such corporation shall be otherwise qualified and eligible under this Article
Eight, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor trustee had itself authenticated such Notes; and in case at
that time any of the Notes shall not have been authenticated, any successor
trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have;
provided, further, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 813. Preferential Collection of Claims Against Issuer. If
and when the Trustee shall be or become a creditor of the Issuer (or any other
obligor under the Notes), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Issuer (or
any such other obligor), excluding any creditor relationships described in Trust
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Indenture Act Section 311(b). A Trustee who has resigned or has been removed
shall be subject to Trust Indenture Act Section 311(a) to the extent indicated
therein.
SECTION 814. No Liability for Clean-up of Hazardous Materials. (a)
In the event that the Trustee is required to acquire title to an asset for any
reason, or take any managerial action of any kind in regard thereto, in order to
carry out any fiduciary or trust obligation for the benefit of another, which in
the Trustee's sole discretion may cause the Trustee to be considered an "owner
or operator" under the provisions of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. Sections 9601, et seq., or
otherwise cause the Trustee to incur liability under CERCLA or any other
federal, state or local law, the Trustee reserves the right to, instead of
taking such action, either resign as Trustee or arrange for the transfer of the
title or control of the asset to a court appointed receiver.
(b) The Trustee shall not be liable to the Issuer or Holders or
any other person for any environmental claims or contribution actions under any
federal, state or local law, rule or regulation by reason of the Trustee's
actions and conduct as authorized, empowered and directed hereunder or relating
to the discharge, release or threatened release of hazardous materials into the
environment, except to the extent of the Trustee's negligence or willful
misconduct.
SECTION 815. Accounts Agent Registrar and Paving Agent. Insofar as
such provisions may be applicable, the Accounts Agent, the Registrar, the Paying
Agent and any other agent appointed in accordance with the provisions hereof
shall enjoy the same protections, immunities and indemnities as are provided for
in this Article Eight with respect to the Trustee.
SECTION 816. Filing Fees. The Issuer agrees to pay or to reimburse
the Trustee for any and all amounts in respect of all filing, recording and
registration fees which may be payable or determined to be payable in respect of
the execution, delivery, performance and enforcement of the Financing Documents
and agrees to save the Trustee harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omitting to pay such
fees. The obligations of the Issuer under this Section 816 shall survive the
resignation or removal of the Trustee and the termination of the other
provisions of this Indenture.
SECTION 817. Fee Agreement. The Fee Agreement provides for the
compensation of the Trustee hereunder for its services as such, and the Trustee
will not look to the holders of the Notes for any payment for such services,
provided, that this Section 817 shall not alter the provisions of Section
502(b)(i) or the lien provided in Section 806(a).
ARTICLE NINE
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 901. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
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of the names and addresses of the Holders. If the Trustee is not the Registrar,
the Issuer shall furnish to the Trustee at least five (5) Business Days before
each Payment Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders. The Trustee may conclusively
rely upon such list provided by the Issuer until otherwise notified by the
Issuer or such list is amended by the Issuer.
SECTION 902. Disclosure of Names and Addresses of Holders. Every
Holder of Notes, by receiving and holding the same, agrees with the Issuer and
the Trustee that none of the Issuer or the Trustee or any agent of either of
them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Trust Indenture
Act Section 312(b).
SECTION 903. Reports by Trustee. (a) Within sixty (60) days after
May 1 of each year commencing with the first May 1 after the first issuance of
Notes pursuant to this Indenture, the Trustee shall transmit to the Holders in
the manner and to the extent provided in Trust Indenture Act Section 313(c), a
brief report dated as of such May 1 if required by Trust Indenture Act Section
313(a).
(b) The Trustee shall transmit to the Holders, in the manner and
to the extent provided in Trust Indenture Act Section 313(c), a brief report, if
required, by Trust Indenture Act Section 313(b).
SECTION 904. Reports by Issuer. (a) The Issuer shall:
(i) file with the Trustee, within fifteen (15) days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act or, if the Issuer is not required to
file information, documents or reports pursuant to either of such Sections,
then it shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(ii) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
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compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) transmit to all Holders, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), within thirty (30) days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to paragraphs (i) and (ii) of clause (a) of this Section 904 as
may be required by rules and regulations prescribed from time to time by
the Commission.
(b) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
ARTICLE TEN
SUPPLEMENTS AND AMENDMENTS
TO INDENTURE AND SECURITY DOCUMENTS
SECTION 1001. Without Vote of Holders. Without the vote or
approval of any Holders, the Issuer, when authorized by or pursuant to a
Management Committee's Consent, and the Trustee, at any time and from time to
time, may amend or supplement this Indenture, any Security Documents or the
Notes, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Issuer to
the extent such succession is permitted under the terms of this Indenture and
the assumption by any such successor of the covenants of the Issuer contained
herein and in the Notes; or
(b) to add to the covenants of the Issuer for the benefit of the
Holders or to surrender any right or power herein conferred upon the Issuer; or
(c) to add any additional Events of Default; or
(d) to secure the Notes with additional collateral; or
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee and to add to or change any of the provisions
hereof as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee; or
(f) to cure any ambiguity, to correct or supplement any provision
hereof which may be inconsistent with any other provision in this Indenture
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provided that such action shall not adversely affect the interests of the
Holders in any material respect; or
(g) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of the Notes; provided, that any such action does not adversely affect
the interests of the Holders in any material respect.
SECTION 1002. With Consent of Holders. (a) The Issuer, when
authorized by or pursuant to a Management Committee's Consent, and the Trustee
may amend or supplement this Indenture or the Notes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or the Notes or of modifying in any manner the rights of the
Holders under this Indenture with the consent of the Majority Holders of the
Notes affected by such amendment or supplement (voting as a single class), by
Act of said Holders delivered to the Issuer and the Trustee; provided, that no
such amendment or supplement shall, without the consent of the Holder of each
Outstanding Note,
(i) change the Maturity Date of the principal of, or any
scheduled payment of Additional Interest with respect to, any Note;
(ii) reduce the principal amount of any Note or reduce the
amount of any Additional Interest payment with respect to any Note,
including discharge of repayment of principal of or Additional Interest
with respect to any Note;
(iii) reduce (A) the percentage in Principal Amount at
Maturity of Outstanding Notes, the consent of the Holders of which is
required for the adoption of a resolution, (B) the quorum required at any
meeting of Holders at which a resolution is adopted or (C) the percentage
in Principal Amount at Maturity of Outstanding Notes the Holders of which
are entitled to request the calling of a Holder's meeting;
(iv) change the percentage rules established for adopting
resolutions at meetings of Holders or regarding the quorum necessary to
constitute a meeting;
(v) modify any of the provisions of this Section 1002 and
Section 718, except to increase any percentage specified herein or therein;
(vi) change the place or coin or currency for payment of
principal of or Additional Interest (or interest on accrued and unpaid
Additional Interest) with respect to, any Note;
(vii) impair the right to institute suit for the enforcement
of any payment on or after the Maturity Date or any Redemption Date or
Payment Date therefor;
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(viii) permit the creation of any Lien with respect to all or
any substantial portion of the Collateral, or release or terminate the Lien
of the Security Documents on all or any substantial portion of the
Collateral or deprive any Holder of the security afforded by the Lien of
the Security Documents, except to the extent expressly permitted by this
Indenture or any of the Security Documents;
(ix) modify the ranking or priority of the Notes; or
(x) waive a default in the payment of principal of or accrued
and unpaid Additional Interest (or interest on overdue principal or on
accrued and unpaid Additional Interest) with respect to, the Notes.
(b) It shall not be necessary for any Act of Holders under this
Section 1002 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 1003. Execution of Supplemental Indentures. In executing
or accepting the additional trusts created by any amended or supplemental
indenture permitted by this Article Ten or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 1004. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article Ten, (a) this
Indenture or the applicable Security Document shall be modified in accordance
therewith, (b) such supplemental indenture, amendment, modification or waiver
shall form a part of this Indenture or the applicable Security Document (as the
case may be) for all purposes and (c) every Holder of Notes theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 1005. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article Ten shall conform to
the requirements of the Trust Indenture Act as then in effect.
SECTION 1006. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article Ten may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Issuer shall so determine, new Notes so modified
as to conform, in the opinion of the Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer, and, upon
receipt of an Issuer Order, authenticated and delivered by the Trustee, in
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exchange for Outstanding Notes. Failure to make the appropriate notation or to
issue a new Note shall not affect the validity of such supplemental indenture,
amendment, modification or waiver.
SECTION 1007. Notice of Supplemental Indentures. Promptly after
the execution by the Issuer and the Trustee of any supplemental indenture,
amendment, modification or waiver pursuant to the provisions of Section 1002,
the Issuer shall give notice thereof to the Holders, in the manner provided for
in Section 106, setting forth in general terms the substance of such
supplemental indenture, amendment, modification or waiver.
ARTICLE ELEVEN
AFFIRMATIVE COVENANTS
SECTION 1101. Distributions. The Issuer shall cause PCF to
distribute or dividend to the Issuer any amounts on deposit in or credited to
the PCF Reserve Account or the PCF Working Capital Account on any date on which
PCF may distribute or dividend such amounts.
SECTION 1102. Performance of Obligations. (a) The Issuer shall
cause PCF to pay all sums due under the PCF Indenture according to the terms
thereof; (b) the Issuer shall pay, and shall cause PCF to pay, all of the
Issuer's and PCF's (as the case may be) obligations under any contractual
arrangement to which the Issuer or PCF (as the case may be) is a party,
howsoever arising, as and when due and payable, except such as may be contested
in good faith or as to which a bona fide dispute may exist; and (c) the Issuer
shall perform, and shall cause PCF to perform, all of the Issuer's and PCF's (as
the case may be) obligations under any contractual arrangement to which the
Issuer or PCF (as the case may be) is a party, however so arising, as and when
required, except (i) such as may be contested in good faith or as to which a
bona fide dispute may exist or (ii) any obligation the failure of which to
perform could not reasonably be expected to have a Material Adverse Effect.
SECTION 1103. Compliance with the PCF Indenture. The Issuer shall
cause PCF to comply with the covenants set forth in the PCF Indenture whether or
not such indenture is in effect, including after an optional redemption of the
PCF Notes in full or other termination of the covenants set forth in Article 11
or Article 12 of the PCF Indenture.
SECTION 1104. Preservation of Rights. The Issuer shall maintain,
preserve, protect and defend its material rights under and take all reasonable
action necessary to prevent termination of each of its agreements, unless the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 1105. Liens. The Issuer shall preserve and maintain good,
legal and valid title to all of its properties and assets. The Issuer shall
cause PCF to maintain good, legal and valid title to all of its properties and
assets free and clear of all Liens, other than Liens which are permitted under
the PCF Indenture and Liens which could not reasonably be expected to result in
a Material Adverse Effect.
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SECTION 1106. Payment of Principal and Interest. The Issuer shall
duly and punctually pay the principal of, Additional Interest and accrued and
unpaid Additional Interest (and interest on overdue principal and accrued and
unpaid Additional Interest) with respect to the Notes in accordance with the
terms of the Notes and this Indenture.
SECTION 1107. Maintenance of Office or Agency. (a) The Issuer will
maintain in New York County, New York, an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served.
(b) The Issuer will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee and the Issuer hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
(c) The Issuer may also from time to time designate one or more
other offices or agencies where Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind any such designation;
provided, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in accordance with the
requirements set forth above for such purposes. The Issuer will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1108. Maintenance of Existence, Properties. (a) The Issuer
shall preserve and maintain its and PCF's legal existence and form as separate,
bankruptcy-remote, special purpose Delaware limited liability companies separate
from any other entity, and shall preserve and maintain all registrations
necessary therefor.
(b) The Issuer shall preserve and maintain all of its rights,
privileges and franchises necessary for the conduct of its business and the
performance of its obligations under the Material Agreements and the Financing
Documents, except to the extent failure to do so could not reasonably be
expected to result in a Material Adverse Effect. The Issuer shall cause PCF to
preserve and maintain all of PCF's licenses, rights, privileges and franchises
necessary for the conduct of PCF's business and the performance of PCF's
obligations under the PCF Material Agreements and the PCF Financing Documents,
except to the extent failure to do so could not reasonably be expected to result
in a Material Adverse Effect
SECTION 1109. Permits. The Issuer shall, and shall cause PCF to,
obtain any Permit at or before the time that such Permit becomes an Applicable
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Permit, except to the extent that failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 1110. Payments of Taxes and Other Claims. The Issuer
shall, and shall cause PCF to, pay and discharge or cause to be paid and
discharged, before the same shall become delinquent, all taxes, assessments and
governmental charges levied or imposed upon the Issuer or PCF, and all lawful
claims or obligations which, if unpaid, might by law become a Lien upon the
Property of the Issuer or PCF, as applicable; provided, that the Issuer will not
be required to, and will not be required to cause PCF to, pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claims whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which adequate funds have been set aside.
SECTION 1111. Notice of Certain Events. The Issuer shall furnish
to the Trustee:
(a) within 120 days after the end of each fiscal year of the
Issuer ending after the date hereof, an Officer's Certificate of a Responsible
Officer stating that (i) no Default has occurred and is continuing (or if any
such Default has occurred and is continuing, describing such Default in
reasonable detail and describing the steps being taken to remedy such Default)
and (ii) the Issuer is in compliance with all conditions and covenants under
this Indenture, the Notes and the other Financing Documents to which it is a
party; and
(b) each of the following items promptly after the Issuer learns
of the occurrence or existence thereof:
(i) written notice of the occurrence of any event or condition
which constitutes a Default or an Event of Default, stating that such event
or condition has occurred and describing it and any action being or
proposed to be taken with respect thereto;
(ii) written notice of the Issuer's failure to observe or
perform any term, covenant or obligation of the LLC Agreement (unless such
failure could not reasonably be expected to result in a Material Adverse
Effect), stating that failure has occurred and describing it and any action
being or proposed to be taken with respect thereto;
(iii) any actually proposed amendment, termination,
rescission, discharge (other than by performance) or waiver under or with
respect to any Financing Document or Material Agreement;
(iv) any written notice requiring the Issuer to make any
indemnity payments under any Material Agreement;
(v) written notice of any material litigation filed against
the Issuer; and
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(vi) written notice of any change which could be reasonably
expected to result in a Material Adverse Effect.
With respect to the information and documents required to be delivered to the
Trustee pursuant to clauses (a) and (b) of this Section 1106, the Issuer hereby
further covenants and agrees to deliver or cause to be delivered any such
documents and information (i) to each Holder who makes a request in writing to
the Issuer and (ii) to any owner of a beneficial interest in a Global Note who
makes a request in writing to the Issuer (which request may indicate that it is
a continuing request for such information until further notice from a Holder or
such owner of a beneficial interest in a Global Note to the contrary) for such
documents or information. Delivery of such reports, information and documents to
the Trustee is for information purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
(other than an expressly stated notice of Default or Event of Default) or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder.
SECTION 1112. Compliance with Laws and Other Agreements. The
Issuer shall, and shall cause PCF to, comply with (a) all applicable laws,
rules, regulations, orders and directions of any Governmental Agency having
jurisdiction over it or its business and (b) all of its and, as applicable,
PCF's covenants and obligations contained in any agreement to which the Issuer
or PCF, as applicable, is a party, unless, in each case, the failure to so
comply could not reasonably be expected to result in a Material Adverse Effect.
The Issuer will comply with all applicable provisions of the Trust Indenture
Act, including Trust Indenture Act Sections 314(b) and (d).
SECTION 1113. Maintenance of Books and Records. The Issuer shall
at all times maintain proper books, accounts and records in accordance with
GAAP. The Issuer shall permit the Trustee and its representatives, upon
reasonable notice and during normal business hours, to visit its premises and
inspect all books, accounts and records of the Issuer.
SECTION 1114. Rule 144A Information for the Holders. At any time
when the Issuer is not subject to Section 13 or 15(d) of the Securities Exchange
Act, upon the request of a Holder, the Issuer shall promptly furnish to such
Holder or to a prospective purchaser who is a qualified institutional buyer of
such Note designated by such Holder, as the case may be, information specified
in Rule 144A(d)(4) under the Securities Act ("Rule 144A Information") in order
to permit compliance by such Holder with Rule 144A in connection with the resale
of such Note by such Holder; provided, that the Issuer shall not be required to
furnish Rule 144A Information in connection with any request made on or after
the date which is two (2) years from the later of (a) the date such Note (or any
Predecessor Note) was acquired from the Issuer or (b) the date such Note (or any
Predecessor Note) was last acquired from an "affiliate" of the Issuer within the
meaning of Rule 144 under the Securities Act; provided, further, that the Issuer
shall not be required to furnish such information at any time to a prospective
purchaser located outside the United States who is not a "United States Person"
within the meaning of Regulation S under the Securities Act if such Note may
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then be sold to such prospective purchaser in accordance with Rule 904 under the
Securities Act (or any successor provision thereto).
SECTION 1115. Further Assurances. The Issuer shall, at its own
cost and expense, execute and deliver, and cause to be executed and delivered,
to the Trustee all such documents, instruments and agreements, and do all such
other acts and things as may be reasonably required to preserve the Liens in
favor of the Trustee with the required first-ranking priority and to enable the
Trustee to exercise and enforce its rights under this Indenture, the Security
Documents and the other documents, instruments and agreements required under
this Indenture and to carry out the intent of this Indenture and the other
Financing Documents.
SECTION 1116. Return of Monies Held by Trustee. (a) On any date on
which the principal of any Note becomes due in full, if the outstanding
principal of such Note, together with all accrued and unpaid Additional Interest
(and interest on accrued and unpaid Additional Interest) to the due date, and
any other amounts payable by the Issuer to the Trustee or the Holders under this
Indenture or any other Financing Document, have been finally and irrevocably
paid to the Trustee for the benefit of the Holders, all interest and Additional
Interest on such Notes shall cease to accrue on the date of such payment.
(b) Moneys so deposited with the Trustee or then held by the
Issuer in trust for the payment of the principal of or Additional Interest (and
interest on accrued and unpaid Additional Interest) on any Note which remain
unclaimed two (2) years after the date that all amounts payable by the Issuer to
the Trustee or to the Holders under this Indenture or any other Financing
Document has been finally and irrevocably paid to the Trustee for the benefit of
the Holders, shall, at the request of the Issuer if at the time, to the
knowledge of the Trustee, no Event of Default shall have occurred and be
continuing, be paid to the Issuer and the Holders shall thereafter look solely
to the Issuer for payment with respect to amounts deposited with the Trustee and
returned to the Issuer pursuant to this Section 1116(b).
ARTICLE TWELVE
NEGATIVE COVENANTS
SECTION 1201. Liens. The Issuer shall not create, assume or suffer
to exist any Lien on any of its properties and assets other than the Liens
created by this Indenture and by the other Security Documents. The Issuer shall
cause PCF to not create, assume or suffer to exist any lien on the PCF Reserve
Account or the PCF Working Capital Account or any amounts on deposit in,
credited to or released from such accounts, except for Liens permitted under the
PCF Indenture.
SECTION 1202. Indebtedness. The Issuer shall not incur, create,
assume or permit to exist any Indebtedness, except for Indebtedness represented
by the Notes.
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SECTION 1203. Transactions with Affiliates. The Issuer shall not
enter into directly or indirectly any transaction with any of its Affiliates
(other than the LLC Agreement), except in the ordinary course and pursuant to
the reasonable requirements of its business and upon fair and reasonable terms
no less favorable to the Issuer than would be obtainable in a comparable
transaction on an arm's-length dealing with an unrelated third party.
SECTION 1204. Investments, Loans and Advances. Except for
Permitted Investments and investments in PCF made with amounts contributed to
the Issuer by its member or amounts in the Collections Account that are
available for such purpose, the Issuer shall not make any investments, whether
by purchase of stocks, bonds, notes or other securities, loan, extension of
credit, advance or otherwise.
SECTION 1205. Material Agreements and Financing Documents;
Additional Contracts. (a) The Issuer shall not assign any of its rights or
obligations under any Material Agreement or Financing Document nor will the
Issuer amend in any respect or suffer any such amendment of, or grant any waiver
of material and timely performance with respect to, or agree to the assignment
of the rights or obligations of any party to, any Material Agreement or
Financing Document; provided, that the Issuer may make amendments to the
Material Agreements and the Financing Documents which are of a routine,
ministerial or administrative nature to the extent that what is contemplated
under any such amendment is not otherwise expressly prohibited hereunder or
could reasonably be expected to result in a Material Adverse Effect; provided,
however, that any amendment or modification to any Material Agreement or
Financing Document which extends or modifies the time for payment due thereunder
shall not be deemed to be an amendment of a routine, ministerial or
administrative nature; provided, further, that nothing in this Section 1205(a)
shall prevent the Trustee from terminating the Administrative Services Agreement
in connection with a breach thereof by the Administrative Agent in accordance
with the Administrative Agent Consent so long as the Issuer enters into a
replacement agreement substantially similar to the terminated Administrative
Services Agreement.
(b) The Issuer shall not become a party to any contract, lease,
agreement or instrument other than the agreements expressly identified in the
definitions of Material Agreements and Financing Documents and agreements for
permitted substitution of the Administrative Agent or the Trustee.
SECTION 1206. Account. The Issuer shall not maintain, establish or
use any account other than the Accounts.
SECTION 1207. Fundamental Change. The Issuer shall not (a) sell,
lease, assign, transfer or otherwise dispose of any of its right, title or
interest in or to its assets, (b) conduct any business other than the business
of owning 100% of the economic and voting interests of PCF, (c) liquidate,
dissolve, combine, merge or consolidate with or into any other entity, or
purchase or otherwise acquire all or substantially all of the assets of any
entity, (d) change its legal form, name or fiscal year or (e) create or hold, or
permit PCF to create or hold, an ownership interest in any subsidiary (other
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than the member interests in PCF sold to the Issuer) or enter into, or permit
PCF to enter into, any joint venture or general or limited partnership.
SECTION 1208. Restricted Payments. Except as permitted in
accordance with the conditions set forth in clause (vi) of Section 502(b), the
Issuer shall not, directly or indirectly, (a) make or declare any dividend or
other distribution (by reduction of capital or otherwise), whether in cash,
property, or obligation or other payment on account of any interest in the
Issuer.
SECTION 1209. Compliance with ERISA. The Issuer shall not, nor
shall it permit PCF to, have any employees. The Issuer shall not, nor shall it
permit PCF to, maintain any employee benefit plans subject to ERISA.
SECTION 1210. Margin Stock. The Issuer shall not directly or
indirectly apply any part of the proceeds of the Notes or other funds to the
"buying", "carrying" or "purchasing" of any margin stock within the meaning of
Regulations T, U or X of the Federal Reserve Board, or any regulations,
interpretations or rulings thereunder.
SECTION 1211. Purchasing Notes. The Issuer shall not, and shall
not permit any Affiliate to, purchase, redeem, prepay or otherwise acquire,
directly or indirectly, any of the outstanding Notes except in accordance with
the terms hereof and the Notes, or except for any purchase of the entire
Principal Amount at Maturity of the Notes.
ARTICLE THIRTEEN
REDEMPTION OF NOTES
SECTION 1301. Applicability of Article. The Notes shall be
redeemable (in whole only) before the Maturity Date in accordance with the terms
of such Notes and in accordance with this Article Thirteen.
SECTION 1302. Mandatory Redemption; Notice to Trustee. The Issuer
shall apply (i) PCF Reserve Proceeds deposited in the Redemption Account prior
to February 1, 2010 and (ii) amounts transferred from the Collections Account
following an optional redemption of the PCF Notes in full to the Redemption
Account prior to February 1, 2010, first, to make payments of accrued and unpaid
Additional Interest (and interest on accrued and unpaid Additional Interest) on
the Notes to the Redemption Date and second, to redeem the Notes at the
Redemption Price. Any such mandatory redemption shall only be required, and
shall only occur, if the amount on deposit in the Redemption Account equals or
exceeds the amount of any accrued and unpaid Additional Interest (and interest
on accrued and unpaid Additional Interest) on the Notes to the Redemption Date
plus the Redemption Price. If, on any date, the amount available in the
Redemption Account for mandatory redemption is less than the amount of all
accrued and unpaid Additional Interest (and interest on accrued and unpaid
Additional Interest) on the Notes to the Redemption Date plus the Redemption
Price on such date, the Issuer shall not redeem the Notes until such date as the
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amount in the Redemption Account equals or exceeds the amount of any accrued and
unpaid Additional Interest (and interest on accrued and unpaid Additional
Interest) on the Notes plus the Redemption Price, in each case as of such later
Redemption Date. In case of any such mandatory redemption, the Issuer shall,
deliver to the Holders and the Trustee a notice of redemption in the manner
provided in Section 1303.
SECTION 1303. Notice of Redemption. (a) Notice of redemption
pursuant to this Section 1303 shall be given in the manner provided for in
Section 106 and (i) within 10 Business Days after the deposit of amounts in the
Redemption Account sufficient to redeem the Notes in full in accordance with
Section 1302 and (ii) not less than thirty (30) nor more than sixty (60) days
prior to the Redemption Date, to the Holders, but failure to give such notice in
the manner herein provided to the Holder of any Note designated for redemption,
or any defect in the notice of any such Holder, shall not affect the validity of
the proceedings for the redemption of any other Note. The Redemption Date shall
be as specified by the Issuer but shall be not less than (30) nor more than
sixty (60) days after the notice of redemption is provided as set forth above.
(b) Any notice that is mailed to the Holders in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice.
(c) All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) that on the Redemption Date, the Redemption Price
(together with accrued and unpaid Additional Interest (and interest on
accrued and unpaid Additional Interest), if any, on the Notes to the
Redemption Date) will become due and payable upon each Note, and that
Additional Interest with respect to the Notes will cease to accrue or be
payable and the principal amount of the Notes will cease to accrete on and
after said date, and
(iv) the Place of Payment where such Notes are to be
surrendered for payment of the Redemption Price.
SECTION 1304. Notes Payable on Redemption Date. (a) Notice of
redemption having been given in accordance with Section 1303, the Notes shall,
on the Redemption Date, become due and payable at the Redemption Price thereof
(together with accrued and unpaid Additional Interest (and interest on accrued
and unpaid Additional Interest), if any, on the Notes to the Redemption Date),
and from and after such Redemption Date, Additional Interest shall cease to
accrue and shall no longer be payable and the principal amount of the Notes will
cease to accrete. Upon surrender of any Note for redemption in accordance with
said notice, such Note shall be paid by the Issuer at the Redemption Price,
together with accrued and unpaid Additional Interest (and interest on accrued
and unpaid Additional Interest) to the Redemption Date.
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(b) If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and accrued and unpaid
Additional Interest (and interest on accrued and unpaid Additional Interest)
shall, until paid, bear interest from the Redemption Date at 11% per annum
provided, however, that future Additional Interest in accordance with Section
301(c) shall no longer be due and payable.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Issuer's Option to Effect Defeasance or Covenant
Defeasance. The provisions of this Article Fourteen shall apply to the Notes,
and the Issuer may, at its option by a Management Committee's Consent, effect
defeasance of the Notes under Section 1402, or covenant defeasance under Section
1403 in accordance with this Article Fourteen.
SECTION 1402. Defeasance and Discharge. Upon the Issuer's exercise
of the option provided in Section 1401 applicable to this Section 1402 the
Issuer shall be deemed to have been discharged from its obligations with respect
to the Outstanding Notes on the date the conditions set forth in Section 1404
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Notes, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all of its other obligations under such Notes and this Indenture
insofar as such Notes are concerned (and the Trustee, at the expense of the
Issuer, shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of such Outstanding Notes to receive,
solely from the trust fund described in Section 1404(a) and as more fully set
forth in such Section, payments in respect of the principal of and Additional
Interest (and interest on accrued and unpaid Additional Interest) with respect
to such Notes when such payments are due; (b) the Issuer's obligations with
respect to such Notes under Sections 305, 306, 307, 308, and 1102; (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (d)
this Article Fourteen. Subject to compliance with this Article Fourteen, the
Issuer may exercise its option under this Section 1402 notwithstanding the prior
exercise of its option under Section 1403.
SECTION 1403. Covenant Defeasance. Upon the Issuer's exercise of
the option provided in Section 1401 applicable to this Section 1403, (a) the
Issuer shall be released from its obligations under Sections 1104 through 1116,
inclusive, and Sections 1201 through 1208, inclusive and (b) the occurrence of
any event specified in Section 701(c) (with respect to any of Sections 1104
through 1116, inclusive, and Sections 1201 through 1208, inclusive) shall be
deemed not to be an Event of Default on or after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that the Issuer may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or clause, whether directly or indirectly, by
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reason of any reference elsewhere herein to any such Section or clause or by
reason of reference in any such Section or clause to any other provision herein
or in any other document and any such omission shall not be deemed to be an
Event of Default, but, the remainder of this Indenture and such Notes shall be
unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 1402 or
Section 1403 to the Outstanding Notes:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 808 who shall agree to comply with the provisions of this Article
Fourteen applicable to such trustee) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders, an amount sufficient, in the
opinion of an internationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of and accrued and unpaid
Additional Interest (and interest on accrued and unpaid Additional Interest) on
the Outstanding Notes through and on the Maturity Date (or Redemption Date, if
applicable).
(b) In the case of an election under Section 1402, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable United States federal income tax law, in
either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of Outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had not occurred.
(c) In the case of an election under Section 1403, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Outstanding Notes will not recognize gain or loss for United States
federal income tax purposes as a result of such covenant defeasance and will be
subject to United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(d) The Issuer shall have delivered to the Trustee an Officer's
Certificate to the effect that the Notes, if then listed on any securities
exchange, will not be delisted as a result of such deposit.
(e) No Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
Bankruptcy Events of Default are concerned, at any time during the period ending
on the one hundred twenty-first (121st) day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
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(f) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 809 and for
purposes of the Trust Indenture Act with respect to any securities of the
Issuer.
(g) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Issuer is a party or by
which it is bound.
(h) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402 or
the covenant defeasance under Section 1403 (as the case may be) have been
complied with, and that such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an "investment company," as
defined in the Investment Company Act of 1940, as amended, or such trust shall
be qualified under such act or exempt from regulation thereunder.
SECTION 1405. Deposited Money to Be Held in Trust; Other
Miscellaneous Provisions. (a) All money (or other property as may be provided
hereunder) (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (collectively for purposes of this Section 1405 and Section
1406, the "Trustee") pursuant to Section 1404 in respect of Outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuer acting as its own Paying Agent)
as the Trustee may determine, to the Holders of all sums due and to become due
thereon in respect of principal of and accrued and unpaid Additional Interest
(and interest on accrued and unpaid Additional Interest) on the Notes, but such
money need not be segregated from other funds except to the extent required by
law.
(b) Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon Issuer Request any money (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of an
internationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, is in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article Fourteen.
SECTION 1406. Reinstatement. If the Trustee or any Paying Agent is
unable to apply any money in accordance with Section 1405 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 1402 or 1403, as the case may be, until such time
as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, that if the Issuer makes any payment of
principal of or accrued and unpaid Additional Interest (and interest on accrued
and unpaid Additional Interest) with respect to any Note following the
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reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Note to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF NOTES
SECTION 1501. Purposes for Which Holders' Meetings May Be Called.
A meeting of Holders may be called at any time and from time to time pursuant to
this Article Fifteen for any of the following purposes:
(a) to give any notice to the Issuer or to the Trustee, or to give
any directions to the Trustee, or to waive or to consent to the waiving of any
Default hereunder with respect to the Notes and its consequences, or to take any
other action authorized to be taken by Holders pursuant to Article Seven;
(b) to remove the Trustee with respect to the Notes pursuant to
Section 810;
(c) to consent to the execution of an indenture or indentures
supplemental hereto with respect to the Notes pursuant to Section 1002; or
(d) to take any other action authorized to be taken by or on
behalf of the Holders of any specified amount of the Notes under any other
provision of this Indenture or under applicable law.
SECTION 1502. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Holders to be held at such time and at such place in New
York County, New York, for any purpose specified in Section 1501 as the Trustee
at the time shall determine. Notice of every meeting of Holders, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meetings shall be given by the Trustee, in the manner
provided in Section 106, not less than twenty (20) nor more than one hundred
twenty (120) days prior to the date fixed for the meeting, to the Holders.
SECTION 1503. Issuer and Holders May Call Meeting. In case the
Issuer, pursuant to a Management Committee's Consent, or the Holders of at least
ten percent (10%) of the Outstanding Notes, shall have requested the Trustee to
call a meeting of Holders by written request setting forth in general terms the
action proposed to be taken at the meeting, and the Trustee shall not have made
the mailing of the notice of such meeting within twenty (20) days after receipt
of such request, then the Issuer or the Holders in the amount above specified
may determine the time and the place in New York County, New York, for such
meeting and may call such meeting to take any action authorized in Section 1501
by giving notice thereof as provided in Section 1502.
SECTION 1504. Persons Entitled to Vote at Meeting. To be entitled
to vote at any meeting of Holders, a person shall be (a) a Holder of one or more
Notes or (b) a person appointed by an instrument in writing as proxy for a
Holder. The only persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the persons entitled to vote at such meeting and
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their counsel and any representatives of the Trustee and its counsel and any
representatives of the Issuer and its counsel.
SECTION 1505. Determination of Voting Rights: Conduct and
Adjournment of Meeting. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders, in regard to proof of the holding of Notes
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
Except as otherwise permitted or required by any such regulations, the holding
of Notes shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in said Section
104 or by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or firm satisfactory to the
Trustee.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by Holders as provided in Section 1503, in which case the Issuer
or the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote.
(c) At any meeting, each Holder of a Note or a proxy shall be
entitled to one vote for each $1,000 principal amount of Notes held or
represented by it. The chairman of the meeting shall have no right to vote other
than by virtue of Notes held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to Section 1502 or 1503 may be adjourned from time
to time to a place, date and time announced at such meeting, and the meeting may
be held as so adjourned without further notice.
(d) At any meeting duly called pursuant to this Article Fifteen,
the presence of persons holding or representing Notes in an aggregate principal
amount sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; provided,
that if less than a quorum be present, the persons holding or representing a
majority of the Notes represented at the meeting may adjourn such meeting with
the same effect, for all intents and purposes, as though a quorum had been
present.
SECTION 1506. Counting Votes and Recording Action of Meeting. The
vote upon any resolution submitted to any meeting of Holders shall be by written
ballots on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the serial numbers and principal amounts of the
Notes held or represented by them. The permanent chairman of the meeting shall
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appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1502. The record shall show the
serial numbers of the Notes voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Issuer and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
COVENANTS OF HOLDERS OF NOTES
SECTION 1601. Treatment of Notes as Indebtedness for Tax Purposes.
Each Holder of a Note by its acceptance of such note covenants and agrees to
treat such Note as indebtedness for United States federal income tax purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
Power Contract Financing III, LLC,
as Issuer
By: /s/ ERIC PRYOR
-------------------------------------
Name: Eric Pryor
Title: Senior Vice President
WILMINGTON TRUST COMPANY,
as Trustee, Accounts Agent,
Paying Agent and Registrar
By: /s/ JAMES J. McGINLEY
-------------------------------------
Name: James J. McGinley
Title: Authorized Signer
EXHIBIT A
Definitions
"Accountant" means a Person engaged in the practice of accounting
who (except when this Indenture provides that an Accountant must be Independent)
may be employed by or affiliated with the Issuer or an Affiliate of the Issuer.
"Accounts" has the meaning specified in Section 501 of this
Indenture.
"Accounts Agent" means the Person named as the "Accounts Agent" in
Section 501 (a) of this Indenture until a successor Accounts Agent shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Accounts Agent" shall mean such successor Accounts Agent.
"Accreted Value" has the meaning set forth in Section 301(b).
"Act" when used with respect to any Holder, has the meaning
specified in Section 104 of this Indenture.
"Additional Interest" has the meaning set forth in Section 301(c).
"Administrative Agent" means, initially, Lord Securities
Corporation pursuant to the original Administrative Services Agreement and,
thereafter, any other Person that has entered into an Administrative Services
Agreement with the Issuer.
"Administrative Services Agreement" means the Administrative
Services Agreement, dated as of the date of this Indenture, between the
Administrative Agent and the Issuer as originally executed and as it may from
time to time be supplemented, amended or restated pursuant to the applicable
provisions thereof, and any replacement agreement substantially in the form of
the Administrative Services Agreement between a replacement Administrative Agent
and the Issuer and entered into as contemplated by the Consent.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Permit" means, at any time, any Permit that is
necessary to be obtained by or on behalf of the Issuer or PCF for the Issuer or
PCF to (a) conduct its business or (b) enter into or perform its obligations or
enforce its rights under any agreement to which such Person is a party, in each
case in accordance with all applicable legal requirements.
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"Assignment and Security Agreement" means the Assignment and
Security Agreement among the Issuer, the Trustee and the Accounts Agent, for the
benefit of the Trustee and the Holders, dated as of the date of this Indenture,
as originally executed and as it may from time to time be supplemented, amended
or restated pursuant to the applicable provisions thereof.
"Bankruptcy Event" shall be deemed to occur, with respect to any
Person, if that Person shall institute a voluntary case seeking liquidation or
reorganization under the Bankruptcy Law, or shall consent to the institution of
an involuntary case thereunder against it; or such Person shall file a petition
or consent or shall otherwise institute any similar proceeding under the
Bankruptcy Law, or shall consent thereto; or such Person shall apply for, or by
consent or acquiescence there shall be an appointment of a receiver,
administrator, administrative receiver, liquidator, sequestrator, trustee or
other officer with similar powers for itself or any substantial part of its
assets; or such Person shall make a general assignment for the benefit of its
creditors; or such Person shall admit in writing its inability to pay its debts
generally as they become due; or if an involuntary case shall be commenced
seeking liquidation or reorganization of such Person under the Bankruptcy Law or
any similar proceedings shall be commenced against such Person under the
Bankruptcy Law and (a) the petition commencing the involuntary case is not
timely controverted, (b) the petition commencing the involuntary case is not
dismissed within 60 days of its filing, (c) an interim trustee is appointed to
take possession of all or a portion of the property, and/or to operate all or
any part of the business of such Person and such appointment is not vacated
within 60 days or (d) an order for relief shall have been issued or entered
therein; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, administrator, administrative receiver,
liquidator, sequestrator, trustee or other officer having similar powers over
such Person or all or a part of its property shall have been entered; or any
other similar relief shall be granted against such Person under the Bankruptcy
Law.
"Bankruptcy Event of Default" means the events described in clause
(i) of Section 701 of this Indenture.
"Bankruptcy Law" means Title 11, United States Code, and any other
state or federal insolvency, reorganization, moratorium or similar law for the
relief of debtors, or any successor statute.
"Business Day" means, each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the same
jurisdiction as the Corporate Trust Office of the Trustee or of any relevant
Place of Payment or other relevant location are authorized or obligated by law
or executive order to close.
"CES" means Calpine Energy Services, L.P.
"Clearstream Luxembourg" means Clearstream Banking, societe
anonyme.
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"Closing Date" means June 2, 2004, being the date of issuance and
delivery of the Initial Notes.
"Collateral" has the meaning ascribed thereto in the Assignment
and Security Agreement.
"Collections" means all distributions payable to the Issuer from
PCF pursuant to the PCF Indenture (other than the PCF Reserve Proceeds) and all
earnings on Permitted Investments made with funds in the Accounts.
"Collections Account" has the meaning set forth in Section 502(a)
of this Indenture.
"Commission" means the U.S. Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act, or, if
at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Consent" means the Consent and Agreement, dated as of the date of
this Indenture, among the Administrative Agent, the Issuer and the Trustee as it
may from time to time be supplemented, amended or restated pursuant to the
applicable provisions thereof.
"Corporate Trust Office" means the corporate trust office of the
Trustee, at which, at any particular time, its corporate trust business shall be
principally administered, which office on the date of execution of this
Indenture is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, except that with respect to presentation of Notes
for payment or for registration of transfer or exchange, such term shall mean
the office or agency of the Trustee at which, at any particular time, its
corporate agency business shall be conducted.
"Default" means any condition or event that, with the giving of
notice or lapse of time or both, would become an Event of Default.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"DTC" means The Depository Trust Company, its nominees and
successors.
"DTC Participants" or "Participants" has the meaning set forth in
Section 306(b) of this Indenture.
"Euroclear" means the accounts of purchasers at the Euroclear
System.
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"Event of Default" has the meaning specified in Section 701 of
this Indenture.
"Federal Bankruptcy Code" means Title 11 of the United States Code
or any other Federal Bankruptcy Code hereafter in effect.
"Fee Agreement" means the Fee Schedule, dated as of the date of
this Indenture.
"Financing Document" means, individually, the Indenture, each
Security Document, each Note, the Fee Agreement and any and all purchase
agreements, filings and other instruments evidencing, securing or relating in
any way to the Collateral or any other Financing Document, as shall from time to
time be executed and delivered to the Trustee by or on behalf of the Issuer or
any other Person pursuant to or as contemplated by this Indenture; collectively,
the "Financing Documents."
"GAAP" means, as of any date of determination, generally accepted
accounting principles then in effect in the United States of America, applied on
a consistent basis.
"Global Note" or "Global Notes" collectively or individually, as
the case may be, has the meaning set forth in Section 201(g) of this Indenture.
"Global Note Holder" has the meaning set forth in Section 306(a)
of this Indenture.
"Governmental Agency" means any public legal entity (including a
court of law) or public agency of the United States, whether created by federal,
state or local government or any other legal entity now existing or hereafter
created, or now or hereafter owned or controlled, directly or indirectly, by any
public legal entity or public agency of the United States.
"Government Approval" means any authorization, approval, consent,
waiver, exception, license, filing, registration, ruling, permit, tariff,
certification, exemption and other action or requirement by or with any
Governmental Agency.
"Holder" means the Person in whose name a Note is registered in
the Security Register.
"Indebtedness" means with respect to any Person, (a) any liability
of such Person (i) for borrowed money, or under any reimbursement obligation
relating to a letter of credit, or (ii) evidenced by a bond, note, debenture or
similar instrument (including a purchase money obligation) given in connection
with the acquisition of any businesses, properties or assets of any kind (other
than a trade payable or a current liability arising in the ordinary course of
business), or (iii) for the payment of money relating to any obligations under
any capital lease of real or personal property which has been recorded as a
capitalized lease obligation, (b) all redeemable stock issued by such Person
(the amount of Indebtedness represented by any involuntary liquidation
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preference plus accrued and unpaid dividends), (c) any liability of others
described in the preceding clause (a) that the Person has guaranteed or that is
otherwise its legal liability; and (d) (without duplication) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a), (b) and (c) above. For
purposes of determining any particular amount of Indebtedness under this
definition, guarantees of (or obligations with respect to letters of credit
supporting) Indebtedness otherwise included in the determination of such amount
shall not also be included.
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Independent," when used with respect to any specified Person,
means a Person who (a) is in fact independent of the Issuer and any other
obligor upon the Notes and of any Affiliate of the Issuer or of such other
obligor, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer or in any such other obligor or in any
Affiliate of the Issuer or of such other obligor and (c) is not connected with
the Issuer or any such other obligor or any Affiliate of the Issuer or of such
other obligor as an officer, member employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions. Whenever it is herein
provided that any Independent Person's opinion or certificate shall be furnished
to the Trustee, such Person shall be appointed by an Issuer Order and approved
by the Trustee in the exercise of reasonable care and such opinion or
certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning hereof.
"Independent Investment Banker" means Morgan Stanley & Co.
Incorporated, or its successor.
"Independent Managers" means the Issuer's Class B managers, as
provided for in the LLC Agreement.
"Initial Notes" means the Notes due 2010 of the Issuer issued on
the Closing Date for so long as such securities constitute Restricted
Securities.
"Issuer" means the Person named as the "Issuer" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Issuer"
shall mean such successor Person.
"Issuer Request" or "Issuer Order" means a written request or
order signed in the name of the Issuer by its President or a Vice President or
the President or Vice President of the Administrative Agent acting on behalf of
the Issuer and delivered to the Trustee.
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, assignment in trust, deposit arrangement,
encumbrance, lien (statutory or other), or preference, priority or other
security agreement (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
A-5
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code of any state of the United States or
comparable law of any jurisdiction).
"LLC Agreement" means the limited liability company operating
agreement of the Issuer, dated as of May 26, 2004.
"Lord Engagement Letter" means that certain letter agreement from
Lord Securities Corporation to the Issuer, dated as of May 26, 2004.
"Majority Holders" means Holders of not less than fifty-one
percent (51%) of the Outstanding Notes (voting as a single class).
"Management Committee" means the management committee of the
Issuer.
"Management Committee's Consent" means a copy of a consent
certified by a Responsible Officer of the Issuer to have been duly adopted by
the Management Committee and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Material Adverse Effect" means an event, occurrence or condition
which has or could reasonably be expected to have a material adverse effect on
(a) the business, operations, property, condition (financial or otherwise) of
the Issuer, (b) the rights or remedies of the Trustee in respect of the Notes or
Holders of such Notes under the Financing Documents, (c) the ability of the
Issuer or PCF to perform its obligations under the Financing Documents or the
Material Agreements to which it is a party or (d) the validity, enforceability
or priority of the Liens on the Collateral.
"Material Agreement" means, individually, the Member Interest
Purchase Agreement, the Administrative Services Agreement, the Consent, the PCF
LLC Agreement and the LLC Agreement; collectively, the "Material Agreements."
"Maturity," when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Maturity Date or by declaration of acceleration, notice
of redemption or otherwise.
"Maturity Date" means February 5, 2010.
"Member" has the meaning set forth in the LLC Agreement.
"Member Interest Purchase Agreement" means the Member Interest
Purchase Agreement, dated as of June 2, 2004, between CES and the Issuer.
"Moody's" means Moody's Investors Service, Inc.
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"Morgan Stanley & Co. Incorporated" means Morgan Stanley & Co.
Incorporated, a Delaware corporation.
"Non-U.S. Person" means a Person that is not a "U.S. Person" as
defined in Regulation S and certified to the Trustee and the Registrar by such
Person.
"Notes" means, collectively, the Initial Notes and the
Unrestricted Notes, as amended or supplemented from time to time in accordance
with the terms of this Indenture, that are authenticated and delivered pursuant
to this Indenture; individually, a "Note,"
"Notice of an Actionable Event" means (a) a certificate of any
Holder that an Event of Default has occurred or (b) whether or not any
certificate or notice thereof shall have been delivered to the Trustee, a
Bankruptcy Event of Default. A Notice of an Actionable Event has been "given"
(i) in the case of a Bankruptcy Event of Default, when such Bankruptcy Event of
Default occurs or (ii) in the case of any other Notice of an Actionable Event,
when the certificate referred to in clause (a) of the immediately preceding
sentence has actually been received by a Responsible Officer of the Trustee. A
Notice of an Actionable Event has been "rescinded" when, after a Notice of an
Actionable Event (other than in connection with a Bankruptcy Event of Default)
has been given, the Majority Holders have subsequently delivered to a
Responsible Officer of the Trustee a certificate stating that such Event of
Default has been waived or cured or when, after a Bankruptcy Event of Default,
such Bankruptcy Event of Default is no longer continuing and a Responsible
Officer of the Trustee has received a certificate to this effect from the
Majority Holders or the Issuer, provided, that a Notice of an Actionable Event
may not be rescinded without the consent of the Holders of all of the Notes
unless all payments on account of the principal of and accrued and unpaid
Additional Interest (and interest on accrued and unpaid Additional Interest)
with respect to the Notes, other than amounts of principal of and accrued and
unpaid Additional Interest (and interest on accrued and unpaid Additional
Interest) with respect to any Outstanding Notes that have become due solely by
reason of a declared acceleration as provided in Section 702 or interest thereon
for any overdue payments of principal of or Additional Interest (and interest on
accrued and unpaid Additional Interest), on the Notes, and an additional amount
sufficient to reimburse the Holders for the reasonable costs and expenses
incurred in connection with the giving and rescinding of any such Notice of an
Actionable Event shall have been paid prior to the entry of any judgment in
respect of such amounts. A Notice of an Actionable Event is "outstanding" at all
times after such Notice of an Actionable Event has been given until such time,
if any, as such Notice of an Actionable Event has been rescinded.
"Officer's Certificate" means a certificate that meets the
requirements of Section 102 and is signed on behalf of the Issuer by the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary of any Vice President of the Issuer.
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"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Issuer or the Administrative Agent, acting on behalf of the
Issuer, including an employee of the Issuer or the Administrative Agent, acting
on behalf of the Issuer, and who shall be acceptable to the Trustee.
"Outstanding," when used with respect to Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(a) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Issuer) in trust or
set aside and segregated in trust by the Issuer (if the Issuer shall act as
its own Paying Agent) for the Holders of such Notes; provided, that if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(c) Notes, except to the extent provided in Sections 1402 and
1403 of this Indenture, with respect to which the Issuer has effected
defeasance and/or covenant defeasance as provided in Article Fourteen; and
(d) Notes which have been paid pursuant to Section 309 of this
Indenture or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Notes are held by a bona fide purchaser
in whose hands such Notes are valid obligations of the Issuer;
provided, that for purposes of Section 303 of this Indenture and for purposes of
determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting of Holders for
quorum purposes, and for the purpose of making the calculations required by
Trust Indenture Act Section 313, the requisite principal amounts of the
Outstanding Notes shall be determined based upon the Principal Amount at
Maturity, and Notes owned by the Issuer or any other obligor upon the Notes or
any Affiliate of the Issuer or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
which the Trustee knows to be so owned shall be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
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act with respect to such Notes and that the pledgee is not the Issuer or any
other obligor upon the Notes or any Affiliate of the Issuer or such other
obligor.
"Paying Agent" means the Trustee or any other Person (including
the Issuer acting as Paying Agent) authorized by the Issuer to pay the principal
of or interest on any Notes on behalf of the Issuer.
"Payment Date" has the meaning set forth in Section 301(c).
"Payment Month" means a month beginning on the fifth (5th) day of
a calendar month and ending on the fourth (4th) day of the next succeeding
calendar month.
"PCF" means Power Contract Financing, L.L.C., a Delaware limited
liability company.
"PCF Financing Documents" has the meaning given in the PCF
Indenture.
"PCF Indenture" means that certain Indenture dated as of June 13,
2003 between PCF and Wilmington Trust Company.
"PCF LLC Agreement" means the limited liability company operating
agreement of PCF, dated as of June 11, 2003.
"PCF Material Agreements" has the meaning given to "Material
Agreements" in the PCF Indenture.
"PCF Notes" means the 5.200% Senior Secured Notes due 2006 and the
6.256% Senior Secured Notes due 2010 issued pursuant to the PCF Indenture.
"PCF Reserve Account" means that certain Reserve Account created
pursuant to and in accordance with the terms of the PCF Indenture.
"PCF Reserve Investments Account" means that certain Reserve
Investments Account created pursuant to and in accordance with the terms of the
PCF Indenture.
"PCF Reserve Proceeds" means, without duplication, (i) all amounts
released from time to time from the PCF Reserve Account or the PCF Reserve
Investments Account, plus (ii) from and after the Reserve Investments Release
Date, all earnings on amounts in the PCF Reserve Account, in each case
regardless of which of PCF's accounts such amounts are actually distributed to
the Issuer from; provided, however, that any such amounts applied to costs,
expenses and payments of PCF due and payable pursuant to the PCF Indenture at
the time such amounts are so released or earned shall be excluded from, and
shall not constitute, PCF Reserve Proceeds. In calculating PCF Reserve Proceeds,
all funds of PCF not comprising amounts described in clauses (i) and (ii) of the
preceding sentence that are then available under the PCF Indenture for payment
of costs, expenses and payments of PCF due and payable by PCF pursuant to the
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PCF Indenture shall be deemed to have been applied to any such costs, expenses
and payments prior to application of amounts described in such clauses (i) and
(ii).
"PCF Working Capital Account" means that certain Working Capital
Account created pursuant to and in accordance with the terms of the PCF
Indenture.
"Permanent Regulation S Global Note" has the meaning set forth in
Section 201(e) of this Indenture.
"Permit" means any action, approval, consent, waiver, exemption,
variance, franchise, order, permit, authorization, right or license of or from a
Governmental Agency.
"Permitted Investments" means the following investments maturing,
in each case, not less than one (1) Business Day before the Payment Date next
following the date such investment is made; provided, however, that in the case
of any investment pursuant to clause (b) of this definition which is made with
the Trustee, such investment may mature on such Payment Date:
(a) any direct obligations of, or obligations fully and
unconditionally guaranteed by, the United States of America, or any agency
or instrumentality of the United States of America, the obligations of
which are fully and unconditionally backed by the full faith and credit of
the United States of America;
(b) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company incorporated under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state authorities, or incorporated under the
laws of any other jurisdiction, so long as at the time of such investment
or contractual commitment providing for such investment the unsecured
commercial paper or other unsecured short-term debt obligations of such
depository institution or trust company have at least the Required Credit
Rating from Moody's and Standard & Poor's;
(c) repurchase obligations with respect to any security
described in clauses (a) or (b) above, in each case entered into with
either (i) a depository institution or trust company (acting as principal)
which in respect of its short-term unsecured debt has credit ratings of at
least the Required Credit Rating from Moody's and Standard & Poor's or (ii)
a money market fund maintained by a broker which in respect of its
short-term unsecured debt has at least the Required Credit Rating from
Moody's and Standard & Poor's;
(d) unsecured debt securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of the
United States of America or any state thereof which have at the time of
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such investment at least the Required Credit Rating from Moody's and
Standard & Poor's;
(e) unsecured commercial paper which has at the time of such
investment a rating of at least the Required Credit Rating from Moody's and
Standard & Poor's; and
(f) investments in money market funds or money market mutual
funds which have at the time of such investment at least the Required
Credit Rating from Moody's and Standard & Poor's (including such funds for
which the Trustee or any of its Affiliates is investment manager or advisor
and for which the Trustee or any of its Affiliates may receive a fee).
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Note" or "Physical Notes" collectively or individually,
as the case may be, has the meaning set forth in Section 201(g) of this
Indenture.
"Place of Payment" means, when used with respect to the Notes, the
place or places where the principal of and accrued and unpaid Additional
Interest (and interest on accrued and unpaid Additional Interest) with respect
to the Notes are payable as specified as contemplated by Sections 301(e) and
1102 of this Indenture.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note and, for the purposes of this definition, any Note authenticated
and delivered under Section 308 of this Indenture in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Principal Amount at Maturity" shall mean the aggregate face
principal amount of the Notes at the Maturity Date, which shall be $84,997,000.
"Private Placement Legend" has the meaning set forth in Section
202(a) of this Indenture.
"Property" means any asset, revenue or any other property, whether
tangible or intangible, real or personal, including, without limitation, any
right to receive income.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Redemption Date" when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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"Redemption Price" means, as of any Redemption Date, the Accreted
Value of the Notes on such Redemption Date, during the applicable period
indicated in Section 301(b) hereof.
"Registrar" means the Trustee, until a successor Registrar shall
have become such pursuant to the applicable provisions of this Indenture, and,
thereafter, "Registrar" shall mean such successor Registrar.
"Registration Statement" means a registration statement with
respect to the Notes meeting the requirements of the Securities Act.
"Regular Record Date," means, with respect to any Payment Date,
any Redemption Date or date of acceleration (as provided in Section 702), the
date which is fifteen (15) Business Days immediately preceding such Payment
Date, Redemption Date or date of acceleration.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" has the meaning set forth in Section
201(e) of this Indenture.
"Regulation S Physical Note" has the meaning set forth in Section
201(f) of this Indenture.
"Resale Restriction Termination Date" means the date that is two
years after the later of the original issue date and the last date on which the
Issuer or any Affiliate of the Issuer was the owner of a Note (or any
Predecessor Note).
"Reserve Account" has the meaning specified in Section 503(a) of
this Indenture.
"Reserve Investments Release Date" means the date on which,
following the consent of Moody's and Standard & Poor's to the release of funds
from the PCF Reserve Investments Account, the trustee under the PCF Indenture
releases such funds in accordance therewith.
"Responsible Officer" means, with respect to any person other than
the Trustee or the Issuer, a duly elected or appointed authorized and acting
officer, agent or representative of such Person. "Responsible Officer" when used
with respect to the Trustee, means the chairman or any vice-chairman of the
board of directors, the chairman or any vice-chairman of the executive committee
of the board of directors, the chairman of the trust committee, the president,
any Vice President, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers, and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject. "Responsible Officer" when used with respect to the Issuer means,
A-12
unless the context otherwise requires, the managing member, president, chief
executive officer, chief financial officer, vice president, principal accounting
officer or treasurer of the Issuer or any of the foregoing officers of the
Administrative Agent acting on behalf of the Issuer or other executive officer
of the Issuer or the Administrative Agent acting on behalf of the Issuer who in
the normal performance of his or her operational duties would have knowledge of
the subject matter relating to any certificate, report or notice to be delivered
or given under this Indenture or knowledge of any Default or Event of Default
thereunder.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; provided, that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Note constitutes a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Note" has the meaning set forth in Section
201(d) of this Indenture.
"Rule 144A Information" has the meaning set forth in Section 1110
of this Indenture.
"Secured Parties" means the Trustee, the Holders and the accounts
agent under the Assignment and Security Agreement and each of their respective
successor, transferees and assigns.
"Securities Act" means the Securities Act of 1933, as from time to
time amended.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as from time to time amended.
"Security Document" means, individually, the Assignment and
Security Agreement, the Consent and all UCC financing statements required by
this Indenture in connection with the Collateral; collectively, the "Security
Documents."
"Security Register" has the meaning specified in Section 305(a) of
this Indenture.
"Standard & Poor's" means Standards & Poor's Rating Services.
"Temporary Regulation S Global Note" has the meaning set forth in
Section 201(e) of this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force on the date this Indenture was executed, except as provided in Section
1005 of this Indenture.
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"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"Trustee Fees" means the amount of fees, expenses (including
reasonable attorneys fees and expenses) and indemnities due to the Trustee, the
Accounts Agent, each Paying Agent and the Registrar under this Indenture, the
Fee Agreement and the other Financing Documents.
"Uniform Commercial Code" or "UCC" means the Uniform Commercial
Code as in effect from time to time in the State of New York and any other
jurisdiction the laws of which control the creation or perfection of security
interests under the Security Documents.
"United States" or "U.S." means the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"Unrestricted Notes" means one or more Notes that do not and are
not required to bear the restrictive legends set forth in Section 202.
"U.S. Person" has the meaning ascribed to such term in Regulation
S and certified to the Trustee and the Registrar by such Person.
"U.S. Physical Note" has the meaning set forth in Section 201(f)
of this Indenture.
"Vice President" when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "Vice President."
A-14
EXHIBIT B
Form of Face of Note
Power Contract Financing III, LLC
Senior Secured Note due 2010
THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT UNDER SECTION 1272, 1273
AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. YOU MAY CONTACT THE
CHIEF FINANCIAL OFFICER OF THE ISSUER, AT 50 West San Fernando Street, San Jose,
Ca 95113, WHO WILL PROVIDE YOU WITH ANY REQUIRED INFORMATION REGARDING THE
ORIGINAL ISSUE DISCOUNT.
CUSIP [__________]
No. [__________]__$[________]
Power Contract Financing III, LLC, a Delaware limited liability
company (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to and as defined on the reverse hereof), for value
received, promises to pay to [_________], or its registered assigns, the
outstanding principal sum of [WRITTEN AMOUNT] ($[amount]), at the Maturity Date.
Prior to the Maturity Date, the principal amount of this Note will be deemed to
be equal to the Holder's pro rata portion of the Accreted Value set forth in
Annex A hereto. Except to the extent set forth below, Additional Interest
payments will be made to the Holders in semi-annual installments on February 5
and August 5 of each year, commencing on August 5, 2004 and ending on the
Maturity Date (or if any such Payment Date is not a Business Day, then the next
succeeding Business Day), to the extent sufficient funds are available in the
Collections Account on any such Payment Date to make such Additional Interest
payments. On any date that Additional Interest is due and payable on a day other
than a Payment Date, the accrued and unpaid Additional Interest due with respect
to the period immediately preceding such date shall be prorated based on the
number of days elapsed since the last Payment Date to such date divided by the
number of days elapsed since the last Payment Date to the next Payment Date,
based upon a 360-day year of twelve 30-day months.
Any Additional Interest that is not paid on the applicable Payment
Date will be added to the Additional Interest payable on the next Payment Date.
Such past due amounts will be payable (to the extent sufficient funds are
available in the Collections Account to make such payments) prior to amounts
then scheduled to be paid. All accrued Additional Interest that is not paid when
due (whether on the applicable Payment Date or following any redemption or
acceleration of the Notes) will bear interest (to the extent lawful) at a rate
of 11% per annum, computed on the basis of a 360-day year of twelve 30-day
months. All principal of the Notes that is not paid when due (whether on the
Maturity Date or following any redemption or acceleration of the Notes) will
bear interest (to the extent lawful) at a rate of 11% per annum, computed on the
basis of a 360-day year of twelve 30-day months.
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The Additional Interest so payable, and that is paid or duly
provided for, on any Payment Date, Redemption Date or date of acceleration (as
provided in Section 702 of the Indenture) will, as provided in the Indenture, be
paid to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date applicable to
such Payment Date, Redemption Date or date of acceleration. Principal of the
Notes that is payable will be paid to the Person in whose name such Note is
registered at the close of business on the Maturity Date, Redemption Date or
date of acceleration (as provided in Section 702 of the Indenture), as
applicable.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Terms used but not otherwise defined in this Note shall have the
meanings as defined in the Indenture. The provisions of this Note do not purport
to be complete and are subject to, and qualified in their entirety by reference
to, the provisions of the Indenture.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to below by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed manually or by facsimile by its duly authorized officers.
POWER CONTRACT FINANCING III, LLC
By
-------------------------------------
Name:
Title: [President/Vice President]
Attest:
By
------------------------------------------
Name:
Title: [Secretary/Assistant Secretary]
B-2
CERTIFICATE OF AUTHENTICATION
Dated:
------------------------------
This is one of the Senior Secured Notes due 2010 of the Issuer
described in the Indenture.
Wilmington Trust Company,
as Trustee
By
-------------------------------------
Authorized Signatory
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Form of Reverse Side of Note
Power Contract Financing III, LLC
Senior Secured Note due 2010
1. Principal and Interest.
At the Maturity Date, the principal amount of this Note will equal
the principal amount set forth on the face hereof. Prior to the Maturity Date,
the principal amount of this Note will be deemed to be equal to the Holder's pro
rata portion of the Accreted Value set forth in Annex A hereto. The Issuer will
pay any principal due with respect to this Note in the manner set forth below.
Additional Interest on this Note will be payable semi-annually on
each Payment Date, commencing on August 5, 2004, to the Holders on a pro rata
basis in the amounts set forth in Annex B hereto, to the extent sufficient funds
are available in the Collections Account on such Payment Date to make such
Additional Interest payment. Any Additional Interest that is not paid on the
applicable Payment Date will be added to the Additional Interest payable on the
next Payment Date.
Any principal or Additional Interest not paid when due will bear
interest (to the extent lawful) at a rate of 11% per annum, computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
(a) Principal of this Note that is payable will be paid to the
Person in whose name such Note is registered at the close of business on the
Maturity Date, Redemption Date or date of acceleration (as provided in Section
702 of the Indenture), as applicable, upon presentation and surrender of such
Note at the office or agency of the Issuer in New York County, New York,
maintained for such purpose or such other place as may be designated for such
purpose pursuant to the Indenture, provided, that, upon written request from any
Holder of Outstanding Notes in the aggregate principal amount of $1,000,000,
payments of principal of such Notes shall be made by wire transfer to such
Holder.
(b) Additional Interest (and interest on accrued and unpaid
Additional Interest) on this Note which is payable, and that is paid or duly
provided for, on any Payment Date, Redemption Date or date of acceleration (as
provided in Section 702 of the Indenture) will be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date applicable to such Payment Date, Redemption
Date or date of acceleration at the office or agency of the Issuer in New York
County, New York, maintained for such purposes pursuant to Section 1107 of the
Indenture or, at the option of the Issuer, may be paid by check mailed to the
address of the Person entitled thereto pursuant to Section 310 of the Indenture
as such address appears in the Security Register; provided, that (i) upon
written request from any Holder of Outstanding Notes in the aggregate principal
amount of $1,000,000, all payments with respect to the Global Notes and Physical
B-4
Notes the Holders of which have given wire transfer instructions to the Trustee
by the Regular Record Date shall be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof;
and (ii) the final payment of Additional Interest (and interest on accrued and
unpaid Additional Interest) with respect to this Note shall only be made upon
presentation and surrender of such Note at the office or agency of the Issuer in
New York County, New York, maintained for such purposes pursuant to Section 1107
or such other place as may be designated pursuant to the Indenture.
3. Registrar.
The Trustee will act as the Registrar.
4. Indenture; Limitations.
The Issuer issued the Notes under an Indenture dated as of June 2,
2004 (the "Indenture"), between the Issuer and the Trustee. The terms of the
Notes include those stated in the Indenture and those incorporated into the
Indenture by reference to the Trust Indenture Act. The Notes are subject to all
such terms and Holders are referred to the Indenture and the Trust Indenture Act
for a statement of all such terms. To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms of
the Indenture, the terms of the Indenture shall control.
The aggregate maximum principal amount at maturity of Notes issued
on the Closing Date is $84,997,000.
5. Mandatory Redemption.
The Issuer shall apply (i) PCF Reserve Proceeds deposited in the
Redemption Account prior to February 1, 2010 and (ii) amounts transferred from
the Collections Account following an optional redemption of the PCF Notes in
full to the Redemption Account prior to February 1, 2010, first, to make
payments of accrued and unpaid Additional Interest on the Notes to the
Redemption Date and second, to redeem the Notes at the Redemption Price. The
Redemption Price of the Notes will be equal to the Accreted Value of the Notes
on the Redemption Date during the applicable period set forth in Annex A hereto.
Any such mandatory redemption shall only be required, and shall only occur, if
the amount on deposit in the Redemption Account equals or exceeds the amount of
any accrued and unpaid Additional Interest (and interest on accrued and unpaid
Additional Interest) on the Notes to the Redemption Date plus the Redemption
Price. If the amount available in the Redemption Account for mandatory
redemption is less than such amounts, the Issuer shall not redeem the Notes
until such date as the amount in the Redemption Account equals or exceeds the
amount of any accrued and unpaid Additional Interest (and interest on accrued
and unpaid Additional Interest) on the Notes plus the Redemption Price, in each
case as of such later Redemption Date.
Notice of a redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date set forth in such notice to the
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Holders at each Holder's address as it appears in the Security Register. On and
after the Redemption Date, Additional Interest will cease to accrue on the
Notes.
6. Denominations; Transfer; Exchange.
The Notes are issued only in registered form without coupons and
initially only in minimum denominations of $100,000 and any integral multiple of
$1,000 above that amount; provided, that initial purchases of the Notes by
purchasers who are institutional "accredited investors" who are not Qualified
Institutional Buyers shall be in minimum amounts of $250,000; and provided,
further that, after initial issuance, Notes may be issued upon exchange or
transfer in such amounts as may be necessary to evidence the entire unpaid
Principal Amount at Maturity of any Note surrendered or exchanged. A Holder may
register the transfer or exchange of Notes in accordance with the Indenture. The
Issuer may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Issuer need not register the transfer or
exchange of any Notes that will be redeemed. Also, it need not register the
transfer or exchange of any Notes for a period of 15 days the Notes will be
redeemed.
7. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all purposes.
8. Treatment of Notes as Indebtedness for Tax Purposes.
Each Holder of a Note by its acceptance of such Note covenants and
agrees to treat such Note as indebtedness for United States federal income tax
purposes.
9. Unclaimed Money.
If money for the payment of principal or Additional Interest (or
interest on accrued and unpaid Additional Interest) remains unclaimed for two
years after the date that all amounts payable by the Issuer to the Trustee or
the Holders under any Financing Document have been finally and irrevocably paid
to the Trustee for the benefit of the Holders, the Trustee will pay the money
back to the Issuer at its request. After that, the Holders entitled to the money
must look solely to the Issuer for payment and all liability of the Trustee will
cease with respect to money deposited with the Trustee or held in trust by the
Trustee and returned to the Issuer as unclaimed money.
10. Discharge Prior to Redemption or Maturity.
If the Issuer irrevocably deposits, or causes to be deposited,
with the Trustee money sufficient to pay the then outstanding principal of,
Additional Interest and accrued and unpaid Additional Interest (and interest on
accrued and unpaid Additional Interest) on the Notes through and on the
Redemption Date or the Maturity Date, as the case may be, the Issuer will be
discharged from the Indenture and the Notes, except in certain circumstances for
certain sections thereof, as provided in the Indenture.
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11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Majority Holders of any
Outstanding Notes, and any existing default or compliance with any provision may
be waived with the consent of the Majority Holders (other than for a default in
the payment of the principal of or accrued and unpaid Additional Interest (or
interest on accrued and unpaid Additional Interest) with respect to any Note or
in respect of a covenant or provision of the Indenture that cannot be modified
or amended without the unanimous affirmative vote of all Holders) of the
Outstanding Notes. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency; provided, that such cure
shall not materially adversely affect the interests of the Holders.
12. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness of
the Issuer; (ii) restricted payments; (iii) transactions with Affiliates; (iv)
fundamental change; and (v) compliance with Material Agreements.
13. Successor Persons.
When a successor person or other entity assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default (other than a Bankruptcy Event of Default)
occurs and is continuing, then and in every such case the Trustee, upon the
direction of Holders of no less than 25% principal amount of the Outstanding
Notes (for an Event of Default with respect to a default in the payment of
principal or Additional Interest) or the Majority Holders of the Outstanding
Notes (for any other Event of Default other than a Bankruptcy Event of Default),
shall declare the principal amount of all the Notes as of such date to be due
and payable immediately, by a notice in writing to the Issuer (and to the
Trustee, if given by the Holders), and upon receipt of such notice the then
applicable principal amount of the Notes (as provided in Section 301(b) of the
Indenture) and any accrued and unpaid Additional Interest (and interest on
accrued and unpaid Additional Interest), and all other unpaid fees, costs,
charges and other amounts due under the Notes, shall become immediately due and
payable.
If a Bankruptcy Event of Default occurs, the then applicable
principal amount of the Notes (as provided for in Section 301(b) of the
Indenture) and accrued and unpaid Additional Interest (and interest on accrued
and unpaid Additional Interest) and other amounts payable under the Outstanding
Notes, shall become immediately due and payable. The Trustee may require
B-7
indemnity reasonably satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, the Majority Holders may direct the
Trustee in its exercise of any trust or power.
15. Trustee Dealings with Issuer.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Issuer and its
Affiliates as if it were not the Trustee; provided, that no conflicting interest
results.
16. No Recourse.
No recourse under or upon any obligation, covenant or agreement
contained in this Note, the Indenture or any Security Document, or because of
any indebtedness evidenced thereby, shall be had against any incorporator, past,
present or future, member, manager, officer or director, as such, of the Issuer
or the Issuer's members, or of any successor, either directly or through the
Issuer or the Issuer's members, as the case may be, or any successor, under any
rule of law, statute, or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Notes by
the Holders and as part of the consideration for the issuance of the Notes.
Nothing contained herein shall, however, limit the liability of any Person for
any fraud, gross negligence or willful misconduct on their part. The obligations
to pay the principal of and all accrued and unpaid Additional Interest (and
interest on accrued and unpaid Additional Interest) on the Notes are solely the
Issuer's obligations and any recourse against the Issuer for failure to satisfy
its obligations under the Notes is limited to the Collateral.
17. Authentication.
This Note shall not be valid until the Trustee manually signs the
certificate of authentication on the other side of this Note.
18. Governing Law.
The Indenture and this Note shall be governed by, and construed in
accordance with, the laws of the State of New York, applicable to agreements
negotiated and concluded by residents of, and to be performed in, the State of
New York.
The Issuer will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Power Contract
Financing III, LLC, 50 West San Fernando Street, San Jose, California 95113,
Attention: President.
B-8
ANNEX A to
Note
ACCRETED VALUE SCHEDULE FOR NOTE
For the period
--------------
Aggregate Accreted
Commencing on: Through: Value of the Notes:
-------------- -------
Date of offering August 5, 2004 $63,976,859
August 6, 2004 February 5, 2005 $65,271,638
February 6, 2005 August 5, 2005 $66,894,693
August 6, 2005 February 5, 2006 $68,291,596
February 6, 2006 August 5, 2006 $70,020,349
August 6, 2006 February 5, 2007 $71,526,650
February 6, 2007 August 5, 2007 $73,740,666
August 6, 2007 February 5, 2008 $75,755,380
February 6, 2008 August 5, 2008 $78,114,324
August 6, 2008 February 5, 2009 $80,282,117
February 6, 2009 August 5, 2009 $82,669,289
August 6, 2009 February 5, 2010 $84,997,000
B-9
Annex B to
Note
ADDITIONAL INTEREST PAYMENT SCHEDULE FOR NOTE
Additional Interest
Payment Date Payable Amount
------------ --------------
August 5, 2004 ............ $929,064
February 5, 2005 ............ $944,411
August 5, 2005 ............ $661,453
February 5, 2006 ............ $944,411
August 5, 2006 ............ $661,453
February 5, 2007 ............ $944,411
August 5, 2007 ............ $289,417
February 5, 2008 ............ $566,209
August 5, 2008 ............ $292,494
February 5, 2009 ............ $566,209
August 5, 2009 ............ $422,702
February 5, 2010 ............ $565,714
B-1
Form of Transfer Notice
(To be executed by the registered Holder if such Holder desires to transfer this
Note)
To [__________]
[----------]
Attention: [__________]
FOR VALUE RECEIVED the undersigned registered Holder hereby sells,
assigns and transfers unto:
Name of Assignee:
---------------------------
Taxpayer Identification Number of Assignee:
(Please print or typewrite name and address including zip code of assignee)
[----------]
[----------]
[----------]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
[__________] attorney to transfer such Note on the books of the Issuer with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES EXCEPT PERMANENT
REGULATION S PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to
the date which is the earlier of the date of an effective Registration Statement
or [__________] the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ](a) this Note is being transferred in compliance
with the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule
144A thereunder.
or
[ ](b) this Note is being transferred other than in
accordance with (a) above and documents are being
furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
B-2
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 307 of the Indenture shall have
been satisfied.
Dated:
------------------------------
By
--------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
By
--------------------------------------
NOTICE: To be executed by
an executive officer
B-3
EXHIBIT C
Form of Certificate to Be Delivered upon Termination
of Distribution Compliance Period on or after July 13, 2004
[date]
Power Contract Financing III, LLC
50 West San Fernando Street
San Jose, California 95113
Attn: Secretary
Wilmington Trust Company, as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Office
Re: Power Contract Financing III, LLC (the "Issuer") Senior Secured
Notes due 2010 (the "Notes")
Ladies and Gentlemen:
This letter relates to U.S.$ 84,997,000 aggregate principal amount
of Notes represented by the Regulation S Global Note (as defined in the
Indenture) which bears a legend outlining restrictions upon transfer of such
Regulation S Global Note. Pursuant to Section 201 of the Indenture (the
"Indenture"), dated as of June 2, 2004, relating to the Notes, we hereby certify
that we are (or we will hold such Notes on behalf of) a person who is not a U.S.
person, as defined in Regulation S ("Regulation S") promulgated under the
Securities Act of 1933, as amended (the "Securities Act") or who is a U.S.
person who purchased such interests pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
Accordingly, you are hereby requested to exchange the legended certificate for
an unlegended certificate representing an identical principal amount at maturity
of Notes, all in the manner provided by the Indenture.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By
--------------------------------------
Authorized Signature
C-1
EXHIBIT D
Form of Certificate to Be Delivered
in Connection with Transfers to Non-QIB
Institutional Accredited Investors
[date]
Wilmington Trust Company, as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Office
Power Contract Financing III, LLC
50 West San Fernando Street
San Jose, California 95113
Attn: Secretary
Re: Power Contract Financing III, LLC (the "Issuer") Senior Secured
Notes due 2010 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed purchase of $84,997,000 aggregate
principal amount of the Notes:
1. We understand that the Notes have not been and will not be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and may not be sold except as permitted in the following sentence. We agree on
our own behalf and on behalf of any investor account for which we are purchasing
the Notes to offer, sell or otherwise transfer such Notes prior to the date
which is two years after the later of the date of original issue and the last
date on which the Issuer or any affiliate of the Issuer was the owner of such
Notes, or any predecessor thereto (the "Resale Restriction Termination Date")
only (a) to the Issuer, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) for so long as the Notes are
eligible for resale pursuant to Rule 144A under the Securities Act ("Rule
144A"), to a person we reasonably believe is a qualified institutional buyer
under Rule 144A (a "QIB") that purchases for its own account or for the account
of a QIB to whom notice is given that the transfer is being made in reliance on
Rule 144A, (d) pursuant to offers and sales to Non-U.S. Persons (as defined in
the Indenture pursuant to which the Notes were issued) that occur outside the
United States within the meaning of Regulations S under the Securities Act, (e)
to an institutional "accredited investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act that is acquiring
D-1
the Notes for its own account or for the account of such an institutional
"accredited investor" for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the
Securities Act or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
and the property of such investor account or accounts be at all times within our
or their control and to compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Trustee, which shall provide,
among other things, that the transferee is an institutional "accredited
investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) or Rule 501
under the Securities Act and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. We
acknowledge that the Issuer and the Trustee reserve the right prior to any
offer, sale or other transfer prior to the Resale Restriction Termination Date
of the Notes pursuant to clauses (d), (e) and (t) above to require the delivery
of an Opinion of Counsel (as defined in the Indenture pursuant to which the
Notes were issued) certifications and/or other information satisfactory to the
Issuer and the Trustee.
2. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Notes for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act and we have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment.
3. We are acquiring the Notes purchased by us for our own account,
or for one or more accounts as to each of which we exercise sole investment
discretion and have authority to make, and do make, the statements contained in
this letter.
4. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
D-2
[Insert Name of Transferor]
By
--------------------------------------
Name:
Title:
Dated:
------------------------
Upon transfer, the Notes should be registered in the name of the
new beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
D-3
EXHIBIT E
Forth of Certificate to Be Delivered
in Connection with Transfers Pursuant to Regulation S
[date]
Power Contract Financing III, LLC
50 West San Fernando Street
San Jose, California 95113
Wilmington Trust Company, as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Office
Re: Power Contract Financing III, LLC (the "Issuer") Senior Secured
Notes due 2010 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $84,997,000 aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S ("Regulation S") under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Notes was not made to a person in the United
States and the proposed transferee is a Non-U.S. Person (as defined in the
Indenture pursuant to which the Notes were issued);
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a distribution compliance
period and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S
E-1
are applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case
may be.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Insert Name of Transferor]
By
--------------------------------------
Name:
Title:
Dated:
------------------------
E-2
EXHIBIT F
Form of Issuer Order and Officer's Certificate
of
Power Contract Financing III, LLC
Wilmington Trust Company
as Trustee under the Indenture,
dated as of June 2, 2004,
between Wilmington Trust Company and
Power Contract Financing III, LLC
Attention: Corporate Trust Department
Re: Delivery to Trustee of $84,997,000 Power Contract
Financing III, LLC Senior Secured Notes due 2010
Ladies and Gentlemen:
The undersigned, Power Contract Financing III, LLC (the "Issuer"),
hereby delivers to you, in your capacity as Trustee under the above-referenced
Indenture (the "Indenture"), $84,997,000 in aggregate principal amount of the
Issuer's Senior Secured Notes due 2010 (the "Notes"). This Issuer Order and
Officer's Certificate (this "Issuer Order") is delivered pursuant to Section
303(c) of the Indenture and terms used and not otherwise defined herein have the
respective meanings assigned to such terms in the Indenture. The Notes delivered
with this Issuer Order are [Initial Notes/Unrestricted Notes], are to be issued
as [Physical Notes/Global Notes] in accordance with the terms of the Indenture
and are to be authenticated as of the date of this Issuer Order. The Issuer
hereby directs that you authenticate the Notes and, if applicable, deliver each
of such Notes to the respective Holder thereof or to special New York counsel
for such Holder, acting on such Holder's behalf, in accordance with Section
303(c) of the Indenture.
The Issuer hereby certifies that the Notes delivered with this
Issuer Order have been duly executed by the Issuer and that all conditions
precedent to the issuance of the Notes contained in the Indenture have been
fully complied with.
Very truly yours,
POWER CONTRACT FINANCING III, LLC
By:
-------------------------------------
Name:
Title: [President/Vice President]
Dated:
-------------------------------
F-1