EXHIBIT 4.2
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TRUST INDENTURE, DEED OF TRUST,
ASSIGNMENT OF LEASE, AND SECURITY AGREEMENT
between
WILMINGTON TRUST COMPANY,
not in its individual
capacity, except to
the extent expressly
set forth herein,
but solely as Owner Trustee,
and
STATE STREET BANK AND TRUST COMPANY,
not in its individual
capacity, except to
the extent expressly
set forth herein,
but solely as Indenture Trustee
Dated effective as of May 28, 1997
Sale and Leaseback of Certain Paraxylene Production Facility
Assets Located in Beaumont, Texas
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions................................................. 5
ARTICLE II
THE SECURED NOTES
SECTION 2.01. Secured Notes............................................... 5
SECTION 2.02. Payment from Indenture Estate Only.......................... 6
SECTION 2.03. Method of Payment........................................... 7
SECTION 2.04. Note Register............................................... 8
SECTION 2.05. Registered Owners........................................... 8
SECTION 2.06. Transfer, Exchange and Replacement of Notes................. 8
SECTION 2.07. New Notes, Payment of Expenses.............................. 9
SECTION 2.08. Additional Notes............................................ 10
SECTION 2.09. Termination of Interest in Indenture Estate................. 13
SECTION 2.10. Equally and Ratably Secured................................. 13
SECTION 2.11. Execution and Delivery of Secured Notes upon Original
Issuance.................................................. 13
ARTICLE III
REDEMPTION AND REFUNDING
SECTION 3.01. Generally................................................... 14
SECTION 3.02. Mandatory Redemption........................................ 14
SECTION 3.03. [Intentionally Omitted]..................................... 15
SECTION 3.04. Assumption of Obligations of the Owner Trustee by the
Lessee.................................................... 15
SECTION 3.05. Optional Redemption Refunding............................... 17
SECTION 3.06. Owner Trustee's and Owner Participant's Option to Redeem or
Purchase Secured Notes.................................... 18
SECTION 3.07. Deposited Redemption or Purchase Moneys..................... 19
SECTION 3.08. Acquisition of Secured Notes................................ 19
SECTION 3.09. Condition to Redemption and Refunding....................... 19
SECTION 3.10. Notice of Certain Redemptions............................... 20
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ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE INDENTURE ESTATE
SECTION 4.01. Basic Rent Distribution.................................... 21
SECTION 4.02. Certain Distributions...................................... 22
SECTION 4.03. Distribution After Indenture Event of Default.............. 23
SECTION 4.04. Application of Payments on Secured Notes................... 24
SECTION 4.05. Applications of Payments According to Applicable Operative
Document Provisions...................................... 25
SECTION 4.06. Amounts Received for Which No Provision Is Made............ 25
SECTION 4.07. Payment Procedures......................................... 25
SECTION 4.08. Application of Payments Under Guaranty..................... 26
ARTICLE V
COVENANTS OF OWNER TRUSTEE; CERTAIN AGREEMENTS;
INDENTURE EVENTS OF DEFAULT; REMEDIES OF INDENTURE TRUSTEE
SECTION 5.01. Covenants of Owner Trustee; Certain Agreements............. 26
SECTION 5.02. Indenture Events of Default................................ 28
SECTION 5.03. Certain Rights............................................. 30
SECTION 5.04. Remedies................................................... 32
SECTION 5.05. Suit; Possession; Title; Sale of Indenture Estate.......... 34
SECTION 5.06. Remedies Cumulative........................................ 37
SECTION 5.07. Discontinuance of Proceedings.............................. 38
SECTION 5.08. Waiver of Past Defaults.................................... 38
SECTION 5.09. No Action Contrary to Lessee's Rights Under the Lease...... 38
SECTION 5.10. Rights of Holders of Secured Notes......................... 38
SECTION 5.11. Limitation on Suits by Holders............................. 39
ARTICLE VI
DUTIES OF THE INDENTURE TRUSTEE
SECTION 6.01. Certain Actions............................................ 39
SECTION 6.02. Action upon Instructions................................... 40
SECTION 6.03. Release of Lien of Indenture............................... 40
SECTION 6.04. Indemnification............................................ 42
SECTION 6.05. No Implied Duties.......................................... 42
SECTION 6.06. Duties to Remove Certain Liens............................. 42
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SECTION 6.07. No Action Except Under Operative Documents or
Instructions............................................. 42
SECTION 6.08. Certain Rights of the Owner Trustee and the Owner
Participant.............................................. 43
SECTION 6.09. Filing of Financing and Continuation Statements............ 44
SECTION 6.10. Publishing of Notices...................................... 44
SECTION 6.11. Taxes; Withholding; Information Reporting.................. 44
ARTICLE VII
THE INDENTURE TRUSTEE AND THE OWNER TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties............................ 45
SECTION 7.02. Absence of Duties Except as Specified...................... 45
SECTION 7.03. No Representations or Warranties........................... 45
SECTION 7.04. No Segregation of Moneys; No Interest; Investments......... 46
SECTION 7.05. Reliance; Agents; Advice of Counsel........................ 46
SECTION 7.06. No Compensation from Holders or Indenture Estate........... 47
SECTION 7.07. [Intentionally Omitted].................................... 47
SECTION 7.08. Moneys for Payments in Respect of Notes to be Held in
Trust.................................................... 47
SECTION 7.09. Disposition of Moneys Held for Payments of Notes........... 47
ARTICLE VIII
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
SECTION 8.01. Notice of Successor Owner Trustees......................... 48
SECTION 8.02. Resignation of Indenture Trustee; Appointment of Successor. 48
SECTION 8.03. Co-Trustees and Separate Trustees.......................... 50
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
SECTION 9.01. Indenture Supplements Without Consent of Holders........... 52
SECTION 9.02. Supplements and Amendments to Indenture With Consent of
Holders of Notes......................................... 53
SECTION 9.03. Execution of Indenture Supplement, Amendments, Etc......... 58
SECTION 9.04. Effect of Indenture Supplement............................. 58
SECTION 9.05. Reference in Secured Notes to Indenture Supplements........ 59
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SECTION 9.06. Notices of Indenture Supplements and Amendments, Etc....... 59
SECTION 9.07. Lessee's Rights............................................ 59
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Termination of Indenture.................................. 59
SECTION 10.02. No Legal Title to Indenture Estate in Holders............. 61
SECTION 10.03. Power of Attorney......................................... 61
SECTION 10.04. Regarding the Owner Trustee............................... 61
SECTION 10.05. Notices................................................... 62
SECTION 10.06. Severability of Provisions................................ 63
SECTION 10.07. No Oral Modification or Continuing Waivers................ 63
SECTION 10.08. Successors and Assigns.................................... 63
SECTION 10.09. Headings; Table of Contents............................... 63
SECTION 10.10. Normal Commercial Relations............................... 64
SECTION 10.11. Governing Law............................................. 64
SECTION 10.12. Execution................................................. 64
SECTION 10.13. Security Agreement........................................ 64
SECTION 10.14. Benefits of Indenture..................................... 64
Appendix A.... Definitions
Schedule 1.... Description of Facility Assets
Exhibit A..... Form of Secured Notes
Exhibit B..... Maturity Dates, etc.
Exhibit C..... Relevant Amendment
Exhibit D..... Form of Indenture Supplement
Exhibit E..... Form of Relevant Date Supplement
TRUST INDENTURE, DEED OF TRUST, ASSIGNMENT OF LEASE,
AND SECURITY AGREEMENT
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This TRUST INDENTURE, DEED OF TRUST, ASSIGNMENT OF LEASE, AND SECURITY
AGREEMENT, dated effective as of May 28, 1997, between WILMINGTON TRUST COMPANY,
a Delaware banking corporation, not in its individual capacity, except as
expressly provided herein, but solely as Owner Trustee under the Trust Agreement
(the "Owner Trustee") (capitalized terms used herein having the respective
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meanings ascribed thereto in Section 1.01) and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company, not in its individual capacity, except
as expressly provided herein, but solely as Indenture Trustee (the "Indenture
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Trustee"):
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WITNESSETH:
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WHEREAS, the Owner Participant and the Trust Company have heretofore
entered into the Trust Agreement, whereby, among other things, the Trust Company
in its capacity as Owner Trustee thereunder has declared a certain trust for the
use and benefit of the Owner Participant, subject, however, to the Lien of this
Indenture, and the Owner Trustee has been authorized and directed to execute and
deliver this Indenture;
WHEREAS, the Owner Trustee desires by this Indenture to provide, among
other things (i) for the issuance by the Owner Trustee to the Pass Through
Trustee of the Series 1997-A Secured Notes specified in Exhibit B-2 hereto, upon
payment by the Pass Through Trustee of the principal amount of such Series 1997-
A Secured Notes, and (ii) for the assignment, mortgage and pledge by the Owner
Trustee to the Indenture Trustee, as part of the Indenture Estate thereunder,
among other things, of all of the right, title and interest of the Owner
Trustee, other than Excepted Payments, in, to and under, as the case may be, the
Facility Assets, the Lease, the Guaranty, the Conveyancing Instrument, the
Assignment and all payments and other amounts received hereunder and
thereunder, other than Excepted Payments, in accordance with the terms hereof
and thereof, as security for, among other things, the Owner Trustee's
obligations to the Indenture Trustee, the Loan Participants and other Holders
from time to time and for the benefit and security of the Loan Participants and
such Holders;
WHEREAS, all things have been done to make the Secured Notes, when executed
by the Owner Trustee and authenticated, issued and delivered hereunder, the
legal, valid, binding and enforceable obligations of the Owner Trustee in
accordance with their terms; and
WHEREAS, all things necessary to make this Indenture the legal, valid,
binding and enforceable obligation of the Owner Trustee, for the uses and
purposes herein set forth, in accordance with its terms, have been done and
performed and have happened,
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and the Indenture Trustee has duly accepted the trust created hereby and as
evidenced thereof has joined in the execution hereof;
NOW, THEREFORE, THIS TRUST INDENTURE, DEED OF TRUST, ASSIGNMENT OF LEASE
AND SECURITY AGREEMENT, WITNESSETH, that, to secure (i) the prompt payment when
and as due and payable of the principal of, Make-Whole Amount, if any, and
interest on all the Secured Notes from time to time Outstanding hereunder and of
all other amounts payable to the Holders (whether as Holders or Loan
Participants) hereunder, under the Secured Notes and under the other Operative
Documents (other than the Tax Indemnity Agreement), (ii) the performance and
observance by the Owner Trustee of all the provisions, covenants and agreements
for the benefit of the Indenture Trustee or the Holders herein, in the
Participation Agreement, in the Secured Notes and in the other Operative
Documents (other than the Tax Indemnity Agreement), and (iii) the performance
and observance by the Owner Participant of its covenants and agreements
contained in the Operative Documents (other than the Tax Indemnity Agreement)
(the obligations described in the above clauses (i), (ii) and (iii)
collectively, the "Indenture Indebtedness"), and for the uses and purposes and
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subject to the terms and provisions hereof, and in consideration of the premises
and of the covenants herein contained and of the acceptance of the Secured Notes
by the Holders thereof:
GRANTING CLAUSE
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The Owner Trustee, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and in order to secure the payment and
performance of the Indenture Indebtedness, hereby presently irrevocably grants,
conveys, mortgages, hypothecates, and pledges unto the Indenture Trustee and
creates a security interest to and for the benefit of the Indenture Trustee, in
all of the right, title and interest of the Owner Trustee in and to the
following property, rights and privileges, other than Excepted Payments, now
owned or in the future acquired by the Owner Trustee or in which the Owner
Trustee now has or may in the future acquire any estate, right, title or
interest (which collectively, excluding Excepted Payments but including all
property hereafter subjected to the Lien of this Indenture, shall constitute the
"Indenture Estate"), to wit:
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(a) the leasehold estate created by, and all other estates, rights and
interests of the Owner Trustee under, the Ground Lease, together with all
the estates, rights, titles and interests of the Owner Trustee, if any, in
and to the Site and all improvements thereon and rights, easements and
privileges pertaining thereto, now or hereafter existing, and all rights of
the Owner Trustee to exercise any election or option or to make any
decision or determination or to give any notice, consent, waiver or
approval or to take any other action under or in respect of the Ground
Lease;
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(b) the Facility Assets (which are described in Schedule 1),
including, without limitation, any Component or Replacement Component or
Modification to the Facility Assets which, pursuant to the terms of the
Lease, are the property of the Owner Trustee;
(c) the Conveyancing Instrument and all rights, powers and remedies of
the Owner Trustee pursuant thereto, whether arising thereunder or by
statute, at law, in equity or otherwise;
(d) all estate, right, title and interest of the Owner Trustee in and
to all other property of every kind and description, real or personal, now
held or hereafter acquired by the Owner Trustee pursuant to the provisions
of the Ground Lease, the Lease and the Conveyancing Instrument;
(e) the Lease, including, without limitation, (i) all amounts of Rent,
insurance proceeds and requisition, indemnity or other payments of any kind
for or with respect to any asset leased or subleased thereunder, (ii) all
right of the Owner Trustee to exercise any election or option, or to give
any notice, consent, waiver or approval under or in respect of the Lease,
or to accept any surrender or enter into any modification thereof, as the
case may be, and (iii) all rights, powers and remedies of the Owner Trustee
pursuant to the Lease, whether arising thereunder or by statute, at law, in
equity or otherwise, including, without limitation, the right to possession
of any asset demised thereunder;
(f) the Guaranty, including without limitation, (i) all amounts
payable thereunder, (ii) all right of the Owner Trustee to exercise any
election or option, or to give any notice, consent, waiver or approval
under or in respect of the Guaranty, or to accept any surrender or enter
into any modification thereof, as the case may be, and (iii) all rights,
powers and remedies of the Owner Trustee pursuant to the Guaranty, whether
arising thereunder or by statute, at law, in equity or otherwise;
(g) the Assignment and all rights, powers and remedies of the Owner
Trustee pursuant thereto, whether arising thereunder or by statute, at law,
in equity or otherwise;
(h) all moneys and securities now or hereafter required to be paid or
deposited to or with the Indenture Trustee pursuant to any term of any
Operative Document, and required to be held by the Indenture Trustee
hereunder;
(i) to the extent assignable, any and all permits, certificates,
approvals and authorizations, however characterized, issued or in any way
furnished in connection
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with the Facility Assets, whether necessary or not for the operation and
use of the Facility Assets;
(j) all the tolls, rents, issues, profits, products, revenues and
other income of the property subjected or required to be subjected to the
Lien of this Indenture; and
(k) all rights or property which may be received upon the exercise of
any remedy or option contained in any of the above-described instruments
and all proceeds in whatever form of all or any part of any of the
foregoing;
EXCLUDING, HOWEVER, from the foregoing grant, and thereby from the
Lien of this Indenture and from the Indenture Estate, any and all Excepted
Payments and provided that, notwithstanding the foregoing provisions or anything
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herein to the contrary, the leasehold interest granted to the Lessee under the
Lease shall not be subject to the Lien of this Indenture or be part of the
Indenture Estate, and nothing in this Indenture shall affect the rights of the
Lessee under the Lease as long as no Lease Event of Default has occurred and is
continuing; and
SUBJECT to the rights of the Owner Trustee and the Owner Participant
hereunder;
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee
and its successors and assigns, for the benefit and security of the Holders,
without any priority of any one Secured Note over any other (except as expressly
provided herein or under any Operative Document), and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture. This
Indenture is a deed of trust given to secure the payment of the Indenture
Indebtedness and this Indenture is also intended to operate as, among other
things, a security agreement and an assignment of leases and rents.
It is expressly agreed that anything contained in this Indenture to
the contrary notwithstanding, the Owner Trustee shall remain liable under the
Lease and the other Operative Documents to perform all of the obligations of the
Owner Trustee hereunder and thereunder, all in accordance with and pursuant to
the terms and provisions of each thereof, and the Holders and, except as
expressly provided herein, the Indenture Trustee shall have no obligation or
liability under any Operative Document by reason of or arising out of this
Indenture (except as to the Indenture Trustee, if the Indenture Trustee shall
have become the "Lessor" under the Lease). None of the Indenture Trustee or any
Holder shall be required or obligated in any manner to perform or fulfill any
obligation of the Owner Trustee under or pursuant to any Operative Document or,
except as herein expressly provided, to make any payment, or to make any inquiry
as to the nature or sufficiency of any payment received by
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it, or to present or file any claim, or to take any action to collect or enforce
the payment of any amounts which may have been assigned to it or to which it may
be entitled at any time or times.
Accordingly, the Owner Trustee and the Indenture Trustee hereby agree
for themselves and for the benefit and security of the Holders as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined herein, for the
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purposes hereof, capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in Appendix A. References in this Indenture
to Sections, subsections, paragraphs, Schedules, Appendices and Exhibits are to
Sections, subsections and paragraphs in, and Schedules, Appendices and Exhibits
to, this Indenture unless otherwise indicated.
ARTICLE II
THE SECURED NOTES
SECTION 2.01. Secured Notes. (a) Generally. Except for Secured
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Notes issued pursuant to Section 2.06 or 2.08, Secured Notes may be issued only
on the Closing Date. On the Closing Date, the Secured Notes to be issued on
such Date pursuant to Section 2.2 of the Participation Agreement, subject to
Section 2.11, shall be duly executed by the Owner Trustee, duly authenticated
and delivered by the Indenture Trustee and registered in the name of the Loan
Participant to which such Secured Note is being issued and shall have attached
thereto the Amortization Schedule for such Secured Note. Receipt by the
Indenture Trustee of Secured Notes duly executed by the Owner Trustee shall
constitute instructions to the Indenture Trustee to authenticate, register and
deliver such Secured Notes on the Closing Date.
(b) Series 1997-A Secured Notes. The Series 1997-A Secured Notes
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shall:
(i) be limited in aggregate original principal amount to the
amount specified in Exhibit B hereto;
(ii) be issuable only as registered Secured Notes in
denominations of $1,000, and integral multiples thereof, or if the
remaining principal amount thereof shall be less than $1,000, such
remaining principal amount;
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(iii) be dated the Closing Date;
(iv) bear interest on the unpaid principal amount thereof from
the date of such Series 1997-A Secured Notes at the rate specified in
Exhibit B (computed on the basis of a 360-day year consisting of
twelve 30-day months);
(v) provide for payments of interest and otherwise be due and
payable as to principal and interest as specified herein and therein;
(vi) be prepayable only as provided in Sections 3.02, 3.05, 3.06,
4.02 and 4.03; and
(vii) be substantially of the tenor and in the form set forth in
Exhibit A.
(c) Each Secured Note shall be signed on behalf of the Owner Trustee
by a Responsible Officer of the Owner Trustee, manually or in facsimile.
If any officer of the Owner Trustee executing Secured Notes or attesting to
the Owner Trustee's seal no longer holds that office at the time a Secured
Note is executed on behalf of the Owner Trustee, such Secured Note shall be
valid nevertheless. No Secured Note shall be secured by or entitled to any
benefit under this Indenture, or be valid for any purpose, unless there
appears thereon a certificate of authentication executed by or on behalf of
the Indenture Trustee by the manual signature of a Responsible Officer of
the Indenture Trustee, and such certificate on any Secured Note shall be
conclusive evidence that such Secured Note has been duly authenticated and
delivered hereunder.
(d) The Indenture Trustee shall not be required (i) to register the
transfer of or to exchange any Secured Note during a period beginning at
the opening of business 15 Business Days before the day of the mailing of a
notice of redemption (or purchase in lieu of redemption) of Secured Trustee
Notes pursuant to Section 3.02, 3.05 or 3.06 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
to exchange any Secured Note called for redemption (or purchase in lieu of
redemption) pursuant to such Section 3.02, 3.05 or 3.06.
SECTION 2.02. Payment from Indenture Estate Only. All payments of
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principal, Make-Whole Amount, if any, and interest to be made by the Owner
Trustee and, except as otherwise provided in the Operative Documents, all
payments of any other amounts payable by or on behalf of the Owner Trustee under
the Secured Notes and this Indenture, shall be made only from the income and
proceeds from the Indenture Estate, and only to the extent that the Indenture
Trustee shall have received sufficient income or proceeds from the Indenture
Estate to make such payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Secured Note, agrees that it will look solely to the
income and
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proceeds from the Indenture Estate to the extent available for payment as herein
provided and that (a) none of the Owner Trustee or the Indenture Trustee
(whether in its individual or trust capacity) shall be personally liable to such
Holder for any amounts payable under the Secured Notes, nor, except as
specifically provided herein or in the other Operative Documents, for any
amounts payable or any liability under this Indenture and (b) the Owner
Participant shall not be liable to the Indenture Trustee or to any Holder under
any circumstances for any reason whatsoever except to the extent expressly
provided herein or in any other Operative Document.
SECTION 2.03. Method of Payment. (a) The principal of, and Make-
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Whole Amount, if any, and interest, on each Secured Note shall be payable in
immediately available funds, the receipt of which has been confirmed by a
Responsible Officer of the Indenture Trustee (which shall be done promptly upon
receipt thereof) on or before 12:00 p.m., New York time, at the place of
receipt, on the due date therefor, to the Indenture Trustee at the Corporate
Trust Office of the Indenture Trustee. Amounts so received by the Indenture
Trustee shall be paid by the Indenture Trustee to each Holder on the due date
therefor without any presentment or surrender of any Secured Note held by such
Holder by whichever of the following methods shall be specified by prior written
notice from such Holder to the Indenture Trustee: (i) by transferring prior to
2:00 p.m., New York City time, on such date such payment to such Holder in
immediately available funds by crediting the amount to be distributed to any
Holder to any account maintained by such Holder with the Indenture Trustee or
(ii) by initiating a wire transfer prior to the time set forth in clause (i) of
this Section 2.03(a) of such amount in immediately available funds to a banking
institution designated in such notice with bank wire transfer facilities for the
account of such Holder, in all cases without any presentment or surrender of any
Secured Note, except that on the date of the final maturity thereof (whether at
maturity, upon prepayment, acceleration or otherwise), the Holder of each
Secured Note shall surrender such Secured Note promptly after payment; provided
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that failure to so present such Secured Note shall not diminish the effect of
full and final payment by the Owner Trustee. If any Holder does not specify one
of the foregoing methods, payment will be made by check mailed to the registered
address of such Holder. In the event the Indenture Trustee shall fail to make
any payment as provided in the preceding sentences after its receipt of funds at
the place and on or before the time specified in this Section 2.03(a), the
Indenture Trustee in its individual capacity agrees to compensate each Holder
for loss of use of funds at the Federal Funds overnight rate.
(b) Whenever any payment to be made hereunder or pursuant to the terms
of any Secured Note shall be stated to be due on a day which is not a Business
Day, such payment shall be due and payable on the next succeeding Business Day
with the same force and effect as if made on such scheduled date and (provided
such payment is timely made on such succeeding Business Day) no interest shall
accrue on the amount of such payment from and after such scheduled date.
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(c) If payment of any installment of principal or interest payable in
accordance with the terms hereof and of the Secured Notes is not paid in full
when due, whether as scheduled or upon acceleration and whether before or after
the maturity date of the Secured Notes, such overdue amount of principal or
interest shall (to the extent not prohibited by applicable law) bear interest,
payable on demand, for each day from and including the date payment thereof was
due to the actual date of payment, at the Overdue Rate.
(d) Subject to Section 6.11, the Holder of any Secured Note shall be
entitled to the principal of, and Make-Whole Amount, if any, and interest on
such Secured Note free from all rights of set-off or counterclaims of the Owner
Trustee, the Indenture Trustee or any prior Holder of such Secured Note.
Nothing set forth in this Section 2.03(d) shall impair the right of the Owner
Trustee to receive a return from the Indenture Trustee of any amount
unintentionally overpaid by the Owner Trustee in respect of a Secured Note.
SECTION 2.04. Note Register. The Indenture Trustee shall cause to be
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kept at the Indenture Trustee's corporate trust office a register (the "Note
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Register") for the registration or transfer of the Secured Notes. The Note
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Register shall be maintained by the Indenture Trustee, and the names and
addresses of the registered Holders of the Secured Notes, the transfers of the
Secured Notes and the names and addresses of the transferees of the Secured
Notes shall be entered in the Note Register under such reasonable regulations as
the Indenture Trustee may prescribe.
SECTION 2.05. Registered Owners. The Owner Trustee and the Indenture
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Trustee shall deem and treat any registered Holder as the absolute owner of any
Secured Note held by such Holder, as indicated in the Note Register, for the
purpose of receiving payment of all amounts payable with respect to such Secured
Note and for all other purposes, and neither the Owner Trustee nor the Indenture
Trustee shall be affected by any notice to the contrary. All such payments so
made shall be valid and effectual to satisfy and discharge the liability of the
Owner Trustee upon such Secured Note to the extent of the sum or sums so paid.
SECTION 2.06. Transfer, Exchange and Replacement of Notes. (a)
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Secured Notes may be transferred only on the Note Register. Any Secured Note
may be transferred on the Note Register if such Secured Note is surrendered for
cancellation at the Corporate Trust Office of the Indenture Trustee and is
accompanied by an instrument of transfer in form and substance reasonably
satisfactory to the Indenture Trustee, which Secured Note or Secured Notes shall
be cancelled by the Indenture Trustee. A new Secured Note or Secured Notes of
the same series, duly executed by the Owner Trustee and registered in the name
of the transferee or transferees in a principal amount or amounts equal to the
principal amount of such transferred Secured Note, shall be duly authenticated
and delivered by the Indenture Trustee to the transferee or transferees named by
the Holder of such transferred Secured Note in exchange for such transferred
Secured Note. Promptly after registration of the
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transfer of any Secured Note, the Indenture Trustee shall give notice thereof to
the Lessee and the Owner Trustee specifying the name and address for notices of
the transferee or transferees.
(b) Any Secured Note may be exchanged for a new Secured Note if such
Secured Note to be so exchanged is surrendered for cancellation at the Corporate
Trust Office of the Indenture Trustee and is accompanied by the request of the
Holder thereof specifying the denomination of the new Secured Note (which shall
be in denominations of at least $1,000 or in integral multiples thereof, or if
less, the remaining principal amount thereof) to be issued in exchange therefor.
Upon instructions from the Indenture Trustee, the Owner Trustee shall deliver to
the Indenture Trustee a new Secured Note of the same series, duly executed by
the Owner Trustee and registered in the name of such Holder in the denominations
so requested and in an aggregate principal amount equal to the aggregate
original principal amount of such Secured Note to be so exchanged, and such new
Secured Note shall be duly authenticated by the Indenture Trustee and delivered
by the Indenture Trustee to such Holder in exchange for such Secured Note to be
so exchanged, which Secured Note shall be cancelled by the Indenture Trustee.
(c) If any Secured Note shall become mutilated or be destroyed, lost
or stolen, upon request of the Holder thereof, a new Secured Note of the same
series, duly executed by the Owner Trustee and registered in the name of such
Holder in the same original principal amount as the Secured Note so mutilated,
destroyed, lost or stolen, shall be duly authenticated and delivered by the
Indenture Trustee to such Holder in exchange for such Secured Note, if
mutilated, or in substitution for such Secured Note, if destroyed, lost or
stolen. In the case of a mutilated Secured Note, such Secured Note shall be
surrendered for cancellation at the Corporate Trust Office of the Indenture
Trustee and shall be cancelled by the Indenture Trustee. In the case of a
destroyed, lost or stolen Secured Note, the Holder thereof shall furnish to the
Owner Trustee and the Indenture Trustee (i) evidence to their reasonable
satisfaction of the destruction, loss or theft of such Secured Note and
ownership thereof, and (ii) such security or indemnity as may be reasonably
required by them to save them harmless; provided that if the affected Holder is
--------
a Pass Through Trustee, the written agreement of such Holder to indemnify the
Owner Trustee and the Indenture Trustee (in their respective individual and
trust capacities) with respect to such destroyed, lost or stolen Secured Note,
together with written notice of ownership and destruction, loss or theft
thereof, shall satisfy the conditions of this sentence.
(d) The Indenture Trustee shall cancel all Secured Notes surrendered
for replacement, redemption, registration of transfer, exchange, payment or
cancellation and shall destroy canceled Secured Notes.
SECTION 2.07. New Notes, Payment of Expenses. (a) Each Secured Note
------------------------------
(a "New Note") issued pursuant to Section 2.06 upon transfer of, in exchange for
--------
or in
10
substitution for a Secured Note (an "Old Note") shall be dated as of the date of
--------
such Old Note. The Indenture Trustee shall mark on each New Note (i) the date to
which principal and interest have been paid on the applicable old Note and (ii)
all payments and prepayments of principal made on such Old Note which are
allocable to such New Note. Interest shall be deemed to have been paid on such
New Note to the date to which interest was paid on the applicable Old Note, and
all payments and prepayments of principal required to have been marked on such
New Note, as provided in clause (ii) of the preceding sentence, shall be deemed
to have been made thereon. All New Notes issued pursuant to Section 2.06 upon
transfer of, in exchange for or in substitution for or in lieu of Old Notes
shall be valid obligations of the Owner Trustee evidencing the same debt as such
Old Notes and shall be entitled to the benefits and security of this Indenture
to the same extent as such Old Notes. Issuance of any New Note shall not for any
purposes be deemed a further advance of funds to the Owner Trustee and the
perfection and priority of the security interest in the Indenture Estate
applicable to such New Note shall for all purposes be the same as that
applicable to the Old Note replaced by such New Note.
(b) Upon the issuance of a New Note or New Notes pursuant to Section
2.06, the Owner Trustee and/or the Indenture Trustee may require from the party
requesting such New Note or New Notes payment of a sum to reimburse the Owner
Trustee and/or the Indenture Trustee for, or to provide funds for, the payment
of any tax or other governmental charge or any other charge or expense paid or
payable with respect to such transfer by the Owner Trustee and/or the Indenture
Trustee, without any right of reimbursement under any Operative Document with
respect to such payments.
SECTION 2.08. Additional Notes. (a) So long as no Lease Event of
----------------
Default or Indenture Event of Default shall have occurred and be continuing,
Additional Notes of one or more series may be issued under and secured by this
Indenture at any time or from time to time, subject to the conditions
hereinafter provided in this Section 2.08, for the purpose of financing all or a
portion of the cost of any Modification to the Facility Assets as provided in
Section 14 of the Participation Agreement.
(b) Prior to the issuance of any Additional Notes of any series
pursuant to this Section 2.08, the Owner Trustee shall have received from the
Lessee and delivered to the Indenture Trustee, not less than thirty (30) days
prior to the proposed date of issuance of such Additional Notes, a request and
authorization to issue Additional Notes (a "Request"), which Request shall
-------
include the amount and series of such Additional Notes, the proposed date of
issuance of such Additional Notes, and other details with respect thereto which
are not inconsistent with this Section 2.08. Such Additional Notes shall have a
designation so as to distinguish such Additional Notes from the Initial Secured
Notes and Additional Notes of any other series, but otherwise shall be
substantially similar in form to the Initial Secured Notes, with such omissions
therefrom, variations therein and additions thereto as shall be appropriate.
Such Additional Notes shall not rank senior in any respect to the Initial
Secured
11
Notes, but may be subordinate to the Initial Secured Notes and other Secured
Notes issued pursuant to the terms hereof.
(c) The terms, conditions and designations of such Additional Notes
(which shall be consistent with the Request and with the terms of this Indenture
and of the Participation Agreement) shall be set forth in a supplement to this
Indenture, substantially in the form of Exhibit D, which shall be executed by
the Owner Trustee and the Indenture Trustee. Such indenture supplement shall
set forth:
(i) after giving effect to the issuance of the Additional Notes, the
aggregate principal amount outstanding of all Secured Notes, which shall
not exceed 85% of the total Fair Market Sales Value of the Facility Assets
at such time (as determined pursuant to mutual agreement of the Owner
Trustee and the Lessee and otherwise by the Appraisal Procedure) after
giving effect to such Modifications;
(ii) the text of such Additional Notes (which, except for the terms of
payment thereof, shall be of substantially the same effect as the text of
the Initial Secured Notes set forth in this Indenture, with such changes as
are consistent with and permitted by this Indenture and which in all events
shall provide that such Additional Notes are never more than pari passu in
priority of payment, in right of security and in all other respects with
the Initial Secured Notes);
(iii) the date of maturity of such Additional Notes (which shall be
no later than the end of the Basic Lease Term or, if the Lessee shall have
irrevocably exercised an option to renew the Lease, the applicable Renewal
Term);
(iv) the date from which, and the date or dates on which, interest is
payable (which shall be Interest Payment Dates);
(v) the terms for the repayment of the principal amount of such
Additional Notes (each regularly scheduled payment of principal shall be an
Interest Payment Date);
(vi) the terms, if any, as to prepayment or redemption of such
Additional Notes at the option of the Owner Trustee or the Lessee, and as
to the premium, if any, payable on any redemption or prepayment of such
Additional Notes; and
(vii) any other terms and agreements in respect thereof as required
or permitted by this Indenture or necessary to specify the terms and
conditions on which such Additional Notes shall be issued.
12
(d) Such Additional Notes shall be executed by the Owner Trustee as
provided in Section 2.01 and deposited with the Indenture Trustee for
authentication and delivery, but before such Additional Notes shall be
authenticated and delivered by the Indenture Trustee, there shall be delivered
to or deposited with the Indenture Trustee the following:
(i) the Request;
(ii) the supplement to this Indenture described in Section 2.08(c),
duly executed by the Owner Trustee;
(iii) a supplement to the Lease, duly authorized, executed and
delivered by the Lessee and the Owner Trustee, providing for adjustments to
the Basic Rent Percentages, Stipulated Loss Value Percentages and
Termination Value Percentages, and the definition of Lessor's Cost in
accordance with Section 4 of the Lease, to provide for payments required
hereunder and under the Secured Notes, after giving effect to the issuance
of such Additional Notes, together with such instruments of conveyance,
assignment and transfer, if any, necessary to subject such supplement to
the Lease to the Lien and security interest of this Indenture and to
perfect such Lien and security interest subject to no Liens other than
Permitted Liens, and evidence as to the due recording or filing of each
thereof or of financing or similar statements with respect thereto;
(iv) such instruments of conveyance, assignment and transfer
(including, without limitation, contractors' waivers) duly executed and
delivered by the respective parties thereto, and such evidence of the due
filing thereof or of financing statements with respect thereto, as may be
required to convey title to the Owner Trustee of all property included in
such Modification, if any, and to subject such property to the Lien of this
Indenture, subject to no Liens except Permitted Liens;
(v) originals or certified copies of all corporate actions necessary
for the due and valid issue of such Additional Notes, the due and valid
authorization, execution, delivery and performance by the Owner Trustee of
the supplement to this Indenture relating thereto, and the due and valid
authorization, execution, delivery and performance by the Lessee and the
Owner Trustee of the Supplement to the Lease and the creation of the Lien
and security interest thereon referred to above, all of which corporate
actions shall have been duly obtained and shall be in full force and
effect; together with evidence as to the due occurrence of all such
authorization, execution, delivery and performance;
(vi) documentation, duly executed and delivered, to the extent
practicable, by the respective parties thereto, whereby the proposed
holders of the Additional
13
Notes agree to be bound by the terms of the Operative Documents (including,
without limitation, representations and covenants corresponding to those
contained in Section 7 of the Participation Agreement);
(vii) an Officer's Certificate of the Lessee certifying (a) as to the
cost of such Modification and (b) that all conditions precedent to the
issuance of the Additional Notes contained in this Section 2.08 and in
Section 14 of the Participation Agreement have been satisfied unless such
conditions have been waived in writing by the Indenture Trustee and Owner
Trustee; and
(viii) opinions of counsel to the Lessee and/or the Owner Trustee as
to the due authorization, execution, delivery and enforceability of such
supplement to this Indenture and such Additional Notes and the creation and
perfection of the security interest in such Modification (subject to usual
or customary exceptions, qualifications and assumptions) and such other
certificates and other documents as may be reasonably requested by the
Indenture Trustee to evidence the validity and binding effect of such
supplement to this Indenture and such Additional Notes and compliance with
this Section 2.08.
(e) When the documents referred to in Section 2.08(d) shall have been
delivered to or deposited with the Indenture Trustee and when such Additional
Notes described in the Request and the supplement to this Indenture have been
executed by the Owner Trustee as required by this Indenture, the Indenture
Trustee shall authenticate and deliver such Additional Notes in the manner
described in such Request, but only upon payment to the Owner Trustee of the sum
or sums specified in such Request, whereupon the Owner Trustee shall pay such
sum or sums to the Lessee.
SECTION 2.09. Termination of Interest in Indenture Estate. A Holder
-------------------------------------------
shall have no further interest in, or other right with respect to, the Indenture
Estate upon the payment of principal of, Make-Whole Amount, if any, and interest
on, any Secured Notes held by such Holder and all other sums payable to such
Holder hereunder with respect to any such Secured Notes, under the other
Operative Documents and under such Secured Notes.
SECTION 2.10. Equally and Ratably Secured. Except as otherwise
---------------------------
expressly provided in this Indenture, all Secured Notes at any time Outstanding
under this Indenture shall be equally and ratably secured by this Indenture
without preference, priority or distinction on account of the series, date, time
of issue or maturity of such Secured Notes.
SECTION 2.11. Execution and Delivery of Secured Notes upon Original
-----------------------------------------------------
Issuance. The Owner Trustee shall issue and execute, and the Indenture Trustee
- --------
shall authenticate and deliver, Secured Notes for original issuance only upon
Lessee's request and
14
upon payment by the Loan Participants pursuant to the Participation Agreement of
an aggregate amount equal to the aggregate original principal amount of such
Secured Notes.
ARTICLE III
REDEMPTION AND REFUNDING
SECTION 3.01. Generally. The Secured Notes may not be redeemed or
---------
prepaid except to the extent and in the manner expressly permitted or required
by this Indenture. Except as otherwise expressly provided in this Indenture,
any amount prepaid in partial redemption of the Secured Notes Outstanding shall
be distributed by the Indenture Trustee to all Holders ratably, without priority
of any Holder or any series over any other Holder or any other series, in the
proportion that the principal amount of Secured Notes held by such Holder bears
to the principal amount of all Secured Notes then Outstanding.
SECTION 3.02. Mandatory Redemption. (a) Casualty Redemption. If an
-------------------- -------------------
Event of Loss with respect to the Facility Assets shall occur unless the Lessee
shall have elected to rebuild or replace the Facility Assets (or Significant
Portion thereof suffering such Event of Loss) pursuant to Section 12.2(b) of the
Lease, then the Owner Trustee shall redeem on the date on which Stipulated Loss
Value is paid pursuant to the Lease (the date of any redemption under this
Section 3.02(a) being herein called a "Casualty Redemption Date") the entire
------------------------
unpaid principal amount of the Secured Notes Outstanding on such Casualty
Redemption Date, at a redemption price equal to 100% of such unpaid principal
amount of such Secured Notes, together with any accrued and unpaid interest
thereon to, but not including, such Casualty Redemption Date and without Make-
Whole Amount or any other premium.
(b) Early Termination Redemption. If the Lease is terminated with
----------------------------
respect to the Facility Assets pursuant to Section 7 of the Lease, the Owner
Trustee shall redeem on the applicable Termination Date (the date of any
redemption under this Section 3.02(b) being herein called a "Termination
-----------
Redemption Date"), the entire unpaid principal amount of the Secured Notes
- ---------------
Outstanding on such Termination Redemption Date, at a redemption price equal to
100% of such unpaid principal amount of such Secured Notes, together with any
accrued and unpaid interest thereon to, but not including, such Termination
Redemption Date plus, in the case of each Secured Note redeemed prior to the
Premium Termination Date applicable to such Secured Note, a premium, equal to
the Make-Whole Amount, if any, with respect to such Secured Note and otherwise
without Make-Whole Amount or any other premium.
(c) Purchase Redemption. In the event that the Lessee shall purchase
-------------------
the Facility Assets pursuant to Section 6.1(c), 6.1(e) or 7.3 of the Lease prior
to the date of
15
expiration of the Basic Lease Term, and the Lessee shall not have assumed the
obligations of the Owner Trustee under the Secured Notes pursuant to Section
11.6 of the Participation Agreement, the Owner Trustee shall redeem on the date
of purchase (the date of any redemption under this Section 3.02(c) being herein
called a "Purchase Redemption Date"), the entire unpaid principal of the
------------------------
Secured Notes Outstanding on such Purchase Redemption Date at a redemption price
equal to 100% of the unpaid principal amount of the Secured Notes together with
any accrued and unpaid interest thereon to, but not including, such Purchase
Redemption Date plus, in the case of each Secured Note redeemed prior to the
Premium Termination Date applicable to such Secured Note, a premium equal to the
Make-Whole Amount, if any, with respect to such Secured Note and otherwise
without Make-Whole Amount or any other premium.
SECTION 3.03. [Intentionally Omitted]
----------------------
SECTION 3.04. Assumption of Obligations of the Owner Trustee by the
-----------------------------------------------------
Lessee. In the event that the Lessee shall have elected to assume all of the
- ------
rights and obligations of the Owner Trustee under this Indenture in respect of
the Secured Notes in connection with the purchase by the Lessee of the Facility
Assets pursuant to Section 6.1 of the Lease or pursuant to Section 16.2(d) of
the Participation Agreement (the date of any such assumption being referred to
hereinafter as the "Relevant Date") and, if on or prior to the Relevant Date:
-------------
(a) the Lessee shall have delivered to the Indenture Trustee an
Officer's Certificate of the Lessee, dated the Relevant Date, stating that
the Lessee has paid to the Owner Trustee all amounts required to be paid to
the Owner Trustee pursuant to the Lease, in connection with such purchase
or termination and assumption;
(b) no Indenture Event of Default after giving effect to the Relevant
Amendment (as defined below) shall have occurred and be continuing
immediately subsequent to such purchase or termination and assumption and
the Indenture Trustee shall have received an Officer's Certificate, dated
the Relevant Date, of the Lessee to such effect;
(c) the Indenture Trustee shall have received a supplement to this
Indenture, substantially in the form of Exhibit E (the "Relevant Date
-------------
Supplement"), duly executed by the Lessee, which shall provide that the
----------
Lessee agrees that it is acquiring, subject to the security interest and
Lien thereon granted to the Indenture Trustee under this Indenture, the
Facility Assets, as provided in Section 2 of the form of Relevant Date
Supplement attached as Exhibit E;
16
(d) the Indenture Trustee shall have received, on or prior to the
Relevant Date, evidence of all filings, recordings and other action
referred to in the opinion of counsel referred to below;
(e) the Guarantor shall have confirmed in writing to the Indenture
Trustee that the Guaranty remains in full force and effect and covers the
Lessee's obligations under this Indenture and under the Secured Notes; and
(f) the Indenture Trustee shall have received an opinion or opinions
of counsel to the Lessee subject to usual or customary qualifications,
exceptions and assumptions, to the effect that, after giving effect to the
Relevant Amendment (as defined below):
(i) on the Relevant Date, this Indenture, as supplemented by the
Relevant Date Supplement and as amended by the Relevant Amendment and
the Secured Notes issued thereunder constitute the legal, valid and
binding obligations of the Lessee, enforceable against the Lessee in
accordance with their terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, and except as limited by applicable laws
which may affect the remedies provided for in this Indenture as so
supplemented, which laws, however, do not in the opinion of such
counsel make the remedies provided for in this Indenture inadequate
for the practical realization of the rights and benefits provided for
in this Indenture as so supplemented;
(ii) on the Relevant Date, the Guaranty constitutes the legal,
valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and by general principles of equity;
(iii) the Lien of this Indenture on the Facility Assets has been
accomplished and creates a security interest in the Indenture Estate
and all filings and recordings and other action necessary or
appropriate to perfect the interests of the Indenture Trustee have
been accomplished; and
(iv) holders of the Secured Notes will not recognize income, gain
or loss for United States federal income tax purposes as a result of
such assumption;
17
then, simultaneously with the delivery of such documents, the Indenture Trustee
shall execute and deliver the Relevant Date Supplement, and automatically and
without the requirement of further action by any Person, effective as of the
Relevant Date:
(x) this Indenture shall be deemed to have been amended as provided
for in Exhibit C hereto (the "Relevant Amendment"); and
------------------
(y) the Owner Trustee shall be released from all of its obligations
under this Indenture in respect of the Secured Notes or otherwise (other
than any obligations or liabilities of the Owner Trustee in its or his
individual capacity incurred on or prior to the Relevant Date or arising
out of or based upon events occurring on or prior to the Relevant Date,
which obligations and liabilities shall remain the sole responsibility of
the Owner Trustee) and there shall be immediately distributed any funds
then being retained hereunder that are distributable to the Owner Trustee
or the Owner Participant.
SECTION 3.05. Optional Redemption Refunding. (a) The Owner Trustee,
-----------------------------
with the prior written consent of the Lessee, may redeem at any time in whole
all Outstanding Secured Notes, or in whole all Outstanding Secured Notes of any
series, at a redemption price equal to 100% of the unpaid principal amount of
the Secured Notes to be redeemed pursuant to this Section 3.05, together with
any accrued and unpaid interest thereon to, but not including, the date of
redemption plus, in the case of each Secured Note redeemed prior to the Premium
Termination Date applicable to such Secured Note, a premium equal to the Make-
Whole Amount, if any, with respect to such Secured Note and otherwise without
Make-Whole Amount or any other premium.
(b) Following a redemption in whole of the Initial Secured Notes of
any series in accordance with Section 3.05(a), the Owner Trustee, with the prior
written consent of the Lessee, may issue and sell, and the Indenture Trustee
shall authenticate and deliver, one or more new series of Secured Notes having
such terms and provisions (including, without limitation, interest rate,
amortization schedule, maturity date and redemption provisions) as the Owner
Trustee shall deem appropriate and as shall be approved by the Lessee; provided
--------
that if after such redemption any Initial Secured Notes remain outstanding, the
new series of Secured Notes (i) shall be denominated and payable in U.S. Dollars
-
and shall not be in a principal amount greater than 105 percent (105%) of the
Secured Notes redeemed, (ii) shall not rank senior to the Initial Secured Notes
--
which remain outstanding and (iii) shall not have a maturity after or have a
---
weighted average life longer than the Secured Notes redeemed if any of the
Initial Secured Notes which remain Outstanding have a maturity date after or
concurrent with the maturity date of the Secured Notes redeemed; and provided,
--------
further, that prior to the authentication of such new series of Secured Notes,
- -------
the Indenture Trustee shall have received written evidence from Standard & Poors
Ratings Group and Moody's Investors Service, Inc. to the effect that the
issuance of such new series, by
18
itself, would not result in the downgrading of the credit rating (if any)
assigned to the then outstanding Pass Through Certificates issued in respect of
the Initial Secured Notes.
(c) The Owner Trustee shall not refund or refinance any Secured Notes
unless requested by Lessee.
SECTION 3.06. Owner Trustee's and Owner Participant's Option to
-------------------------------------------------
Redeem or Purchase Secured Notes. In the event that (i) the Indenture Trustee
- --------------------------------
has given the Owner Trustee or the Owner Participant notice of the intent to
accelerate the Secured Notes pursuant to Section 5.04, (ii) the Secured Notes
shall have been accelerated pursuant to Section 5.04 or (iii) at any time one or
more Lease Events of Default shall have occurred during which time the Secured
Notes could, but shall not have been, accelerated pursuant to Section 5.04, the
Owner Trustee or the Owner Participant may, at its option, give at least 30
days' prior irrevocable notice to the Indenture Trustee that it will redeem (or
purchase in lieu of redemption) all Secured Notes then Outstanding, which
redemption or purchase shall be at a redemption or purchase price equal to 100%
of the unpaid principal amount of such Secured Notes, together with any accrued
and unpaid interest thereon to, but not including, the date of such redemption
or purchase, but otherwise without Make-Whole Amount or any other premium and on
or prior to the Business Day preceding such Redemption Date, the Owner Trustee
or the Owner Participant will deposit with the Indenture Trustee an amount
sufficient to redeem or purchase at the applicable Redemption Price all Secured
Notes then Outstanding plus an amount equal to all other sums then due and
payable to the Loan Participants hereunder, and to pay the Indenture Trustee all
amounts then due it hereunder, which funds shall be held by the Indenture
Trustee as provided in Section 7.04. Upon the giving of such notice and the
receipt by the Indenture Trustee of such deposit, the Indenture Trustee shall
deem all instructions received from the Owner Trustee or the Owner Participant
as having been given by the Loan Participants of 100% of the Outstanding
principal amount of Secured Notes for all purposes of this Indenture. If such
notice is given, the Owner Trustee further agrees that it will deposit or cause
to be deposited with the Indenture Trustee, on or prior to the Business Day
preceding the applicable Redemption Date, whether or not an Indenture Event of
Default is then continuing, funds sufficient, when added to the funds already
held by the Indenture Trustee for such purpose, to redeem or purchase at the
applicable Redemption Price (including the premium actually payable in respect
thereof computed as provided for herein), on such Redemption Date all Secured
Notes then Outstanding to pay all other sums then due and payable to a Loan
Participant hereunder and to pay the Indenture Trustee all amounts then due it
hereunder. In the event the Owner Trustee shall have given any such notice to
purchase or redeem, unless the Owner Trustee shall have consented thereto, the
Indenture Trustee shall not during the period from such notice to the Redemption
Date specified therein institute any new remedy or proceeding in respect of any
new remedy under this Indenture, and the Indenture Trustee shall, to the extent
the same may be accomplished without prejudicing the rights of the Indenture
Trustee hereunder, take such actions and forbear from taking actions, in each
case sufficient to maintain the status quo
------ ---
19
with respect to any pending remedies or proceedings in respect thereof being
then pursued hereunder; provided, however, that in no event shall the Indenture
-------- -------
Trustee sell or assign any portion of the Indenture Estate during the period
from such notice to the Redemption Date specified therein. In the event the
Owner Trustee shall have given any such notice to purchase or redeem, and the
Owner Trustee has deposited with the Indenture Trustee the amounts required to
be deposited pursuant to this Section 3.06, then on the Redemption Date, each
Loan Participant will be deemed to sell, assign, transfer and convey to the
Owner Trustee or its designee (without recourse or warranty of any kind other
than of title to the Secured Notes so conveyed) all of the right, title and
interest of such Loan Participant in and to the Secured Notes held by such Loan
Participant. On and after such Redemption Date, the Indenture Trustee shall no
longer treat the former Loan Participants as the "Loan Participants", except for
purposes of the Loan Participants' right to receive their respective portions of
the amounts paid to the Indenture Trustee as aforesaid and all other amounts due
to such Loan Participants under the Operative Documents with respect to acts,
events, circumstances or conditions occurring or existing prior to such
Redemption Date, and on such date the Indenture Trustee shall register the
transfer of ownership of the Secured Notes into the name of the Owner Trustee or
its designee. If the Owner Trustee elects to purchase the Secured Notes under
this Section 3.06, nothing herein, including the use of the terms "Redemption
Date" and "Redemption Price", shall be deemed to result in a redemption of the
Secured Notes.
SECTION 3.07. Deposited Redemption or Purchase Moneys. Moneys held
---------------------------------------
by the Indenture Trustee for the redemption or purchase of any Secured Note
issued hereunder as provided in this Article III shall be held by the Indenture
Trustee as a separate fund in trust for the account of the respective Holders of
the Secured Notes to be redeemed, shall be invested in accordance with the
provisions of Section 7.04 and shall be delivered to such Holders respectively
in accordance with Section 2.03 on the Redemption Date. Any amounts so held by
the Indenture Trustee shall be deemed paid for purposes of Section 2.09, and
promptly after payment of all amounts of principal of, Make-Whole Amount, if
any, and interest on, and all other amounts due and payable under any such
Secured Notes, the Holders thereof shall deliver such Secured Notes to the
Indenture Trustee for cancellation.
SECTION 3.08. Acquisition of Secured Notes. The Owner Trustee
----------------------------
covenants that it will not, directly or indirectly, acquire or make any offer to
acquire any Secured Note except pursuant to the provisions of this Indenture.
SECTION 3.09. Condition to Redemption and Refunding. It shall be a
-------------------------------------
condition to any redemption, refinancing or refunding of Secured Notes effected
under this Article III other than under Section 3.06 that all amounts of
principal of, Make-Whole Amount, if any, and interest on, and all other amounts
then due and payable under the Secured Notes which are to be the subject of such
redemption, refinancing or refunding, as the case may be, as well as all other
amounts due and payable to the Holders of such
20
Secured Notes as are to be the subject of such redemption, refinancing or
refunding shall have been paid as specified therein or in any other Operative
Document.
SECTION 3.10. Notice of Certain Redemptions. In connection with a
-----------------------------
redemption of any of the Secured Notes pursuant to Section 3.02 or Section 3.05,
the Owner Trustee shall give irrevocable (except with respect to redemption
notices given pursuant to Section 3.02(a), Section 3.02(b), Section 3.02(c) (to
the extent, in the case of Section 3.02(c), such redemption notice relates to
the Lessee's election to exercise a purchase option under Section 6.1(e) or 7.3
of the Lease) or Section 3.05, which may be withdrawn, (a) in the case of such a
redemption notice given pursuant to 3.02(a) following the occurrence of an Event
of Loss with respect to the Facility Assets, if the Lessee has elected (or shall
be deemed to have elected) the option set forth in Section 12.2(b) of the Lease
with respect to such Event of Loss, (b) in the case of such a redemption notice
given pursuant to Section 3.02(b) or 3.02(c), if the Lease is not terminated
with respect to the Facility Assets, and (c) in the case of such a redemption
notice given pursuant to Section 3.05, not less than three Business Days prior
to the Redemption Date) notice of such redemption at least 25 days and not more
than 60 days prior to the Redemption Date to each Loan Participant of such
Secured Notes to be redeemed, at such Loan Participant's address appearing in
the Note Register.
Any such notice of redemption shall state:
(i) the Redemption Date;
(ii) the applicable basis for determining the redemption price
pursuant to Section 3.02 or Section 3.05 (the "Redemption Price");
----------------
(iii) that on the Redemption Date, the Redemption Price will become
due and payable upon each such Secured Note, and that, if any such Secured
Notes are then Outstanding, interest on such Secured Notes shall cease to
accrue on and after such Redemption Date; and
(iv) the place or places where such Secured Notes are to be
surrendered for payment of the Redemption Price.
21
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE INDENTURE ESTATE
SECTION 4.01. Basic Rent Distribution. (a) Generally. Except as
----------------------- ---------
otherwise provided in Sections 4.01(b) and 4.03, each installment of Basic Rent
(other than any portion thereof constituting an Excepted Payment), any payment
of Supplemental Rent representing interest on overdue installments of Basic Rent
(other than any portion thereof constituting an Excepted Payment) and any
payment received by the Indenture Trustee as contemplated by Section 5.03 shall
be promptly distributed by the Indenture Trustee on the date such payment is due
(or as soon thereafter as such payment shall be received by the Indenture
Trustee) in the following order of priority:
first, in accordance with Section 4.04, so much of such installment or
-----
payment as shall be required to pay in full the aggregate amount of the
payment or repayment of principal, interest and other amounts then due
under all Secured Notes shall be distributed to the Holders of such Secured
Notes ratably, without priority of one Holder over any other Holder, in the
proportion that the amount of such payment or payments then due under each
such Secured Note bears to the aggregate amount of the payments then due
under all such Secured Notes; and
second, subject to Section 4.01(b), the balance, if any, of such
------
installment remaining thereafter shall be distributed to the Owner Trustee
for distribution pursuant to the Trust Agreement.
(b) Retention of Amounts by the Indenture Trustee. If, at the time of
---------------------------------------------
receipt by the Indenture Trustee of an installment of Basic Rent (whether or not
then overdue) or of payment of Supplemental Rent representing interest on any
overdue installment of Basic Rent, the Indenture Trustee shall have Actual
Knowledge that there shall have occurred and be continuing an Indenture Event of
Default, the Indenture Trustee shall retain and not distribute any amount
otherwise required to be distributed pursuant to clause "second" of Section
------
4.01(a), and (i) at such time as there shall not be continuing any such
Indenture Event of Default or (ii) on the first Business Day following the date
that is 180 days after the receipt of such amount, whichever shall first occur,
the Indenture Trustee shall distribute such amount pursuant to clause "second"
------
of Section 4.01(a) unless prior thereto the Indenture Trustee (as assignee of
the Owner Trustee) shall have given notice to declare the Lease to be in default
in accordance with Section 16.1 thereof, the Indenture Trustee shall have given
notice to the Owner Trustee pursuant to the first proviso to Section 5.04 of the
Indenture Trustee's intent to declare the Secured Notes due and payable or any
of the Secured Notes shall have been declared or otherwise shall have become
immediately due and
22
payable pursuant to Section 5.04, in which case such amount shall be distributed
by the Indenture Trustee forthwith in accordance with the terms of Section 4.03.
SECTION 4.02. Certain Distributions. (a) In the event the Secured
---------------------
Notes are to be redeemed pursuant to Section 3.02 or 3.05, any payment received
by the Indenture Trustee from the Owner Trustee or the Lessee pursuant to such
Section 3.02 or 3.05, shall be distributed forthwith in the following order of
priority:
first, in the manner provided in clause "first" of Section 4.03;
----- -----
second, so much of the proceeds remaining as shall be required to pay
------
in full the aggregate unpaid principal amount of each Secured Note then
Outstanding and Make-Whole Amount, if any, and all accrued but unpaid
interest thereon to, but not including, the date of distribution, shall be
distributed to the Holder of such Secured Note, and if the proceeds
remaining are insufficient to pay all such amounts in full, they shall be
distributed to all Holders ratably, without priority of any Holder over any
other Holder (except as otherwise expressly provided herein), in the
proportion that the aggregate amount due each such Holder under this clause
"second" bears to the aggregate amount due all such Holders under this
------
clause "second";
------
third, in the manner provided in clause "second" of Section 4.03;
----- ------
fourth, in the manner provided in clause "fourth" of Section 4.03; and
------ ------
fifth, in the manner provided in clause "fifth" of Section 4.03.
----- -----
(b) The portion of each payment referred to in this Section 4.02
distributed to a Holder on account of principal or interest on any Secured Note
held by such Holder shall be applied by such Holder in payment of such Secured
Note in accordance with the terms of Section 4.04.
(c) Application of Certain Payments in Case of Event of Loss. Except
--------------------------------------------------------
as otherwise provided in the second sentence of this Section 4.02(c), any
amounts received directly or through the Lessee from any Governmental Authority
or other Person pursuant to Section 12 of the Lease with respect to the Facility
Assets as the result of an Event of Loss, to the extent that such amounts are
not at the time required to be paid to the Lessee pursuant to said Section 12,
and any amounts of insurance proceeds for damage to the Indenture Estate
received directly or through the Lessee from any insurer pursuant to Section 13
of the Lease with respect thereto as the result of an Event of Loss, to the
extent such amounts are not at the time required to be paid to the Lessee
pursuant to said Section 13, shall, except as otherwise provided in the next
sentence, be applied in reduction of the Lessee's obligations to pay Stipulated
Loss Value as provided in the Lease and the remainder, if any, shall, except
23
as provided in the next sentence, be distributed to the Owner Trustee to be held
or distributed in accordance with the terms of the Lease. Notwithstanding this
Section 4.02(c) or Section 4.03 hereof, any amounts held by the Indenture
Trustee, including, without limitation, pursuant to Section 12 of the Lease,
which are payable to the Lessee pursuant to the terms of the Lease or held by
the Indenture Trustee in accordance with Section 19.7 of the Lease shall be (i)
so paid to the Lessee or (ii) held by the Indenture Trustee as security for the
obligations of the Lessee, in each case in accordance with the applicable
provisions of the Lease.
SECTION 4.03. Distribution After Indenture Event of Default. Except
---------------------------------------------
as otherwise provided in the second sentence of Section 4.02(c) or in Section
4.05, if (a) an Indenture Event of Default shall have occurred and be
continuing, and (b) either the Indenture Trustee (as assignee of the Owner
Trustee) shall have given notice to declare the Lease to be in default pursuant
to Section 16.1 thereof, the Indenture Trustee shall have given notice to the
Owner Trustee pursuant to the first proviso to Section 5.04 of the Indenture
Trustee's intent to declare the Secured Notes due and payable or any of the
Secured Notes shall have been declared or otherwise shall have become
immediately due and payable pursuant to Section 5.04, then, to the extent that
each such notice or declaration shall not have been rescinded or the Secured
Notes shall remain immediately due and payable, (i) all amounts then held by the
Indenture Trustee pursuant to Section 4.01 or otherwise under the Indenture (but
not including funds described in the second sentence of Section 4.02(c) and
Section 4.05 excluded from the operation of this Section 4.03), in each case
hereunder or under any Operative Document (other than amounts held for its own
account), and (ii) all payments and amounts thereafter realized by the Indenture
Trustee through the exercise of remedies hereunder or under any of the
agreements assigned or pledged to the Indenture Trustee under this Indenture or
otherwise as trustee under this Indenture (for purposes of this Section 4.03,
all such amounts and payments held or realized being herein called "proceeds"),
--------
other than amounts expressly paid to it for its own account and other than
Excepted Payments, shall be distributed forthwith by the Indenture Trustee in
the following order of priority:
first, so much of such proceeds as shall be required to reimburse the
-----
Indenture Trustee for any unpaid fees for its services under this Indenture
and any unreimbursed tax, expense (including reasonable legal fees) or
other loss incurred by it (in each case to the extent reimbursable under
the Operative Documents) shall be distributed to the Indenture Trustee for
application to itself;
second, so much of the remaining proceeds as shall be required to
------
reimburse the then existing or prior Holders for amounts paid or advanced
by the Holders pursuant to Section 6.04 (to the extent not previously
reimbursed), shall be distributed to the then existing and prior Holders as
their respective interests may appear, and if the proceeds remaining are
insufficient to pay all such amounts in full, they shall be
24
distributed ratably, without priority of any recipient over any other
recipient (except as otherwise expressly provided herein), in the
proportion the aggregate amount due each such Person under this clause
"second" bears to the aggregate amount and interest due all such Persons
------
under this clause "second";
-------
third, so much of the proceeds remaining as shall be required to pay
-----
in full the aggregate unpaid principal amount of each Secured Note then
Outstanding and all accrued but unpaid interest thereon to, but not
including, the date of distribution, shall be distributed to the Holder of
such Secured Note, and if the proceeds remaining are insufficient to pay
all such principal and/or interest (as the case may be) amounts in full,
they shall be distributed to all Holders ratably, without priority of any
Holder over any other Holder (except as otherwise expressly provided
herein), in the proportion that the aggregate amount due each such Holder
under this clause "third" bears to the aggregate amount due all such
-----
Holders under this clause "third";
-----
fourth, so much of the proceeds remaining as shall be required to pay
------
to each Holder all other amounts payable pursuant to the indemnification
provisions of Section 12 of the Participation Agreement or pursuant to any
other provision of any Operative Document and secured hereunder to such
Holder or to its predecessors and remaining unpaid shall be distributed to
such Holder for distribution to itself and such predecessors, as their
respective interests may appear, and if the proceeds remaining are
insufficient to pay all such amounts in full, they shall be distributed
ratably, without priority of any Holder over any other Holder (except as
otherwise expressly provided herein), in the proportion that the aggregate
amount due each such Holder under this clause "fourth" bears to the
------
aggregate amount due all such Holders under this clause "fourth"; and
------
fifth, the balance, if any, of the proceeds remaining shall be
-----
distributed to the Owner Trustee for distribution pursuant to the Trust
Agreement.
For the avoidance of doubt, no Make-Whole Amount or any other premium
shall be due and payable on the Secured Notes as a consequence of the
acceleration of the Secured Notes as a result of an Indenture Event of Default.
All amounts distributed to any Holder pursuant to clause "third" of
-----
this Section 4.03 shall be applied by such Holder in payment of the Secured
Notes held by it in accordance with the terms of Section 4.04.
SECTION 4.04. Application of Payments on Secured Notes. Each payment
----------------------------------------
on a Secured Note shall be applied, first, to the payment of accrued interest on
-----
such Secured Note to the date of such payment and second, to the payment of any
------
principal on such Secured Note then due thereunder.
25
SECTION 4.05. Applications of Payments According to Applicable
------------------------------------------------
Operative Document Provisions. (a) Notwithstanding Section 4.03 or any other
- -----------------------------
provision of this Indenture to the contrary, any payments or amounts (other than
Excepted Payments) received by the Indenture Trustee, provision for the
application of which is made in any Operative Document, shall be applied
promptly as provided in such Operative Document (including in the case of
payments or amounts that would be payable to the Lessee as provided in Sections
12.5 and 19.7 of the Lease).
(b) Notwithstanding any other provision of this Indenture to the
contrary, and whether or not any such provision refers to this Section 4.05, any
Excepted Payment or other amount expressly provided by the terms of this
Indenture to be paid directly to the Owner Trustee or to the Owner Participant
shall be paid or distributed immediately by the Indenture Trustee to the Owner
Trustee or the Owner Participant, as the case may be.
(c) The Indenture Trustee will distribute promptly upon receipt any
indemnity or other payment received by it from the Owner Trustee or the Lessee
in respect of the Indenture Trustee in its individual capacity of any Holder
pursuant to either Section 12.1 or 12.2 of the Participation Agreement directly
to the Person entitled thereto.
SECTION 4.06. Amounts Received for Which No Provision Is Made. (a)
-----------------------------------------------
Any payment received or amounts realized by the Indenture Trustee for which no
provision as to the application thereof is made elsewhere in this Indenture or
in any other Operative Document, except as provided in Section 4.03, and (b) all
payments received and amounts realized by the Indenture Trustee under the Lease,
including, without limitation, Section 11.7(b) of the Lease, or otherwise with
respect to the Facility Assets, to the extent received or realized at any time
after payment in full of the principal of and interest on all Secured Notes
issued hereunder or after the conditions set forth in Section 10.01 for the
defeasance of the Secured Notes shall have been satisfied, as well as any other
amounts remaining as part of or as proceeds of the Indenture Estate after
payment in full of the principal of, Make-Whole Amount, if any, and interest on
all such Secured Notes, shall be distributed forthwith by the Indenture Trustee
in the following order of priority:
first, so much of such aggregate amount as shall be required to pay
-----
the Indenture Trustee all amounts then due it pursuant to Section 6.04
shall be applied to pay the Indenture Trustee such amounts; and
second, the balance, if any, of such aggregate amount remaining
------
thereafter shall be distributed to the Owner Trustee to be held or
distributed in accordance with the terms of the Trust Agreement, the Lease
or the Participation Agreement.
SECTION 4.07. Payment Procedures. All amounts which are
------------------
distributable from time to time by the Indenture Trustee to the Owner Trustee,
the Lessee, the Owner
26
Participant or any Holder shall be paid by the Indenture Trustee in immediately
available funds promptly after such amounts become immediately available to it,
and the Indenture Trustee shall not be obligated to see to the application of
any such payment made by it. All payments made by the Indenture Trustee to the
Owner Participant or to the Owner Trustee shall be made in the manner and to the
address set forth in Schedule 1 to the Participation Agreement or to such other
address as may be specified from time to time by notice to the Indenture Trustee
from the Owner Participant or the Owner Trustee.
SECTION 4.08. Application of Payments Under Guaranty. All payments
--------------------------------------
received by the Indenture Trustee pursuant to the Guaranty shall be distributed
forthwith by the Indenture Trustee in the same order of priority, and in the
same manner, as it would have distributed the payment on the underlying
obligation in respect of which such payment under the Guaranty was received.
ARTICLE V
COVENANTS OF OWNER TRUSTEE; CERTAIN AGREEMENTS;
INDENTURE EVENTS OF DEFAULT; REMEDIES OF INDENTURE TRUSTEE
SECTION 5.01. Covenants of Owner Trustee; Certain Agreements. (a)
----------------------------------------------
Subject to Section 2.02, the Owner Trustee will duly and punctually perform and
observe all covenants and conditions to be performed and observed by it pursuant
to the terms of any Operative Document. Except as permitted by this Indenture
or the terms of any Operative Document, the Owner Trustee will take no action
and will cooperate with the Indenture Trustee so as to permit no action to be
taken by others which will release, or which may be construed as releasing, the
Owner Trustee or the Lessee from any of its or the Lessee's, as the case may be,
obligations or liabilities under any Operative Document, or which may result in
the termination, amendment or modification, or impair the validity, of any such
Operative Document.
(b) If the Owner Trustee has Actual Knowledge of any Indenture Event
of Default, Indenture Default, Lease Event of Default or Event of Loss, the
Owner Trustee will give prompt written notice thereof to the Indenture Trustee,
the Lessee and the Owner Participant if such notice shall not already have been
given to such party. The notice shall set forth in reasonable detail the
circumstances of such default or loss known to such Owner Trustee.
(c) At any time and from time to time, upon the reasonable request of
the Indenture Trustee, the Owner Trustee shall promptly and duly execute and
deliver any and all such further instruments and documents as the Indenture
Trustee may deem necessary or desirable (and as shall be consistent with the
intent, purposes and provisions hereof) to perfect or maintain the Lien of this
Indenture or to obtain for the Indenture Trustee the full
27
benefit of the specific rights and powers herein granted, conveyed or assigned,
or which the Owner Trustee may be or may hereafter be bound to convey or assign
to the Indenture Trustee or to facilitate the performance of the terms of this
Indenture, or the filing, registering or recording of this Indenture, including,
without limitation, the execution and delivery of any financing statement (and
any continuation statement with respect to any such financing statement) or any
other similar document specified in such instructions as may be necessary or
desirable to perfect or maintain the Lien of this Indenture.
(d) The Owner Trustee does hereby warrant and represent that it has
not assigned or pledged, and hereby covenants that except as provided herein or
permitted by the other Operative Documents, it will not (other than in respect
of Excepted Payments), except as provided in or permitted by this Indenture or
any other Operative Document, (i) accept any payment from the Lessee, (ii)
terminate or consent to the cancellation or surrender of the Lease or accept any
prepayment of Rent under the Lease, (iii) enter into any agreement amending or
supplementing any Operative Document, (iv) execute or grant any waiver or
modification of, or consent under, the terms of any Operative Document, (v)
settle or compromise any claim arising under any Operative Document, or (vi)
submit or consent to the submission of any dispute, difference or other matter
arising under or in respect of any Operative Document to arbitration thereunder.
(e) The Owner Trustee does hereby ratify and confirm the Lease, and
does hereby agree the Owner Trustee will not, except as provided in or permitted
by this Indenture or the terms of any other Operative Document, take or omit to
take any action, the taking or omission of which might result in an alteration
or impairment of the Lease or any other Operative Document, or of any of the
rights created by the Lease or any Operative Document, or the assignment
hereunder or thereunder, as the case may be.
(f) The Owner Trustee will, in its individual capacity and at its own
cost and expense, promptly take such action as may be necessary to discharge any
Lessor's Lien on any of the Owner Trustee's estate, right, title or interest in
the Trust Estate so pledged or assigned or intended to be conveyed, pledged or
assigned under this Indenture.
(g) Until the release of the security interest in the Indenture Estate
pursuant to Section 6.03, all payments due or to become due under any Operative
Document to the Owner Trustee that are part of the Indenture Estate shall be
made directly to the Indenture Trustee or in accordance with the Indenture
Trustee's instructions, and the Owner Trustee shall give all notices as shall be
required under each Operative Document to direct that such payments be made to
the Indenture Trustee. Promptly on receipt thereof, the Owner Trustee will
transfer to the Indenture Trustee any and all moneys from time to time received
by it and constituting part of the Indenture Estate or otherwise assigned or
pledged to the Indenture Trustee hereunder, in each case for application by the
Indenture Trustee pursuant to this Indenture, except that the Owner Trustee
shall accept for distribution pursuant to the
28
terms of the Trust Agreement any amounts distributed to it by the Indenture
Trustee under this Indenture.
(h) An executed counterpart of each amendment or supplement to the
Trust Agreement shall be delivered within 20 Business Days after the execution
thereof to the Indenture Trustee, provided that any amendment or supplement
under which a successor trustee is appointed shall be mailed to the Indenture
Trustee within 10 days after the execution thereof. The Lien of this Indenture
shall not be affected by any amendment or supplement to the Trust Agreement or
by any other action taken under or in respect of the Trust Agreement. Without
the prior written consent of the Indenture Trustee, the Trust Agreement may not
in any event be terminated or revoked by the Owner Participant prior to the
termination of this Indenture. In the case of any appointment of a successor to
any Owner Trustee pursuant to the Trust Agreement or any merger, conversion,
consolidation or transfer of all or substantially all of the corporate trust
business of the Owner Trustee pursuant to the Trust Agreement, the successor
Owner Trustee shall give prompt notice thereof to the Indenture Trustee and the
Lessee.
SECTION 5.02. Indenture Events of Default. "Indenture Event of
--------------------------- ------------------
Default" means any of the following events (whatever the reason for such
- -------
Indenture Event of Default and whether such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any
Governmental Rule):
(a) any Lease Event of Default (other than a Lease Event of Default
arising from the failure of the Lessee to make an Excepted Payment) shall
have occurred and be continuing; or
(b) to the extent not arising from clause (a) above, any payment of
principal of, Make-Whole Amount, if any, or interest on any Secured Note
shall not have been made when due and such default shall continue
unremedied for ten (10) Business Days after the same shall have become due
and payable; or
(c) the assignment or pledge by the Owner Trustee (except as permitted
under the Operative Documents) of any of its right, title or interest in
the Indenture Estate hereby assigned to anyone other than the Indenture
Trustee, or the failure by either of the Owner Participant or the Owner
Trustee, as the case may be, to perform or observe in any material respect
any covenant or agreement to be performed or observed by it under this
Indenture or any other Operative Document (other than the Tax Indemnity
Agreement), (i) which failure, assignment or pledge, as the case may be,
shall continue for a period of 30 days after receipt by the Owner
Participant or the Owner Trustee, as the case may be, of a written notice
from the Indenture Trustee or from Holders of Secured Notes owning at least
25% in principal amount of
29
Outstanding Secured Notes specifying such failure, assignment or pledge and
requiring it be remedied or (ii) which failure, assignment or pledge, as
the case may be, if such failure, assignment or pledge is remediable and
the Owner Participant or the Owner Trustee is diligently attempting to
remedy such failure, assignment or pledge, shall continue for a period of
180 days after receipt of notice thereof; or
(d) any representation or warranty made by either of the Owner
Participant or the Owner Trustee pursuant to Section 6 or 8, as the case
may be, of the Participation Agreement shall prove to have been inaccurate
in any material respect when made, unless such inaccurate representation or
warranty shall not be material to the recipient at the time when the notice
referred to below shall have been received by the Owner Participant or the
Owner Trustee or any material adverse impact thereof shall have been cured
within thirty (30) days after receipt by the Owner Participant or the Owner
Trustee, as the case may be, of a written notice thereof from the Indenture
Trustee or from Holders of Secured Notes owning at least 25% in principal
amount of Outstanding Secured Notes; provided that if such material adverse
--------
impact is remediable and the Owner Participant or the Owner Trustee is
diligently attempting to remedy such impact, the Owner Participant or the
Owner Trustee shall have 90 days after receipt of written notice thereof
from the Indenture Trustee to remedy any such material adverse impact; or
(e) either of the Owner Participant or the Owner Trustee shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency, or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of its or any substantial part of its property, or
shall consent to any such relief or to the appointment or taking possession
by any such official or agency in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall take any corporate action to authorize any of the
foregoing, or an involuntary case or other proceeding shall be commenced
against either of the Owner Participant or the Owner Trustee seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official or agency of its or any substantial
part of its part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of ninety
(90) days, or if, under the provisions of any law providing for
reorganization or winding-up of corporations which may apply to the Owner
Trustee or the Owner Participant, any court of competent jurisdiction shall
assume jurisdiction, custody or control of the Indenture Estate, the Owner
Trustee or the Owner Participant or of any substantial part of its property
and such jurisdiction,
30
custody or control shall remain in force unrelinquished, unstayed or
unterminated for a period of ninety (90) days.
SECTION 5.03. Certain Rights. (a) If the Lessee shall fail to make
--------------
any payment of Basic Rent under the Lease when the same shall become due, and if
such failure of the Lessee to make such payment of Basic Rent shall not
constitute the fourth consecutive such failure or the seventh or subsequent
cumulative such failure, then as long as no Indenture Event of Default (other
than arising from a Lease Event of Default not involving any failure to make any
payments to which the Indenture Trustee or any Loan Participant is entitled
hereunder when due) shall have occurred and be continuing, the Owner Participant
or the Owner Trustee may (but need not), without consent or concurrence of the
Indenture Trustee or any Holder, in the manner provided in Section 2.03, for
application in accordance with Section 4.01, pay to the Indenture Trustee, at
any time prior to the day which is the 11th day subsequent to the expiration of
the grace period provided for in Section 15(a) of the Lease with respect to the
payment of Basic Rent (and the Indenture Trustee shall not (without the prior
written consent of the Owner Trustee) declare the Lease in default pursuant to
Section 16 thereof or exercise any of the rights, powers or remedies pursuant to
such Section 16 of the Lease or Section 5.04 hereof prior to the occurrence of
such later date), an amount equal to the full amount of such payment of Basic
Rent, together with any interest due thereon on account of the delayed payment
thereof to, but not including, the date of such payment in accordance with
Section 2.03(c) hereof, and such payment by the Owner Participant or the Owner
Trustee shall be deemed to cure as of the date of such payment any Indenture
Event of Default which arose from such failure of the Lessee (including any
Lease Event of Default arising from the Lessee's failure to pay interest in
respect of such overdue Basic Rent for the period commencing on the date of such
payment), but such cure shall not relieve the Lessee of any of its obligations.
If the Lessee shall fail to perform or observe any covenant, condition or
agreement to be performed or observed by it under the Lease or any other Lease
Event of Default shall exist (other than the failure to pay Basic Rent), and if
(but only if) the performance or observance of such covenant, condition or
agreement or the cure of such Lease Event of Default can be effected by the
payment of money alone (it being understood that actions such as the obtaining
of insurance can be so effected), then as long as no other Indenture Event of
Default (other than those arising from a Lease Event of Default) shall have
occurred and be continuing, the Owner Participant or the Owner Trustee may (but
need not), without consent or concurrence of the Indenture Trustee or any
Holder, pay to the Indenture Trustee (or to such other person as may be entitled
to receive the same), at any time prior to the day which is the later of (x) the
11th day subsequent to notice of such failure or such Lease Event of Default by
the Indenture Trustee to the Owner Trustee or the Owner Participant and (y) the
11th day subsequent to the expiration of the grace period, if any, provided with
respect to such failure or such Lease Event of Default on the part of the Lessee
in Section 15 of the Lease (and the Indenture Trustee shall not (without the
prior written consent of the Owner Trustee) declare the Lease in default
pursuant to Section 16 thereof or exercise any of the rights, powers or remedies
pursuant to such Section 16 or
31
Section 5.04 hereof prior to the occurrence of such later date), all sums
necessary to effect the performance or observance of such covenant or agreement
of the Lessee or to cure such Lease Event of Default, together with any interest
due thereon on account of the delayed payment thereof to, but not including, the
date of such payment, and such payment by the Owner Participant or the Owner
Trustee shall be deemed to cure as of the date of such payment any Indenture
Event of Default which arose from such failure of the Lessee or such Lease Event
of Default (including any Lease Event of Default arising from the Lessee's
failure to pay interest in respect of such overdue payment for the period
commencing on the date of such payment), but such cure shall not relieve the
Lessee of any of its obligations; provided that the Owner Trustee and the Owner
--------
Participant, collectively, shall not be entitled to cure any such default or
Lease Event of Default if the total amount previously expended and not
reimbursed by the Lessee or the Guarantor for curing such Lease Events of
Default and the amount which would be expended in connection with any such Lease
Event of Default would exceed in the aggregate 3% of the Lessor's Cost.
(b) To the extent of any payment made by the Owner Trustee or the
Owner Participant pursuant to Section 5.03(a), the Owner Trustee or the Owner
Participant, as the case may be, shall be subrogated to the rights of the
Indenture Trustee hereunder (or in the case of the second sentence of Section
5.03(a), to the rights of the Indenture Trustee or such other person, as the
case may be) to receive the payment of Basic Rent or other amount for which such
payment was made by the Owner Trustee or the Owner Participant, as the case may
be, and the Owner Trustee or the Owner Participant, as the case may be, shall be
entitled to receive such payment from the Indenture Trustee upon receipt thereof
by the Indenture Trustee; provided, however, that no such amount shall be paid
-------- -------
to the Owner Trustee or the Owner Participant, as the case may be, unless all
principal of and interest on the Secured Notes then due and payable and any
other amounts then due and payable under the Secured Notes and this Indenture
shall have been paid in full and no Indenture Default shall have occurred and be
continuing; provided that neither the Owner Participant nor the Owner Trustee
--------
shall attempt to recover any such amount paid by it on behalf of the Lessee
pursuant to Section 5.03(a) except by demanding of the Lessee payment of such
amount or by commencing an action against the Lessee to require the payment of
such amount.
(c) The Owner Trustee, upon exercising cure rights under Section
5.03(a) or rights under Section 6.08(a)(iii) or under Section 18.1 of the Lease,
shall not obtain any Lien on any part of the Indenture Estate or Trust Estate on
account of such payment for the costs and expenses incurred in connection
therewith nor shall any claims of the Owner Trustee against the Lessee or any
other Person for the repayment thereof impair the prior right and security
interest of the Indenture Trustee in and to the Indenture Estate or otherwise
related to the Indenture Estate.
(d) If there shall occur an Indenture Event of Default pursuant to
Section 5.02(a) arising as a result of a failure by the Lessee to make any
payment of Rent when due,
32
the Indenture Trustee shall so notify the Owner Trustee in writing promptly upon
such occurrence.
SECTION 5.04. Remedies. (a) If an Indenture Event of Default shall
--------
have occurred and be continuing and so long as the same shall be unremedied,
then and in every such case the Indenture Trustee, subject to Sections 3.06,
5.03, 5.04(d), 5.05, 5.09, 6.01 and 6.08, may exercise any or all of the rights
and powers and pursue any and all of the remedies herein provided or available
under applicable law; provided, however, the Indenture Trustee must give the
-------- -------
Owner Trustee and the Lessee at least 10 Business Days' (or 5 Business Days in
the case of acceleration of the Secured Notes other than an automatic
acceleration of the Secured Notes as provided in Section 5.04(c)) prior written
notice of its intention to exercise remedies pursuant to this Section 5.04 (it
being understood that such notice may be given concurrently with any notice of
default given hereunder or under the Lease and prior to the expiration of any
applicable grace periods). Notwithstanding any contrary provision herein, upon
the occurrence and during the continuance of an Indenture Event of Default, the
Indenture Trustee may exercise, subject to Sections 3.06, 5.03(a), 5.05, 5.09,
5.10 and 6.08, all rights and remedies of the Owner Trustee to the exclusion of
the Owner Trustee under the Lease (other than those rights and remedies to the
extent relating to Excepted Payments), including, without limitation, the right
to take possession of all or any part of the Indenture Estate and exclude the
Owner Trustee and all Persons (including the Lessee except to the extent of the
Lessee's rights described under the provisos to clause (d) and clause (e) of
Section 10.9 of the Participation Agreement) claiming under the Owner Trustee
wholly or partly therefrom. In addition to and without limiting the foregoing,
the Indenture Trustee, upon at least twenty-five (25) days' prior written notice
to the Owner Trustee, the Lessee and the Owner Participant, may invoke and
exercise the power of sale and sell (or cause to be sold) any or all of the
Indenture Estate in the manner required for non-judicial foreclosure sales
pursuant to the Texas Property Code or in any other manner which shall be in
accordance with applicable law, or, in lieu of sale pursuant to the power of
sale, the Indenture Estate may be foreclosed, and the Indenture Trustee has and
may exercise all rights and remedies of a secured party under the Uniform
Commercial Code as in effect in any applicable jurisdiction; provided, however,
-------- -------
that if an Indenture Event of Default has occurred and is continuing solely by
virtue of one or more Lease Events of Default (at a time when no other Indenture
Events of Default shall have occurred and be continuing), the Indenture Trustee
shall not exercise foreclosure remedies under this Indenture without declaring
the Lease to be in default and exercising remedies seeking to terminate the
Lease, unless exercising such remedies under the Lease shall be prohibited by
law, governmental authority or court order, in which case the Indenture Trustee
shall not exercise foreclosure remedies under the Indenture until the later of
(i) the expiration of a period of 90 days from the commencement of such
prohibition and (ii) the expiration of an additional period commencing on the
day immediately following the expiration of such 90-day period and ending on the
earlier of (x) the 180th day after the relevant stay or prohibition is imposed
and (y) rejection of the Lease; provided that such extended period
--------
33
will not apply unless, on the 90th day following the date upon which such stay
or prohibition becomes effective, all Indenture Events of Default theretofore
existing have been cured (except to the extent arising from the bankruptcy or
similar proceeding giving rise to the applicable stay or similar prohibition)
and to the extent the Lessor exercises its right to cure any Lease defaults or
Lease Events of Default during such 180-day period, the exercise of such rights
will not limit the cure rights otherwise available to Lessor under Section
5.03(a); provided, further, that notwithstanding any provision herein to the
-------- -------
contrary, the Indenture Trustee shall not sell, assign, transfer or deliver any
of the Indenture Estate or take possession of the Indenture Estate unless the
Secured Notes shall have been accelerated pursuant to Section 5.04(b) or
5.04(c). The Indenture Trustee shall notify the Owner Trustee, the Owner
Participant and the Lessee as soon as is reasonably practicable after its
commencement of the exercise of any remedy pursuant to this Section 5.04.
(b) If an Indenture Event of Default (other than an Indenture Event of
Default specified in Section 5.02(e) or an Indenture Event of Default of the
type specified in Section 5.02(a) which arises as a result of any Lease Event of
Default as is specified in Section 15(g) of the Lease) shall have occurred and
be continuing, then, subject to Sections 5.03, 6.01 and 6.08, the Indenture
Trustee may at any time (or shall when instructed by a Majority Interest of
Holders of Notes), by five (5) days' written notice to the Owner Trustee,
declare all (but not less than all) of the Secured Notes to be due and payable.
Upon such declaration, the unpaid principal of all Secured Notes then
Outstanding, together with accrued but unpaid interest thereon and any other
amounts due thereunder, shall immediately become due and payable without
presentment, demand, protest, further notice of intention to accelerate maturity
or other notice, all of which are hereby waived.
(c) If an Indenture Event of Default of the type specified in Section
5.02(e), or an Indenture Event of Default of the type specified in Section
5.02(a) which arises as a result of any Lease Event of Default specified in
Section 15(g) of the Lease shall have occurred and be continuing, the principal
of all Secured Notes then Outstanding, together with accrued but unpaid interest
thereon and any other amounts due thereunder, shall become and be due and
payable automatically, without declaration, notice, demand, or any other action
on the part of the Indenture Trustee or any Holder, all of which are hereby
waived. Each of Section 5.04(a), Section 5.04(b) and this Section 5.04(c),
however, is subject to the condition that, if at any time after the principal of
the Secured Notes shall have become due and payable upon a declared or automatic
acceleration thereof as provided herein, and before any judgment or decree for
the payment of the money so due, or any portion thereof, shall be entered, all
overdue payments of interest upon the Secured Notes and all other amounts
payable under the Secured Notes (except the principal of the Secured Notes which
by such declaration shall have become payable) shall have been duly paid, and
every other Indenture Event of Default with respect to any covenant or provision
of this Indenture shall have been cured or waived, then in every such case a
Majority in Interest of Holders of Notes, by written instrument filed with the
Indenture Trustee, may (but shall not
34
be obligated to) rescind and annul the Indenture Trustee's declaration and its
consequences; but no such rescission or annulment shall extend to or affect any
subsequent Event of Default or impair any right consequent thereon.
(d) Notwithstanding any provision in any document or instruction that
purports to require the Indenture Trustee to acquire title to any or all of the
Indenture Estate upon foreclosure, or pursuant to instructions, the Indenture
Trustee shall not be obligated to acquire any such title unless: (i) the
Indenture Trustee is provided with such security or indemnity as it shall deem
satisfactory to it, (ii) such acquisition of title complies with all applicable
Operative Documents, laws, rules and regulations, which shall be evidenced by an
opinion of counsel to such effect in form and substance satisfactory to the
Indenture Trustee and (iii) the Indenture Trustee shall have obtained such
executed certificates, instruments or other documents, in accordance with its
reasonable inquiries or requests.
SECTION 5.05. Suit; Possession; Title; Sale of Indenture Estate. (a)
-------------------------------------------------
The Owner Trustee agrees that, if an Indenture Event of Default shall have
occurred and be continuing and the Indenture Trustee shall be entitled to
exercise remedies hereunder as provided in Section 5.04, the Indenture Trustee
may take possession of all or any part of the Indenture Estate and may exclude
the Owner Trustee, and all Persons claiming under the Owner Trustee, wholly or
partly therefrom; provided, however, that at least 10 Business Days' prior
-------- -------
notice of such taking of possession shall be given to the Owner Trustee. If an
Indenture Event of Default shall have occurred and be continuing and the
Indenture Trustee shall be entitled to exercise remedies hereunder as provided
in Section 5.04, at the request of the Indenture Trustee, the Owner Trustee
shall promptly execute and deliver to the Indenture Trustee such instruments of
title and other documents as the Indenture Trustee may deem necessary or
advisable to enable the Indenture Trustee or any agent or representative
designated by the Indenture Trustee, at such time or times and place or places
as the Indenture Trustee may specify, to obtain possession of all or any part of
the Indenture Estate to which the Indenture Trustee shall at the time be
entitled hereunder. If the Owner Trustee shall for any reason fail to execute
and deliver such instruments and documents after such request by the Indenture
Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the
Indenture Trustee the right to immediate possession of any property comprising a
portion of the Indenture Estate and requiring the Owner Trustee to execute and
deliver such instruments and documents to the Indenture Trustee, or (ii) pursue
all or part of such property wherever it may be found, and the Indenture Trustee
may enter any of the premises where such property or any portion thereof may be
or is supposed to be and search for such property. All expenses of obtaining
such judgment or of pursuing, searching for and taking such property shall,
until paid, be secured by the Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may
make, from time to time and at the expense of the Indenture Estate, such
expenditures for maintenance, insurance, repairs, replacements, alterations,
additions and improvements to
35
and of the Indenture Estate as it may deem proper. In each such case, the
Indenture Trustee shall have the right to maintain, use, operate, store, lease,
control or manage the Indenture Estate and to exercise all rights and power of
the Owner Trustee relating to the Indenture Estate as the Indenture Trustee
shall deem to be in the best interest of the Holders. The Indenture Trustee
shall be entitled to collect and receive directly all tolls, rents (including
Rent), revenue, issues, income, products and profits of the Indenture Estate and
every part thereof, other than Excepted Payments. Such tolls, rents (including
Rent), revenues, issues, income, products and profits shall be applied (i) to
pay the expenses of the use, operation, storage, leasing, control, management or
disposition of the Indenture Estate, (ii) to pay the expense of all maintenance,
repairs, replacements, alterations, additions and improvements, (iii) to make
all payments which the Indenture Trustee may be required or may elect to make,
if any, for taxes, assessments, insurance or other proper charges upon the
Indenture Estate or any portion thereof, including, without limitation, the
employment of engineers and accountants to examine, inspect and make reports
upon the properties and books and records of the Owner Trustee, and (iv) to pay
amounts owing in respect of the Secured Notes in accordance with the provisions
thereof and hereof and to make all other payments which the Indenture Trustee
may be required or authorized to make under any provision of this Indenture, as
well as just and reasonable compensation for the services of the Indenture
Trustee and of all Persons properly engaged and employed by the Indenture
Trustee.
(c) Any of the Indenture Trustee, any Holder, the Owner Trustee or the
Owner Participant may be a purchaser of the Indenture Estate or any portion
thereof or any interest therein at any sale thereof, whether pursuant to
foreclosure or power of sale or otherwise. The Indenture Trustee may apply
against the purchase price therefor the amount then due to it hereunder or under
any of the Secured Notes secured hereby and any Holder may apply against the
purchase price therefor the amount then due to it hereunder or under the Secured
Notes held by such Holder, to the extent of such portion of the purchase price
as it would have received had it been entitled to share in any distribution
thereof. The Indenture Trustee or any Holder or any nominee of any such Holder
shall acquire, upon any such purchase, good title to the property so purchased,
free of the Lien of this Indenture and, to the extent permitted by applicable
law, free of all rights of redemption in the Owner Trustee in respect of the
property so purchased.
(d) Any sale or other conveyance of any of the Indenture Estate by the
Indenture Trustee made pursuant to the terms of this Indenture or the Lease
shall bind the Owner Trustee, the Holders and the Owner Participant and shall be
effective to transfer or convey all right, title and interest of the Indenture
Trustee, the Owner Trustee, the Holders and the Owner Participant in and to such
Indenture Estate or portion thereof, as the case may be. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance, or as to the application of
any sale or other proceeds with respect thereto by the Indenture Trustee. In
the event of any such sale, the Owner Trustee shall execute any and all such
bills of sale and other
36
documents, and perform and do all other acts and things requested by the
Indenture Trustee in order to permit continuation of such sale and to effectuate
the transfer or conveyance referred to in the first sentence of this Section
5.05(d). The Owner Trustee shall ratify and confirm any such sale or sales by
executing and delivering to the Indenture Trustee or to such purchaser or
purchasers all instruments as may reasonably be requested for such purpose. Any
such sale or sales made hereunder shall operate to divest all the estate, right,
title, interest, claim and demand whatsoever, whether at law or in equity, of
the Owner Trustee in and to the properties and rights so sold, and shall be a
perpetual bar both at law and in equity against the Owner Trustee and against
any and all persons claiming or who may claim the same, or any part thereof
from, through or under the Owner Trustee. Upon any sale or other disposition of
the Indenture Estate by the Indenture Trustee, the Indenture Trustee will
promptly account in writing, in reasonable detail, to the Owner Trustee for the
amount of such sale, the costs and expenses incurred in connection therewith and
any surplus proceeds.
(e) The Indenture Trustee shall, as a matter of right, be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any successor
or nominee thereof), at any time after an Indenture Event of Default either
before or after declaring due and payable the principal of all Secured Notes
then Outstanding, together with accrued but unpaid interest thereon and any
other amounts due thereunder, for all or any portion of the Indenture Estate,
whether such receivership be incidental to a proposed sale of the Indenture
Estate or the taking of possession thereof or otherwise, and, to the extent
permitted by applicable law, the Owner Trustee hereby consents to the
appointment of such a receiver, and agrees that it will not oppose any such
appointment. Any receiver appointed for all or any portion of the Indenture
Estate shall be entitled in addition to any powers available under applicable
law, to exercise all the rights and powers of the Indenture Trustee with respect
to the Indenture Estate.
(f) To the extent now or at any time hereafter enforceable under
applicable law, the Owner Trustee covenants that it will not at any time insist
upon or plead, or in any manner whatsoever claim or take any benefit or
advantage of any stay, extension, moratorium, any exemption from execution or
sale or other similar law or from any law now or hereafter in force providing
for the valuation or appraisement of the Indenture Estate or any part thereof,
prior to any sale or sales thereof to be made pursuant to any provision herein
contained, or prior to any applicable decree, judgment or order of any court of
competent jurisdiction; nor, after such sale or sales, claim or exercise any
right under any statute now or hereafter made or enacted by any state or any
right to have a portion of the Indenture Estate or the security for the Secured
Notes marshalled or otherwise redeem the property so sold or any part thereof,
and hereby expressly waives for itself and on behalf of each and every Person,
except decree or judgment creditors of the Owner Trustee acquiring any interest
in or title to the Indenture Estate or any part thereof subsequent to the date
of this Indenture, all benefit and advantage of any such law or laws, and
covenants that it will
37
not invoke or use any such law or laws, but will suffer and permit the execution
of every such power as though no such law or laws had been made or enacted.
Nothing in this Section 5.05(f) shall be deemed to be a waiver by the Owner
Trustee of its rights under Section 5.03 hereof.
The Indenture Trustee may maintain such a pleading, or, in any manner
whatsoever, claim or take any benefit or advantage of or from any law now or
hereafter in force even if it does not possess any of the Secured Notes or does
not produce any of them in the proceeding. A delay or omission by the Indenture
Trustee or any Holder in exercising any right or remedy accruing upon an
Indenture Event of Default under this Indenture shall not impair the right or
remedy or constitute a waiver of or acquiescence in such Indenture Event of
Default.
(g) The Indenture Trustee may adjourn from time to time any sale to be
made under or by virtue of this Indenture for such sale or for such adjourned
sale or sales, and, except as otherwise provided by any applicable provision of
law, the Indenture Trustee, without further notice or publication, may make such
sale at the time and place to which the same shall be so adjourned.
(h) Any recovery of any judgment by the Indenture Trustee under the
Secured Notes and any levy of any execution under any such judgment upon the
Indenture Estate shall not affect in any manner or to any extent the security
title and security interest conveyed hereby upon the Indenture Estate or any
part thereof, or any conveyances, powers, rights and remedies of the Indenture
Trustee hereunder, but such conveyances, powers, rights and remedies shall
continue unimpaired as before.
(i) Notwithstanding anything contained herein, so long as any Pass
Through Trustee is a registered Holder, the Indenture Trustee is not authorized
or empowered to acquire title to all or any portion of the Indenture Estate or
take any action with respect to all or any portion of the Indenture Estate so
acquired by it if such acquisition or action would cause the related Pass
Through Trust to fail to qualify as a "grantor trust" for federal income tax
purposes.
SECTION 5.06. Remedies Cumulative. Each and every right, power and
-------------------
remedy provided the Indenture Trustee specifically or otherwise in this
Indenture shall be cumulative and shall be in addition to every right, power and
remedy herein specifically provided or now or hereafter existing at law, in
equity or otherwise. Each and every such right, power and remedy may be
exercised from time to time and as often and in such order as may be deemed
expedient by the Indenture Trustee, and the exercise or the beginning of the
exercise of any such right, power or remedy shall not be construed to be a
waiver of the right to exercise at the same time or thereafter any other right,
power or remedy. No delay or omission by the Indenture Trustee in the exercise
of any right or power or in the pursuit
38
of any remedy shall impair any such right, power or remedy, or be construed to
be a waiver of any Indenture Event of Default or to be an acquiescence therein.
SECTION 5.07. Discontinuance of Proceedings. In case the Indenture
-----------------------------
Trustee shall have instituted any proceeding to enforce any right, power or
remedy under this Indenture by foreclosure, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Indenture Trustee, then and in every such
case the Owner Trustee, the Indenture Trustee and the Lessee shall, subject to
any determination in such proceeding, be restored to their former positions and
rights hereunder with respect to the Indenture Estate, and all right, powers and
remedies of the Indenture Trustee shall continue as if no such proceeding had
been instituted.
SECTION 5.08. Waiver of Past Defaults. Upon written instruction of a
-----------------------
Majority in Interest of Holders of Notes, the Indenture Trustee shall waive any
Indenture Event of Default specified in such instruction and its consequences,
and upon any such waiver such Indenture Event of Default shall cease to exist
for every purpose of this Indenture; provided, however, that no such waiver
-------- -------
shall extend to any subsequent or other Indenture Event of Default or impair any
right or consequence thereof; and provided further, however, that in the absence
-------- ------- -------
of the written instruction of the Holders of all Secured Notes then Outstanding,
the Indenture Trustee shall not waive any Indenture Event of Default arising
from a default (i) in the payment of the principal of or interest on, or other
amounts due under, any Secured Note then Outstanding, or (ii) in respect of a
covenant or provision hereof which pursuant to the terms of Article IX cannot be
modified or amended without the consent of each Holder of a Secured Note then
Outstanding.
SECTION 5.09. No Action Contrary to Lessee's Rights Under the Lease.
-----------------------------------------------------
Notwithstanding any other provision of this Indenture or any other Operative
Document, including, without limitation, Sections 5.04 and 5.05 hereof, unless a
Lease Event of Default shall have occurred and be continuing and the Lease shall
have been declared to be in default pursuant to Section 16.1 thereof (and then
only in accordance with the Lease), the Indenture Trustee shall not take or
cause to be taken any action contrary to the Lessee's rights under the Lease,
including, without limitation, the rights of the Lessee under Section 9.1
thereof.
SECTION 5.10. Rights of Holders of Secured Notes. Notwithstanding
----------------------------------
any provision herein (including Section 5.11) to the contrary, the Holder of a
Secured Note shall have the absolute and unconditional right to receive payment
from the Indenture Estate of the principal of and interest on such Secured Note
on the dates and as specified in such Secured Note, and to institute suit
against the Owner Trustee for the enforcement of any such payment, subject to
Section 2.02, and such right shall not be impaired without the consent of such
Holder.
39
SECTION 5.11. Limitation on Suits by Holders. A Holder may pursue a
------------------------------
remedy under this Indenture or under a Secured Note only if:
(i) the Holder gives to the Indenture Trustee written notice of a
continuing Indenture Event of Default under this Indenture;
(ii) the Holders of at least 25 percent (25%) of the Outstanding
principal amount of the Secured Notes instruct the Indenture Trustee to
pursue the remedy;
(iii) such Holder or Holders offer to the Indenture Trustee indemnity
satisfactory to the Indenture Trustee against any loss, liability or
expense to be, or which may be, incurred by the Indenture Trustee in
pursuing the remedy;
(iv) the Indenture Trustee does not comply with the request within 60
days after receipt of the instructions and the offer of indemnity; and
(v) during such 60-day period, a Majority in Interest of Holders do
not give the Indenture Trustee an instruction inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
ARTICLE VI
DUTIES OF THE INDENTURE TRUSTEE
SECTION 6.01. Certain Actions. If the Indenture Trustee shall have
---------------
Actual Knowledge of any Indenture Event of Default or any Indenture Default or
any failure on the part of the Lessee to make any payment of Rent when due or
any Event of Loss or other material fact relating to the Facility Assets, the
Indenture Trustee shall (a) give prompt telephonic notice (promptly confirmed in
writing) to the Owner Trustee, the Owner Participant and the Lessee and (b)
within 90 days after obtaining such Actual Knowledge, mail to each Holder,
notice of all Indenture Events of Default unless, in each case, such Indenture
Event of Default has been remedied before the giving of such notice and the
Indenture Trustee has Actual Knowledge that such Indenture Default or Indenture
Event of Default has been so remedied; provided, however, that the failure by
-------- -------
the Indenture Trustee to provide such notice shall not invalidate any actions
subsequently taken by the Indenture Trustee in connection with such Indenture
Event of Default. Except in the case of a default in the payment of the
principal or interest on any Secured Note, the Indenture Trustee shall be
protected in withholding the notice required under clause (b) above if and so
long as
40
Responsible Officers of the Indenture Trustee in good faith determine that
withholding such notice is in the interest of the Holders.
SECTION 6.02. Action upon Instructions. (a) The Indenture Trustee
------------------------
shall, upon the written instruction at any time and from time to time of a
Majority in Interest of Holders of Notes, give such notice, consent or direction
or exercise such right, remedy or power hereunder or under the Lease or any
other agreement constituting part of the Indenture Estate as shall be specified
in such instruction; provided, however, that nothing set forth in this Section
-------- -------
6.02(a) shall entitle the Holders to cause the Indenture Trustee to give any
notice or exercise any right, power or remedy that is not elsewhere authorized
by, or is otherwise restricted or prohibited by, this Indenture or any other
Operative Document. If the Indenture Trustee shall not have received
instructions as above provided within twenty (20) calendar days after mailing of
the notice pursuant to Section 6.01 to the Holders, the Indenture Trustee may
take such action, or refrain from taking such action, but shall be under no duty
to take or refrain from taking any action, with respect to such Indenture Event
of Default, Event of Loss or fact as it shall determine to be advisable and in
the best interest of the Holders. If the Indenture Trustee receives any
instructions after the expiration of the aforementioned twenty day period, the
Indenture Trustee shall use its best efforts to conform any action being taken
to comply with those instructions.
(b) The Indenture Trustee shall not consent to the assignment by the
Lessee of all or any material portion of its right, title and interest in, to
and under the Lease, except (i) with respect to an assignment permitted under
Section 14.2 of the Lease or (ii) upon the written instruction at any time and
from time to time of a Majority in Interest of Holders of Notes. Nothing set
forth herein shall be construed to permit such assignment without the consent of
the Owner Trustee or to adversely affect any right of the Owner Trustee.
SECTION 6.03. Release of Lien of Indenture. (a) Release of
---------------------------- ----------
Indenture Estate. Upon satisfaction of the conditions for termination of this
- ----------------
Indenture set forth in Section 10.01, the Lien of the Indenture on the Indenture
Estate shall terminate and the Indenture Trustee, upon the written request of
the Owner Trustee or the Lessee, shall execute and deliver to, or as directed
by, the Owner Trustee or the Lessee, all appropriate instruments (in due form
for recording or filing) releasing the Indenture Estate from the Lien of this
Indenture, and the Indenture Trustee shall pay all moneys or other properties or
proceeds held by it under this Indenture to the Owner Trustee and shall give
notice to the Lessee of such payment. The reasonable cost and expense
associated with any action taken by the Indenture Trustee pursuant to the
provisions of this Section 6.03(a) shall be borne by the Lessee.
(b) Release of the Facility Assets upon Transfer. Upon any transfer
--------------------------------------------
by the Owner Trustee of the Facility Assets pursuant to Section 6.1, 7, 11.7(b)
or 12 of the Lease or any retention by the Owner Trustee of the Facility Assets
pursuant to Section 7 of the
41
Lease and receipt by the Indenture Trustee of all amounts of Rent therefor that
constituted a part of the Indenture Estate due and payable by the Lessee and the
concurrent redemption of Secured Notes as set forth in Sections 3.02 and 4.02
and the payment of any other amounts then due and owing hereunder, the Lien of
the Indenture shall terminate and the Indenture Trustee, upon the written
request of the Owner Trustee or the Lessee, shall execute and deliver to, or as
directed by, the Owner Trustee or the Lessee, all appropriate instruments (in
due form for recording or filing) releasing the Facility Assets, and all
property relating thereto and then constituting a portion of the Indenture
Estate from the Lien of this Indenture. The reasonable cost and expense
associated with any action taken by the Indenture Trustee pursuant to the
provisions of this Section 6.03(b) shall be borne by the Lessee.
(c) Release of Lien upon Full Payment of Secured Notes. Upon payment
--------------------------------------------------
in full of the principal of and interest on and all other amounts due and
payable under the Secured Notes, and all other amounts due and payable to any
Holder or the Indenture Trustee hereunder or under any other Operative Document,
the Indenture Trustee, upon the written request of the Owner Trustee, shall
execute and deliver to, or as directed by, the Owner Trustee or the Lessee, all
appropriate instruments (in due form for recording or filing) releasing the
Facility Assets, and all other property relating thereto and then constituting a
portion of the Indenture Estate from the Lien of this Indenture. The reasonable
cost and expense associated with any action taken by the Indenture Trustee
pursuant to the provisions of this Section 6.03(c) shall be borne by the Lessee.
(d) Disposition, Substitution and Release of Facility Assets Included
-----------------------------------------------------------------
in the Indenture Estate During Continuation of Lease. So long as the Lease is
- ----------------------------------------------------
in effect, any Replacement Components and alterations, improvements and
modifications in and additions to the Facility Assets shall, to the extent
required or specified by the Lease, become subject to the lien of this Indenture
and be leased to the Lessee under the Lease; provided that, to the extent
--------
permitted by and as provided in the Lease, the Lessee shall have the right, at
any time and from time to time, without any release from or consent by the Owner
Trustee or the Indenture Trustee, to remove and/or replace Components or
Replacement Components, to make alterations, improvements and modifications in,
and additions to, the Facility Assets. The Indenture Trustee agrees that, to the
extent permitted by and as provided in the Lease, title to any such removed or
replaced Component or Replacement Components, shall vest in the Lessee. The
Indenture Trustee shall from time to time execute an appropriate written
instrument or instruments to confirm the release of the security interest of the
Indenture Trustee in any replaced Component or Replacement Components, as
provided in this Section 6.03(d) in each case upon receipt by the Indenture
Trustee of a request of a Lessee stating that said action was duly taken by the
Lessee in conformity with this Section 6.03(d) and that the execution of such
written instrument or instruments is appropriate to evidence such release of a
security interest under this Section 6.03(d). The reasonable cost and expense
42
associated with any action taken by the Indenture Trustee pursuant to the
provisions of this Section 6.03(d) shall be borne by the Lessee.
SECTION 6.04. Indemnification. The Indenture Trustee shall not be
---------------
required to take any action or refrain from taking any action instructed to be
taken or refrained from being taken pursuant to Section 6.02 or under Article V
unless the Indenture Trustee shall have been indemnified to the Indenture
Trustee's reasonable satisfaction against any liability (including, without
limitation, environmental liability), cost or expense (including, without
limitation, the reasonable fees and expenses of counsel) which may be incurred
in connection therewith, other than any such liability, cost or expense which
results from the willful misconduct or gross negligence of the Indenture Trustee
and for the failure of the Indenture Trustee to exercise ordinary care in
distributing funds in accordance with the terms of the Operative Documents.
Except with respect to actions required by the first sentence of Section 6.01
hereof, the Indenture Trustee shall be under no obligation to take any action
under this Indenture and nothing contained in this Indenture shall require the
Indenture Trustee to expend or risk the Indenture Trustee's own funds or
otherwise incur any financial liability or any other liability (including,
without limitation, environmental liability) in the performance of any of the
Indenture Trustee's duties hereunder or in the exercise of any of the Indenture
Trustee's rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. The Indenture Trustee shall not be
required to take any action under Section 6.02 or Article V, nor shall any other
provision of this Indenture be deemed to impose a duty on any Indenture Trustee
to take any action, if such Indenture Trustee shall have reasonably determined
or been advised in writing by its counsel that such action is contrary to the
terms hereof or of any other Operative Document, or is contrary to applicable
law.
SECTION 6.05. No Implied Duties. No implied duties or obligations of
-----------------
the Indenture Trustee shall be read into this Indenture.
SECTION 6.06. Duties to Remove Certain Liens. The Indenture Trustee,
------------------------------
in its individual capacity, shall comply with Section 11.4(a) of the
Participation Agreement.
SECTION 6.07. No Action Except Under Operative Documents or
---------------------------------------------
Instructions. The Owner Trustee and the Indenture Trustee agree that they will
- ------------
not use, operate, store, lease, control, manage, sell, dispose of or otherwise
deal with the Facility Assets or any other part of the Indenture Estate except
(a) in accordance with the terms of the Lease or the other Operative Documents
or (b) in accordance with the powers granted to, or the authority conferred
upon, the Owner Trustee and the Indenture Trustee pursuant to the express terms
of this Indenture and the Trust Agreement.
43
SECTION 6.08. Certain Rights of the Owner Trustee and the Owner
-------------------------------------------------
Participant. Notwithstanding the Granting Clause or any other provision in this
- -----------
Indenture to the contrary:
(a) each of the Owner Trustee and the Owner Participant shall have the
right, to the exclusion of the Indenture Trustee, whether or not an
Indenture Event of Default is continuing and whether or not the Indenture
Trustee has foreclosed on the Lien of the Indenture, (i) to receive
Excepted Payments, (ii) to demand, collect, sue for or waive any notice of
default with respect to Excepted Payments, and (iii) to enforce the payment
of Excepted Payments due and payable to it by appropriate judicial
proceedings and to exercise other remedies as provided under any Operative
Document to the extent and with respect to any portion of the Indenture
Estate which shall have been released pursuant to the terms of this
Indenture; provided that the rights referred to in clause (iii) of this
--------
Section 6.08(a) shall not be deemed to include the exercise of any remedies
provided for in Section 16 of the Lease other than the right to proceed by
appropriate court action or actions, either at law or in equity, to enforce
performance by the Lessee of the applicable covenants or to recover damages
for breach thereof;
(b) at all times prior to the foreclosure of the Lien of the
Indenture, whether or not an Indenture Event of Default is continuing, each
of the Owner Trustee and the Owner Participant shall have the right, but
not to the exclusion of the Indenture Trustee, (i) to receive from the
Lessee all notices, financial statements, certificates, opinions of counsel
and other documents and information which the Lessee is permitted or
required to give or furnish to the Owner Trustee or the Owner Participant
pursuant to the terms of any Operative Document, (ii) to retain all rights
with respect to liability insurance which Section 13 of the Lease
specifically confers upon the Owner Trustee or the Owner Participant, or
other insurance under Section 13.4 of the Lease purchased for the benefit
of the Owner Trustee or the Owner Participant (subject, however, to the
provisions of the definition of "Excepted Payments") and (iii) to exercise
inspection rights pursuant to Section 10.7 of the Participation Agreement
and Section 11.2 of the Lease;
(c) prior to the foreclosure of the Lien of the Indenture and whether
or not an Indenture Event of Default shall have occurred and be continuing,
the Owner Trustee shall have the right, to the exclusion of the Indenture
Trustee, to adjust Basic Rent Percentages, Stipulated Loss Value
Percentages and Termination Value Percentages and the Early Buy-Out
Percentage pursuant to Section 4 of the Lease but subject to the
limitations set forth in Section 3.5 of the Lease; and
(d) so long as no Indenture Event of Default shall have occurred and
be continuing (subject to Section 9.02), the Owner Trustee shall retain (to
the exclusion
44
of the Indenture Trustee) all rights of the "Lessor", the "Ground Lessee"
or the "Owner Trustee" under the Lease, the Ground Lease or any other
Operative Document, as the case may be, under the Lease, other than the
Indenture Trustee's right to receive any funds assigned to the Indenture
Trustee under the terms of this Indenture.
SECTION 6.09. Filing of Financing and Continuation Statements. The
-----------------------------------------------
Indenture Trustee shall, at the expense of the Owner Trustee, execute and file
any continuation or similar statement or document delivered to it by the Owner
Trustee or the Lessee in a form reasonably satisfactory to the Indenture Trustee
and proper for filing.
SECTION 6.10. Publishing of Notices. The Indenture Trustee will
---------------------
furnish to the Owner Trustee and the Owner Participant, promptly upon receipt
thereof, a duplicate or copy of each report, notice, request, demand,
instruction, certificate, financial statement or other instrument furnished to
the Indenture Trustee hereunder or under any other Operative Document.
SECTION 6.11. Taxes; Withholding; Information Reporting. The
-----------------------------------------
Indenture Trustee shall exclude and withhold from each distribution of principal
and interest and other amounts due hereunder or under the Secured Notes any and
all withholding taxes applicable thereto as required by law. The Indenture
Trustee agrees (a) to act as such withholding agent and, in connection
therewith, whenever any present or future taxes or similar charges are required
to be withheld with respect to any amounts payable in respect of the Secured
Notes or otherwise due hereunder, to withhold such taxes or charges and timely
pay the same to the appropriate authority in the name of and on behalf of the
Loan Participants, (b) that it will file any necessary withholding tax returns
or statements when due and (c) that, as promptly as possible after the payment
of such withheld amounts, it will deliver to each Loan Participant appropriate
documentation showing the payment of such withheld amounts, together with such
additional documentary evidence as such Loan Participants may reasonably request
from time to time. The Indenture Trustee agrees to file any other information
reports as it may be required to file under United States law. No withholding
or action with respect thereto shall constitute or give rise to any Indenture
Event of Default or any other claims against the Owner Participant or the Owner
Trustee. Any tax withheld by the Indenture Trustee pursuant to this Section
6.11 shall be deemed for all purposes of this Indenture and the Secured Notes to
have been paid to the Holder with respect to which such tax was withheld.
45
ARTICLE VII
THE INDENTURE TRUSTEE AND THE OWNER TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties. The Indenture Trustee
-------------------------------
accepts the duties hereby created and applicable to it and agrees to perform the
same upon the terms and conditions set forth in this Indenture and the
Participation Agreement. The Indenture Trustee further agrees to receive and
disburse all moneys constituting part of the Indenture Estate in accordance with
the terms hereof. The Indenture Trustee shall not be answerable or accountable
in its individual capacity under any circumstances, except (a) for its willful
misconduct or gross negligence, (b) for its failure to exercise reasonable care
in safeguarding the security held by it pursuant to the terms hereof, (c) in the
case of the inaccuracy of any representations or warranties, or the breach of
any covenants, made by the Indenture Trustee in its individual capacity and
contained in the Participation Agreement or any other Operative Document or
referred to by reference in Section 7.03 hereof, (d) as provided in Sections
2.03 and 6.06, (e) for any Tax based on or measured by any fees, commissions or
compensation received by it for acting as trustee hereunder, or (f) except as
otherwise expressly provided herein for its failure to use ordinary care in
disbursing funds in accordance with the terms hereof.
SECTION 7.02. Absence of Duties Except as Specified. Except in
-------------------------------------
accordance with written instructions pursuant to Section 6.01 or 6.02, and
except as provided in, and without limiting the generality of, Sections 6.04,
6.05, 6.06, 6.07, 7.01 and 7.03, the Indenture Trustee shall have no duty (a) to
record or file the Lease or this Indenture or any other document, or to maintain
any such recording or filing, or to rerecord or refile any such document, (b) to
effect or maintain any such insurance, whether or not the Lessee shall be in
default with respect thereto, (c) to discharge any Lien of any kind against any
part of the Trust Estate or the Indenture Estate, or (d) to inspect the Facility
Assets at any time, or to ascertain or inquire as to the performance or
observance of any of the Lessee's covenants pursuant to the terms of the Lease.
SECTION 7.03. No Representations or Warranties. NEITHER THE OWNER
--------------------------------
TRUSTEE NOR THE INDENTURE TRUSTEE MAKES (a) ANY REPRESENTATION OR WARRANTY,
WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, AS TO THE VALUE, COMPLIANCE WITH
SPECIFICATIONS, DURABILITY, OPERATION, CONSTRUCTION, PERFORMANCE, DESIGN OR
CONDITION OF THE FACILITY ASSETS OR ANY PART THEREOF, THE MERCHANTABILITY
THEREOF OR THE FITNESS THEREOF FOR ANY PARTICULAR PURPOSE, TITLE TO THE FACILITY
ASSETS OR ANY COMPONENT OF THE FACILITY ASSETS, THE QUALITY OF THE MATERIALS OR
WORKMANSHIP THEREOF OR CONFORMITY THEREOF TO SPECIFICATIONS, OR THE PRESENCE OR
ABSENCE OF ANY LATENT OR OTHER DEFECTS, WHETHER
46
OR NOT DISCOVERABLE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS
OR IMPLIED, WITH RESPECT TO THE FACILITY ASSETS, OR ANY COMPONENT OF THE
FACILITY ASSETS, or (b) any representation or warranty as to the validity,
legality or enforceability of this Indenture, any of the other Operative
Documents or the Secured Notes, or as to the correctness of any statement
contained in any thereof, except as set forth in Section 7.01 of this Indenture,
Sections 8 and 9 of the Participation Agreement and Section 7.3 of the Trust
Agreement.
SECTION 7.04. No Segregation of Moneys; No Interest; Investments.
--------------------------------------------------
Any moneys paid to or retained by the Indenture Trustee pursuant to any
provision hereof and not then required to be distributed to the Holders, the
Lessee or the Owner Trustee shall be deposited in a separate, interest bearing
cash collateral account; provided that any payments received or applied
--------
hereunder by the Indenture Trustee shall be accounted for by the Indenture
Trustee so that any portion thereof paid or applied pursuant hereto shall be
identifiable as to the source thereof. Any amounts held by the Indenture
Trustee pursuant to the express terms of this Indenture or any other Operative
Document shall be invested and reinvested by the Indenture Trustee from time to
time in Permitted Investments at the written direction of (i) the Lessee if such
amounts would be payable to the Lessee upon satisfaction of any applicable
conditions; or (ii) the Owner Participant in the case of the remaining portion
of such amounts. The Indenture Trustee shall have no liability for any loss
resulting from any investment required to be made hereunder other than by reason
of its own willful misconduct or negligence in failing to comply with such
instructions. Any net income or gain realized as a result of any such
investment or reinvestment shall be held as part of the Indenture Estate and
shall be applied by the Indenture Trustee at the same time, on the same
conditions and in the same manner as the amounts in respect of which such income
or gain was realized are required to be distributed in accordance with the
provisions hereof. Any Permitted Investment may be sold or otherwise reduced to
cash (without regard to maturity) by the Indenture Trustee whenever necessary to
make any application as required by the terms of this Indenture or of any
applicable Operative Document.
SECTION 7.05. Reliance; Agents; Advice of Counsel. Neither the Owner
-----------------------------------
Trustee nor the Indenture Trustee (in their respective individual or trust
capacities for the purposes of this Section 7.05) shall incur any liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
reasonably believed by it to be genuine and believed by it to be signed by the
proper party or parties. Either of the Owner Trustee or the Indenture Trustee
may accept a copy of a resolution of the Board of Directors or other governing
body of any party to the Participation Agreement or other Operative Agreement,
certified by the Secretary or any Assistant Secretary thereof as duly adopted
and in full force and effect, as conclusive evidence that such resolution has
been duly adopted and that the same is in full force and effect. As to any fact
or matter relating to the Lessee the manner of ascertainment of which is not
specifically described herein, the Owner Trustee and the Indenture Trustee
47
may for all purposes hereof rely on an Officer's Certificate of the relevant
party as to such fact or matter, and such Officer's Certificate shall constitute
full protection to the Owner Trustee or the Indenture Trustee (in their
individual or trust capacities), as the case may be, for any action taken or
omitted to be taken by it in good faith in reliance thereon. The Indenture
Trustee shall assume, and shall be fully protected in assuming, that the Owner
Trustee is authorized by the Trust Agreement to enter into this Indenture and to
take all action to be taken by the Owner Trustee pursuant to the provisions
hereof, and shall not inquire into the authorization of the Owner Trustee with
respect thereto. The Owner Trustee shall assume, and shall be fully protected in
assuming, that the Indenture Trustee is authorized to enter into this Indenture
and to take all action to be taken by the Indenture Trustee pursuant to the
provisions hereof, and shall not inquire into the authorization of the Indenture
Trustee with respect thereto. In the administration of the trusts hereunder, the
Indenture Trustee may execute any of the trusts or powers hereof and perform its
powers and duties hereunder directly or through agents or attorneys and at the
expense of the Indenture Estate may consult with counsel, accountants and other
skilled Persons to be selected and retained by it, and the Indenture Trustee
shall not be liable for anything done, suffered or omitted in good faith by it
in accordance with the advice or opinion of any such counsel, accountant or
other skilled Person acting within such Person's area of competence (so long as
the Indenture Trustee shall have exercised due care in selecting such Persons,
provided that, so long as no Lease Event of Default shall have occurred and be
- --------
continuing, no such Persons (other than counsel to the Indenture Trustee or its
accountants) shall be retained by the Indenture Trustee without the consent of
the Lessee, such consent not to be unreasonably withheld.
SECTION 7.06. No Compensation from Holders or Indenture Estate.
------------------------------------------------
Notwithstanding any other provision hereof, the Indenture Trustee shall have no
right against the Holders, the Owner Trustee, the Owner Participant or, except
as otherwise provided in Section 4.03, the Indenture Estate for any fee as
compensation for its services hereunder.
SECTION 7.07. [Intentionally Omitted]
---------------------
SECTION 7.08. Moneys for Payments in Respect of Notes to be Held in
-----------------------------------------------------
Trust. In case the Holder of any Secured Note shall fail to present the same
- -----
for payment on any date on which the principal thereof becomes payable, the
Indenture Trustee may set aside in trust the moneys then due thereon uninvested
and shall pay such moneys to any Holder of such Secured Note upon due
presentation for surrender thereof in accordance with the provisions of this
Indenture, subject to the provisions of Section 7.09.
SECTION 7.09. Disposition of Moneys Held for Payments of Notes. (a)
------------------------------------------------
Any money set aside under Section 7.08 and not paid to Holders under Section
7.08 shall be held by the Indenture Trustee in trust until the date three years
after the date of such setting aside, and thereafter shall be paid to the Owner
Trustee by the Indenture Trustee who
48
then shall be released from all further liability with respect to such moneys,
and thereafter the Holders of the Secured Notes in respect of which such moneys
were so paid to the Owner Trustee shall have no rights in respect thereof except
to obtain payment of such moneys from the Owner Trustee.
(b) All moneys and United States Government Obligations deposited with
the Indenture Trustee pursuant to Section 10.01 shall be held in trust and
applied by it, in accordance with the provisions of the Secured Notes and this
Indenture, to the payment to the Holders of all sums due and to become due
thereon for principal and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Indenture Trustee shall promptly pay or return to the Owner
Trustee upon the written request of the Owner Trustee any money or United States
Government Obligations held by it at any time that are not required for the
payment of the amounts described in the preceding sentence for which money or
United States Government Obligations have been deposited pursuant to Section
10.01.
ARTICLE VIII
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
SECTION 8.01. Notice of Successor Owner Trustees. In the case of any
----------------------------------
appointment of a successor to the Owner Trustee pursuant to the Trust Agreement,
or any merger, conversion or consolidation or transfer of substantially all of
the corporate trust business of the Owner Trustee, the successor Owner Trustee
shall give prompt written notice thereof to the Indenture Trustee and the
Lessee.
SECTION 8.02. Resignation of Indenture Trustee; Appointment of
------------------------------------------------
Successor. (a) The Indenture Trustee or any successor thereto may resign at any
- ---------
time without cause by giving at least thirty (30) days prior written notice to
the Owner Trustee, the Owner Participant, the Lessee and each Holder, such
resignation to be effective upon the acceptance of the trusteeship by a
successor Indenture Trustee as provided in Section 8.02(b). In addition, a
Majority in Interest of Holders of Notes may at any time remove the Indenture
Trustee without cause by an instrument in writing delivered to the Owner
Trustee, the Owner Participant, the Lessee and the Indenture Trustee, such
removal to be effective upon the acceptance of the trusteeship by a successor
Indenture Trustee as provided in Section 8.02(b). The Owner Trustee (acting
pursuant to instructions from the Lessee) may remove the Indenture Trustee if:
(1) the Indenture Trustee fails to comply with Section 6.06 hereof or
8.02(c);
49
(2) the Indenture Trustee is adjudged as bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Indenture Trustee
or its property; or
(4) the Indenture Trustee becomes incapable of acting.
In the case of the resignation or removal of the Indenture Trustee, the Owner
Trustee (acting pursuant to instructions from the Lessee) shall promptly appoint
a successor Indenture Trustee. If a successor Indenture Trustee shall not have
been appointed within thirty (30) days of such notice of resignation or removal,
the Indenture Trustee, the Owner Trustee, the Owner Participant, the Lessee or a
Majority in Interest of Holders may apply to any court of competent jurisdiction
to appoint a successor Indenture Trustee qualified under Section 8.02(c) to act
until such time, if any, as a successor shall have been appointed as above
provided in this Section 8.02. The successor Indenture Trustee so appointed by
such court shall immediately and without further act be superseded by any
successor Indenture Trustee appointed as above provided in this Section 8.02.
(b) Any successor Indenture Trustee, however appointed, shall execute
and deliver to the Owner Trustee and to the predecessor Indenture Trustee an
instrument accepting such appointment, and shall give the Owner Participant, the
Holders and the Lessee written notice of such acceptance. Upon the execution
and delivery of such instrument, such successor Indenture Trustee, without
further act, shall become vested with all the estates, properties, rights,
powers and duties of the predecessor Indenture Trustee hereunder with like
effect as if originally named the Indenture Trustee herein. Notwithstanding and
without limiting the foregoing, the predecessor Indenture Trustee, upon the
written request of the successor Indenture Trustee, shall execute and deliver an
instrument transferring to such successor Indenture Trustee, upon the trusts
herein expressed applicable to it, all the estates, properties, rights and
powers of such predecessor Indenture Trustee, and such predecessor Indenture
Trustee shall duly assign, transfer, deliver and pay over to such successor
Indenture Trustee all moneys or other property then held by such predecessor
Indenture Trustee hereunder and all books and records relating to the
administration of the Indenture Estate.
(c) There shall at all times be an Indenture Trustee hereunder which
shall be a bank or trust company organized and doing business under the laws of
the United States of America or of any State thereof, authorized under such laws
to exercise corporate trust powers, subject to supervision or examination by
Federal or State authority, having a combined capital and surplus of at least
$75,000,000, regularly engaged in or having expertise in leveraged leasing. If
such bank or trust company publishes reports of condition at least annually,
pursuant to applicable law or to the requirements of the aforesaid supervising
or examining authority, then for purposes hereof the combined capital and
50
surplus of such bank or trust company shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
(d) Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation to which substantially all the corporate
trust business of the Indenture Trustee may be transferred, shall, subject to
the terms of paragraph (c) of this Section 8.02, be the Indenture Trustee under
this Indenture without further act.
SECTION 8.03. Co-Trustees and Separate Trustees. (a) If, at any
---------------------------------
time it shall be necessary or prudent in order to conform to any law of any
jurisdiction in which property shall be held subject to the Lien of this
Indenture, the Indenture Trustee shall be advised by counsel that it is so
necessary or prudent in the interest of the Holders, or a Majority in Interest
of Holders of Notes in writing shall so request the Indenture Trustee and the
Owner Trustee, the Indenture Trustee and the Owner Trustee shall execute and
deliver all instruments and agreements necessary or proper either (i) to
constitute another bank or trust company or one or more Persons approved by the
Lessee, the Indenture Trustee and the Owner Trustee, either to act as co-trustee
or co-trustees of all or any portion of the Indenture Estate, jointly with the
Indenture Trustee originally named herein or any successor or successors, or to
act as separate trustee or trustees of all or any such portion of the Indenture
Estate in each case with such rights, powers, duties and obligations as may be
provided in such supplemental indenture or such instrument of appointment as the
Indenture Trustee or a Majority in Interest of Holders of Notes may deem
necessary or advisable, or (ii) to clarify, add to or subtract from the rights,
powers, duties and obligations theretofore granted any such additional or
separate trustee, subject in each case to the remaining provisions of this
Section 8.03. In the event that the Lessee or Owner Trustee shall not have
joined in the execution of such instruments and agreements within fifteen (15)
days after the receipt of a written request from the Indenture Trustee to do so,
or if an Indenture Event of Default shall have occurred and be continuing, the
Indenture Trustee may act under the foregoing provisions of this Section 8.03
without the concurrence of the Lessee or Owner Trustee; and the Owner Trustee
hereby appoints the Indenture Trustee its agent and attorney-in-fact to act for
it under the foregoing provisions of this Section 8.03(a) in either of such
contingencies. The Indenture Trustee may, in such capacity, execute deliver and
perform any such supplemental indenture, or any such instrument, as may be
required for the appointment of any such co-trustee(s) or separate trustee(s) or
for the clarification of, addition to or subtraction from the rights, powers,
duties or obligations theretofore granted to any such co-trustee(s) or separate
trustee(s). In case any co-trustees or separate trustee(s) appointed under this
Section 8.03(a) shall die, become incapable of acting, resign or be removed, all
the assets, property, rights, powers, trusts, duties and obligations of such co-
trustee(s) or separate trustee(s) shall revert to and shall vest in and may be
exercised by the Indenture
51
Trustee, to the extent permitted by law until a successor, additional or
separate trustee is appointed as provided in this Section 8.03(a).
(b) Every co-trustee and separate trustee hereunder shall, to the
extent permitted by law and except as otherwise expressly provided in any
Operative Document, be appointed and act, and the Indenture Trustee and its
successors shall act, subject to the following provisions and conditions:
(i) the Secured Notes shall be authenticated and delivered by the
Indenture Trustee, and all powers, duties, obligations and rights conferred
upon the Indenture Trustee in respect of the receipt, custody, control,
payment and management of moneys, papers or securities, shall be exercised,
solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such co-trustee or co-
trustees or separate trustee or trustees jointly, except to the extent that
under any applicable law or in any jurisdiction in which any particular act
or acts are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such co-
trustee or co-trustees or separate trustee or trustees; but subject to the
same limitations in any exercise of his, her or its power and authority as
those to which the Indenture Trustee is subject under the terms of this
Indenture;
(iii) notwithstanding anything herein contained to the contrary, no
power given hereby to, or which it is provided hereby may be exercised by,
any such co-trustee or co-trustees or separate trustee or trustees, shall
be exercised hereunder by such additional trustee or trustees except
jointly with, or with consent in writing of, the Indenture Trustee;
(iv) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder;
(v) the powers of any co-trustee(s) or separate trustee(s) appointed
pursuant to this Section 8.03 shall not in any case exceed those of the
Indenture Trustee hereunder; and
(vi) the Owner Trustee and the Indenture Trustee, at any time, by an
instrument in writing executed by them jointly, may remove any such
trustee, and in that case, by an instrument in writing executed by them
jointly, may appoint a successor or successors to such co-trustee or co-
trustees or separate trustee or trustees, as the case may be, acceptable to
the Lessee. In the event that the Owner
52
Trustee shall not have joined in the execution of any such instrument
within fifteen (15) days after the receipt of a written request from the
Indenture Trustee to do so, the Indenture Trustee shall have the power to
remove any such co-trustee or separate trustee and to appoint a successor
co-trustee or separate trustee without the concurrence of the Owner
Trustee. In the event that the Indenture Trustee alone shall have appointed
a separate trustee or trustees or co-trustee or co-trustees as above
provided in this Section 8.03, it may at any time, by an instrument in
writing, remove any such separate trustee or co-trustee, the successor to
any such separate trustee or co-trustee so removed to be appointed by the
Owner Trustee and the Indenture Trustee, or by the Indenture Trustee alone,
as provided in this Section 8.03.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
SECTION 9.01. Indenture Supplements Without Consent of Holders. The
------------------------------------------------
Owner Trustee and the Indenture Trustee, without the consent of any Holder and
at any time and from time to time, may enter into one or more amendments or
supplements to this Indenture, in form satisfactory to each of the Owner Trustee
and Indenture Trustee, for any of the following purposes:
(a) to subject to the Lien of this Indenture additional property
constituting part of the Indenture Estate pursuant to a supplement to this
Indenture;
(b) to correct or amplify the description of any property at any time
subject to the Lien of this Indenture;
(c) to add to the covenants of the Owner Trustee for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Owner Trustee, the Owner Participant or the Lessee;
(d) to cure any ambiguity, to correct or supplement any provision
herein or in the Secured Notes which may be defective or inconsistent with
any other provisions of this Indenture, to make any other changes not
inconsistent with the provisions hereof, provided that such action shall
--------
not adversely affect the interests of any Holder or to correct any mistake;
(e) to provide for the assumption by the Lessee of the obligations of
the Owner Trustee hereunder in accordance with the terms and conditions
applicable thereto specified in Section 3.04, including, without
limitation, such amendments to
53
Exhibit C as may be necessary or desirable in order to effectuate such
assumption and accomplish the purposes thereof (provided that such
--------
amendments to Exhibit C shall not adversely affect the interests of
the Loan Participants);
(f) to evidence the succession of a new Owner Trustee in accordance
with the Trust Agreement or the succession of a new Indenture Trustee
hereunder or the appointment or removal of any co-trustee or separate
trustee thereunder or hereunder;
(g) to convey, transfer, assign, mortgage or pledge any property to or
with the Indenture Trustee or to make any other provisions with respect to
matters or questions arising hereunder so long as such action shall not
adversely affect the interests of the Loan Participants;
(h) to add to the rights of the Loan Participants;
(i) to include on the Secured Notes any legend as may be required by
law; or
(j) to provide for the establishment and issuance of (A) Additional
Notes pursuant to Section 14 of the Participation Agreement or Section 2.08
hereof or (B) Refunding Secured Notes in connection with a refunding or
refinancing pursuant to Section 15 of the Participation Agreement or
Section 3.05 hereof.
SECTION 9.02. Supplements and Amendments to Indenture With Consent of
-------------------------------------------------------
Holders of Notes. (a) Without the consent of a Majority in Interest of Holders
- ----------------
of Notes, the Owner Trustee may not modify, amend or supplement any of the
Lease, the Participation Agreement or the Trust Agreement, or give any consent,
waiver, authorization or approval thereunder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
thereof or of modifying in any manner the rights of the respective parties
thereunder; provided, however, that the actions specified in Section 9.02(c) may
-------- -------
be taken without the consent of the Indenture Trustee or any Holder.
(b) Except as provided in Section 9.01 or 9.02(c) or 9.02(d), at any
time and from time to time, with the consent of a Majority in Interest of
Holders of Notes and, whether or not an Indenture Event of Default exists, upon
the written consent of the Owner Trustee and the Owner Participant, the
Indenture Trustee (x) shall execute an amendment or supplement to this Indenture
for the purpose of adding provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture, or (y) shall execute an
amendment or supplement to, or give a consent, waiver, authorization or
approval, for the purposes of adding any provisions to or changing in any manner
or eliminating any of the provisions of, the Participation Agreement, or (z)
shall consent to any amendment or supplement to, or give a consent, waiver,
authorization or approval, for the purposes of
54
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Lease or the Trust Agreement; provided, however, that no such
-------- -------
amendment or supplement to this Indenture, or consent, waiver, authorization,
approval, amendment or supplement to the Participation Agreement, the Lease or
the Trust Agreement (whether pursuant to subsection (a) or (c) of this Section
9.02, and anything in such subsections or elsewhere in this Indenture to the
contrary notwithstanding) shall, without the consent of each Holder of a Secured
Note then Outstanding:
(i) change the stated maturity of the principal of, or any installment
of interest on, or the amount of any payment upon any mandatory or optional
repayment, purchase or redemption of any Secured Note, or change the
principal amount thereof or any other amount payable in respect thereof or
reduce the Make-Whole Amount, if any, or interest thereon, or change the
place of payment where, or the coin or currency in which, any Secured Note
or the interest thereon is payable;
(ii) permit the creation of any Lien on the Indenture Estate not
otherwise permitted hereunder or deprive any Holder of the benefit of the
Lien of this Indenture upon the Indenture Estate, or any portion thereof,
for the security of its Secured Notes;
(iii) change the percentage of the aggregate principal amount of
Secured Notes required to take or approve any action hereunder or any other
Operative Document;
(iv) modify the definitions of "Indenture Default", "Indenture Event
of Default", "Majority in Interest of Holders of Notes", "Lease Default" or
"Lease Event of Default";
(v) modify the order of priorities in which distributions are to be
made under Article IV;
(vi) reduce the amount or change the time of any payment of Basic
Rent, Stipulated Loss Value, Early Buy-Out Purchase Price or Termination
Value, except as expressly permitted pursuant to the terms of the Lease or
the Participation Agreement as executed on the date hereof, so that such
payments would be insufficient to pay principal of and interest on the
outstanding Secured Notes as they become due hereunder;
(vii) [Intentionally Omitted]
(viii) modify, amend or supplement any of the provisions of this
Section 9.02;
55
(ix) modify, amend or supplement the Lease, or consent to any
assignment of the Lease (other than an assignment pursuant to Section 14.2
of the Lease), in either case releasing the Lessee from its obligations in
respect of the payment of Basic Rent, Supplemental Rent payable pursuant to
Section 3.2(b) of the Lease, Stipulated Loss Value, Early Buy-Out Purchase
Price or Termination Value, or changing the absolute and unconditional
character of such obligations as set forth in Section 3.6 of the Lease; or
(x) adversely affect any indemnities in favor of any Holder as
provided pursuant to the terms of any Operative Document, except as may be
consented to by each Person adversely affected thereby.
(c) Notwithstanding anything to the contrary contained in Section
9.02(b) (except as provided in the proviso to Section 9.02(b)), (x) without the
necessity of the consent of any of the Holders or the Indenture Trustee, the
Owner Trustee may and (y) in the case of clauses (iii) and (iv) of this Section
9.02(c), without the consent of any of the Holders, the Indenture Trustee shall,
at the request of the Owner Trustee:
(i) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any consent,
waiver, authorization or approval with respect thereto, except that without
compliance with Section 9.02(b), the Owner Trustee shall not modify, amend
or supplement, or give any consent, waiver, authorization or approval for
the purposes of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder, with respect to the following
provisions of the Lease as originally executed: Section 2.1 (if the result
thereof would be to shorten the term of the Lease to a period shorter than
the period ending with the maturity date of the Secured Notes), Sections
3.1, 3.2, (except to the extent such Section relates to amounts payable
(whether directly or pursuant to the Indenture) to persons other than the
Loan Participants and the Indenture Trustee in its individual capacity),
Section 3.3 (except insofar as it relates to the address or account
information of the Lessee, the Owner Trustee or the Indenture Trustee)
(other than as such as Section 2.1, 3.1, 3.2 or 3.3 of the Lease may be
amended pursuant to Sections 3.5 and 4 of the Lease), Section 3.5, Section
3.6, Section 7 (except that the procedures for soliciting bids may be
modified and further restrictions may be imposed on the ability of the
Lessee to terminate the Lease with respect to the Facility Assets pursuant
to such Section 7), Section 9.1, Section 10, Sections 11.1, 11.2, 11.3, the
proviso to Section 11.4 (other than with respect to "limited use property"
characterization), Section 11.5(b) or 11.7 (except that additional
requirements may be imposed on the Lessee), Section 12 (other than Sections
12.3 and 12.4, and except that additional requirements may be imposed on
the Lessee), Section 13 (except that additional insurance requirements may
be
56
imposed on the Lessee), Section 14, Section 15, Section 16, Section 18.1,
Section 19.3 and any definition of terms used in the Lease, to the extent
that any modification of such definition would result in a modification of
the Lease not permitted pursuant to this Section 9.02(c), provided that,
--------
subject to the next proviso, in the event an Indenture Event of Default
shall have occurred and be continuing, the Indenture Trustee shall have all
rights of the Owner Trustee as "Lessor" under the Lease to modify, amend or
supplement the Lease or give any consent, waiver, authorization or approval
thereunder, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the "Lessor" thereunder; provided further that,
-------- -------
without the prior consent of the Owner Trustee, and subject to the
Indenture Trustee's rights hereunder to exercise remedies under Section 16
of the Lease without the prior consent of the Owner Trustee, whether or not
an Indenture Event of Default shall have occurred and be continuing, no
such action shall be taken with respect to any of the provisions of
Sections 1 (if any modification of a definition contained therein would
result in a modification of the Lease not permitted by this proviso), 3, 4,
5, 6, 7, 8.2, 10 (to the extent such action would reduce Lessee's
obligations), 11, 12, 13 (except to increase the amounts or types of
insurance the Lessee must provide thereunder at its expense), 14, 15, 17,
18 and 19 of the Lease, or any other Section of the Lease (including
Section 16 of the Lease) to the extent such action shall affect the amount
or timing of any amounts payable by the Lessee under the Lease as
originally executed (or as subsequently modified with the consent of the
Owner Trustee) which, absent the occurrence and continuance of an Indenture
Event of Default, would be distributable to the Owner Trustee or the Owner
Participant under Article IV;
(ii) modify, amend or supplement the Trust Agreement, or give any
consent, waiver, authorization or approval with respect thereto, except
that without compliance with Section 9.02(b), the Owner Trustee shall not
modify, amend or supplement, or give any consent, waiver, authorization or
approval for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the respective parties thereunder, with respect to the
following provisions of the Trust Agreement as originally executed:
Section 1, Section 3.2, Section 5.1, Section 9.1, Section 10, Section 11.1,
Section 12.7 and any definition of terms used in the Trust Agreement, to
the extent that any modification of such definition would result in a
modification of the Trust Agreement not permitted pursuant to this Section
9.02(c), and in each case only to the extent any such action shall
adversely impact the interests of the Holders;
(iii) modify, amend or supplement the Participation Agreement, or
give any consent, waiver, authorization or approval with respect thereto,
except that without compliance with Section 9.02(b), the Owner Trustee and
the Indenture Trustee shall not modify, amend or supplement, or give any
consent, waiver, authorization or
57
approval for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the respective parties thereunder, with respect to the
following provisions of the Participation Agreement as originally executed:
Section 5, Section 6, Section 8, Section 10 (other than an amendment to add
to the covenants of the Lessee and other than Section 10.10), Section 11.1,
Section 11.2, Section 11.4, Section 11.6, Section 12 (insofar as such
Section 12 relates to the Indenture Trustee, the Indenture Estate and the
Holders) and, to the extent the Loan Participants would be adversely
affected thereby, Section 15 and Section 16 and any definition of terms
used in the Participation Agreement to the extent that any modification of
such definition would result in a modification of the Participation
Agreement not permitted pursuant to this Section 9.02(c); and
(iv) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders unless such provision corrects a mistake or cures an
ambiguity.
(d) The Indenture Trustee, without the consent of any Holder and at
any time and from time to time, may enter into one or more amendments or
supplements to the Participation Agreement, in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to add to the covenants of any other party thereto for the benefit
of the Indenture Trustee or the Holders or to surrender any right or power
therein conferred upon any other party thereto;
(ii) to cure any ambiguity, to correct or supplement any provision
therein which may be defective or inconsistent with any other provisions
thereof, to make any other changes not inconsistent with the provisions
thereof, provided that such action shall not adversely affect the interest
--------
of any Holder or to correct mistakes;
(iii) to provide for the assumption by the Lessee of the obligations
of the Owner Trustee under this Indenture in accordance with the terms and
conditions applicable thereto specified in Section 3.04, including, without
limitation, such amendments to Exhibit C to this Indenture or the
Participation Agreement as may be necessary or desirable in order to
effectuate such assumption and accomplish the purposes thereof (provided
--------
that such amendments to such Exhibit C or the
58
Participation Agreement shall not adversely affect the interests of the
Loan Participants);
(iv) to evidence the succession of a new Owner Trustee in accordance
with the Trust Agreement or the succession of a new Indenture Trustee
hereunder or the appointment or removal of any co-trustee or separate
trustee thereunder or hereunder;
(v) to make any other provisions with respect to matters or questions
arising under the Participation Agreement so long as such action shall not
adversely affect the interests of the Loan Participants;
(vi) to add to the rights of the Indenture Trustee or the Holders; or
(vii) to provide for the establishment and issuance of (1) Additional
Notes pursuant to Section 14 of the Participation Agreement or Section 2.08
hereof or (2) Refunding Secured Notes in connection with a refunding or
refinancing pursuant to Section 15 of the Participation Agreement or
Section 3.05 hereof.
(e) It shall not be necessary for Holders to approve the particular
form of any proposed amendment or supplement to this Indenture, or any
amendment, consent, waiver or other modification of any other Operative
Document, but it shall be sufficient if such action shall approve the substance
thereof.
SECTION 9.03. Execution of Indenture Supplement, Amendments, Etc. In
---------------------------------------------------
executing or accepting the additional trusts created by any amendment or
supplement to this Indenture, or any amendment, consent, waiver or other
modification permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, each of the Indenture Trustee and the Owner
Trustee shall be entitled to receive, and (subject to Section 6.01 and Section
6.02) shall be fully protected in relying upon, an opinion of independent
counsel stating that the execution of such amendment or supplement to this
Indenture, or of such amendment, consent, waiver or modification, is authorized
or permitted by this Indenture. Either of the Indenture Trustee or the Owner
Trustee may, but shall not be obligated to, enter into any such amendment or
supplement to this Indenture which affects its own rights, duties or immunities
under this Indenture or otherwise.
SECTION 9.04. Effect of Indenture Supplement. Upon the execution of
------------------------------
any amendment or supplement to this Indenture pursuant to this Article IX, this
Indenture shall be modified in accordance therewith, and such amendment or
supplement shall form a part of this Indenture for all purposes; and every
Holder of a Secured Note theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
59
SECTION 9.05. Reference in Secured Notes to Indenture Supplements.
---------------------------------------------------
Secured Notes authenticated and delivered after the execution of any amendment
or supplement pursuant to this Article IX may, and shall if required by the
Indenture Trustee, bear a notation in form approved by the Indenture Trustee as
to any matter provided for in such amendment or supplement. If the amendment or
supplement to this Indenture shall so provide, new Secured Notes so modified as
to conform, in the opinion of the Indenture Trustee and the Owner Trustee, to
any such amendment or supplement may be prepared and executed by the Owner
Trustee and authenticated and delivered by the Indenture Trustee in exchange for
outstanding Secured Notes.
SECTION 9.06. Notices of Indenture Supplements and Amendments, Etc.
-----------------------------------------------------
Promptly after the execution by the Owner Trustee and the Indenture Trustee of
any amendment or supplement to this Indenture, or any amendment, consent, waiver
or other modification pursuant to the provisions hereof, the Indenture Trustee
shall send a conformed copy of such instrument to the Lessee, the Owner Trustee
and the Owner Participant but the failure of the Indenture Trustee to send such
a conformed copy shall not impair or affect the validity of such document.
SECTION 9.07. Lessee's Rights. Without the consent of the Lessee, no
---------------
amendment or supplement to this Indenture or amendment, waiver or other
modification of any provision of this Indenture shall alter or modify the
provisions of Section 3.04, 3.05, 3.10, 5.09 or 9.02(c) or this Section 9.07 (to
the extent that the Lessee's rights or obligations under the Participation
Agreement would be adversely affected.).
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Termination of Indenture. Except as provided in this
------------------------
Section 10.01, this Indenture and the trusts created hereby shall terminate,
and this Indenture shall be of no further force or effect, when:
(a) the principal of and interest on and all other amounts due and
payable under all Secured Notes and all other amounts due and payable to
any Holder or the Indenture Trustee hereunder or under any other Operative
Document shall have been paid in full; or
(b) the Indenture Trustee shall have sold or made other final
disposition of all property and all moneys or other property or proceeds
constituting part of the Indenture Estate in accordance with the terms
hereof; or
60
(c) all Secured Notes not theretofore delivered to the Indenture
Trustee for cancellation have become due and payable (whether upon stated
maturity, as a result of redemption or upon acceleration), or will become
due and payable (including as a result of redemption in respect of which
irrevocable notice has been given to the Indenture Trustee on or prior to
the date of such deposit) at maturity within one year, and there has been
deposited with the Indenture Trustee in trust for the purpose of paying and
discharging the entire indebtedness on the Secured Notes not theretofore
canceled by the Indenture Trustee or delivered to the Indenture Trustee for
cancellation, an amount in cash sufficient without reinvestment thereof to
discharge such indebtedness, including the principal of and interest on the
Secured Notes to the date of such deposit (in the case of Secured Notes
which have become due and payable), or to the maturity thereof, as the case
may be; or
(d) (i) the Owner Trustee has deposited or caused to be deposited
irrevocably (except as provided in Section 7.09(b)) with the Indenture
Trustee as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders, (A) money in an amount, or
(B) United States Government Obligations which, through the payment of
interest and principal in respect thereof in accordance with their terms,
will provide (not later than one Business Day before the due date or any
payment referred to below in this clause) money in an amount, or (C) a
combination of money and United States Government Obligations referred to
in the foregoing clause (B), sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Indenture Trustee, to pay
and discharge each installment of principal of and interest on the
Outstanding Secured Notes on the dates such payments of principal or
interest are due (including as a result of redemption in respect of which
irrevocable notice has been given to the Indenture Trustee on or prior to
the date of such deposit), and no Lease Event of Default under Section
15(g) of the Lease shall have occurred and be continuing on the date of
such deposit or at any time during the period ending on the 91st day after
such date; provided, however, that upon the making of the deposit referred
-------- -------
to above in clause (A), the right of the Owner Trustee to cause the
redemption of Secured Notes (except a redemption in respect of which
irrevocable notice has theretofore been given) shall terminate; and (ii)
(A) such deposit will not constitute an Indenture Event of Default under
this Indenture or a default or event of default under any other agreement
or instrument to which the Owner Trustee or the Lessee is a party or by
which it is bound and (B) the Lessee has delivered to the Indenture Trustee
an Officer's Certificate to the effect that all conditions precedent
relating to the termination of this Indenture under this Section 10.01(d)
have been complied with; and (iii) the Lessee has delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel to the
effect that there has been published by the Internal Revenue Service a
ruling to the effect that Loan Participants will not recognize income, gain
or loss for Federal income tax purposes
61
as a result of the exercise by the Owner Trustee of its option under this
Section 10.01(d) and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would have been the
case if such option had not been exercised; and (iv) all other amounts then
due and payable hereunder to any Holder or the Indenture Trustee have been
paid;
provided, however, that the obligations of the Indenture Trustee contained in
- -------- -------
Sections 2.01 through 2.11, 6.11 and 7.09 shall survive.
Except as otherwise provided in the preceding sentence, this Indenture
and the trusts created hereby shall continue in full force and effect in
accordance with the terms hereof.
SECTION 10.02. No Legal Title to Indenture Estate in Holders. No
---------------------------------------------
Holder shall have legal title to any part of the Indenture Estate. No transfer,
by operation of law or otherwise, of any Secured Note or other right, title and
interest of any Holder in and to the Indenture Estate or hereunder shall operate
to terminate this Indenture or entitle such Holder or any successor or
transferee of such Holder to an accounting or to the transfer to it of any legal
title to any part of the Indenture Estate.
SECTION 10.03. Power of Attorney. The Owner Trustee does hereby
-----------------
constitute the Indenture Trustee its true and lawful attorney-in-fact,
irrevocably and coupled with the interest of the Indenture Trustee created by
this Indenture, so long as any Secured Notes are Outstanding and so long as
there are any other amounts due hereunder, under any other Operative Documents,
or under the Secured Notes, with full power (in the name of and as attorney-in-
fact for the Owner Trustee or otherwise) to ask for, require, demand and receive
any and all moneys and claims for moneys, and all other property, which now or
hereafter constitutes part of the Indenture Estate, to endorse any checks or
other instruments or orders in connection therewith and to file any claims or to
take any action, or to institute any proceedings, which the Indenture Trustee
may deem to be necessary or advisable in the premises. The Owner Trustee has
directed the Indenture Trustee to make all necessary conveyances, assignments,
transfers and deliveries of the Indenture Estate and any rights hereunder
pursuant to the provisions of this Indenture, and for that purpose the Indenture
Trustee may execute all necessary instruments of conveyance, assignment and
transfer, and may substitute one or more persons with like power, and the Owner
Trustee hereby ratifies and confirms all that the Indenture Trustee, acting as
its attorney, or any such substitute, shall lawfully do by virtue hereof and
whether pursuant to the exercise of any remedies hereunder or otherwise.
SECTION 10.04. Regarding the Owner Trustee. (a) Except as expressly
---------------------------
provided herein, all and each of the representations, warranties, undertakings
and agreements herein made on the part of the Owner Trustee are made and
intended not as personal
62
representations, warranties, undertakings and agreements by or for the purpose
or with the intention of binding the Owner Trustee personally but are made and
intended for the purpose of binding only the Trust Estate, and this Indenture is
executed and delivered by the Owner Trustee solely in the exercise of the powers
expressly conferred upon it as trustee under the Trust Agreement; and no
personal liability or responsibility is assumed hereunder by, or at any time
shall be enforceable against, the Owner Trustee or any successor in trust on
account of any representation, warranty, undertaking or agreement hereunder of
the Owner Trustee, either expressed or implied, all such personal liability, if
any, being expressly waived by the Indenture Trustee; provided, however, that
-------- -------
(a) the Indenture Trustee or any Person claiming by, through or under it, making
claim hereunder, may subject to the terms and conditions hereof, look to the
Trust Estate for satisfaction of such liability or responsibility and (b) the
Owner Trustee or its successor in trust, as applicable, shall be personally
liable, for its own gross negligence and willful misconduct and for the matters
described in clauses (i) through (v) of the last sentence of Section 7.1 of the
Trust Agreement and the provisos contained in Section 17.10(b) of the
Participation Agreement. Subject to the terms and conditions hereof, each time a
successor Owner Trustee is appointed in accordance with the terms of the Trust
Agreement, such successor Owner Trustee shall, without further act, succeed to
all the rights, duties, immunities and obligations of its predecessor Owner
Trustee hereunder and under the other Operative Documents, and the predecessor
Owner Trustee shall be released from all further duties and obligations
hereunder and under the other Operative Documents, all without the necessity of
any consent or approval by the Indenture Trustee and without in any way altering
the terms of this Indenture or such other Operative Documents or the obligations
of the Indenture Trustee hereunder or thereunder.
(b) As to the aggregate unpaid principal amount of Secured Notes
Outstanding as of any date, the Owner Trustee may rely on an Officer's
Certificate of the Indenture Trustee.
(c) No Recourse Against Others. No director, officer, employee or
--------------------------
stockholder, as such, of the Lessee, the Guarantor, the Owner Trustee or the
Owner Participant, as the case may be, shall have any liability for any
obligations of the Lessee, the Guarantor, the Owner Trustee or the Owner
Participant, as the case may be, under this Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. Each Loan
Participant by accepting a Secured Note waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Secured Notes.
SECTION 10.05. Notices. All communications, notices and consents
-------
provided for in this Indenture shall be in writing and shall be given in person
or by courier or by means of telex, telecopy or other wire transmission (with
request for assurance of receipt in a manner typical with respect to
communications of that type), or mailed by first class mail or overnight
courier, addressed, in the case of the Owner Trustee, to Wilmington
63
Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Corporate Trust Administration (telephone: (302)
651-1000; telecopier: (302) 651-8882, in the case of the Indenture Trustee, to
State Street Bank and Trust Company, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust Department (telephone: (617)
664-5340; telecopier: (617) 664-5371); and, in the case of all other parties, as
set forth in Schedule I to the Participation Agreement or at such other address
as any such Person may from time to time designate by notice duly given in
accordance with the provisions of this Section 10.05 to the other parties hereto
and shall be deemed given when received by (or when proffered to, if receipt is
not accepted) the party to whom it is addressed.
SECTION 10.06. Severability of Provisions. Any provision of this
--------------------------
Indenture which may be determined by competent authority to be invalid or
unenforceable in such jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable any remaining terms and provisions
hereof, and any such invalidity or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
The parties shall negotiate in good faith to replace such provision with an
appropriate legal provision. To the extent permitted by applicable law, the
parties hereto waive any provision thereof that renders any term or provision
hereof invalid or unenforceable in any respect.
SECTION 10.07. No Oral Modification or Continuing Waivers. No term
------------------------------------------
or provision of this Indenture or the Secured Notes may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party or the person against whom enforcement of the change, waiver,
discharge or termination is sought; and any waiver of the terms hereof or of any
Secured Note shall be effective only in the specific instance and for the
specific purpose given.
SECTION 10.08. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon each of the parties hereto and their
respective successors and permitted assigns, and inure to the benefit of each of
the parties hereto and their respective successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of such
Holder. This Indenture and the Indenture Estate shall not be affected by any
amendment or supplement to the Trust Agreement or by any other action taken
under or in respect of the Trust Agreement, except as otherwise provided in or
permitted by this Indenture. Each Holder by its acceptance of a Secured Note
agrees to be bound by this Indenture and all provisions of the Operative
Documents applicable to it.
SECTION 10.09. Headings; Table of Contents. The division of this
---------------------------
Indenture into Articles, Sections, subsections and paragraphs, the provision of
a table of
64
contents and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation hereof.
SECTION 10.10. Normal Commercial Relations. Notwithstanding anything
---------------------------
contained in this Indenture to the contrary, any Participant, the Indenture
Trustee, the Owner Trustee, or bank or other affiliate of any such Person may
conduct any banking or other financial transactions and have banking or other
commercial relationships with the Lessee or the Guarantor fully to the same
extent as if this Indenture were not in effect.
SECTION 10.11. Governing Law. THIS INDENTURE HAS BEEN DELIVERED IN
-------------
THE STATE OF NEW YORK AND SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT MATTERS RELATING TO
TITLE TO THE REAL AND PERSONAL PROPERTY LOCATED IN THE STATE OF TEXAS (THE
"TEXAS PROPERTY"), AND THE CREATION, PERFECTION, PRIORITY AND ENFORCEMENT OF THE
LIEN ON AND THE SECURITY INTEREST IN THE TEXAS PROPERTY, SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
SECTION 10.12. Execution. This Indenture may be executed in separate
---------
counterparts by the parties thereto, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.13. Security Agreement. This Indenture shall constitute a
------------------
security agreement and, in addition to all other rights of the Indenture Trustee
hereunder, the Indenture Trustee shall have for the benefit of the Holders all
of the rights conferred upon secured parties by the UCC.
SECTION 10.14. Benefits of Indenture. Nothing in this Indenture,
---------------------
whether express or implied, shall be construed to give to any Person other than
the parties hereto, the Holders, (to the extent expressly provided herein) the
Owner Participant and the Lessee any legal or equitable right, remedy or claim
under or in respect of this Indenture or the Secured Notes, and this Indenture
shall be held for the sole and exclusive benefit of the parties hereto, the
Holders, (to the extent expressly provided herein) the Owner Participant and the
Lessee.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all effective as of the date first written above, but actually
executed by the parties on the dates of their respective acknowledgements set
forth below.
WILMINGTON TRUST COMPANY, not in its individual
capacity, except as expressly provided herein,
but solely as Owner Trustee
By: ________________________________
Its: _______________________________
THE STATE OF _________ (S)
(S)
COUNTY OF ____________ (S)
This instrument was acknowledged before me on ____________, 1997 by
_____________________________, ______________________________________________
[Name of Officer] [Title of Officer]
of Wilmington Trust Company, a Delaware banking corporation, on behalf of said
trust company.
____________________________________
Notary Public in and for
The State of ______________________
(Affix Notary's Seal) My Commission Expires:
STATE STREET BANK AND TRUST COMPANY, not in its
individual capacity, except as expressly provided
herein, but solely as Indenture Trustee
By: ________________________________
Its: _______________________________
THE STATE OF _________ (S)
(S)
COUNTY OF ____________ (S)
This instrument was acknowledged before me on ____________, 1997 by
_____________________________, ___________________________________________ of
[Name of Officer] [Title of Officer]
State Street Bank and Trust Company, a Massachusetts trust company, on behalf of
said trust company.
____________________________________
Notary Public in and for
The State of ______________________
(Affix Notary's Seal) My Commission Expires:
Schedule 1
to Indenture
------------
DESCRIPTION OF FACILITY ASSETS
------------------------------
The Facility Assets are described below:
SCH-1-1
Exhibit A
to Indenture
------------
FORM OF SERIES 1997-A SECURED NOTE
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the Trust Agreement
Series 1997-A Secured Non-Recourse Note
Due _____
Sale and Leaseback of Certain Paraxylene Production Facility Assets
-------------------------------------------------------------------
Located in Beaumont, Texas
--------------------------
Registered No. ___________
$ ______________ New York, New York
May __, 1997
Interest Rate Per Annum: _____%
WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, dated as of May
__, 1997, as amended (the "Trust Agreement"), among the Owner Participant named
---------------
therein and the Owner Trustee, for value received hereby promises to pay to
State Street Bank and Trust Company, or registered assigns, on or before
____________________, ________, as herein provided, the principal sum of
____________________ DOLLARS ($_____________), and to pay interest on this
Secured Note from time to time from the date hereof until the principal amount
hereof shall have been paid in full, at the rate of [ ]% per annum (based on a
360-day year of twelve 30-day months), and (to the extent not prohibited by
applicable law) to pay interest on any overdue principal and interest at the
Overdue Rate. The principal of this Secured Note shall be payable on each
January 2 or July 2, or both, in accordance with the schedule annexed hereto.
The first payment of accrued and unpaid interest on this Secured Note shall be
payable on July 2, 1997. Thereafter, subject to Section 2.03(b) of the
Indenture (as defined below), all accrued and unpaid interest on this Secured
Note shall be payable on each January 2, and July 2 in each year commencing on
January 2, 1998.
This Secured Note is one of the Secured Notes issued by the Owner Trustee
pursuant to the terms of the Trust Indenture, Deed of Trust, Assignment of Lease
and Security Agreement, dated as of May __, 1997 (the "Indenture"), between the
---------
Owner Trustee and State Street Bank and Trust Company, not in its individual
capacity but solely as Indenture Trustee thereunder
A-1-2
(the "Indenture Trustee"). Capitalized terms used in this Secured Note and not
-----------------
otherwise defined shall have the respective meanings assigned to them in the
Indenture.
Each payment of principal and interest shall be due and payable at the times,
places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the payment of
-----
accrued interest on this Secured Note to the date of such payment, and second,
------
to the payment of any principal on this Secured Note then due hereunder.
This Secured Note is one of the Series 1997-A Secured Notes of the Owner
Trustee, issued pursuant to the Indenture, which, together with, any Additional
Notes and any note or notes issued upon a transfer in exchange or substitution
for respectively therefor in accordance with the terms of the Indenture, are
equally and ratably secured by the Indenture , except as expressly provided
therein. The property of the Owner Trustee (excluding Excepted Payments)
included in the Indenture Estate is pledged or mortgaged to the Indenture
Trustee to the extent provided in the Indenture as security for the payment of
the principal of and interest on this Secured Note and all other Secured Notes
issued and Outstanding from time to time under the Indenture. Reference is
hereby made to the Indenture for a description of the Indenture Estate, and for
a statement of the rights of the Holders of, and the nature and extent of the
security for, this Secured Note and of the rights of, and the nature and extent
of the security for, the Holders of the other Secured Notes and of certain
rights of the Owner Trustee and the Owner Participant, as well as for a
statement of the terms and conditions of the trust created by the Indenture, to
all of which terms and conditions in the Indenture the Holder agrees by its
acceptance of this Secured Note.
This Secured Note is subject to redemption, in whole, all as specified in
Article III of the Indenture. This Secured Note is also subject to refunding,
assumption or purchase, all as specified in Sections 3.02, 3.04, 3.05 and 3.06
of the Indenture.
In the event an Indenture Event of Default shall occur and be continuing, the
unpaid balance of the principal of the Secured Notes, together with all accrued
but unpaid interest, may be declared or may otherwise become due and payable in
the manner and with the effect provided in Article V of the Indenture.
The Secured Notes are issuable only as registered notes. There shall be
maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. The Owner Trustee and the Indenture Trustee
shall deem and treat the Person in whose name this Secured Note is registered on
the Note Register as the absolute owner hereof (whether or not this Secured Note
shall be overdue) for the purpose of receiving payments of principal and
interest and for all other purposes, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by any notice to the contrary.
A-1-3
All payments of principal and interest to be made by the Owner Trustee and,
except as otherwise provided in the Operative Documents, all payments of any
other amounts payable by or on behalf of the Owner Trustee under the Secured
Notes or under the Indenture, shall be made only from the income and proceeds
from the Indenture Estate, and only to the extent that the Indenture Trustee
shall have received sufficient income and proceeds from the Indenture Estate to
make such payments in accordance with the Indenture. The Holder, by its
acceptance of this Secured Note, agrees that it will look solely to the income
and proceeds from the Indenture Estate to the extent available for payment as
provided in the Indenture, and that none of the Owner Participant, the Owner
Trustee, the Trust Company, or the Indenture Trustee (whether in its individual
or trust capacity) shall be personally liable to the Indenture Trustee or to the
Holder for any amounts payable under this or any Secured Note, nor, except as
specifically provided in the Indenture or any other Operative Document, for any
amounts payable or any liability, under the Indenture.
This Secured Note shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the certificate of
authentication hereon shall have been signed by the Indenture Trustee.
No delay or omission of the Holder to exercise its rights hereunder shall impair
any such right or power or shall be construed to be a waiver of any Indenture
Event of Default, or an acquiescence therein. No waiver of any Indenture Event
of Default shall be construed, taken or held to be a waiver of any other
Indenture Event of Default, or a waiver, acquiescence in, or consent to any
further or succeeding Indenture Event of Default. The Owner Trustee waives
demand, notice and protest in any defense by reason of extension of time for
payment or other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance with the laws
of the State of New York.
A-1-4
IN WITNESS WHEREOF, the Owner Trustee has caused this Secured Note to be duly
executed.
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely
as Owner Trustee under the Trust Agreement
By: _______________________________________
Title: ____________________________________
A-1-5
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1997-A Secured Notes of WILMINGTON TRUST
COMPANY, as Owner Trustee described in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: ________________________________
Title: _____________________________
A-1-6
Series 1997-A Secured Notes
Amortization Schedule
---------------------
Scheduled Payment
Regular Percentage of Remaining
Distribution Date Unpaid Principal Amount
Exhibit B
to Indenture
------------
================================================================================
Maturity Dates, Aggregate Principal Amounts
Interest Rate of Secured Notes
- -------------------------------------------------------------------------------
Maturity Aggregate Interest Rate Premium
Date Principal Amount Per Annum Termination Date
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
===============================================================================
EXHB-7
Exhibit B-1
to Indenture
------------
===============================================================================
SCHEDULE OF PRINCIPAL PAYMENTS
- -------------------------------------------------------------------------------
SERIES 1997-A SECURED NOTE
- -------------------------------------------------------------------------------
Regular Scheduled Payment Scheduled
Distribution as a Percentage of Payments of
Date Unpaid Principal Amount Principal
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
===============================================================================
EXHB1-1
Exhibit B-2
to Indenture
------------
Issuance of Series 1997-A Secured Notes
---------------------------------------
The issuance of the Series 1997-A Secured Notes issued hereunder shall be
issued to and shall be payable to the Pass Through Trustee under the Pass
Through Trust Agreement, with respect to the grantor trust created thereby, as
set forth below.
1997-A Pass Through Trust;
**1 Series 1997-A Secured Notes
Exhibit C
to Indenture
------------
RELEVANT AMENDMENT
------------------
TABLE OF CONTENTS
LISTED BELOW ARE THE DOCUMENTS WHICH ARE AMENDED OR REPLACED BY THE RELEVANT
AMENDMENT AND THE CORRESPONDING PAGE NUMBERS OF THE RELEVANT AMENDMENT ON WHICH
THE AMENDMENT THERETO OR REPLACEMENT THEREOF, AS THE CASE MAY BE, IS MADE. THIS
TABLE OF CONTENTS IS FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT THE
CONSTRUCTION OR INTERPRETATION OF THE RELEVANT AMENDMENT.
Document Page
-------- ----
Definitions C-2
Indenture C-8
Participation Agreement C-47
Pass Through Trust
Agreement C-48
RELEVANT AMENDMENT
------------------
As provided for in Section 3.04 of the Indenture (to which this is
Exhibit C) and in Section 11.6 of the Participation Agreement, the Indenture,
the other Operative Documents (as defined as amended in (A)(I) below and the
Pass Through Trust Agreement will, subject to the satisfaction of the conditions
specified in such Section 3.04 (including, without limitation, the execution and
delivery of the Relevant Date Supplement), be deemed to have been amended,
automatically and without the requirement of further action by any Person
effective as of the Relevant Date (provided that such amendments shall not
---------
constitute a waiver by any party to the Operative Documents (as defined in
Appendix A to the originally executed documents) of any claims or rights to
indemnity such party has against any other party to the Operative Documents (as
defined in Appendix A to the originally executed documents) accrued in favor of
such party prior to the Relevant Date arising under the Operative Documents (as
defined in Appendix A to the originally executed documents) as in existence
prior to the Relevant Date) and so that:
(A) (I) The following defined terms in Appendix A to each of the
Indenture and the other Operative Documents and, to the extent applicable, in
Section 1.01 of the Pass Through Trust Agreement shall read as follows:
"Additional Notes" shall mean notes issued pursuant to Section 2.08 of
----------------
the Indenture.
"Appraisal Procedure" shall mean a procedure for determining any
-------------------
amount, value or period. Such procedure shall be commenced by the delivery
of written notification as specified in the Operative Documents by Mobil
Chemical Finance (Texas) Inc. ("MCFT") to the Indenture Trustee, or by the
----
Indenture Trustee to MCFT, that it desires to obtain an appraisal with
respect to such amount, value or period. If required by the relevant
provisions of the applicable Operative Document, such parties shall first
attempt to agree on such matter. If such parties are unable to agree on
such matter within the time period specified in the applicable Operative
Document, or if such parties are not required to attempt to agree, such
parties shall thereupon consult for the purpose of selecting a mutually
acceptable Independent appraiser. If within ten (10) days from the date
the parties are required to so consult, they are unable to agree upon the
appointment of a mutually acceptable Independent appraiser, then each of
such parties shall appoint an Independent appraiser, and such Independent
appraisers shall jointly determine such matter. If one party does not so
appoint an Independent appraiser, then the Independent appraiser appointed
by the other shall determine such matter as the sole appraiser. If such
two Independent appraisers cannot agree on such matter within twenty (20)
days after their appointment, such matters shall be determined by such two
Independent appraisers and a third Independent appraiser chosen within ten
(10) days after such twenty (20) day period by such two Independent
appraisers or, if such three (3) Independent appraisers fail to reach an
agreement, the determination of the appraiser that differs most from the
second highest determination shall be excluded (unless such difference is
less than 10% from either of the other determinations), the remaining two
EXHC-2
determinations shall be averaged (or all three (3) shall be averaged, if
the third determination is not discarded due to the preceding
parenthetical) and such average shall constitute the determination of the
appraisers. If such two Independent appraisers fail to agree upon the
appointment of a third Independent appraiser within the allotted time
period, such appointment shall be made by the New York City office of the
American Arbitration Association or any organization successor thereto,
upon the request of any such parties from a panel of arbitrators having
familiarity with assets similar to the assets comprised by the Facility
Assets. The determination of the appraisers so chosen shall be given
within twenty (20) days of the appointment of such third appraiser. Except
to the extent expressly provided otherwise in any Operative Document, fees
and expenses of the appraisers appointed in connection with an Appraisal
Procedure shall be paid by MCFT.
"Business Day" shall mean any day other than a Saturday or Sunday or
------------
any other day on which banks located in New York, New York, Fairfax,
Virginia or, so long as any Pass Through Certificate is outstanding, the
city in which the Corporate Trust Office of the Pass Through Trustee is
located, are required or authorized to remain closed.
"Event of Loss" shall mean any of the following events: (a) the (i)
-------------
loss, theft, destruction or disappearance of, or (ii) occurrence of damage
(which, in MCFT's reasonable, good faith opinion, renders repair or
replacement uneconomic) to the Facility Assets or a Significant Portion
thereof; (b) the permanent condemnation, confiscation or seizure of, or
requisition of title to, the Facility Assets of a Significant Portion
thereof by any Governmental Authority; (c) the requisition of use of the
Facility Assets or a Significant Portion thereof by any Governmental
Authority for a period (i) which has been ongoing for one year and which is
reasonably expected to exceed the latest Maturity Date or (ii) which
extends beyond the date which is twelve months prior to the latest Maturity
Date; or (d) the receipt of insurance proceeds based upon an actual or
constructive total loss of the Facility Assets or a Significant Portion
thereof. The occurrence of any of the events set forth above in this
definition with respect to the Site or a Significant Portion of the Site
may constitute, as determined in the reasonable judgment of MCFT, an Event
of Loss with respect to the Facility Assets.
"Fair Market Rental Value" or "Fair Market Sales Value" of any
------------------------ -----------------------
property or services as of any date shall mean the cash rent or cash price
that would be obtained in an arm's-length lease or sale, respectively,
between an informed and willing lessee or buyer (under no compulsion to
lease or purchase) and an informed and willing lessor or seller (under no
compulsion to lease or sell) of the property or services in question,
provided that the "Fair Market Rental Value" or "Fair Market Sales Value"
--------
for the Facility Assets shall be (A) determined on an "as-is" basis but on
a stand-alone basis, independent of the Refinery, except that such
determination shall assume that the Facility Assets (i) have been
maintained in accordance with the requirements of the Indenture and are in
the condition required by Section 11.01 of Article XI of the Indenture and
(ii) are in a condition suitable for the production of paraxylene using the
MPTX Technology.
EXHC-3
"Independent" shall mean, when used with respect to any specified
-----------
Person, a Person who (1) is in fact independent; (2) does not have any
direct financial interest in MCFT, the Indenture Trustee or any Affiliate
of any of them and (3) is not connected with MCFT, the Indenture Trustee or
any Affiliate of any of them as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions. Whenever it is provided that any Independent Person's opinion
or certificate shall be furnished to the Indenture Trustee, such Person
shall be appointed by MCFT and approved by the Indenture 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.
"Lease Event of Default" shall mean an Indenture Event of Default.
----------------------
"Operative Documents" shall mean the Guaranty, the Indenture, each
-------------------
Indenture Supplement and the Participation Agreement.
"Outstanding" shall mean, when used with respect to the Secured Notes
-----------
as of any date of determination, all Secured Notes theretofore
authenticated and delivered under the Indenture, except:
(i) Secured Notes theretofore canceled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation;
(ii) Secured Notes or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Indenture Trustee in trust for the Loan
Participants with respect to such Secured Notes, provided that
--------
if such Secured Notes are to be redeemed or purchased, notice of
such redemption or purchase has been duly given (or provision
thereof satisfactory to the Indenture Trustee has been made) and
not revoked or otherwise withdrawn pursuant to the Indenture;
and
(iii) Secured Notes paid or in exchange for or in lieu of which other
Secured Notes have been authenticated and delivered pursuant to
the Indenture;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of Secured Notes Outstanding have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Secured Notes owned or pledged to MCFT or any Affiliate thereof, shall be
disregarded and deemed not to be Outstanding, unless such Person owns 100%
of the Secured Notes owned or pledged by all Persons, except that, in
determining whether the Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Secured Notes which the Indenture Trustee knows to be so
owned or pledged shall be so
EXHC-4
disregarded. Secured Notes so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to act with
respect to such Secured Notes and that the pledgee is not MCFT, or any
Affiliate thereof, and;
(b) when used with respect to Pass Through Certificates, shall mean,
as of the date of determination, all Pass Through Certificates theretofore
authenticated and delivered under the Pass Through Trust Agreement, except:
(i) Pass Through Certificates theretofore cancelled by the Registrar
or delivered to the Pass Through Trustee or the Registrar for
cancellation;
(ii) all of the Pass Through Certificates if money in the full amount
required to make the final distribution payment to be made
pursuant to Section 11.01 of the Pass Through Trust Agreement
has been theretofore deposited with the Pass Through Trustee in
trust for the Certificateholders as provided in Section 4.01 of
the Pass Through Trust Agreement pending distribution of such
money to the Certificateholders pursuant to such final
distribution payment; and
(iii) Pass Through Certificates in exchange for or in lieu of which
other Pass Through Certificates have been authenticated and
delivered pursuant to the Pass Through Trust Agreement.
"Overdue Rate" shall mean a rate per annum equal to (i) with respect
------------
to amounts owing to any Loan Participant constituting payments or
prepayments of any Secured Note, the rate of interest on such Secured Note;
and (ii) with respect to amounts owing to MCFT, the rate of interest
publicly announced from time to time by Citibank, N.A. in New York City as
its "prime" or "base" rate plus 1% (computed on the basis of the actual
days elapsed during the relevant period and a 365 day year).
"Permitted Liens" shall mean (a) the respective rights and interests
---------------
of MCFT, the Indenture Trustee and the Holders, as provided in the
Operative Documents, (b) Lessor's Liens, Owner Participant's Liens, Loan
Participant's Liens, Indenture Trustee's Liens and Pass Through Trustee's
Liens, (c) Liens for Taxes either not delinquent or being contested in good
faith and by appropriate proceedings, so long as such proceedings do not
involve any material danger of the sale, forfeiture or loss of any material
part of, the Facility or title thereto or any interest therein; (d)
materialmen's, mechanics', workers', repairmen's, employees' or other like
Liens, arising in the ordinary course of business of MCFT or Operator or
any other lessee, sublessee or operator under any lease, sublease,
assignment, operating or other agreement permitted by the Indenture, or
arising in the course of constructing, repairing, equipping or installing,
modifying or expanding the Facility or any part thereof, for amounts either
not yet delinquent or being contested in good faith and by appropriate
proceedings so long as such proceedings do not involve
EXHC-5
any material danger of the sale, forfeiture or loss of any material part of
the Facility or title thereto or any interest therein; (e) Liens arising
out of judgments or awards with respect to which at the time an appeal or
proceeding for review is being prosecuted in good faith so long as
execution of such judgment or award shall have been stayed or otherwise
lifted pending such appeal or proceeding for review and so long as during
such proceeding there is no material danger of the sale, forfeiture or loss
of any material part of the Facility or title thereto or any interest
therein; (f) Liens, assignments and subleases permitted by Section 14.02 of
Article XI of the Indenture and the rights of the Operator under the
Initial Sublease and the rights of any other Operator or any sublessee
under any other lease (or sublease) permitted by Section 14.02 of Article
XI of the Indenture; (g) Liens that do not materially adversely affect the
use of the Facility for its intended purposes, do not secure the payment or
performance of any obligations with respect to borrowed money, and do not
create any material risk of loss of title or possession of the Site or the
Facility Assets; and (h) the rights and interests of the Ground Lessor as
permitted by the Ground Lease.
"Relevant Amendment" shall have the meaning specified in Section 3.04
------------------
of the Indenture, as originally executed.
"Relevant Date" shall have the meaning specified in Section 3.04 of
-------------
the Indenture, as originally executed.
"Responsible Officer", when used with respect to the Indenture Trustee
-------------------
or the Pass Through Trustee, shall mean an officer in its corporate trust
administration department (or any successor group of the Indenture Trustee
or the Pass Through Trustee, as the case may be) or any other officer
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 such officer's knowledge of and familiarity with the particular
subject.
"Severable Modification" shall mean any Modification to the Facility
----------------------
Assets permitted under Section 11 of Article XI of the Indenture and which
can be readily removed from the Facility Assets without causing material
damage to the Facility Assets.
(B) (I) Section 2.01(e) of the Indenture shall read as follows:
(e) Each Secured Note issued after the Relevant Date shall be signed
on behalf of Mobil Chemical Finance (Texas) Inc. ("MCFT") by the Chairman, the
----
President, any Senior Vice President, any Vice President, any Assistant Vice
President, the Controller, the Treasurer or the Secretary (or any other officer
or employee authorized in writing by one of the foregoing officers) of MCFT,
manually. No Secured Note shall be secured by or entitled to any benefit under
this Indenture, or be valid for any purpose, unless there appears thereon a
certificate of authentication executed by or on behalf of the Indenture Trustee
by the manual signature of a
EXHC-6
Responsible Officer of the Indenture Trustee, and such certificate on any
Secured Note shall be conclusive evidence that such Secured Note has been duly
authenticated and delivered hereunder. Notwithstanding any provision to the
contrary contained herein, any Secured Note issued after the Relevant Date shall
be issued substantially in the form set forth in Exhibit A to Exhibit C hereto.
(II) Sections 2.02 and 2.08 of the Indenture shall read as follows:
SECTION 2.02. Payments from Indenture Estate and MCFT. All payments
---------------------------------------
of principal, Make-Whole Amount, if any, and interest to be made by MCFT and,
except as otherwise provided in the Operative Documents, all payments of any
other amounts payable by, or on behalf of MCFT under the Secured Notes and this
Indenture, shall be payable from the income and proceeds from the Indenture
Estate and shall be direct obligations of MCFT. Each Holder, by its acceptance
of a Secured Note, agrees that it will look solely to MCFT, the Guarantor and
the income and proceeds from the Indenture Estate to the extent available for
payment as herein provided and that the Indenture Trustee (whether in its
individual or trust capacity) shall not be personally liable to such Holder for
any amounts payable under the Secured Notes, or, except as specifically provided
herein or in the other Operative Documents, for any amounts payable or any
liability under this Indenture.
SECTION 2.08. Additional Notes. (a) So long as no Indenture Event
----------------
of Default shall have occurred and be continuing, Additional Notes of one or
more series may be issued under and secured by this Indenture at any time or
from time to time, and subject to the conditions hereinafter provided in this
Section 2.08, for the purpose of financing all or a portion of the cost of any
Modification to the Facility Assets or any Component thereof.
(b) Prior to the issuance of any Additional Notes of any series
pursuant to this Section 2.08, MCFT shall have delivered to the Indenture
Trustee, not less than thirty (30) days prior to the proposed date of issuance
of such Additional Notes, a request and authorization to issue Additional Notes
(a "Request"), which Request shall include the amount and series of such
-------
Additional Notes, the proposed date of issuance of such Additional Notes, and
other details with respect thereto which are not inconsistent with this Section
2.08. Such Additional Notes shall have a designation so as to distinguish such
Additional Notes from the Initial Secured Notes and Additional Notes of any
other series, but otherwise shall be substantially similar in form to the
Initial Secured Notes, with such omissions therefrom, variations therein and
additions thereto as shall be appropriate. Such Additional Notes shall not rank
senior in any respect to, but may be subordinate to the Initial Secured Notes
and other Secured Notes issued pursuant to the terms hereof.
(c) The terms, conditions and designations of such Additional Notes
(which shall be consistent with the Request and with the terms of this
Indenture) shall be set forth in a supplement to this Indenture, substantially
in the Form of Exhibit D, which shall be executed by MCFT and the Indenture
Trustee. Such indenture supplement shall set forth:
EXHC-7
(i) after giving effect to the issuance of the Additional Notes, the
aggregate principal amount outstanding of all Secured Notes
which shall not exceed 85% of the total Fair Market Sales Value
of the Facility Assets at such time (as determined pursuant to
the Appraisal Procedure) after giving effect to such
Modifications;
(ii) the text of such Additional Notes (which, except for the terms
of payment thereof, shall be of substantially the same effect as
the text of the Initial Secured Notes set forth in this
Indenture, with such changes as are consistent with and
permitted by this Indenture and which in all events shall
provide that such Additional Notes are never more than pari
passu in priority of payment, in right of security and in all
other respects with the Initial Secured Notes);
(iii) the date of maturity of such Additional Notes;
(iv) the date from which, and the date or dates on which, interest is
payable (which shall be Interest Payment Dates);
(v) the terms for the repayment of the principal amount of such
Additional Notes (each regularly scheduled payment of principal
shall be an Interest Payment Date);
(vi) the terms, if any, as to prepayment or redemption of such
Additional Notes at the option of MCFT, and as to the premium,
if any, payable on any redemption or prepayment of such
Additional Notes; and
(vii) any other terms and agreements in respect thereof as required or
permitted by this Indenture or necessary to specify the terms
and conditions on which such Additional Notes shall be issued.
(d) Such Additional Notes shall be executed by MCFT as provided in
Section 2.01 and deposited with the Indenture Trustee for authentication and
delivery, but before such Additional Notes shall be authenticated and delivered
by the Indenture Trustee, there shall be delivered to or deposited with the
Indenture Trustee the following:
(i) the Request;
(ii) the supplement to this Indenture described in Section 2.08(c),
duly executed by MCFT;
(iii) such instruments as may be necessary to perfect the security
interest in such Modification under this Indenture;
(iv) such evidence of the due filing of financing statements and
other filings with respect to the Modification as may be
required to subject such property to the Lien of this Indenture,
subject to no Liens except Permitted Liens;
EXHC-8
(v) originals or certified copies of all corporate actions
necessary for the due and valid issue of such Additional Notes,
the due and valid authorization, execution, delivery and
performance by MCFT of the supplement to this Indenture
relating thereto, and the creation of the Lien and security
interest thereon referred to above, all of which corporate
actions shall have been duly obtained and shall be in full
force and effect; together with reasonable evidence as to the
due occurrence of all such authorization, execution, delivery
and performance;
(vi) documentation, duly executed and delivered to the extent
practicable, by the respective parties thereto, whereby the
proposed holders of the Additional Notes agree to be bound by
the terms of the Operative Documents (including, without
limitation, representations and covenants corresponding to
those contained in Section 7 of the Participation Agreement);
(vii) an Officer's Certificate of MCFT certifying as to the cost of
such Modification; and
(viii) opinions of counsel to MCFT as to the due authorization,
execution, delivery and enforceability of such supplement to
the Indenture and such Additional Notes and the creation and
perfection of the security interest in such Modification
(subject to usual or customary exceptions, qualifications and
assumptions) and such Additional Notes and such other
certificates and other documents as may be reasonably requested
by the Indenture Trustee to evidence the validity and binding
effect of such supplement to this Indenture and such Additional
Notes and compliance with this Section 2.08.
(e) When the documents referred to in Section 2.08(d) shall have been
delivered to or deposited with the Indenture Trustee and when such Additional
Notes described in the Request and the supplement to this Indenture have been
executed by MCFT as required by this Indenture, the Indenture Trustee shall
authenticate and deliver such Additional Notes in the manner described in such
Request, but only upon payment to MCFT of the sum or sums specified in such
Request.
SECTION 2.12. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, Sections 2.01, 2.03, 2.05, 2.06
and 2.07 shall be deemed amended to provide that any reference to, or right or
obligation of the Owner Trustee contained in such Sections shall after the
Relevant Date be deemed to be a reference to, or right or obligation of MCFT.
(C) Sections 3.02, 3.04, 3.06, 3.08 and 3.11 of the Indenture shall
read as follows:
SECTION 3.02. Mandatory Redemption. Casualty Redemption. (i) If an
-------------------- -------------------
Event of Loss shall occur with respect to the Facility Assets unless MCFT shall
have elected to rebuild
EXHC-9
or replace the Facility Assets (or Significant Portion thereof suffering such
Event of Loss) in accordance with Section 12.02(b) of Article XI, then, MCFT
shall redeem on the date of payment of the amount required to be paid as a
result of such Event of Loss pursuant to Section 12.02 of Article XI (the date
of any redemption under this Section 3.02 being herein called a "Casualty
--------
Redemption Date") the entire unpaid principal amount of the Secured Notes
- ----------------
Outstanding on such Casualty Redemption Date, at a redemption price equal to
100% of such unpaid principal amount of such Secured Notes, together with any
accrued and unpaid interest thereon to, but not including, such Casualty
Redemption Date and without Make-Whole Amount or any other premium.
SECTION 3.04. [Intentionally Omitted]
SECTION 3.06. [Intentionally Omitted]
SECTION 3.08. [Intentionally Omitted]
SECTION 3.11. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, Sections 3.05 and 3.10 shall be
deemed amended to provide that any reference to, or right or obligation of the
Owner Trustee contained in such Section shall after the Relevant Date be deemed
to be a reference to, or right or obligation of MCFT.
(D) Article IV of the Indenture shall read as follows:
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE INDENTURE ESTATE
SECTION 4.01. [Intentionally Omitted]
SECTION 4.02. Certain Distributions. (a) Any payment received by
---------------------
the Indenture Trustee (i) pursuant to Section 12 of Article XI as a result of
the occurrence of an Event of Loss with respect to the Facility Assets or (ii)
pursuant to Section 3.05, shall be distributed on the Redemption Date in the
following order of priority:
first, in the manner provided in clause "first" of Section 4.03;
-----
second, so much of the proceeds remaining as shall be required to pay
------
in full the aggregate unpaid principal amount of each Secured Note then
Outstanding and Make-Whole Amount, if any, and all accrued but unpaid
interest thereon to, but not including, the date of distribution, shall be
EXHC-10
distributed to the Holder of such Secured Note, and if the proceeds
remaining are insufficient to pay all such amounts in full, they shall be
distributed to all Holders ratably, without priority of any Holder over any
other Holder (except as otherwise expressly provided herein), in the
proportion that the aggregate amount due each such Holder under this clause
"second" bears to the aggregate amount due all such Holders under this
------
clause "second";
------
third, in the manner provided in clause "second" of Section 4.03;
-----
fourth, in the manner provided in clause "fourth" of Section 4.03; and
------
fifth, in the manner provided in clause "fifth" of Section 4.03.
-----
(b) The portion of each payment referred to in this Section 4.02
distributed to a Holder on account of principal or interest on any Secured Note
held by such Holder shall be applied by such Holder in payment of such Secured
Note in accordance with the terms of Section 4.04.
(c) Notwithstanding Section 4.03, any amounts held by the Indenture
Trustee, including, without limitation, pursuant to Section 12 of Article XI
herein, which are payable to MCFT pursuant to the terms of this Indenture or
held by the Indenture Trustee in accordance with Section 7.04 herein shall be
(i) so paid to MCFT, or (ii) held by the Indenture Trustee as security for the
obligations of MCFT.
SECTION 4.03. Distribution After Indenture Event of Default. Except
---------------------------------------------
as otherwise provided in Section 4.02(c) or in Section 4.05, if (a) an Indenture
Event of Default shall have occurred and be continuing, and (b) either the
Indenture Trustee shall have given notice to declare this Indenture to be in
default pursuant to Section 5.04(a), or any of the Secured Notes shall have been
declared or otherwise shall have become immediately due and payable pursuant to
Section 5.04 then, to the extent that each such declaration shall not have been
rescinded or the Secured Notes shall remain immediately due and payable, (i) all
amounts then held by the Indenture Trustee pursuant to Section 4.01 or otherwise
under the Indenture (but not including funds described in Sections 4.02(c) and
4.05 excluded from the operation of this 4.03) in each case hereunder or under
any Operative Document (other than amounts held for its own account), and (ii)
all payments and amounts thereafter realized by the Indenture Trustee through
the exercise of remedies hereunder or under any of the agreements assigned or
pledged to the Indenture Trustee under this Indenture or otherwise as trustee
under this Indenture (for purposes of this Section 4.03, all such amounts and
payments held or realized being herein called "proceeds"), other than amounts
--------
expressly paid to it for its own account, shall be distributed forthwith by the
Indenture Trustee in the following order of priority:
first, so much of such proceeds as shall be required to reimburse the
-----
Indenture Trustee for any unpaid fees for its services under this Indenture
and any unreimbursed tax, expense (including reasonable legal fees) or
other loss incurred by it (in each case to the extent reimbursable under
the Operative Documents) shall be distributed to the Indenture Trustee for
application to itself;
EXHC-11
second, so much of the remaining proceeds as shall be required to
------
reimburse the then existing or prior Holders for amounts paid or advanced
by the Holders pursuant to Section 6.04 (to the extent not previously
reimbursed), shall be distributed to the then existing and prior Holders as
their respective interests may appear, and if the proceeds remaining are
insufficient to pay all such amounts in full, they shall be distributed
ratably, without priority of any recipient over any other recipient (except
as otherwise expressly provided herein), in the proportion the aggregate
amount due each such Person under this clause "second" bears to the
aggregate amount and interest due all such Persons under this clause
"second";
third, so much of the proceeds remaining as shall be required to pay
-----
in full the aggregate unpaid principal amount of each Secured Note then
Outstanding and all accrued but unpaid interest thereon to, but not
including, the date of distribution, shall be distributed to the Holder of
such Secured Note, and if the proceeds remaining are insufficient to pay
all such principal and/or interest (as the case may be) amounts in full,
they shall be distributed to all Holders ratably, without priority of any
Holder over any other Holder (except as otherwise expressly provided
herein), in the proportion that the aggregate amount due each such Holder
under this clause "third" bears to the aggregate amount due all such
Holders under this clause "third";
fourth, so much of the proceeds remaining as shall be required to pay
------
to each Holder all other amounts payable pursuant to the indemnification
provisions of Section 12 of the Participation Agreement or pursuant to any
other provision of any Operative Document and secured hereunder to such
Holder or to its predecessors and remaining unpaid shall be distributed to
such Holder for distribution to itself and such predecessors, as their
respective interests may appear, and if the proceeds remaining are
insufficient to pay all such amounts in full, they shall be distributed
ratably, without priority of any Holder over any other Holder (except as
otherwise expressly provided herein), in the proportion that the aggregate
amount due each such Holder under this clause "fourth" bears to the
aggregate amount due all such Holders under this clause "fourth"; and
fifth, the balance, if any, of the proceeds remaining shall be
-----
distributed to MCFT.
For the avoidance of doubt, no Make-Whole Amount or any other premium
shall be due and payable on the Secured Notes as a consequence of the
acceleration of the Secured Notes as a result of an Indenture Event of Default.
All amounts distributed to any Holder pursuant to clause "third" of
-----
this Section 4.03 shall be applied by such Holder in payment of the Secured
Notes held by it in accordance with the terms of Section 4.04.
SECTION 4.04. Application of Payments on Secured Notes. Each payment
----------------------------------------
on a Secured Note shall be applied, first, to the payment of accrued interest on
-----
such Secured Note
EXHC-12
to the date of such payment, and second, to the payment of any principal on such
------
Secured Note then due thereunder.
SECTION 4.05. Applications of Payments According to Applicable
------------------------------------------------
Operative Document Provisions. (a) Notwithstanding Section 4.03 or any other
- -----------------------------
provision of this Indenture to the Contrary, any payments or amounts received by
the Indenture Trustee, provision for the application of which is made in any
Operative Document, shall be applied promptly as provided in such Operative
Document.
SECTION 4.06. Amounts Received for Which No Provision Is Made. (a)
-----------------------------------------------
Any payment received or amounts realized by the Indenture Trustee for which no
provision as to the application thereof is made elsewhere in this Indenture or
in any other Operative Document, except as provided in Section 4.03, and (b) all
payments received and amounts realized by the Indenture Trustee under this
Indenture including, without limitation, Section 11.7 of Article XI or otherwise
with respect to the Facility Assets, to the extent received or realized at any
time after payment in full of the principal of and interest on all Secured Notes
issued hereunder or the conditions set forth in Section 10.01 for the defeasance
of the Secured Notes shall have been satisfied, as well as any other amounts
remaining as part of or as proceeds of the Indenture Estate after payment in
full of the principal of and interest on all such Secured Notes or the
conditions set forth in Section 10.01 for the defeasance of the Secured Notes
shall have been satisfied, shall be distributed forthwith by the Indenture
Trustee in the following order of priority:
first, so much of such aggregate amount as shall be required to pay
-----
the Indenture Trustee all amounts then due it pursuant to Section 6.04
shall be applied to pay the Indenture Trustee such amounts; and
second, the balance, if any, of such aggregate amount remaining
------
thereafter shall be distributed to MCFT to be held or distributed in
accordance with the terms of the Participation Agreement.
SECTION 4.07. Payment Procedures. All amounts which are
------------------
distributable from time to time by the Indenture Trustee to MCFT or any Holder
shall be paid by the Indenture Trustee in immediately available funds promptly
after such amounts become immediately available to it, and the Indenture Trustee
shall not be obligated to see to the application of any such payment made by it.
All payments made by the Indenture Trustee to MCFT shall be made in the manner
and to the address set forth in Schedule 1 to the Participation Agreement or to
such other address as may be specified from time to time by notice to the
Indenture Trustee from MCFT.
SECTION 4.08. Application of Payments Under Guaranty. All payments
--------------------------------------
received by the Indenture Trustee pursuant to the Guaranty shall be distributed
forthwith by the Indenture Trustee in the same order of priority, and in the
same manner, as it would have
EXHC-13
distributed the payment on the underlying obligation in respect of which such
payment under the Guaranty was received.
(E) Sections 5.01, 5.02, 5.03, 5.04, 5.05, 5.09 and 5.12 of the
Indenture shall read as follows:
SECTION 5.01. [Intentionally Omitted]
SECTION 5.02. Indenture Events of Default. "Indenture Event of
--------------------------- -------------------
Default" means any of the following events (whatever the reason for such
- -------
Indenture Event of Default and whether such event shall be voluntary or
involuntary or come about or be effected by operation of law or be pursuant to
or in compliance with any judgment, decree or order of any court or any
Governmental Rule):
(a) any payment of principal of, Make-Whole Amount, if any, or
interest on any Secured Note shall not have been made on or prior to the
tenth (10th) Business Day after the same shall have become due and payable;
or
(b) MCFT shall fail to maintain the insurance required to be
maintained pursuant to Section 13.01(a) of Article XI of this Indenture; or
(c) MCFT shall fail in any material respect to perform or observe any
material covenant or agreement to be performed or observed by it under this
Indenture or any other Operative Document (but in the case of the
Participation Agreement, only as such covenant or agreement relates to the
Indenture Trustee and the Loan Participants and other than any failure to
make any payment referred to in Section 5.02(a)) and such failure shall
continue for a period of thirty (30) days after receipt by MCFT of a
written notice from the Indenture Trustee or from Holders of Secured Notes
owning at least 25% in principal amount of Outstanding Secured Notes
specifying such failure and requiring it to be remedied; provided, however,
-------- -------
that the continuation of any such failure for such period of thirty (30)
days or such longer period (not to exceed 365 days) after receipt of such
notice shall not constitute an Indenture Event of Default so long as (i)
such failure is curable or correctable and (ii) MCFT is diligently pursuing
the cure or correction of such failure; or
(d) the Guarantor shall fail in any material respect to perform or
observe any covenant or agreement to be performed or observed by it under
the Guaranty (other than any covenant or agreement in respect of MCFT's
obligations under the Operative Documents) and such failure shall continue
for a period of thirty (30) days after receipt by the Guarantor of a
written notice from the Indenture Trustee or from Holders of Secured Notes
owning at least 25% in principal amount of Outstanding Secured Notes
specifying such failure and requiring it to be remedied; provided, however,
-------- -------
that the continuation of any such failure for such period of thirty (30)
days or such longer period
EXHC-14
(not to exceed 365 days) after receipt of such notice shall not constitute
an Indenture Event of Default so long as (i) such failure is curable or
correctable and (ii) the Guarantor is diligently pursuing the cure or
correction of such failure; or
(e) any material representation or warranty made by MCFT in Section 5
of the Participation Agreement or in any Officer's Certificate of MCFT
delivered pursuant to the Participation Agreement shall prove to have been
inaccurate in any material respect when made, unless such inaccuracy shall
not be material to the recipient at the time when the notice referred to
below shall have been received by MCFT or any adverse material impact
thereof shall have been cured within thirty (30) days after receipt by MCFT
of a written notice thereof from the Indenture Trustee or from Holders of
Secured Notes owning at least 25% in principal amount of Outstanding
Secured Notes; provided, however, that the continuation of any such
-------- -------
inaccuracy for such period of thirty (30) days or such longer period (not
to exceed 365 days) after receipt of such notice shall not constitute an
Indenture Event of Default so long as (i) any material adverse impact of
such inaccuracy is curable or correctable and (ii) MCFT is diligently
pursuing the cure or correction of such material adverse impact; or
(f) any material representation or warranty made by the Guarantor in
the Guaranty or in any Officer's Certificate of the Guarantor delivered
pursuant to the Participation Agreement shall prove to have been inaccurate
in any material respect when made, unless such inaccuracy shall not be
material to the recipient at the time when the notice referred to below
shall have been received by the Guarantor or any material adverse impact
thereof shall have been cured or corrected within thirty (30) days after
receipt by MCFT of a written notice thereof from the Indenture Trustee;
provided, however, that the continuation of any such inaccuracy for such
-------- -------
period of thirty (30) days or such longer period (not to exceed 365 days)
after receipt of such notice shall not constitute an Indenture Event of
Default so long as (i) any material adverse impact of such inaccuracy is
curable or correctable and (ii) the Guarantor is diligently pursuing the
cure or correction of such material adverse impact;
(g) MCFT or the Guarantor shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to
the appointment or taking possession by any such official or agency in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall take any
corporate action to authorize any of the foregoing, or an involuntary case
or other proceeding shall be commenced against MCFT or the Guarantor
seeking liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official or agency of it or any
substantial part of its property, and such involuntary case
EXHC-15
or other proceeding shall remain undismissed and unstayed for a period of
ninety (90) days; or
(h) the Guaranty shall cease to be in full force and effect or to be
valid, binding and enforceable agreement of the Guarantor;
provided, however, that notwithstanding anything to the contrary contained in
- -------- -------
this Section 5.02, any failure of MCFT to perform or observe any covenant or
agreement specified in Section 5.02(c) shall not constitute an Indenture Event
of Default if such failure is caused solely by reason of any event that
constitutes an Event of Loss to the Facility Assets (or any event which with
lapse of time would constitute such an Event of Loss) so long as MCFT is
continuing to comply with all the applicable terms of Section 12 of Article XI.
SECTION 5.03. [Intentionally Omitted]
SECTION 5.04. Remedies. (a) If an Indenture Event of Default shall
--------
have occurred and be continuing and so long as the same shall be unremedied,
then and in every such case the Indenture Trustee subject to Sections 5.04(d),
5.05 and 6.01 may declare this Indenture to be in default by written notice to
such effect given to MCFT, and at any time thereafter, provided that such
--------
declaration shall not have been rescinded, the Indenture Trustee, to the extent
permitted by applicable law and subject to Sections 5.05 and 5.09 may: (i) upon
at least 10 days' written notice, exercise any or all of the rights and powers
and pursue any and all of the remedies herein provided or available under
applicable law, (ii) upon at least 10 days' written notice, take possession of
all or any part of the Indenture Estate and exclude MCFT and all Persons
claiming under MCFT wholly or partly therefrom, (iii) upon at least 25 days'
prior written notice to MCFT, invoke and exercise the power of sale and sell (or
cause to be sold) any or all of the Indenture Estate it the manner for non-
judicial foreclosure sales pursuant to the Texas Property Code or in any other
manner which shall be in accordance with applicable law, or, in lieu of sale
pursuant to the power of sale, foreclose the Indenture Estate and (iv) exercise
all rights and remedies of a secured party under the Uniform Commercial Code as
in effect in any applicable jurisdiction. The Indenture Trustee shall notify
MCFT as soon as is reasonably practicable after its commencement of the exercise
of any remedy pursuant to this Section 5.04.
(b) If an Indenture Event of Default (other than an Indenture Event of
Default specified in Section 5.02(g)) shall have occurred and be continuing,
then the Indenture Trustee may at any time (or shall when instructed by a
Majority Interest of Holders of Notes), by five (5) days' written notice to
MCFT, declare all (but not less than all) of the Secured Notes to be due and
payable. Upon such declaration the unpaid principal of all Secured Notes then
Outstanding, together with accrued but unpaid interest thereon and any other
amounts due there under, shall immediately become due and payable without
presentment, demand, protest further notice of intention to accelerate maturity
or other notice of intention to accelerate maturity or other or notice, all of
which are hereby waived.
EXHC-16
(c) If an Indenture Event of Default of the type specified in Section
5.02(g) shall have occurred and be continuing, the principal of all Secured
Notes then Outstanding, together with accrued but unpaid interest thereon and
any other amounts due thereunder, shall become and be due and payable
automatically, without declaration, notice, demand or any other action on the
part of the Indenture Trustee or any Holder, all of which are hereby waived.
Each of Section 5.04(a), Section 5.04(b) and this Section 5.04(c), however, is
subject to the condition that, if at any time after the principal of the Secured
Notes shall have become due and payable upon a declared or automatic
acceleration thereof as provided herein, and before any judgment or decree for
the payment of the money so due, or any portion thereof, shall be entered, all
overdue payments of interest upon the Secured Notes and all other amounts
payable under the Secured Notes (except the principal of the Secured Notes which
by such declaration shall have become payable) shall have been duly paid, and
every other Indenture Event of Default with respect to any covenant or provision
of this Indenture shall have been cured or waived, then and in every such case a
Majority in Interest of Holders of Notes, by written instrument filed with the
Indenture Trustee, may (but shall not be obligated to) rescind and annul the
Indenture Trustee's declaration and its consequences; but no such rescission or
annulment shall extend to or affect any subsequent Indenture Event of Default or
impair any right consequent thereon.
(d) Notwithstanding any provision in any document or instruction that
purports to require the Indenture Trustee to acquire title to any or all of the
Indenture Estate upon foreclosure, or pursuant to instructions, the Indenture
Trustee shall not be obligated to acquire any such title unless: (i) the
Indenture Trustee is provided with such security or indemnity as it shall deem
satisfactory to it, (ii) such acquisition of title complies with all applicable
Operative Documents, laws, rules and regulations, which shall be evidenced by an
opinion of counsel to such effect in form and substance satisfactory to the
Indenture Trustee and (iii) the Indenture Trustee shall have obtained such
executed certificates, instruments or other documents, in accordance with its
reasonable inquiries or requests.
SECTION 5.05. Suit; Possession; Title; Sale of Indenture Estate. (a)
-------------------------------------------------
MCFT agrees that, if an Indenture Event of Default shall have occurred and be
continuing and the Indenture Trustee shall be entitled to exercise remedies
hereunder as provided in Section 5.04, the Indenture Trustee may take possession
of all or any part of the Indenture Estate and may exclude MCFT, and all Persons
claiming under MCFT, wholly or partly therefrom; provided, however, that at
-------- --------
least 10 Business Days' prior notice of such taking of possession shall be given
to MCFT. If an Indenture Event of Default shall have occurred and be continuing
and the Indenture Trustee shall be entitled to exercise remedies hereunder as
provided in Section 5.04, at the request of the Indenture Trustee, MCFT shall
promptly execute and deliver to the Indenture Trustee such instruments of title
and other documents as the Indenture Trustee may deem necessary or advisable to
enable the Indenture Trustee or any agent or representative designated by the
Indenture Trustee, at such time or times and place or places as the Indenture
Trustee may specify, to obtain possession of all or any part of the Indenture
Estate to which the Indenture Trustee shall at the time be entitled hereunder.
If MCFT shall for any reason fail to execute and deliver such instruments and
documents after such request by the Indenture Trustee,
EXHC-17
the Indenture Trustee may (i) obtain a judgment conferring on the Indenture
Trustee the right to immediate possession of any property, comprising a portion
of the Indenture Estate and requiring MCFT to execute and deliver such
instruments and documents to the Indenture Trustee or (ii) pursue all or part of
such property wherever it may be found, and the Indenture Trustee may enter any
of the premises where such property or any portion thereof may be or is supposed
to be and search for such property; provided, further, that notwithstanding any
-------- -------
provision herein to the contrary, the Indenture Trustee shall not sell, assign,
transfer or deliver any of the Indenture Estate or take possession of the
Indenture Estate unless the Secured Notes shall have been accelerated pursuant
to Section 5.04(b) or 5.04(c). All expenses of obtaining such judgment or of
pursuing, searching for and taking such property shall, until paid, be secured
by the Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee may
make, from time to time and at the expense of the Indenture Estate, such
expenditures for maintenance, insurance, repairs, replacements, alterations,
additions and improvements to and of the Indenture Estate as it may deem proper.
In each such case, the Indenture Trustee shall have the right to maintain, use,
operate, store, lease, control or manage the Indenture Estate and to exercise
all rights and power of MCFT relating to the Indenture Estate as the Indenture
Trustee shall deem to be in the best interest of the Holders. The Indenture
Trustee shall be entitled to collect and receive directly all tolls, rents,
revenue, issues, income, products and profits of the Indenture Estate and every
part thereof, other than Excepted Payments. Such tolls, rents, revenues,
issues, income, products and profits shall be applied (i) to pay the expenses of
the use, operation, storage, leasing, control, management or disposition of the
Indenture Estate, (ii) to pay the expense of all maintenance, repairs,
replacements, alterations, additions and improvements, (iii) to make all
payments which the Indenture Trustee may be required or may elect to make, if
any, for taxes, assessments, insurance or other proper charges upon the
Indenture Estate or any portion thereof, including, without limitation, the
employment of engineers and accountants to examine, inspect and make reports
upon the properties and books and records of MCFT, and (iv) to pay amounts owing
in respect of the Secured Notes in accordance with the provisions thereof and
hereof and to make all other payments which the Indenture Trustee may be
required or authorized to make under any provision of this Indenture, as well as
just and reasonable compensation for the services of the Indenture Trustee and
of all Persons properly engaged and employed by the Indenture Trustee.
(c) Any of the Indenture Trustee, any Holder or MCFT may be a
purchaser of the Indenture Estate or any portion thereof or any interest therein
at any sale thereof, whether pursuant to foreclosure or power of sale or
otherwise. The Indenture Trustee may apply against the purchase price therefor
the amount then due to it hereunder or under any of the Secured Notes secured
hereby and any Holder may apply against the purchase price therefor the amount
then due to it hereunder or under the Secured Notes held by such Holder, to the
extent of such portion of the purchase price as it would have received had it
been entitled to share in any distribution thereof. The Indenture Trustee or
any Holder or any nominee of any such Holder shall acquire, upon any such
purchase, good title to the property so purchased, free of the Lien
EXHC-18
of this Indenture and, to the extent permitted by applicable law, free of all
rights of redemption in MCFT in respect of the property so purchased.
(d) Any sale or other conveyance of any of the Indenture Estate by the
Indenture Trustee made pursuant to the terms of this Indenture shall bind MCFT
and the Holders and shall be effective to transfer or convey all right, title
and interest of the Indenture Trustee, MCFT and the Holders in and to such
Indenture Estate or portion thereof, as the case may be. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance, or as to the application of
any sale or other proceeds with respect thereto by the Indenture Trustee. In
the event of any such sale, MCFT shall execute any and all such bills of sale
and other documents, and perform and do all other acts and things requested by
the Indenture Trustee in order to permit continuation of such sale and to
effectuate the transfer or conveyance referred to in the first sentence of this
Section 5.05 (d). MCFT shall ratify and confirm any such sale or sales by
executing and delivering to the Indenture Trustee or to such purchaser or
purchasers all instruments as may reasonably be requested for such purpose. Any
such sale or sales made hereunder shall operate to divest all the estate, right,
title, interest, claim and demand whatsoever, whether at law or in equity, of
MCFT in and to the properties and rights so sold, and shall be a perpetual bar
both at law and in equity against MCFT and against any and all persons claiming
or who may claim the same, or any part thereof from, through or under MCFT.
Upon any sale or other disposition of the Indenture Estate by the Indenture
Trustee, the Indenture Trustee will promptly account in writing, in reasonable
detail, to MCFT for the amount of such sale, the costs and expenses incurred in
connection therewith and any surplus proceeds.
(e) The Indenture Trustee shall as a matter of right, be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any successor
or nominee thereof), at any time after an Indenture Event of Default either
before or after declaring due and payable the principal of all Secured Notes
then Outstanding, together with accrued but unpaid interest thereon and any
other amounts due thereunder, for all or any portion of the Indenture Estate,
whether such receivership be incidental to a proposed sale of the Indenture
Estate or the taking of possession thereof or otherwise, and, to the extent
permitted by applicable law, MCFT hereby consents to the appointment of such a
receiver, and agrees that it will not oppose any such appointment. Any receiver
appointed for all or any portion of the Indenture Estate shall be entitled in
addition to any powers available under applicable law, to exercise all the
rights and powers of the Indenture Trustee with respect to the Indenture Estate.
(f) To the extent now or at any time hereafter enforceable under
applicable law, MCFT covenants that it will not at any time insist upon or
plead, or in any manner whatsoever claim or take any benefit or advantage of any
stay, extension, moratorium, any exemption from execution or sale or other
similar law or from any law now or hereafter in force providing for the
valuation or appraisement of the Indenture Estate or any part thereof, prior to
any sale or sales thereof to be made pursuant to any provision herein contained,
or prior to any applicable decree, judgment or order of any court of competent
jurisdiction; nor, after such sale or sales, claim or exercise any right under
any statute now or hereafter made or enacted by any
EXHC-19
state or any right to have a portion of the Indenture Estate or the security for
the Secured Notes marshalled or otherwise redeem the property so sold or any
part thereof, and hereby expressly waives for itself and on behalf of each and
every Person, except decree or judgment creditors of MCFT acquiring any interest
in or title to the Indenture Estate or any part thereof subsequent to the date
of this Indenture, all benefit and advantage of any such law or laws, and
covenants that it will not invoke or use any such law or laws, but will suffer
and permit the execution of every such power as though no such law or laws had
been made or enacted.
The Indenture Trustee may maintain such a pleading, or, in any manner
whatsoever, claim or take any benefit or advantage of or from any law now or
hereafter in force even if it does not possess any of the Secured Notes or does
not produce any of them in the proceeding. A delay or omission by the Indenture
Trustee or any Holder in exercising any right or remedy accruing upon an
Indenture Event of Default under this Indenture shall not impair the right or
remedy or constitute a waiver of or acquiescence in such Indenture Event of
Default.
(g) The Indenture Trustee may adjourn from time to time any sale to be
made under or by virtue of this Indenture for such sale or for such adjourned
sale or sales, and, except as otherwise provided by any applicable provision of
law, the Indenture Trustee, without further notice or publication, may make such
sale at the time and place to which the same shall be so adjourned.
(h) Any recovery of any judgment by the Indenture Trustee under the
Secured Notes and any levy of any execution under any such judgment upon the
Indenture Estate shall not affect in any manner or to any extent the security
title and security interest conveyed hereby upon the Indenture Estate or any
part thereof, or any conveyances, powers, rights and remedies of the Indenture
Trustee hereunder, but such conveyances, powers, rights and remedies shall
continue unimpaired as before.
(i) Notwithstanding anything contained herein, so long as the relevant
Pass Through Trustee or a registered Holder, the Indenture Trustee is not
authorized or empowered to acquire title to all or any portion of the Indenture
Estate or take any action with respect to all or any portion of the Indenture
Estate so acquired by it if such acquisition or action would cause the relevant
Pass Through Trust to fail to qualify as a "grantor trust" for federal income
tax purposes.
(j) MCFT shall be liable for all reasonable legal fees and other
reasonable costs and expenses incurring by each Loan Participant and the
Indenture Trustee by reason of the occurrence of any Indenture Event of Default
or the exercise of remedies with respect thereto.
SECTION 5.09. Quiet Enjoyment. Notwithstanding any other provision
---------------
of this Indenture or any other Operative Document, including, without
limitation, Sections 5.04 and 5.05, unless an Indenture Event of Default shall
have occurred and be continuing and this Indenture shall have been declared in
default pursuant to Section 5.04 (a), MCFT shall be
EXHC-20
entitled to the quiet use and enjoyment of the benefits of the Facility
including the right to uninterrupted possession, use and operation of the
Facility, and the Indenture Trustee shall not take or permit any Person claiming
by, through or under it to take any action inconsistent with MCFT's rights
hereunder or under any of the other Operative Documents or otherwise, through
its own actions or inactions, interfere or permit any such Person to interfere
with such quiet use or enjoyment or such possession, use or operation or the
rights of any permitted sublessee or assignee to such quiet use or enjoyment or
such possession, use or operation under any sublease or assignment permitted
hereunder (including, without limitation, the rights of the Operator under the
Initial Sublease).
SECTION 5.12. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, (a) the reference to the Lessee
in Section 5.07 shall after the Relevant Date be deemed to be deleted and (b)
Sections 5.07 and 5.10 shall be deemed amended to provide that any reference to,
or right or obligation of the Owner Trustee contained in such Sections shall
after the Relevant Date be deemed to be a reference to, or right or obligation
of MCFT.
(F) Sections 6.01, 6.02, 6.03, 6.07, 6.08, 6.10 and 6.12 of the
Indenture shall read as follows:
SECTION 6.01. Certain Actions. If the Indenture Trustee shall
---------------
have Actual Knowledge of any Indenture Event of Default or any Indenture Default
or any material fact relating to the Facility Assets, the Indenture Trustee
shall (a) give prompt telephonic notice (promptly confirmed in writing) to MCFT
and (b) within 90 days after obtaining such Actual Knowledge, mail to each
Holder, notice of all Indenture Events of Default unless, in each case, such
Indenture Event of Default has been remedied before the giving of such notice
and the Indenture Trustee has Actual Knowledge that such Indenture Event of
Default has been so remedied; provided, however, that the failure by the
-------- -------
Indenture Trustee to provide such notice shall not invalidate any actions
subsequently taken by the Indenture Trustee in connection with such Indenture
Event of Default. Except in the case of a default in the payment of the
principal or interest on any Secured Note, the Indenture Trustee shall be
protected in withholding the notice required under clause (b) above if and so
long as Responsible Officers of the Indenture Trustee in good faith determine
that withholding such notice is in the interest of the Holders.
SECTION 6.02. Action Upon Instructions. The Indenture Trustee shall,
------------------------
upon the written instruction at any time and from time to time of a Majority in
Interest of Holders of Notes, give such notice, consent or direction or exercise
such right, remedy or power hereunder or any other agreement constituting part
of the Indenture Estate as shall be specified in such instruction; provided,
--------
however, that nothing set forth in this Section 6.02 shall entitle the Holders
- -------
to cause the Indenture Trustee to give any notice or exercise any right, power
or remedy that is not elsewhere authorized by, or is otherwise restricted or
prohibited by, this Indenture or any other Operative Document. If the Indenture
Trustee shall not have received instructions as above provided within twenty
(20) calendar days after mailing of the notice pursuant to Section 6.01 to the
Holders, the Indenture Trustee may take such action, or refrain from taking
EXHC-21
such action, but shall be under no duty to take or refrain from taking any
action, with respect to such Indenture Event of Default or fact as it shall
determine to be advisable and in the best interest of the Holders. If the
Indenture Trustee receives any instructions after the expiration of the
aforementioned twenty day period, the Indenture Trustee shall use its best
efforts to conform any action being taken to comply with those instructions.
SECTION 6.03. Release of Lien of Indenture. (a) Release of
---------------------------- ----------
Indenture Estate. Upon satisfaction of the conditions for termination of this
- ----------------
Indenture set forth in Section 10.01, the Lien of the Indenture on the Indenture
Estate shall terminate and the Indenture Trustee, upon the written request of
MCFT, shall execute and deliver to, or as directed by, MCFT, all appropriate
instruments provided by MCFT (in due form for recording or filing) releasing the
Indenture Estate from the Lien of this Indenture and terminating the Easements,
and the Indenture Trustee shall pay all moneys or other properties or proceeds
held by it under this Indenture to MCFT. The reasonable cost and expense
associated with any action taken by the Indenture Trustee pursuant to the
provisions of this Section 6.03(a) shall be borne by MCFT.
(b) Release of Facility Assets Upon Event of Loss. Upon the
---------------------------------------- ----
occurrence of an Event of Loss with respect to the Facility Assets and receipt
by the Indenture Trustee of all amounts due and payable by MCFT as a result of
such Event of Loss pursuant to Section 12.02 of Article XI and the concurrent
redemption of Secured Notes as set forth in Section 3.02, the Indenture Trustee,
upon the written request of MCFT, shall execute and deliver to, or as directed
by, MCFT, all appropriate instruments provided by MCFT (in due form for
recording or filing) releasing the Facility Assets and all other property solely
relating thereto and then constituting a portion of the Indenture Estate (or if
not solely relating thereto, but such other property can be reasonably
partitioned without undue burden or delay, such other property), as the case may
be, from the Lien of this Indenture. The reasonable cost and expense associated
with any action taken by the Indenture Trustee pursuant to the provisions of
this Section 6.03 (b) shall be borne by MCFT.
(c) Release of Liens Upon Full Payment of Secured Notes. Upon payment
---------------------------------------------------
in full of the principal of and interest on and all other amounts due and
payable under the Secured Notes, and all other amounts due and payable to any
Holder or the Indenture Trustee hereunder or under any other Operative Document,
the Indenture Trustee, upon the written request of MCFT, shall execute and
deliver to, or as directed by, MCFT, all appropriate instruments provided by
MCFT (in due form for recording or filing) releasing the Facility Assets, and
all other property relating thereto and then constituting a portion of the
Indenture Estate from the Lien of this Indenture. The cost and expense
associated with any action taken by the Indenture Trustee pursuant to the
provisions of this Section 6.03 (c) shall be borne by MCFT.
(d) Disposition, Substitution and Release of Facility Assets Included
-----------------------------------------------------------------
in the Indenture Estate. Any Replacement Components and alterations,
- -----------------------
improvements and modifications in and additions to the Facility Assets shall, to
the extent required or specified in Section 11.07 of Article XI, become subject
to the Lien of this Indenture; provided that, to the
--------
EXHC-22
extent permitted by and as provided in Section 11.07 of Article XI, MCFT shall
have the right, at any time and from time to time, without any release from or
consent by the Indenture Trustee, to remove and/or replace Components or
Replacement Components, to make alterations, improvements and modifications in,
and additions to, the Facility Assets. The Indenture Trustee agrees that, to the
extent permitted by and as provided in Section 11.07 of Article XI, the title to
any such removed or replaced Component or Replacement Components, shall vest in
MCFT. The Indenture Trustee shall from time to time execute an appropriate
written instrument or instruments to confirm the release of the security
interest of the Indenture Trustee in any replaced Component or Replacement
Components, as provided in this Section 6.03(d) in each case upon receipt by the
Indenture Trustee of a request of MCFT stating that said action was duly taken
by MCFT in conformity with this Section 6.03(d) and that the execution of such
written instrument or instruments is appropriate to evidence such release of a
security interest under this Section 6.03(d). The reasonable cost and expense
associated with any action taken by the Indenture Trustee pursuant to the
provisions of this Section 6.03(d) shall be borne by MCFT.
SECTION 6.07. No Action Except Under Operative Documents or
---------------------------------------------
Instructions. The Indenture Trustee agrees that it will not use, operate, store,
- ------------
lease, control, manage, sell, dispose of or otherwise deal with the Facility
Assets or any other part of the Indenture Estate except (a) in accordance with
the terms of the Operative Documents or (b) in accordance with the powers
granted to, or the authority conferred upon, the Indenture Trustee pursuant to
the express terms of this Indenture.
SECTION 6.08. [Intentionally Omitted]
SECTION 6.10. [Intentionally Omitted]
SECTION 6.12. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, (a) the reference to the Lessee
in Section 6.09 shall after the Relevant Date be deemed to be deleted, (b)
Sections 6.09 and 6.11 shall be deemed amended to provide that any reference to,
or right or obligation of the Owner Trustee contained in any such Section shall
after the Relevant Date be deemed to be a reference to, or right or obligation
of MCFT and (c) the phrase "the Owner Participant or" in Section 6.11 shall
after the Relevant Date be deemed to be deleted.
(G) Sections 7.02, 7.03, 7.04, 7.05, 7.07 and 7.10 of the Indenture
shall read as follows:
SECTION 7.02. Absence of Duties Except as Specified. Except in
-------------------------------------
accordance with written instructions furnished pursuant to Section 6.01 or 6.02,
and except as provided in, and without limiting the generality of, Sections
6.04, 6.05, 6.06, 6.07, 7.01 and 7.03, the Indenture Trustee shall have no duty
(a) to record or file this Indenture or any other document, or to maintain any
such recording or filing, or to rerecord or refile any such document, (b) to
effect or maintain any such insurance, whether or not MCFT shall be in default
with respect
EXHC-23
thereto, (c) to discharge any Lien of any kind against any part of the Indenture
Estate, or (d) to inspect the Facility Assets at any time, or to ascertain or
inquire as to the performance or observance of any of MCFT's covenants
hereunder.
SECTION 7.03. No Representations or Warranties. NEITHER MCFT NOR
--------------------------------
THE INDENTURE TRUSTEE MAKES (a) ANY REPRESENTATION OR WARRANTY, WHETHER WRITTEN,
ORAL, EXPRESS OR IMPLIED, AS TO THE VALUE, COMPLIANCE WITH SPECIFICATIONS,
DURABILITY, OPERATION, CONSTRUCTION, PERFORMANCE, DESIGN OR CONDITION OF THE
FACILITY OR ANY COMPONENT THEREOF, THE MERCHANTABILITY THEREOF OR THE FITNESS
THEREOF FOR ANY PARTICULAR PURPOSE, TITLE TO THE FACILITY OR ANY COMPONENT OF
THE FACILITY, THE QUALITY OF THE MATERIALS OR WORKMANSHIP THEREOF OR CONFORMITY
THEREOF TO SPECIFICATIONS, OR THE PRESENCE OR ABSENCE OF ANY LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE, OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE FACILITY, OR ANY COMPONENT
OF THE FACILITY ASSETS, except, in the case of MCFT, as expressly provided in
Section 5 of the Participation Agreement, or (b) any representation or warranty
as to the validity, legality or enforceability of this Indenture, any of the
other Operative Documents or the Secured Notes, or as to the correctness of any
statement contained in any thereof, except as set forth in Section 7.01 of this
Indenture, or Sections 5 and 9 of the Participation Agreement.
SECTION 7.04. No Segregation of Moneys; No Interest; Investments.
--------------------------------------------------
Any moneys paid to or retained by the Indenture Trustee as security hereunder
that would be payable to MCFT upon satisfaction of any applicable conditions
shall be invested and reinvested by the Indenture Trustee from time to time in
Permitted Investments at the written direction of MCFT. The Indenture Trustee
shall have no liability for any loss resulting from any investment required to
be made hereunder other than by reason of its own willful misconduct or
negligence in failing to comply with such instructions. Any net income or gain
realized as a result of any such investment or reinvestment shall be held as
part of the Indenture Estate and shall be applied by the Indenture Trustee at
the same time, on the same conditions and in the same manner as the amounts in
respect of which such income or gain was realized are required to be distributed
in accordance with the provisions hereof. MCFT shall be responsible for any net
loss realized as a result of any such investment or reinvestment and shall
reimburse the Indenture Trustee therefor on demand. Any Permitted Investment
may be sold or otherwise reduced to cash (without regard to maturity) by the
Indenture Trustee whenever necessary to make any application as required by the
terms of this Indenture or of any applicable Operative Document.
SECTION 7.05. Reliance; Agents; Advice of Counsel. The Indenture
-----------------------------------
Trustee (in its individual or trust capacity) shall not incur any liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
reasonably believed by it to be genuine and believed by it to be signed by the
proper party or parties. The Indenture Trustee may accept a copy of a
resolution of the Board of Directors or other governing body of any party to the
Participation
EXHC-24
Agreement or other Operative Document, certified by the Secretary or any
Assistant Secretary thereof as duly adopted and in full force and effect, as
conclusive evidence that such resolution has been duly adopted and that the same
is in full force and effect. As to any fact or matter relating to MCFT the
manner of ascertainment of which is not specifically described herein, the
Indenture Trustee may for all purposes hereof rely on an Officer's Certificate
of MCFT as to such fact or matter, and such Officer's Certificate shall
constitute full protection to the Indenture Trustee (in its individual or trust
capacity), for any action taken or omitted to be taken by it in good faith in
reliance thereon. In the administration of the trusts hereunder, the Indenture
Trustee may execute any of the trusts or powers hereof and perform its powers
and duties hereunder directly or through agents or attorneys and at the expense
of the Indenture Estate may consult with counsel, accountants and other skilled
Persons to be selected and retained by it, and the Indenture Trustee shall not
be liable for anything done, suffered or omitted in good faith by, it in
accordance with the advice or opinion of any such counsel, accountant or other
skilled Person acting within such Person' s area of competence (so long as the
Indenture Trustee shall have exercised due care in selecting such Persons,
provided that, so long as no Lease Event of Default shall have occurred and be
- --------
continuing, no such Persons (other than counsel to the Indenture Trustee or its
accountants) shall be retained by the Indenture Trustee without the consent of
the Lessee, such consent not to be unreasonably withheld.
SECTION 7.10. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, Sections 7.06 and 7.09 shall be
deemed amended to provide that any reference to, or right or obligation of the
Owner Trustee contained in such Section shall after the Relevant Date be deemed
to be a reference to, or right or an obligation of MCFT.
(H) Sections 8.01 and 8.04 of the Indenture shall read as follows:
SECTION 8.01. [Intentionally Omitted]
SECTION 8.04. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein, (a) Sections 8.02 and 8.03 shall
be deemed amended to provide that any reference to, or right or obligation of
the Owner Trustee contained in any such Section shall after the Relevant Date be
deemed to be a reference to, or right or obligation of MCFT and (b) Section 8.02
shall be deemed amended to provide that any reference to the Lessee or the Owner
Participant contained in such Section shall be deemed to be deleted.
(I) (I) Sections 9.02(a), 9.02(b) and 9.02(c) of the Indenture shall
read as follows:
(a) [Intentionally Omitted]
(b) Except as provided in Section 9.01 or 9.02(c) or 9.02(d), at any
time and from time to time, with the written consent of a Majority in Interest
of Holders of Notes and, whether or not an Indenture Event of Default exists,
upon the written consent of MCFT, the
EXHC-25
Indenture Trustee (x) shall execute an amendment or supplement to this Indenture
for the purpose of adding provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or (y) shall execute an
amendment or supplement to, or give a consent, waiver, authorization or
approval, for the purposes of adding any provisions to or changing in any manner
or eliminating any of the provisions of, the Participation Agreement; provided,
--------
however, that no such amendment or supplement to this Indenture, or consent,
- -------
waiver, authorization, approval, amendment or supplement to the Participation
Agreement shall, without the consent of each Holder of a Secured Note then
Outstanding:
(i) change the stated maturity of the principal of, or any installment
of interest on, or the amount of any payment upon any mandatory or optional
repayment, purchase or redemption of any Secured Note, or change the
principal amount thereof or any other amount payable in respect thereof or
reduce the Make-Whole Amount, if any, or interest thereon, or change the
place of payment where, or the coin or currency in which, any Secured Note
or the interest thereon is payable;
(ii) permit the creation of any Lien on the Indenture Estate not
otherwise permitted hereunder or deprive any Holder of the benefit of the
Lien of this Indenture upon the Indenture Estate, or any portion thereof,
for the security of its Secured Notes;
(iii) change the percentage of the aggregate principal amount of
Secured Notes required to take or approve any action hereunder or any other
Operative Document;
(iv) modify the definitions of "Indenture Default", "Indenture Event
of Default" or "Majority in Interest of Holders of Notes";
(v) modify the order of priorities in which distributions are to be
made under Article IV;
(vi) [Intentionally Omitted]
(vii) modify, amend or supplement any of the provisions of this
Section 9.02;
(viii) [Intentionally Omitted]
(ix) adversely affect any indemnities in favor of any Holder as
provided pursuant to the terms of any Operative Document, except as may be
consented to by each Person adversely affected thereby.
(c) Notwithstanding anything to the contrary contained in Section
9.02(b) (except as provided in the proviso to Section 9.02(b)), without the
necessity of the consent of any of the Holders, the Indenture Trustee shall, at
the request of MCFT:
EXHC-26
(i) [Intentionally Omitted]
(ii) [Intentionally Omitted]
(iii) modify, amend or supplement the Participation Agreement, or
give any consent, waiver, authorization or approval with respect thereto,
except that without compliance with Section 9.02(b), the Indenture Trustee
shall not modify, amend or supplement, or give any consent, waiver,
authorization or approval for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions thereof or of
modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Participation Agreement as
originally executed: Section 5 (insofar as such Section 5 relates to the
Indenture Trustee, the Indenture Estate and the Holders), Section 10 (other
than an amendment to add to the covenants of MCFT and other than Section
10.10), Section 11.4, Section 12 (insofar as such Section 12 relates to the
Indenture Trustee, the Indenture Estate and the Holders) and, to the extent
the Loan Participant would be adversely affected thereby, Section 15 and
any definitions of terms used in the Participation Agreement to the extent
that any modification of such definition would result in a modification of
the Participation Agreement not permitted pursuant to this Section 9.02(c);
(iv) [Intentionally Omitted]
(v) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders unless such provision corrects a mistake or cures an
ambiguity.
(II) Sections 9.07 and 9.08 of the Indenture shall read as follows:
SECTION 9.07. [Intentionally Omitted]
SECTION 9.08. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein:
(a) the phrase "the assumption by the Lessee of the obligations of the
Owner Trustee hereunder in accordance with the terms and conditions applicable
thereto specified in Section 3.04, including, without limitation, in Sections
9.01(e) and 9.02(d), and the phrases "the succession of a new Owner Trustee in
accordance with the Trust Agreement or" and "thereunder or" in each of Sections
9.01(f) and 9.02(d) (iv) shall after the Relevant Date be deemed to be deleted;
EXHC-27
(b) the reference to the Lessee in each of Sections 9.01(c),
9.02(d)(iii) and 9.06 shall after the Relevant Date be deemed to be deleted; and
Sections 9.01, 9.03, 9.05 and 9.06 shall be deemed amended to provide that any
reference to, or right or obligation of the Owner Trustee contained in such
Sections shall after the Relevant Date be deemed to be a reference to, or right
or obligation of MCFT; and
(c) all provisions requiring delivery of documents to the Owner
Participant in Section 9.06 shall be deemed to be deleted.
(J) Sections 10.01, 10.04, 10.05, 10.08, 10.10, and 10. 14 of the
Indenture shall read as follows:
SECTION 10.01. Termination of Indenture. This Indenture and the
------------------------
trusts created hereby shall terminate, and this Indenture shall be of no further
force or effect, when:
(a) the principal of and interest on and all other amounts due and
payable under all Secured Notes and all other amounts due and payable to
any Holder or the Indenture Trustee hereunder or under any other Operative
Document shall have been paid in full; or
(b) the Indenture Trustee shall have sold or made other final
disposition of all property and all moneys or other property or proceeds
constituting part of the Indenture Estate in accordance with the terms
hereof; or
(c) all Secured Notes not theretofore delivered to the Indenture
Trustee for cancellation have become due and payable (whether upon stated
maturity, as a result of redemption or upon acceleration), or will become
due and payable (including as a result of redemption in respect of which
irrevocable notice has been given to the Indenture Trustee on or prior to
the date of such deposit) at maturity within one year, and there has been
deposited with the Indenture Trustee in trust for the purpose of paying and
discharging the entire indebtedness on the Secured Notes not theretofore
cancelled by the Indenture Trustee or delivered to the Indenture Trustee
for cancellation, an amount in cash sufficient without reinvestment thereof
to discharge such indebtedness, including the principal of and interest on
the Secured Notes to the date of such deposit (in the case of Secured Notes
which have become due and payable), or to the maturity thereof, as the case
may be; or
(d) (i) MCFT has deposited or caused to be deposited irrevocably
(except as provided in Section 7.09(b)) with the Indenture Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Loan Participants, (A) money in an amount, or (B)
United States Government Obligations which, through the payment of interest
and principal in respect thereof in accordance with their terms, will
provide (not later than one Business Day before the due date or any payment
referred to below in this clause) money in an amount, or (C) a combination
of
EXHC-28
money and United States Government Obligations referred to in the foregoing
clause (B), sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Indenture Trustee, to pay and
discharge each installment of principal of and interest on the Outstanding
Secured Notes on the dates such payments of principal or interest are due
(including as a result of redemption in respect of which irrevocable notice
has been given to the Indenture Trustee on or prior to the date of such
deposit), and no Indenture Event of Default under Section 5.02(g) shall
have occurred and be continuing on the date of such deposit or at any time
during the period ending on the 91st day after such date; provided,
--------
however, that upon the making of the deposit referred to above in clause
-------
(A), the right of MCFT to cause the redemption of Secured Notes (except a
redemption in respect of which irrevocable notice has theretofore been
given) shall terminate; and (ii) MCFT has delivered to the Indenture
Trustee an Officer's Certificate of MCFT to the effect that (A) such
deposit will not constitute an Indenture Event of Default under this
Indenture or a default or event of default under any other agreement or
instrument to which MCFT is a party or by which it is bound and (B) all
conditions precedent relating to the termination of this Indenture under
this Section 10.01(d) have been complied with; and (iii) MCFT has delivered
to the Indenture Trustee an Officer's Certificate of MCFT and an Opinion of
Counsel to the effect that there has been published by the Internal Revenue
Service a ruling to the effect that Loan Participants will not recognize
income, gain or loss for Federal income tax purposes as a result of the
exercise by MCFT of its option under this Section 10.01(d) and will be
subject to Federal income tax in respect of the interest received from such
deposit on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised; and (iv)
all other amounts then due and payable hereunder to any Holder or the
Indenture Trustee have been paid;
provided, however, that the obligations of the Indenture Trustee contained in
- -------- -------
Sections 2.01 through 2.11, 6.11 and 7.09 shall survive. Except as otherwise
provided in the preceding sentence, this Indenture and the trusts created hereby
shall continue in full force and effect in accordance with the terms hereof.
SECTION 10.03. [Intentionally Omitted]
SECTION 10.04. (a) Aggregate Unpaid Principal Amount of Secured Notes
--------------------------------------------------
Outstanding. As to the aggregate unpaid principal amount of Secured Notes
- -----------
Outstanding as of any date, MCFT may rely on an Officer's Certificate of the
Indenture Trustee.
(b) No director, officer, employee or stockholder (other than the
Guarantor as stockholder of MCFT), as such, of MCFT or the Guarantor, as the
case may be, shall have any liability for any obligations of MCFT or the
Guarantor, as the case may be, under this Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. Each Loan
Participant by accepting a Secured Note waives and releases all such
EXHC-29
liability. The waiver and release are part of the consideration for the issue of
the Secured Notes.
SECTION 10.05. Notices. All communications, notices and consents
-------
provided for in this Indenture shall be in writing and shall be given in person
or by courier or by means of telex, telecopy or other wire transmission (with
request for assurance of receipt in a manner typical with respect to
communications of that type), or mailed by first class mail, addressed, in the
case of MCFT, to Mobil Chemical Finance (Texas) Inc., 3225 Gallows Road,
Fairfax, Virginia 22037-0001 Attention: Treasurer; telecopier (703) 846-1469,
in the case of the Indenture Trustee, to State Street Bank and Trust Company,
Two International Place, 4th Floor, Boston, Massachusetts 02110, Attention:
Corporate Trust Department (telephone: (617) 664-5340; telecopier: (617) 664-
5371); and, in the case of all other parties, as set forth in Schedule 1 to the
Participation Agreement or at such other address as any such Person may from
time to time designate by notice duly given in accordance with the provisions of
this Section 10.05 to the other parties hereto and shall be deemed given when
received by (or when proffered to, if receipt is not accepted) the party to whom
it is addressed.
SECTION 10.08. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon each of the parties hereto and their
respective successors and permitted assigns, and inure to the benefit of each of
the parties hereto and their respective successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Holder shall bind the successors and assigns of such
Holder. Each Holder by its acceptance of a Secured Note agrees to be bound by
this Indenture and all provisions of the Operative Documents applicable to it.
SECTION 10.10. Normal Commercial Relations. Notwithstanding anything
---------------------------
contained in this Indenture to the contrary, any Loan Participant, the Indenture
Trustee or bank or other affiliate of any such Person may conduct any banking or
other financial transactions and have banking or other commercial relationships
with MCFT fully to the same extent as if this Indenture were not in effect.
SECTION 10.14. Benefits of Indenture. Nothing in this Indenture,
---------------------
whether express or implied, shall be construed to give to any Person other than
the parties hereto and the Holders any legal or equitable right, remedy or claim
under or in respect of this Indenture or the Secured Notes, and this Indenture
shall be held for the sole and exclusive benefit of the parties hereto and the
Holders.
(K) The Indenture shall include the following Article XI:
ARTICLE XI
CERTAIN ADDITIONAL PROVISIONS
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This Article XI consists of Sections 10 through 14 and 20. Sections 1
through 9 and 15 through 19 are intentionally omitted.
SECTION 10. LIENS.
-----
MCFT will not, directly or indirectly, create, incur, assume or suffer
to exist any Liens on or with respect to all or any part of the Facility Assets,
title thereto or any interest therein, other than Permitted Liens, and MCFT
promptly, at its own expense, will take such actions as may be necessary duly to
discharge any such Lien not excepted above.
SECTION 11. OPERATION AND MAINTENANCE;
INSPECTION; REPLACEMENTS AND
MODIFICATIONS; IDENTIFICATION.
-----------------------------
11.01. Operation and Maintenance. So long as the Facility Assets are
-------------------------
subject to the Lien of the Indenture, MCFT shall, at its own expense, operate
and maintain (or cause the operator thereof to operate and maintain) the
Facility Assets in accordance with Operator's established maintenance, rebuild
and repair programs so as to keep the Facility Assets (a) in good working order
and condition, ordinary wear and tear excepted and (b) in compliance in all
material respects with all applicable Governmental Rules and Governmental
Actions; provided, however, that MCFT shall not be obligated to comply with any
-------- -------
Governmental Rule or Governmental Action (i) whose application or validity is
being contested diligently and in good faith by appropriate proceedings, (ii)
compliance with which shall have been excused or exempted by a nonconforming use
permit, waiver, extension or forbearance exempting it from such Governmental
Rule or Governmental Action but only to the extent that MCFT's noncompliance is
in accordance therewith, (iii) if good faith efforts and appropriate steps are
being taken to comply, or (iv) if failure of compliance (individually and in the
aggregate with all other instances of continuing noncompliance by MCFT) would
result in no material adverse consequences to MCFT, so long as, in the case of
each of clauses (i) through (iv) of this proviso, neither such failure of
compliance nor such contest shall result (1) in any material risk or danger of
the sale, forfeiture or loss of any material part of or interest in the Facility
Assets or the Facility Assets or the Indenture Estate or title thereto or
interest therein, (2) or any interference with the payment of principal or
interest hereunder or any other amount due by MCFT hereunder or under the
Operative Documents to the Indenture Trustee or any Holder, or (3) any material
adverse effect on, the Indenture Trustee, any Loan Participant, the Indenture
Estate or the Facility Assets.
11.02. Inspection and Reports. The Indenture Trustee shall have the
----------------------
right (at each party's risk and expense (including, without limitation, as to
personal injury and death (other than as a result of the gross negligence or
willful misconduct of MCFT or its employees)) to inspect the Facility Assets and
the books and records of MCFT relating thereto to the extent provided in, and
subject to the restrictions set forth in, Sections 10.7 and 11.5 of the
Participation Agreement. MCFT shall cause to be prepared and filed in timely
fashion, or, in
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the event the Indenture Trustee shall be required to file, MCFT shall prepare
and deliver (or cause to be prepared and delivered) to the Indenture Trustee
within a reasonable time prior to the date for filing, any reports with respect
to the condition or operation of the Facility Assets that shall be required to
be filed by any Governmental Rule or Governmental Action.
11.03. Required Modifications. MCFT shall make (or cause to be made)
----------------------
all Severable and Nonseverable Modifications to the Facility Assets as may be
required from time to time to meet the requirements of clause (b) of Section
11.01 of this Article XI or to maintain any insurance coverage required by
Section 13.01 of this Article XI (subject to the qualifications set forth in
such Section). MCFT shall complete (or cause to be completed) all such
Modifications in a good and workmanlike manner, with reasonable dispatch and
(but only to the extent practicable) in a manner which does not decrease the
Fair Market Sales Value of the Facility Assets or the remaining useful life or
utility of the Facility Assets.
11.04. Optional Modifications. MCFT may, at no expense to the
----------------------
Indenture Trustee, make (or cause or allow to be made) such other Severable and
Nonseverable Modifications to the Facility Assets not required by Section 11.03
of this Article XI as MCFT (or the Operator) in its sole discretion deems
desirable in the proper conduct of its business, provided that such
--------
Modifications are done in a good and workmanlike manner and as do not decrease
the Fair Market Sales Value (except to a de minimis extent) of the Facility
----------
Assets or decrease the remaining useful life.
11.05. Title to Modifications and Components; Purchase Option for
----------------------------------------------------------
Severable Modifications. (a) Title to all Severable Modifications to the
- -----------------------
Facility Assets not required by any Governmental Rule or Governmental Action
shall vest in MCFT or any Person designated by MCFT, free and clear of the Lien
of this Indenture. MCFT may remove (or allow to be removed) any such Severable
Modification prior to or on the latest Maturity Date.
(b) All of (i) Replacement Components of the Facility Assets, (ii)
Severable Modifications to the Facility Assets required by any Governmental Rule
or Governmental Action and (iii) Nonseverable Modifications to the Facility
Assets shall without further act be subject to the Lien of this Indenture.
11.06. Payment for Modifications and Replacement Components. (a)
----------------------------------------------------
MCFT shall be permitted at any time to finance its share of the cost of any
Severable Modification to the Facility Assets not required by any Governmental
Rule or Governmental Action, directly or indirectly, including, without
limitation, on a third party ownership basis.
(b) MCFT shall be permitted at any time to finance its share of the
cost of any Modification whether or not any such Modification is required by any
Governmental Rule or Governmental Action to be made to the Facility Assets
through the issuance of Additional Notes in accordance with Section 2.08 or any
alternative means of financing; provided, however, that such alternative
-------- -------
financing does not and will not result in any Lien (other than Permitted Liens)
on or with respect to the Facility Assets as modified by such Modification.
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11.07. Replacement of Components; Removal of Property. (a) In the
---------------------------------------------
ordinary course of maintenance, service, repair or testing, any Component or
Replacement Component may be removed and replaced with a Replacement Component
and, upon such replacement, MCFT (or its designee) shall be entitled to retain
the amount of the net proceeds of any sale or disposition of any such removed
Component or Replacement Component. Any such Replacement Components shall be
free and clear of all Liens, except Permitted Liens, and in as good operating
condition as, and with a value, utility and useful life at least equal to, the
Components or Replacement Components replaced, assuming such replaced Components
or Replacement Components were in at least the condition and repair required to
be maintained hereunder. Immediately upon any Replacement Component becoming
incorporated in the Facility Assets, without further act, (i) such Replacement
Component shall become subject to the Lien of the Indenture, (ii) such
Replacement Component shall be deemed a part of the Facility Assets for all
purposes hereof to the same extent as the Component or Replacement Component it
replaced and (iii) title to such removed Component or Replacement Component
shall vest in MCFT or such Person as shall be designated by MCFT, free and clear
of all rights of the Indenture Trustee and shall no longer be deemed a Component
or a Replacement Component hereunder.
(b) If, at any time MCFT (or the Operator) shall conclude that any
property included in the Facility Assets is obsolete, redundant or unnecessary
and can be removed without diminishment of the value or utility of the Facility
Assets or reduction of the remaining useful life of the Facility Assets, MCFT
may remove (or allow to be removed) such property and upon such removal, without
further act, title to such property shall vest in MCFT or in such Person as
shall be designated by MCFT, free of the Lien of this Indenture. In addition,
notwithstanding anything contained in this Indenture to the contrary, if an
event occurs with respect to any Component or Components or any Replacement
Component or Replacement Components) which would constitute an Event of Loss if
such event occurred with respect to the Facility Assets or a Significant Portion
thereof, MCFT shall have no obligation to redeem or pay any amounts with respect
to a redemption (including, without limitation, principal, Make-Whole Amount, if
any, or interest) of any Secured Note in respect of, or to otherwise replace,
repair or rebuild, such Component or Components (or any Replacement Component or
Replacement Components), so long as the absence or condition of such Component
or Components (or any Replacement Component or Replacement Components) is not
material to the overall operation of the Facility Assets.
SECTION 12. EVENT OF LOSS.
-------------
12.01. Notice of Event of Loss. If there shall occur an Event of
-----------------------
Loss, MCFT shall promptly notify the Indenture Trustee of the occurrence
thereof.
12.02. Payment Upon Event of Loss, Etc. (a) If an Event of Loss
-------------------------------
with respect to the Facility Assets shall occur, unless the Lessee shall have
elected to rebuild the Facility Assets pursuant to Section 12.02(b), MCFT shall
pay to the Indenture Trustee as compensation for such Event of Loss, on the date
which is the latest monthly anniversary of the Basic Lease
EXHC-33
Term Commencement Date not later than 180 days after the date of such Event of
Loss, an amount in cash which is sufficient to redeem each outstanding Secured
Note required to be redeemed pursuant to Section 3.02 as a result of such Event
of Loss.
(b) At MCFT's option, MCFT may determine to rebuild or cause to be
rebuilt (or replace or cause to be replaced) the Facility Assets or Significant
Portion thereof suffering such Event of Loss so that the Facility Assets will
have at least the same value, utility and remaining useful life as the Facility
Assets had immediately prior to the Event of Loss (assuming the Facility Assets
have been maintained in accordance with the terms of Section 11.01 of this
Indenture) and each replacement shall immediately become subject to the Lien of
the Indenture to the same extent as Components or Replacement Components or
previous Modifications being replaced or rebuilt. In the event MCFT determines
to rebuild or cause to be rebuilt (or replace or cause to be replaced) the
Facility Assets in accordance with this Section 12.02(b), MCFT shall provide
written notice of such election within 120 days of the occurrence of the Event
of Loss; provided that MCFT may not elect the option set forth in this Section
--------
12.02(b) during such time as an Indenture Event of Default described in Sections
5.02(a), 5.02(g) or 5.02(h) of this Indenture, shall have occurred and be
continuing. In the event that MCFT shall have elected the option set forth in
this Section 12.02(b), no amounts shall be payable under Section 12.02(a) and
the Facility Assets shall remain subject to the Lien of the Indenture. Prior to
or at the time that MCFT determines to rebuild or cause to be rebuilt (or
replace or cause to be replaced) the Facility Assets or Significant Portion
thereof in accordance with this Section 12.02(b), MCFT will (i) enter into such
amendments to the Operative Documents as may be reasonably necessary, (ii)
furnish the Indenture Trustee with an appraisal as to the value and utility of
such Facility Assets or Significant Portion thereof and (iii) so long as the
Indenture shall not have been satisfied and discharged, cause a financing
statement or statements with respect to such Facility Assets or Significant
Portion thereof or other requisite documents or instruments to be filed in such
place or places as may be necessary in order to perfect the security interest
created by or pursuant to the Indenture.
12.03. Application of Other Payments upon the Occurrence of an Event
-------------------------------------------------------------
of Loss. Any amounts of condemnation or requisition proceeds received at any
- -------
time by the Indenture Trustee of MCFT as a result of the occurrence of an Event
of Loss shall be paid over to or retained, as the case may be, by MCFT.
12.04. Application of Payments Not Relating to an Event of Loss.
--------------------------------------------------------
Payments (except for payments under insurance policies described in Section 13
of this Article XI) received at any time by the Indenture Trustee or MCFT from
any Governmental Authority or other Person with respect to any destruction,
damage, loss, condemnation, confiscation, theft or seizure of or requisition of
title to or use of the Facility Assets or any part thereof not constituting an
Event of Loss shall be paid over to MCFT or as it may direct and all such
amounts paid to MCFT shall be retained by MCFT.
12.05. Other Dispositions. Notwithstanding the foregoing provisions
------------------
of this Section 12, so long as any Indenture Event of Default described in
Section 5.02(a), (g) or (h)
EXHC-34
shall have occurred and be continuing, any amount (except for payments under
insurance policies described in Section 13) that otherwise would be payable to
or for the account of, or that otherwise would be retained by, MCFT pursuant to
this Section 12 shall be paid to the Indenture Trustee as security for the
obligations of MCFT under this Indenture and, at such time thereafter as no
Indenture Event of Default described in Section 5.02(a), (g) or (h) shall be
continuing, such amount shall be paid promptly to MCFT or as it may direct,
provided that if any such amount has been so held as security for more than
- --------
ninety (90) days after an Indenture Event of Default described in Section
5.02(a), (g) or (h) shall have occurred and during which period, (i) the
Indenture Trustee shall not have been limited by operation of law or otherwise
from exercising remedies hereunder or (ii) the Indenture Trustee shall not have
commenced to exercise any remedy available to it under Section 5.04, then such
amount shall be paid to MCFT or as it may direct.
SECTION 13. INSURANCE.
---------
13.01. Coverage. (a) MCFT, at its own cost and expense, shall carry
--------
and maintain or cause to be carried and maintained at all times with respect to
the Facility Assets (i) insurance against loss or damage by fire, lightning and
other risks from time to time included under "all-risk" policies to the extent
such insurance is available, in such amounts and in such forms as is consistent
with MCFT's or its Affiliate's practice for other properties owned or leased by
MCFT or its Affiliates and (ii) public liability, including personal injury and
property damage and comprehensive general liability insurance against claims
arising out of or connected with the possession, use, leasing, operation or
condition of the Facility Assets in such amounts and in such forms as is
consistent with MCFT's or its Affiliate's practice for other properties similar
to the Facility Assets owned or leased by MCFT, or its Affiliates. The
insurance required under clause (i) or (ii) of this Section 13.01(a) may he
subject to deductible amounts and self-insured retentions as is consistent with
MCFT's or its Affiliate's practice for other properties similar to the Facility
Assets owned or leased by MCFT's Affiliates. Such insurance may be carried
under blanket policies maintained by or on behalf of MCFT so long as such
policies otherwise comply with the provisions of this Section 13.
(b) Any insurance carried in accordance with Sections 13.0l(a)(i) and
(ii) shall, to the extent the following can be effected without MCFT or the
Operator incurring any material costs in connection therewith, provide in the
policy or by special endorsement that:
(i) the Indenture Trustee (in its individual and trust capacities) and
each Loan Participant are included as additional insureds in respect of the
liability insurance carried in accordance with Section 13.01(a)(ii) and
shall provide that no such Person shall have any obligation or liability
for payment of premiums in respect of any insurance carried in accordance
with Section 13.01(a);
(ii) the insurer thereunder waives all rights of subrogation against
the Indenture Trustee (in its individual and trust capacities) and each
Loan Participant, and
EXHC-35
waives any right of set-off and counterclaim and any other right to
deduction whether by attachment or otherwise;
(iii) such insurance shall be primary without right of contribution
of any other insurance carried by or on behalf of the Indenture Trustee (in
its individual and trust capacities) and each Loan Participant;
(iv) the respective interests of the Indenture Trustee (in its
individual and trust capacities) and each Loan Participant under all
insurance policies required hereunder shall not be invalidated by any
action or inaction of MCFT or any other Person (other than, with respect to
any such insured, such insured) and such insurance shall insure the
Indenture Trustee and each Loan Participant as their interests may appear,
regardless of any breach or violation of any warranty, declaration or
condition contained in such policies by MCFT or any other Person (other
than, with respect to any such insured, such insured);
(v) if the insurers cancel such insurance for any reason whatsoever or
any materially adverse change is made in policy terms or conditions, or if
such insurance is allowed to lapse for nonpayment of premium, such
cancellation, change or lapse shall not be effective as to each Loan
Participant or the Indenture Trustee (in its individual and trust
capacities) for thirty days after receipt by each Loan Participant or the
Indenture Trustee (in its individual and trust capacities), respectively,
of written notice from such insurers of such cancellation, change or lapse;
and
(vi) with respect to all liability insurance, in as much as the
policies are written to cover more than one insured, all terms, conditions,
insuring agreements and endorsements, with the exception of the limits of
liability shall operate in the same manner as if there were a separate
policy covering each insured.
13.02. Adjustment of Losses. Losses, if any, with respect to the
--------------------
Facility Assets under any property damage policies required to be carried under
Section 13.01(a) of this Article XI shall be adjusted with the insurance
companies, including the filing of appropriate proceedings, by MCFT.
13.03. Application of Insurance Proceeds. All proceeds of insurance
---------------------------------
maintained pursuant to Section 13.01(a)(i) on account of any damage to or
destruction of the Facility Assets or any part thereof shall be paid over to
MCFT or as it may direct.
13.04. Additional Insurance. Nothing in this Section 13 shall
--------------------
prohibit MCFT or the Indenture Trustee from acquiring or maintaining, at its own
expense, additional insurance for its own account with respect to loss or damage
to the Facility Assets or any part thereof provided that any such additional
--------
insurance shall not interfere with or in any way limit insurance maintained
under Section 13.01(a) of this Article XI or increase the amount of any premium
EXHC-36
payable with respect to any such insurance. The proceeds of any such additional
insurance will be for the account of the party maintaining such additional
insurance.
13.05. Annual Insurance Report. Prior to December 31 of each year,
-----------------------
MCFT will provide to the Indenture Trustee an insurance report and certificate,
substantially in the form of the report and the certificate provided by MCFT
pursuant to Section 4.6 of the Participation Agreement, with respect to the
insurance then required to be maintained by MCFT pursuant to Section 13 of this
Article XI.
SECTION 14. RIGHTS TO SUBLEASE.
------------------
14.01. [Intentionally Omitted]
14.02. MCFT may, without the consent of the Indenture Trustee, at any
time and from time to time, lease the Facility Assets to another Person
(including to Operator pursuant to the Initial Sublease); provided that (i) such
--------
lease shall be subject and subordinate to this Indenture (and such lease shall
contain a provision providing that any sublease permitted thereunder shall be so
subject and subordinate), (ii) MCFT shall remain primarily liable under this
Indenture, and all terms and conditions hereof and of the other Operative
Documents shall be complied with as though no such lease was in existence and
(iii) the Guaranty shall remain in full force and effect. Any lessee under a
lease permitted hereunder may sublease the Facility Assets to another Person
under a sublease that otherwise complies with the provisions hereunder
applicable to a lease hereunder. MCFT shall give prompt written notice to the
Indenture Trustee of any lease or sublease of the Facility Assets.
18.01. [Intentionally Omitted]
18.02 Performance by Affiliates, Etc.; Rights. Any payment by the
---------------------------------------
Guarantor, any Affiliate of MCFT, any lessee or the operator of any amount
payable by MCFT under any Operative Document shall constitute, as between the
Indenture Trustee and MCFT, payment of such amount by MCFT for all purposes of
this Indenture (including, without limitation, Section 5.02), and any
performance by the Guarantor, any Affiliate of the MCFT, any lessee or the
Operator of any obligation required to be performed by MCFT under any Operative
Document shall constitute, as between MCFT and the Indenture Trustee,
performance by MCFT of such obligation for all purposes of this Indenture.
Except as otherwise expressly provided herein, any right granted to MCFT in this
Indenture shall grant MCFT the right to exercise such right or permit such right
to be exercised by any assignee, lessee or transferee or MCFT permitted
hereunder or the Operator. The inclusion of specific references to obligations
or rights of any such assignee, lessee or transferee or the Operator in certain
provisions of this Indenture shall not in any way prevent or diminish the
application of the provisions of the sentences immediately preceding with
respect to obligations or rights in respect of which specific reference to any
such assignee, lessee or transferee or the Operator has not been made in this
Indenture.
EXHC-37
SECTION 20. General. (a) As provided in the Relevant Date
-------
Supplement, effective upon the execution and delivery by MCFT and the Indenture
Trustee of the Relevant Date Supplement on the Relevant Date, MCFT assumed on a
full recourse basis all of the obligations of the Owner Trustee under this
Indenture and the Secured Notes and shall be entitled to all the rights and
benefits of the Owner Trustee hereunder and thereunder, in each case to the
extent provided for in Exhibit C hereto, and the Owner Trustee is, effective
upon such execution and delivery on the Relevant Date, released from all
obligations and rights under this Indenture and the Secured Notes; provided,
--------
however, that any obligations or liabilities of the Owner Trustee in its
- -------
individual capacity incurred on or prior to the Relevant Date or arising out of
or based upon events occurring on or prior to the Relevant Date, shall remain
the responsibility of the Owner Trustee.
(b) As provided in Section 2 of the Relevant Date Supplement, MCFT
confirmed and ratified the security interest which the Owner Trustee granted to
the Indenture Trustee pursuant to the Granting Clause of this Indenture in all
of the Owner Trustee's right, title and interest in and to the Indenture Estate
and MCFT explicitly agreed that MCFT is acquiring the Facility Assets identified
in such Section 2 subject to such security interest, which shall remain in full
force and effect until the Lien of this Indenture on the Facility Assets is
discharged in accordance with the terms hereof, and the Indenture Trustee
acknowledges that the Lease and the obligations of MCFT thereunder as the Lessee
have been terminated, except as specifically provided for therein. Each of MCFT
and the Indenture Trustee hereby agree that: MCFT is acquiring the Facility
Assets identified in such Section 2 subject to such security interest, which
shall remain in full force and effect until the Lien of this Indenture on the
Facility Assets is discharged in accordance with the terms hereof, and the
Indenture Trustee acknowledges that the Lease and the obligations of MCFT
thereunder as the Lessee have been terminated, except as specifically provided
for therein. Each of MCFT and the Indenture Trustee hereby agrees that:
(i) the comma at the end of clause (i) of the paragraph preceding the
Granting Clause of this Indenture shall after the Relevant Date be deemed
to be "and"; the reference to the Owner Trustee in clause (ii) of the
paragraph preceding the Granting Clause of this Indenture shall after the
Relevant Date be deemed to be a reference to MCFT; the phrase "(other than
the Tax Indemnity Agreement)" shall after the Relevant Date be deleted, the
phrase ", and (iii) the performance and observance by the Owner Participant
of its covenants and agreements in the Operative Documents (other than the
Tax Indemnity Agreement)" in the paragraph preceding the Granting Clause of
this Indenture shall after the Relevant Date be deemed to be deleted; and
the phrase "(the obligations described in the above clauses (i), (ii) and
(iii) collectively, the "Indenture Indebtedness")" in the paragraph
----------------------
preceding the Granting Clause of this Indenture shall after the Relevant
Date be deemed to be "(the obligations described in the above clauses (i)
and (ii) collectively, the "Indenture Indebtedness")";
----------------------
EXHC-38
(ii) the paragraph preceding clause (a) of the Granting Clause of this
Indenture shall be deemed amended to provide that any reference to the
Owner Trustee contained in such paragraph shall after the Relevant Date be
deemed to be a reference to MCFT;
(iii) clauses (a) through (j) of the Granting Clause of this
Indenture and the two paragraphs following clause (j) of such Granting
Clause shall be deemed amended to read as follows after the Relevant Date:
(a) the Facility Assets, which is both (x) described in Schedule
1 or as may be described in any Indenture Supplement or any other
supplement to this Indenture and (y) as to which MCFT agrees, pursuant to
Section 2 of the Relevant Date Supplement, is subject to the security
interest and Lien of the Indenture, including, without limitation, any
Component or Replacement Component thereof or Modification thereto which,
pursuant to the terms of Article XI of this Indenture, are at any time
subject to the Lien of this Indenture; and
(b) all rights or property which may be received upon the
exercise of any remedy or option contained in any of the above-described
instruments and all proceeds in whatever form of all or any part of any of
the foregoing;
(c) [Intentionally Omitted]
(d) [Intentionally Omitted]
(e) [Intentionally Omitted]
(f) [Intentionally Omitted]
(g) [Intentionally Omitted]
(h) [Intentionally Omitted]
SUBJECT to the rights of MCFT hereunder.
Section 21. Statement of Intention. The Indenture Trustee, MCFT and
----------------------
the Owner Trustee acknowledge that the intent of the provisions contained in
this Article XI is, following the termination of the Lease pursuant to Section
6.1 thereof or 16.2(d) of the Participation Agreement, to provide for the
Indenture Trustee to have rights similar to those enjoyed by the Owner Trustee
under the Lease and for MCFT to have rights similar to those enjoyed by it under
the Lease. The Indenture Trustee and MCFT hereby agree that this Article XI
shall be construed and interpreted in a manner consistent with the intent
expressed in this Section 21.
EXHC-39
(L) Sections 10.6 and 14 of the Participation Agreement shall read as
follows:
10.6. Further Assurances. MCFT, at its own cost and expense, will
------------------
cause to be promptly and duly taken, executed, acknowledged and delivered all
such further acts, documents and assurances as the Owner Trustee, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee reasonably may
request from time to time in order to carry out more effectively the intent and
purposes of this Agreement, the Pass Through Trust Agreement and the other
Operative Documents and the transactions contemplated hereby and thereby. MCFT,
at its own cost and expense, will cause the Indenture and supplements or
amendments thereto and restatements thereof and all financing statements,
fixture filings and other documents, to be recorded or filed at such places and
times and in such manner, as may be necessary or as may be reasonably requested
so long as any Secured Notes are Outstanding, by the Indenture Trustee or the
Pass Through Trustees in order to establish, preserve, protect and perfect the
mortgage and security interest of the Indenture Trustee in the Indenture Estate
granted or intended to be created under the Indenture and the Indenture
Trustee's rights under this Agreement and the other Operative Documents, subject
only to Permitted Liens.
10.13. Certain References and Obligations. (a) After the Relevant
----------------------------------
Date, the provisions of Section 10 which require or permit any action by, any
consent, approval or authorization of, the furnishing of any document, paper or
information to, or the performance of any other obligation to, the Owner Trustee
or the Owner Participant shall not be effective, and the Sections containing
such provisions shall be read as though there were no such references to any
such requirements or permissions.
Section 14. [Intentionally Omitted]
(M) (I) Section 1.4(c) of the Pass Through Trust Agreement shall read
as follows:
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates Outstanding have given any
direction, consent or waiver (a "Direction"), under this Agreement, Certificates
---------
owned by the Guarantor, MCFT or any Affiliate thereof shall be disregarded and
deemed not to be Outstanding for purposes of any such determination. In
determining whether the Trustee shall be protected in relying upon any such
Direction, only Certificates about which the Trustee knows to be so owned shall
be so disregarded. Notwithstanding the foregoing, (i) if any such Person owns
100% of the Certificates Outstanding, such Certificates shall not be so
disregarded as aforesaid, and (ii) if any amount of Certificates so owned by any
such Person have been pledged in good faith, such Certificates shall not be
disregarded as aforesaid if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Certificates and that
the pledgee is not the Guarantor, MCFT or any Affiliate thereof.
EXHC-40
(II) Sections 6.3 and 12.12 of the Pass Through Trust Agreement shall
read as follows:
Section 6.03. Judicial Proceedings Instituted by Trustee
------------------------------------------
(a) Trustee May Bring Suit. If there shall be a failure to make
----------------------
payment of the principal of or interest on any Secured Note held in the Trust
when due and payable, then the Trustee, in its own name, and as trustee of an
express trust, as holder of such Secured Notes, shall be, to the extent
permitted by and in accordance with the terms of the Note Documents, entitled
and empowered to institute any suits, actions or proceedings at law, in equity
or otherwise, for the collection of the sums so due and unpaid on such Secured
Notes and may prosecute any such claim or proceeding to judgment or final decree
with respect to the whole amount of any such sums so due and unpaid.
(b) Trustee May File Proofs of Claim; Appointment of Trustee as
-----------------------------------------------------------
Attorney-in-Fact in Judicial Proceedings. The Trustee in its own name, or as
- ----------------------------------------
trustee of an express trust, or as attorney-in-fact for the Certificateholders,
or in any one or more of such capacities (irrespective of whether distributions
on the Certificates shall then be due and payable, or the payment of the
principal on the Secured Notes shall then be due and payable, as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand to the Indenture Trustee for the payment of overdue
principal, premium (if any) or interest on the Secured Notes), shall be entitled
and empowered to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Certificateholders allowed in any receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial proceedings
relative to the Guarantor or the Indenture Trustee, their respective creditors
or property. Any receiver, assignee, trustee, liquidator, sequestrator (or
similar official) in any such judicial proceeding is hereby authorized by each
Certificateholder to make payments in respect of such claim to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Certificateholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel. Nothing contained in this Agreement shall be
deemed to give to the Trustee any right to accept or consent to any plan of
reorganization or otherwise by action of any character for any such proceeding
to waive or change in any way any right of any Certificateholder.
Section 12.12. Certain References and Obligations. Notwithstanding
----------------------------------
any provision to the contrary contained herein:
(a) The phrase "(with the consent of the Owner Trustee, if any,
relating to such Certificates, which consent shall not be unreasonably
withheld)" in Section 9.2 shall after the Relevant Date be deemed to be deleted;
and
(b) Sections 1.2, 7.2, 7.8(b), 7.8(c), 7.8(e), 7.8(f), 7.11(a),
7.11(d), 9.2, 11.1 and 12.3 shall be deemed amended to provide that any
reference to the Owner Trustee contained
EXHC-41
in such Sections (but not any reference to the "Owner Trustee or its designee
the Company" in such Sections) shall after the Relevant Date be deemed to be
deleted.
- --------------------------------------------------------------------------------
All provisions of this Indenture, the other Operative Documents and
the Pass Through Trust Agreement not specifically amended by operation of this
Exhibit C shall remain in full force and effect.
EXHC-42
Exhibit A to Exhibit C
to Indenture
------------
(FORM OF SERIES 1997-A SECURED NOTE)
MOBIL CHEMICAL FINANCE (TEXAS) INC.
Series 1997-A Secured Non-Recourse Note
Due _________ __, ____
Sale and Leaseback of Certain Paraxylene Production Facility Assets
-------------------------------------------------------------------
Located in Beaumont, Texas
--------------------------
Registered No. _____
$ ________ New York, New York
May __, 1997
Interest Rate Per Annum: ___ %
MOBIL CHEMICAL FINANCE (TEXAS) INC., a Delaware Corporation ("MCFT"),
----
for value received hereby promises to pay to State Street Bank and Trust
Company, or registered assigns, on or before _________ __, ____, as herein
provided, the principal sum of ____ DOLLARS ($_____), and to pay interest on
this Secured Note from time to time from the date hereof until the principal
amount hereof shall have been paid in full at the rate of [ ]% per annum (based
on a 360-day year of twelve 30-day months), and (to the extent not prohibited by
applicable law) to pay interest on any overdue principal and interest at the
Overdue Rate. The principal of this Secured Note shall be payable on each
January 2 and July 2, or both, in accordance with the schedule annexed hereto.
Subject to 2.03(b) of the Indenture, all accrued and unpaid interest on this
Secured Note shall be payable on each January 2 and July 2 in each year
commencing _________ __, ____.
This Secured Note is one of the Secured Notes issued by MCFT pursuant
to the terms of the Trust Indenture, Deed of Trust, Assignment of Lease, and
Security Agreement, dated as of May __, 1997, between the Owner Trustee and
State Street Bank and Trust Company, not in its individual capacity but solely
as Indenture Trustee thereunder for the Holder of this Secured Note and the
Holders of all other Secured Notes Outstanding thereunder (the "Indenture
---------
Trustee"), as such Trust Indenture, Deed of Trust, Assignment of Lease, and
- -------
Security Agreement has been assumed by MCFT pursuant to the Indenture Supplement
dated the date hereof between MCFT and the Indenture Trustee and as such Trust
Indenture, Deed of Trust, Assignment of Lease, and Security Agreement has been
amended pursuant to the Relevant Amendment (such Trust Indenture, Deed of Trust,
Assignment of Lease, and Security Agreement as so assumed and amended, the
"Indenture"). Capitalized terms used in this
---------
EXHC-43
Secured Note and not otherwise defined shall have the respective meanings
assigned to them in the Indenture.
Each payment of principal and interest shall be due and payable at the
times, places and in the manner as specified herein and in the Indenture.
Each payment on this Secured Note shall be applied, first, to the
-----
payment of accrued interest on this Secured Note to the date of such payment and
second, to the payment of any principal on this Secured Note then due hereunder.
- ------
This Secured Note is one of MCFT's Series 1997-A Secured Notes and the
Series 1997-A Secured Notes issued pursuant to the Indenture, which together
with any Additional Notes and any note or notes issued upon a transfer of, in
exchange or substitution respectively therefor in accordance with the terms of
the Indenture, are equally and ratably secured by the Indenture, except as
expressly provided therein. The property of MCFT (excluding Excepted Payments)
included in the Indenture Estate are pledged or mortgaged to the Indenture
Trustee to the extent provided in the Indenture as security for the payment of
the principal of and interest on this Secured Note and all other Secured Notes
issued and Outstanding from time to time under the Indenture. Reference is
hereby made to the Indenture for a description of the Indenture Estate, and for
a statement of the rights of the Holders of, and the nature and extent of the
security for, this Secured Note and of the rights of, and the nature and extent
of the security for, the Holders of the other Secured Notes and of certain
rights of MCFT, as well as for a statement of the terms and conditions of the
trust created by the Indenture, to all of which terms and conditions in the
Indenture the Holder agrees by its acceptance of this Secured Note.
This Secured Note is subject to redemption, in whole, all as specified
in Article III of the Indenture. This Secured Note is also subject to
refunding, or purchase, all as specified in Sections 3.02 and 3.05 of the
Indenture.
In the event an Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of the Secured Notes, together
with all accrued but unpaid interest, may be declared or may otherwise become
due and payable in the manner and with the effect provided in Article V of the
Indenture.
The Secured Notes are issuable only as registered notes. There shall
be maintained a note register for the purpose of registering transfers and
exchanges of the Secured Notes at the principal corporate trust office of the
Indenture Trustee, or of any successor Indenture Trustee, in the manner provided
in Section 2.05 of the Indenture. MCFT and the Indenture Trustee shall deem and
treat the Person in whose name this Secured Note is registered on the Note
Register as the absolute owner hereof (whether or not this Secured Note shall be
overdue) for the purpose of receiving payments of principal and interest and for
all other purposes, and neither MCFT nor the Indenture Trustee shall be affected
by any notice to the contrary.
EXHC-44
All payments of principal and interest to be made by MCFT and, except
as otherwise provided in the Operative Documents, all payments of any other
amounts payable by or on behalf of MCFT under the Secured Notes or under the
Indenture, shall be made only from the income and proceeds from the Indenture
Estate, and only to the extent that the Indenture Trustee shall have received
sufficient income and proceeds from the Indenture Estate to make such payments
in accordance with the Indenture. The Holder, by its acceptance of this Secured
Note, agrees that it will look solely to the income and proceeds from the
Indenture Estate to the extent available for payment as provided in the
Indenture, and that the Indenture Trustee (whether in its individual or trust
capacity) shall not be personally liable to the Indenture Trustee or to the
Holder for any amounts payable under this or any Secured Note, nor, except as
specifically provided in the Indenture or any other Operative Document, for any
amounts payable or any liability, under the Indenture.
This Secured Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been signed by the Indenture
Trustee.
No delay or omission of the Holder to exercise its rights hereunder
shall impair any such right or power or shall be construed to be a waiver of any
Indenture Event of Default, or an acquiescence therein. No waiver of any
Indenture Event of Default shall be construed, taken or held to be a waiver of
any other Indenture Event of Default, or a waiver, acquiescence in, or consent
to any further or succeeding Indenture Event of Default. MCFT waives demand,
notice and protest in any defense by reason of extension of time for payment or
other indulgence granted by the Holder.
This Secured Note shall be governed by and construed in accordance
with the laws of the State of New York.
EXHC-45
IN WITNESS WHEREOF, Mobil Chemical Finance (Texas) Inc. has caused
this Secured Note to be duly executed.
MOBIL CHEMICAL FINANCE (TEXAS) INC.
By: ______________________________
Title: ___________________________
EXHC-46
Certificate of Authentication
-----------------------------
This Secured Note is one of the Series 1997-A Secured Notes of Mobil
Chemical Finance (Texas) Inc. described in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY, not in its
individual capacity but solely as Indenture
Trustee
By: __________________________________________
Title: _______________________________________
EXHC-47
Series 1997-A Secured Notes
Amortization Schedule
---------------------
Regular Scheduled Payment
Distribution Percentage of Remaining
Date Unpaid Principal Amount
---- -----------------------
EXHC-48
Exhibit D
to Indenture
------------
TRUST INDENTURE, MORTGAGE, ASSIGNMENT OF
LEASE AND SECURITY AGREEMENT
SUPPLEMENT NO. ____
This Trust Indenture Supplement No. ____, dated ____________, between
[_________________________________], [____________] not in its individual
capacity, except as expressly provided herein, but solely as Owner Trustee under
the Trust Agreement (the "Owner Trustee") and STATE STREET BANK AND TRUST
-------------
COMPANY, a Massachusetts trust company, not in its individual capacity, except
as expressly provided herein, but solely as Indenture Trustee (the "Indenture
---------
Trustee"):
- -------
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, terms used herein and not otherwise defined shall have the respective
meanings assigned to them in the Indenture;
WHEREAS, the Indenture was recorded in [ ]; and
WHEREAS, the Indenture provides for the execution and delivery of one or more
supplements substantially in the form of this Indenture Supplement, which
supplement shall describe the property from time to time included in the
Indenture Estate;
NOW, THEREFORE, THIS INDENTURE SUPPLEMENT WITNESSETH, that, to secure (i) the
prompt payment when and as due and payable of the principal of and interest on
all the Secured Notes from time to time Outstanding under the Indenture and all
other amounts payable to the Holders thereunder, under the Participation
Agreement and under the Secured Notes, (ii) the performance and observance by
the Owner Trustee of all its covenants and agreements for the benefit of the
Indenture Trustee or the Holders in the Indenture, in the Participation
Agreement and in the Secured Notes contained, and (iii) the performance and
observance by the Owner Participant of its covenants and agreements in the
Participation Agreement contained, and for the uses and purposes and subject to
the terms and provisions of the Indenture, and in consideration of the premises
and of the covenants contained in the Indenture and of the acceptance of the
Secured Notes by the Holders thereof, the Owner Trustee, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, has
granted, assigned, bargained, released, conveyed, transferred, mortgaged,
hypothecated, pledged, confirmed and created a security interest in and hereby
presently grants, assigns, bargains, releases, conveys, transfers, mortgages,
hypothecates, pledges, confirms and creates a security interest in, to and for
the benefit of the Indenture Trustee in all of the estate right, title and
interest of the Owner Trustee in and to the Facility Assets described in Annex I
to this Indenture Supplement, including, without limitation, any Component or
Replacement Component thereof
or Modification thereto which, pursuant to the terms of the Lease, are at any
time the property of the Owner Trustee, and any Lease Supplement covering such
Asset.
TO HAVE AND TO HOLD the aforesaid property unto the Indenture Trustee, its
successors and assigns, for the benefit and security of the Holders, without any
priority of any Secured Note over any other except as otherwise expressly
provided in the Indenture, and for the uses and purposes and subject to the
terms and provisions set forth in the Indenture.
This Indenture Supplement shall be construed as supplemental to the Indenture
and shall form a part thereof, and the Indenture is hereby incorporated by
reference in this Indenture Supplement and is hereby ratified, approved and
confirmed.
This Indenture Supplement may be executed by the Owner Trustee and the Indenture
Trustee in separate counterparts, each of which, when so executed and delivered,
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
This Indenture Supplement has been delivered in the State of New York and shall
be governed by, and shall be construed in accordance with, the laws of the State
of New York except matters relating to title to the real and personal property
located in the State of Texas (the "Texas Property"), and the creation,
perfection, priority and enforcement of the lien on and the security interest in
the Texas Property, shall be governed by, and shall be construed in accordance
with, the laws of the State of Texas.
EXHD-2
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed, all as of the date first written above.
WILMINGTON TRUST COMPANY, not in its
individual capacity, except as expressly
provided herein, but solely as Owner Trustee
By:_________________________________
Its:________________________________
STATE STREET BANK AND TRUST COMPANY, not in
its individual capacity, except as expressly
provided herein, but solely as Indenture
Trustee
By:__________________________________
Its: ________________________________
EXHD-3
Exhibit E
to Indenture
------------
RELEVANT DATE SUPPLEMENT
This Relevant Date Supplement, dated _________, between Mobil Chemical
Finance (Texas) Inc., a Delaware corporation ("MCFT"), and STATE STREET BANK
----
AND TRUST COMPANY, a Massachusetts trust company, not in its individual
capacity, except as expressly provided herein, but solely as Indenture Trustee
(the "Indenture Trustee"):
-----------------
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Indenture;
WHEREAS, the Indenture was recorded [ ]; and
WHEREAS, the Indenture provides for the execution and delivery of a
supplement substantially in the form of this Supplement, which supplement shall
provide for certain matters relating to the assumption by MCFT of the
obligations of the Owner Trustee pursuant to Section 3.04 of the Indenture;
NOW, THEREFORE, the parties hereto agree as follows:
1. Effective as of the date of this Supplement (the "Relevant Date"),
-------------
MCFT assumes on a full recourse basis all of the obligations of the Owner
Trustee under the Indenture and the Secured Notes and shall be entitled to all
the rights and benefits of the Owner Trustee thereunder, in each case to the
extent provided for in Exhibit C thereto, and the Owner Trustee is, effective
upon the Relevant Date, released from all obligations and rights under the
Indenture and the Secured Notes; provided, however, that any obligations or
-------- -------
liabilities of the Owner Trustee in its individual capacity incurred on or prior
to the Relevant Date or arising out of or based upon events occurring on or
prior to the Relevant Date, shall remain the responsibility of the Owner
Trustee.
2. MCFT confirms and ratifies the security interest and Lien which the
Owner Trustee granted to the Indenture Trustee pursuant to the Granting Clause
of the Indenture in all of the Owner Trustee's right, title and interest in and
to the Indenture Estate and MCFT explicitly agrees that MCFT is acquiring the
Facility Assets, and all property relating thereto, constituting a portion of
the Indenture Estate, subject to such security interest and Lien, which shall
remain in full force and effect until the Lien of the Indenture on the Facility
Assets is discharged in accordance with the terms thereof, and the Indenture
Trustee acknowledges that the Lease and the obligations of MCFT thereunder as
the Lessee have been terminated, except as specifically provided for therein.
2. MCFT confirms and ratifies the security interest and Lien which
the Owner Trustee granted to the Indenture Trustee pursuant to the Granting
Clause of the Indenture in all of the Owner Trustee's right, title and interest
in and to its undivided interest in the Facility Assets and MCFT explicitly
agrees that MCFT is acquiring the Owner Trustee's interest in the Facility
Assets, and all property relating thereto subject to the Lien of the Indenture,
subject to such security interest and Lien, which shall remain in full force and
effect until the Lien of the Indenture in the Facility Assets is discharged in
accordance with the terms thereof, and the Indenture Trustee acknowledges that
the Lease and the obligations of MCFT thereunder as the Lessee have been
terminated, except as specifically provided for therein.
3. This Supplement shall be construed as supplemental to the
Indenture and shall form a part thereof, and the Indenture is hereby
incorporated by reference in this Supplement and is hereby ratified, approved
and confirmed.
4. This Supplement may be executed by MCFT, and the Indenture Trustee
in separate counterparts, each of which, when so executed and delivered, shall
be an original, but all such counterparts shall together constitute but one and
the same instrument.
5. This Supplement has been delivered in the State of New York and
shall be governed by, and shall be construed in accordance with, the laws of the
State of New York except matters relating to title to the real and personal
property located in the State of Texas (the "Texas Property"), and the creation,
--------------
perfection, priority and enforcement of the lien on and the security interest in
the Texas Property, shall be governed by, and shall be construed in accordance
with, the laws of the State of Texas.
EXHE-2
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed, all as of the date first written above.
MOBIL CHEMICAL FINANCE (TEXAS) INC.
By:_________________________________
Its:________________________________
STATE STREET BANK AND TRUST COMPANY, not in
its individual capacity, except as expressly
provided herein, but solely as Indenture
Trustee
By:_________________________________
Its: ________________________________
EXHE-3