1
Exhibit 4.8a
EXECUTION COPY
INDENTURE OF TRUST
AND SECURITY AGREEMENT
(Kintigh A-1)
Dated as of May 1, 1999
between
KINTIGH FACILITY
TRUST A-1,
as Owner Trust
and
BANKERS TRUST COMPANY,
as Indenture Trustee
KINTIGH
COAL-FIRED GENERATION FACILITY
2
TABLE OF CONTENTS
Page
----
SECTION 1 DEFINITIONS ..................................................................................................... 5
SECTION 2 THE LESSOR NOTES ................................................................................................ 5
Section 2.1 Limitation on Notes ................................................................................. 5
Section 2.2 Lessor Notes ........................................................................................ 5
Section 2.3 Execution and Authentication of Notes ............................................................... 6
Section 2.4 Issuance and Terms of the Lessor Notes .............................................................. 6
Section 2.5 Payments from Indenture Estate Only; No Personal Liability of the Owner Trust, the
Owner Participant or the Indenture Trustee ..................................................... 7
Section 2.6 Method of Payment ................................................................................... 8
Section 2.7 Application of Payments ............................................................................. 9
Section 2.8 Registration, Transfer and Exchange of Notes ........................................................ 9
Section 2.9 Mutilated, Destroyed, Lost or Stolen Notes .......................................................... 10
Section 2.10 Redemptions; Assumption ............................................................................ 10
Section 2.11 Payment of Expenses on Transfer .................................................................... 13
Section 2.12 Additional Lessor Notes ............................................................................ 13
Section 2.13 Restrictions on Transfer Resulting from Federal Securities Laws; Legend ............................ 15
Section 2.14 Security for and Parity of Notes ................................................................... 15
Section 2.15 Acceptance of the Indenture Trustee ................................................................. 16
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM INDENTURE ESTATE ........................................... 16
Section 3.1 Distribution of Basic Rent .......................................................................... 16
Section 3.2 Payments Following Event of Loss or Other Early Termination ......................................... 17
Section 3.3 Payments After Indenture Event of Default ........................................................... 18
Section 3.4 Investment of Certain Payments Held by the Indenture Trustee ........................................ 19
Section 3.5 Application of Certain Other Payments ............................................................... 19
Section 3.6 Other Payments ...................................................................................... 20
Section 3.7 Excepted Payments ................................................................................... 20
Section 3.8 Distributions to the Owner Trust .................................................................... 20
Section 3.9 Payments Under Assigned Documents ................................................................... 20
Section 3.10 Disbursement of Amounts Received by the Indenture Trustee .......................................... 21
SECTION 4 DEFAULTS; REMEDIES OF INDENTURE TRUSTEE ......................................................................... 21
Section 4.1 Occurrence of Indenture Event of Default ............................................................ 21
Section 4.2 Remedies of the Indenture Trustee ................................................................... 23
Section 4.3 Right to Cure Certain Lease Events of Default ....................................................... 25
Section 4.4 Rescission of Acceleration .......................................................................... 27
Section 4.5 Return of Indenture Estate, Etc. .................................................................... 27
Section 4.6 Power of Sale and Other Remedies .................................................................... 28
Section 4.7 Appointment of Receiver ............................................................................. 29
Section 4.8 Remedies Cumulative ................................................................................. 30
Indenture
iii
3
Section 4.9 Waiver of Various Rights by the Owner Trust ......................................................... 30
Section 4.10 Discontinuance of Proceedings ...................................................................... 30
Section 4.11 No Action Contrary to the Lessee's Rights Under the Lease .......................................... 31
Section 4.12 Right of the Indenture Trustee to Perform Covenants, Etc. .......................................... 31
Section 4.13 Further Assurances ................................................................................. 31
Section 4.14 Waiver of Past Defaults ............................................................................ 31
SECTION 5 DUTIES OF INDENTURE TRUSTEE; .................................................................................... 32
Section 5.1 Notice of Action Upon Indenture Event of Default .................................................... 32
Section 5.2 Actions upon Instructions Generally ................................................................. 32
Section 5.3 Actions Upon Payment of Notes or Termination of Lease ............................................... 32
Section 5.4 Compensation of the Indenture Trustee; Indemnification .............................................. 32
Section 5.5 No Duties Except as Specified; No Action Except Under Lease, Indenture or
Instructions ................................................................................... 33
Section 5.6 Certain Rights of the Owner Trust ................................................................... 33
Section 5.7 Restrictions on Dealing with Indenture Estate ....................................................... 35
Section 5.8 Filing of Financing Statements and Continuation Statements .......................................... 35
SECTION 6 INDENTURE TRUSTEE AND OWNER TRUST ............................................................................... 36
Section 6.1 Acceptance of Trusts and Duties ..................................................................... 36
Section 6.2 Absence of Certain Duties ........................................................................... 37
Section 6.3 Representations, Warranties and Covenants ........................................................... 38
Section 6.4 No Segregation of Moneys; No Interest ............................................................... 39
Section 6.5 Reliance; Agents; Advice of Experts ................................................................. 39
SECTION 7 SUCCESSOR INDENTURE TRUSTEES AND SEPARATE TRUSTEES .............................................................. 40
Section 7.1 Resignation or Removal of the Indenture Trustee; Appointment of Successor ........................... 40
Section 7.2 Appointment of Additional and Separate Trustees ..................................................... 41
SECTION 8 SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS ................................................ 43
Section 8.1 Supplemental Indentures and Other Amendments With Consent, Conditions and
Limitations .................................................................................... 43
Section 8.2 Supplemental Indentures and Other Amendments Without Consent ........................................ 44
Section 8.3 Conditions to Action by the Indenture Trustee ....................................................... 44
SECTION 9 MISCELLANEOUS ................................................................................................... 45
Section 9.1 Surrender, Defeasance and Release ................................................................... 45
Section 9.2 Conveyances Pursuant to Section 5.2 of Site Lease ................................................... 46
Section 9.3 Appointment of the Indenture Trustee as Attorney; Further Assurances ................................ 46
Section 9.4 Indenture for Benefit of Certain Persons Only ....................................................... 47
Section 9.5 Notices, Furnishing Documents, etc. ................................................................. 47
Section 9.6 Severability ........................................................................................ 48
Section 9.7 Limitation of Liability ............................................................................. 48
Section 9.8 Written Changes Only ................................................................................ 48
Indenture
iv
4
Section 9.9 Counterparts ........................................................................................ 49
Section 9.10 Successors and Permitted Assigns ................................................................... 49
Section 9.11 Headings and Table of Contents ..................................................................... 49
Section 9.12 Governing Law ...................................................................................... 49
Section 9.13 Reorganization Proceedings with Respect to the Trust Estate ........................................ 49
Section 9.14 Withholding Taxes; Information Reporting ........................................................... 50
EXHIBITS
Exhibit - A Description of Facility
Exhibit - B Description of Facility Site
Exhibit - C Form of 2017 Lessor Note
Exhibit - D Form of 2029 Lessor Note
Indenture
v
5
INDENTURE OF TRUST AND SECURITY AGREEMENT
(Kintigh A-1)
This INDENTURE OF TRUST AND SECURITY AGREEMENT (Kintigh A-1)
(as amended, supplemented or otherwise modified from time to time in accordance
with the provisions hereof, this "Indenture"), dated as of May 1, 1999, between
KINTIGH FACILITY TRUST A-1, a Delaware business trust, as grantor (the "Owner
Trust"), and BANKERS TRUST COMPANY, as grantee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Owner Trust and the Lessee will enter into that
certain Facility Lease Agreement (Kintigh A-1), dated as of May 1, 1999 (as
amended, supplemented or otherwise modified from time to time in accordance with
the provisions thereof, the "Lease"), pursuant to which the Owner Trust will
lease to the Lessee and the Lessee will lease from the Owner Trust for a term of
years the Owner Trust's 25.000% undivided interest as tenant in common in and to
the Facility with the right to nonexclusive possession thereof (the "Undivided
Interest");
WHEREAS, AEE will lease a corresponding 25.000% undivided
interest as tenant in common in and to the Facility Site with the right to
nonexclusive possession thereof (the "Ground Interest") to the Owner Trust
pursuant to the Site Lease and the Owner Trust simultaneously therewith will
sublease the Ground Interest back to AEE pursuant to the Site Sublease;
WHEREAS, the Facility is more particularly described in
Exhibit A attached hereto and made a part hereof and is located on the Facility
Site, which is more particularly described in Exhibit B attached hereto and made
a part hereof;
WHEREAS, the Owner Trust was authorized and directed in the
Trust Agreement (Kintigh A-1), dated as of May 1, 1999 (the "Trust Agreement"),
between Wilmington Trust Company and the Owner Participant to execute and
deliver this Indenture;
WHEREAS, in connection with the transactions contemplated by
the Trust Agreement, the Owner Trust entered into the Participation Agreement;
WHEREAS, the Owner Trust, pursuant to the Trust Agreement and
the Participation Agreement, will purchase the Undivided Interest from NYSEG and
NGE and concurrently therewith will lease such Undivided Interest to the Lessee
pursuant to the Lease;
WHEREAS, in accordance with this Indenture, the Owner Trust
will execute and deliver the Lessor Notes, the proceeds of which will be used by
the Owner Trust to finance a portion of the Purchase Price, and will grant to
the Indenture Trustee the security interests herein provided;
Indenture
6
WHEREAS, this Indenture is regarded as a security agreement
under the Uniform Commercial Code of the State of New York; and
WHEREAS, the Owner Trust and the Indenture Trustee desire to
enter into this Indenture, to, among other things, provide for (a) the issuance
by the Owner Trust of the Lessor Notes, (b) the assignment by the Owner Trust to
the Indenture Trustee, as part of the Indenture Estate, of the Undivided
Interest, the Ground Interest, the Owner Trust's interest as tenant under the
Site Lease, the Owner Trust's interest as landlord and sublandlord under the
Lease and the Site Sublease, respectively, the Owner Trust's interest as
assignee of the Lessee's interest in any sublease hereinafter entered into by
the Lessee as sublessor, the Owner Trust's interest under the Participation
Agreement and all payments and other amounts received or receivable hereunder or
thereunder in accordance herewith (excluding Excepted Payments and except as
otherwise provided herein or therein) as security for, inter alia, the Owner
Trust's obligations to and for the benefit of the Noteholders and for the
benefit and security of such Noteholders.
GRANTING CLAUSE:
NOW, THEREFORE, in order to secure the indebtedness and other
obligations, agreements, and covenants of the Owner Trust set forth hereinafter
and in the Notes, the Operative Documents and the other documents, certificates
and agreements delivered in connection therewith, the Owner Trust does hereby
irrevocably grant unto the Indenture Trustee, and the successors and permitted
assigns of the Indenture Trustee, for the benefit of the holders of the Notes, a
Lien on and security interest in all of the Owner Trust's right, title and
interest in and to the Indenture Estate, including all accounts, money, chattel
paper, securities, instruments, documents, deposit accounts, certificates of
deposit, letters of credit, advices of credit, banker's acceptances, general
intangibles, contract rights, goods, investment property, land, easements,
rights, improvements, personal property, fixtures, equipment and appurtenances
and other property consisting of, arising from or relating to the following
described property and interests and estates, whether now held or hereafter
acquired:
(1) the Undivided Interest and the leasehold estate in the
Ground Interest granted by the Site Lease;
(2) all right, title and interest of the Owner Trust in, to
and under the Lease, the Site Lease, the Site Sublease, the
Participation Agreement, the Facilities Support Agreement, the Coal
Hauling Agreement, any Payment Undertaking Agreement (including any
Rent Reserve Account Payment Undertaking Agreement and any Special Rent
Reserve Account Payment Undertaking Agreement) (collectively, the
"Assigned Documents"), including, without limitation, (i) all amounts
of Basic Rent, Supplemental Rent, including, without limitation,
Termination Value, insurance proceeds and condemnation, requisition and
other awards and payments of any kind for or with respect to any part
of the Indenture Estate as contemplated in the Assigned Documents, (ii)
all right, title and interest of the Owner Trust as assignee of the
Lessee's interest in any sublease hereafter entered into by the Lessee
as sublessor, and (iii) all rights of the Owner Trust to exercise any
election or option or to make any decision or determination or to give
or receive any notice, consent, waiver or approval or to take any other
action
Indenture
2
7
under or in respect of any Assigned Document, as well as all the
rights, powers and remedies on the part of the Owner Trust, whether
arising under any Assigned Document or by statute or at law or equity
or otherwise, arising out of any Lease Material Default or Lease Event
of Default;
(3) all rents (including Basic Rent and Supplemental Rent),
issues, profits, royalties, products, revenues and other benefits of
the Indenture Estate from time to time accruing and all property from
time to time subjected or required to be subjected to the Lien of this
Indenture and all the estate, right, title, interest, property,
possession, claim and demand whatsoever at law as well as in equity of
the Owner Trust in and to the same (the "Revenues");
(4) all moneys, securities and other investment property
deposited or required to be deposited with the Indenture Trustee
pursuant to any term of this Indenture or any other Assigned Document
and held or required to be held by or for the benefit of the Indenture
Trustee hereunder;
(5) all right, title and interest of the Owner Trust in and to
any right to restitution from the Lessee in respect of any
determination of invalidity of any Assigned Document;
(6) all other personal property, rights and privileges of
every kind and description, whether tangible or intangible, and all
interest therein now held or hereafter acquired by the Owner Trust
pursuant to any term of any Assigned Document, whether located on the
Facility Site or elsewhere and whether or not subjected to the Lien of
this Indenture by a supplement hereto; and
(7) all proceeds of the foregoing;
BUT EXCLUDING from the Indenture Estate all Excepted Payments
and SUBJECT TO the Excepted Rights and the rights of the Owner Trust hereunder,
including, without limitation, Section 4.3 (which collectively, including all
property hereafter specifically subjected to the security interest created by
this Indenture by any supplement hereto, are included within, and are hereafter
referred to as, the "Indenture Estate");
TO HAVE AND TO HOLD the Indenture Estate and all parts,
rights, members and appurtenances thereof, to the use, benefit and on behalf of
the Indenture Trustee and the successors and permitted assigns of the Indenture
Trustee forever.
This Indenture is intended to constitute a security agreement
as required under the Uniform Commercial Code of the State of New York, but is
not intended to create a mortgage lien on real property. Simultaneous with the
execution and delivery of this Indenture, the Owner Trust will execute and
deliver the Mortgage granting a Lien on the Mortgaged Property. This Indenture
is given to secure the payment of the following described indebtedness
(hereinafter collectively referred to as the "Secured Indenture Indebtedness"):
Indenture
3
8
(a) The indebtedness evidenced by the Lessor Notes, together
with interest thereon at the rate provided in each such Lessor Note and
premium thereon and together with any and all renewals, modifications,
consolidations and extensions of the indebtedness evidenced by such
Lessor Notes;
(b) Any and all additional advances made by the Indenture
Trustee to protect or preserve the Indenture Estate or the security
interest and other interests created hereby on the Indenture Estate or
for taxes, assessments or insurance premiums as hereinafter provided or
for performance of any of the Owner Trust's obligations hereunder or
for any other purpose provided herein, including, without limitation,
advances made pursuant to Section 4.12 (whether or not the Owner Trust
remains the owner of the Indenture Estate at the time of such
advances);
(c) Any and all expenses incident to the collection of the
Secured Indenture Indebtedness and the foreclosure hereof by action in
any court or by exercise of the power of sale herein contained;
(d) Any and all other indebtedness now owing or which may
hereafter be owing by the Owner Trust to the Indenture Trustee, whether
evidenced by Additional Lessor Notes pursuant to Section 2.12 or
otherwise, however and whenever incurred or evidenced, whether direct
or indirect, absolute or contingent, due or to become due, together
with any and all renewal or renewals and extension or extensions of
said other indebtedness; and
(e) Any and all Additional Lessor Notes, together with
interest thereon at the rate provided in each such Additional Lessor
Note and premium thereon (if any) and together with any and all
renewals, modifications, consolidations and extensions of the
indebtedness evidenced by such Additional Lessor Notes, and principal
of such Additional Lessor Notes being due and payable as provided in
each such Additional Lessor Note.
PROVIDED, HOWEVER, that if the principal, interest and any
other amounts to become due in respect of all the Notes and all other amounts
due the holders of the Notes and the Indenture Trustee at the time and in the
manner required hereby and by the Notes, the Lease and the Participation
Agreement (but not including Excepted Payments) shall have been paid and all the
covenants, agreements, terms and provisions hereunder or thereunder to be
performed or complied with by the Owner Trust and the Lessee shall have been
performed or complied with, then this Indenture shall be surrendered and
canceled and upon such surrender and cancellation the rights hereby and thereby
granted and assigned shall terminate and cease.
The Indenture Trustee, for itself and its successors and
permitted assigns, hereby agrees that it shall hold the Indenture Estate, in
trust for the benefit and security of (i) the holders from time to time of the
Notes from time to time outstanding, without any priority of any one Note over
any other except as herein otherwise expressly provided and (ii) the Indenture
Trustee, and for the uses and purposes and subject to the terms and provisions
set forth in this Indenture (it being understood that the Indenture Trustee
shall have no obligation or
Indenture
4
9
liability under any Assigned Document by reason of or arising out of the
assignment thereof pursuant to this Indenture, nor be required or obligated in
any manner, except as herein expressly provided, to perform or fulfill any
obligation of the Owner Trust under or pursuant to any such Assigned 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 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 Trust, for itself and its successors
and permitted assigns, agrees that all Notes are to be issued and delivered and
that all property subject or to become subject hereto is to be held subject to
the further covenants, conditions, uses and trusts hereinafter set forth, and
the Owner Trust, for itself and its successors and permitted assigns, hereby
covenants and agrees with the Indenture Trustee, for the benefit and security of
the holders from time to time of the Notes from time to time outstanding, to
protect the security of this Indenture, and the Indenture Trustee agrees to
accept the trusts and duties hereinafter set forth, as follows:
SECTION 1
DEFINITIONS
Capitalized terms used in this Indenture, including the
recitals and the Granting Clause, and not otherwise defined herein shall have
the respective meanings set forth in Appendix A of the Participation Agreement
(Kintigh A-1), dated as of May 1, 1999 (the "Participation Agreement"), among
AEE, the Owner Trust, the Owner Participant and Bankers Trust Company, as
Indenture Trustee and as Pass Through Trustees, unless the context hereof shall
otherwise require, a copy of which Appendix A is attached hereto. The general
provisions of Appendix A to the Participation Agreement shall apply to terms
used in this Indenture and specifically defined herein.
SECTION 2
THE LESSOR NOTES
Section 2.1 Limitation on Notes. No Notes may be issued under
the provisions of, or become secured by, this Indenture except in accordance
with the provisions of this Section 2. The aggregate principal amount of the
Notes which may be authenticated and delivered and outstanding at any one time
under this Indenture shall be limited to the aggregate principal amount of the
Lessor Notes issued on the Closing Date to the appropriate Pass Through Trustee
plus the aggregate principal amount of Additional Lessor Notes issued pursuant
to Section 2.12.
Section 2.2 Lessor Notes. There are hereby created and
established hereunder each of (a) a note in the aggregate principal amount of
$41,382,790.13 with a final maturity date of January 2, 2017, substantially in
the form set forth in Exhibit C to this Indenture (the "2017
Indenture
5
10
Lessor Note") and (b) a note in the aggregate principal amount of $52,327,807.90
with a final maturity date of January 2, 2029, substantially in the form set
forth in Exhibit D to this Indenture (the "2029 Lessor Note" and, together with
the 2017 Lessor Note, the "Lessor Notes" or, individually, a "Lessor Note").
Section 2.3 Execution and Authentication of Notes. Each Note
issued hereunder shall be executed and delivered on behalf of the Owner Trust by
one of its authorized signatories, be in fully registered form, be dated the
date of original issuance of such Note and be in denominations of not less than
$100,000. Any Note may be signed by a Person who, at the actual date of the
execution of such Note, is an authorized signatory of the Owner Trust although
at the nominal date of such Note such Person may not have been an authorized
signatory of the Owner Trust. No Note shall be secured by or be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears thereon a certificate of authentication in the form contained on
such Note (or in the appropriate form provided for in any supplement hereto
executed pursuant to Section 2.12), executed by the Indenture Trustee by the
manual signature of one of its authorized officers, and such certificate upon
any Note shall be conclusive evidence that such Note has been duly authenticated
and delivered hereunder. The Indenture Trustee shall authenticate and deliver
the 2017 Lessor Note and the 2029 Lessor Note for original issue in the
respective aggregate principal amount specified in Section 2.2, upon a written
order of the Owner Trust signed by the Owner Trust The Indenture Trustee shall
authenticate and deliver Additional Lessor Notes, upon a written order of the
Owner Trust executed by the Owner Trust and satisfaction of the conditions
specified in Section 2.12. Such order shall specify the principal amount of the
Additional Lessor Notes to be authenticated and the date on which the original
issue of Additional Lessor Notes is to be authenticated.
Section 2.4 Issuance and Terms of the Lessor Notes.
(a) Issuance of the Lessor Notes. There shall be issued to the
appropriate Pass Through Trustee the 2017 Lessor Note and the 2029 Lessor Note,
as the case may be, dated the Closing Date. The aggregate amount of the Lessor
Notes shall be in the principal amount equal to the principal amount of the loan
made to the Owner Trust pursuant to Section 2.1 of the Participation Agreement.
(b) Principal and Interest. The principal amount of the 2017
Lessor Note shall be due and payable in installments having a final payment date
of January 2, 2017 and the principal amount of the 2029 Lessor Note shall be due
and payable in installments having a final payment date of January 2, 2029. The
principal of the Lessor Notes shall be due and payable in installments on the
respective dates and in the respective amounts set forth in Schedule 1 attached
to the respective Lessor Note on the date of issuance and authentication
thereof. Schedule 1 to such Lessor Note to the contrary notwithstanding, the
last installment of principal of such Lessor Note shall be equal to the then
unpaid balance of the principal of such Lessor Note. Each Lessor Note shall bear
interest on the principal amount thereof from time to time outstanding from and
including the date of issuance thereof (computed on the basis of a 360-day year
of twelve 30-day months) until paid in full at the rate set forth in such Lessor
Note. Interest on each Lessor Note shall be due and payable in arrears
commencing on January 2, 2000, and semi-annually on each January 2 and July 2
thereafter until paid in full. If any day on
Indenture
6
11
which principal, premium, if any, or interest on the Lessor Notes is payable is
not a Business Day, payment thereof shall be made on the next succeeding
Business Day with the same effect as if made on the date on which such payment
was due (without, in the case of any such payment, the payment or accrual of any
interest or any late payment or other charge, provided that such payment is made
on the next succeeding Business Day).
(c) Overdue Payments. Interest (computed on the basis of a
360-day year of twelve 30-day months) on any overdue principal and premium, if
any, and, to the extent permitted by Applicable Law, on overdue interest shall
be paid on demand at the Overdue Rate.
Section 2.5 Payments from Indenture Estate Only; No Personal
Liability of the Owner Trust, the Owner Participant or the Indenture Trustee.
(a) Except as otherwise specifically provided in this
Indenture and in the Participation Agreement, all payments to be made by the
Indenture Trustee in respect of the Notes or under this Indenture shall be made
only from the Indenture Estate, and the Owner Trust shall have no obligation for
the payment thereof except to the extent that there shall be sufficient income
or proceeds from the Indenture Estate to make such payments in accordance with
the terms of Section 3; and the Owner Participant shall not have any obligation
for payments in respect of the Notes or under this Indenture.
(b) The Indenture Trustee and each Noteholder, by its
acceptance thereof, agrees that it will look solely to the income and proceeds
from the Indenture Estate to the extent available for distribution to the
Indenture Trustee or such Noteholder, as the case may be, as herein provided and
that, except as expressly provided in this Indenture or the Participation
Agreement, neither the Owner Participant, the Owner Trust, the Lease Indenture
Company, nor the Indenture Trustee shall be personally liable to such Noteholder
or the Indenture Trustee for any amounts payable hereunder, under such Note or
for any performance to be rendered under any Assigned Document or for any
liability under any Assigned Document.
(c) Without prejudice to the foregoing, the Owner Trust will
duly and punctually pay or cause to be paid the principal of, premium, if any,
and interest on all Notes according to their terms and the terms of this
Indenture. Nothing contained in this Section 2.5 limiting the liability of the
Owner Trust shall derogate from the right of the Indenture Trustee and the
Noteholders to proceed against the Indenture Estate to secure and enforce all
payments and obligations due hereunder and under the Assigned Documents and the
Notes.
(d) In furtherance of the foregoing, to the fullest extent
permitted by law, each Noteholder (and each assignee of such Person), by its
acceptance thereof, agrees, as a condition to its being secured under this
Indenture, that neither it nor the Indenture Trustee will exercise any statutory
right to negate the agreement set forth in this Section 2.5.
(e) Nothing herein contained shall be interpreted as affecting
the representations, warranties or agreements of the Owner Trust set forth in
the Participation Agreement.
Indenture
7
12
Section 2.6 Method of Payment.
(a) The Owner Trust shall maintain an office or agency where
Notes may be presented for payment (the "Paying Agent"). The Owner Trust may
have one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Owner Trust initially appoints the Indenture
Trustee as Paying Agent in connection with the Notes.
(b) The Owner Trust shall deposit with the Paying Agent a sum
sufficient to pay all amounts due and owing under the Notes when the same shall
so become due. The Owner Trust shall require each Paying Agent (other than the
Indenture Trustee) to agree in writing that the Paying Agent shall hold in trust
for the benefit of Noteholders or the Indenture Trustee all money held by the
Paying Agent for the payment of principal of or interest and premium, if any, on
the Notes and shall notify the Indenture Trustee of any default by the Owner
Trust in making any such payment.
(c) The principal of and premium, if any, and interest on each
Note shall be paid by the Indenture Trustee from amounts available in the
Indenture Estate on the dates provided in the Notes by mailing a check for such
amount, payable in New York Clearing House funds, to each Noteholder at the last
address of each such Noteholder appearing on the Note Register, or by whichever
of the following methods shall be specified by notice from a Noteholder to the
Indenture Trustee: (i) by crediting the amount to be distributed to such
Noteholder to an account maintained by such Noteholder with the Indenture
Trustee, (ii) by making such payment to such Noteholder in immediately available
funds at the Indenture Trustee Office, or (iii) in the case of the Lessor Notes
and in the case of other Notes, if such Noteholder is one of the Pass Through
Trustees, or a bank or other institutional investor, by transferring such amount
in immediately available funds for the account of such Noteholder to the banking
institution having bank wire transfer facilities as shall be specified by such
Noteholder, such transfer to be subject to telephonic confirmation of payment.
(d) Any payment made under any of the foregoing methods set
forth in clause (c) above, shall be made without any presentment or surrender of
such Note, unless otherwise specified by the terms of the Note. Upon final
payment in respect of any Note, such Note shall be surrendered to the Indenture
Trustee.
(e) All payments in respect of the Notes shall be made (i) as
soon as practicable prior to the close of business on the date the amounts to be
distributed by the Indenture Trustee are actually received by the Indenture
Trustee if such amounts are received by 2:00 p.m., New York City time, on a
Business Day, or (ii) on the next succeeding Business Day if received after such
time or on any day other than a Business Day. One or more of the foregoing
methods of payment may be specified in a Note.
(f) Prior to due presentment for registration of transfer of
any Note, the Owner Trust and the Indenture Trustee may deem and treat the
Person in whose name any Note is registered on the Note Register as the absolute
owner and holder of such Note for the purpose of receiving payment of all
amounts payable with respect to such Note and for all other purposes, and
neither the Owner Trust nor the Indenture Trustee shall be affected by any
notice
Indenture
8
13
to the contrary. All payments made on any Note in accordance with the provisions
of this Section 2.6 shall be valid and effective to satisfy and discharge the
liability on such Note to the extent of the sums so paid and neither the
Indenture Trustee nor the Owner Trust shall have any liability in respect of
such payment.
Section 2.7 Application of Payments. Each payment on any
outstanding Note shall be applied, first, to the payment of accrued interest
(including interest on overdue principal and, to the extent permitted by
Applicable Law, overdue interest) on such Note to the date of such payment,
second, to the payment of the principal amount of, and premium, if any, on such
Note then due (including any overdue installments of principal) thereunder and,
third, to the extent permitted by Section 2.10 of this Indenture, the balance,
if any, remaining thereafter, to the payment of the principal amount of, and
premium, if any, on such Note. The order of application of payments prescribed
by this Section 2.7 shall not be deemed to supersede any provision of Section 3
regarding application of funds.
Section 2.8 Registration, Transfer and Exchange of Notes.
(a) The Owner Trust shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange (the
"Registrar"). The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Owner Trust may have one or more co-registrars.
(b) The Owner Trust initially appoints the Indenture Trustee
as Registrar in connection with the Notes. The Indenture Trustee shall maintain
at the Indenture Trustee Office a register in which it will provide for the
registration, registration of transfer and exchange of Notes (such register
being referred to herein as the "Note Register"). If any Note is surrendered at
said office for registration of transfer or exchange (accompanied by a written
instrument of transfer duly executed by or on behalf of the holder thereof,
together with the amount of any applicable transfer taxes), the Owner Trust will
execute and the Indenture Trustee will authenticate and deliver, in the name of
the designated transferee or transferees, if any, one or more new Notes (subject
to the limitations specified in Sections 2.3 and 2.13) in any denomination or
denominations not prohibited by this Indenture, as requested by the Person
surrendering the Note, dated the same date as the Note so surrendered and of
like tenor (including maturity) and aggregate unpaid principal amount. Any Note
or Notes issued in a registration of transfer or exchange shall be entitled to
the same security and benefits to which the Note or Notes so transferred or
exchanged were entitled, including, without limitation, rights as to interest
accrued but unpaid and to accrue so that there will not be any loss or gain of
interest on the Note or Notes surrendered.
(c) Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by the holder thereof or his attorney duly authorized in writing, and
the Indenture Trustee may require an opinion of counsel as to compliance of any
such transfer with the Securities Act. The Indenture Trustee shall make a
notation on each new Note of the amount of all payments of principal previously
made on the old Note or Notes with respect to which such new Note is issued and
the date on which such
Indenture
9
14
new Note is issued and the date to which interest on such old Note or Notes
shall have been paid. The Indenture Trustee shall not be required to register
the transfer or exchange of any Note during the 15 days preceding the due date
of any payment on such Note.
Section 2.9 Mutilated, Destroyed, Lost or Stolen Notes. Upon
receipt by the Owner Trust and the Indenture Trustee of evidence satisfactory to
each of them of the loss, theft, destruction or mutilation of any Note and, in
case of loss, theft or destruction, of indemnity satisfactory to each of them,
and upon reimbursement to the Owner Trust and the Indenture Trustee of all
reasonable expenses incidental thereto and payment or reimbursement for any
transfer taxes, and upon surrender and cancellation of such Note, if mutilated,
the Owner Trust will execute and the Indenture Trustee will authenticate and
deliver in lieu of such Note, a new Note, dated the same date as such Note and
of like tenor (including maturity) and principal amount. Any indemnity provided
by the holder of a Note pursuant to this Section 2.9 must be sufficient in the
judgment of the Owner Trust and the Indenture Trustee to protect the Owner
Trust, the Indenture Trustee, the Paying Agent, the Registrar and any
co-registrar or co-paying agent from any loss which any of them may suffer if a
Note is replaced.
Section 2.10 Redemptions; Assumption.
(a) Except as provided in paragraphs (c) and (d) of this
Section 2.10 or as provided in any indenture supplemental hereto, the Notes
shall be redeemed at a price equal to the principal amount of the Notes
redeemed, and accrued interest on such principal amount so redeemed to the
Redemption Date, in whole but not in part, in the event of (i) the receipt of
moneys by the Indenture Trustee as a result of the occurrence of an Event of
Loss (other than a Regulatory Event of Loss in respect of which the Lessee
effects an assumption of the Notes in accordance with paragraph (b) of this
Section 2.10), (ii) the receipt of moneys by the Indenture Trustee as a result
of the occurrence of a termination of the Lease pursuant to Section 13.1 or 13.2
thereof, unless the Lessee effects an assumption of the Notes in accordance with
paragraph (b) of this Section 2.10, and (iii) the receipt of moneys by the
Indenture Trustee as a result of a termination of the Lease pursuant to Section
14 thereof (other than Section 14.1(b) thereof). Any such redemption shall be
made in accordance with the applicable provisions of Section 3.
(b) Unless a Lease Bankruptcy Default or a Lease Event of
Default shall have occurred and be then continuing, the obligations and
liabilities of the Owner Trust hereunder and under the Notes may be assumed in
whole by the Lessee in the event of the occurrence of (i) a Regulatory Event of
Loss, (ii) a termination by the Lessee pursuant to Section 13.1 of the Lease, or
(iii) a termination by the Lessee pursuant to Section 13.2 of the Lease, where
in connection with such termination the Lessee in each case acquires the
Undivided Interest pursuant to an assumption agreement (which assumption
agreement may be combined with the indenture supplemental to this Indenture
hereinafter in this subsection (b) referred to, and shall provide for the
assumption by the Lessee of the obligations and liabilities of the Owner Trust
and the Owner Participant under this Indenture and the other Operative
Documents) which shall make such obligations and liabilities fully recourse to
the Lessee and shall otherwise be in form and substance acceptable to the
Indenture Trustee. Such assumption agreement shall be accompanied by the opinion
of counsel described below. The Lessee will execute and deliver, and the
Indenture Trustee will authenticate, to each Noteholder in exchange for each old
Note a
Indenture
10
15
new Note, in a principal amount equal to the outstanding principal amount of
such old Note and otherwise in substantially similar form and tenor (including
maturity) to such old Note but indicating that the Lessee is the issuer thereof.
When such assumption agreement becomes effective, the Owner Trust shall be
released and discharged without further act from all obligations and liabilities
assumed by the Lessee. All documentation in connection with any such assumption
(including, without limitation, an indenture supplemental to this Indenture
which shall, among other things, contain provisions appropriately amending
references to the Lease in this Indenture and contain covenants by the Lessee
similar to those contained in the Lease, changed as appropriate, and amendments
or supplements to the other Operative Documents, officers' certificates,
opinions of counsel and regulatory approvals) shall be prepared by and at the
expense of the Lessee and shall be acceptable in form and substance to the
Indenture Trustee. As a condition to the effectiveness of the assumption by the
Lessee and the release of the Owner Trust and the Indenture Estate thereby
effected, (A) the Indenture Trustee shall have received an opinion or opinions
of counsel of the Lessee, addressed to the Indenture Trustee, to the effect that
(1) such assumption agreement has been duly authorized, executed and delivered
on behalf of the Lessee, (2) no regulatory approvals are necessary or required
in connection therewith (or if any such regulatory approvals is necessary or
required, that the same has been duly obtained and is in full force and effect),
(3) such assumption agreement and the supplemental indenture and, in consequence
of the execution and delivery of such assumption agreement, this Indenture and
the Notes, constitute the legal, valid and binding obligations of the Lessee,
enforceable in accordance with their respective terms (except as the same may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
arrangement, moratorium or other laws relating to or affecting the rights of
creditors generally and by general principles of equity), (4) such assumption
agreement and the assumption of the Notes thereunder would not cause a Tax Event
to occur, (5) the Lien of this Indenture and of the Mortgage shall continue to
be a perfected first priority security interest on the Indenture Estate and on
the Mortgaged Property, respectively, and (B) the Rating Agencies shall have
confirmed that such assumption will not result in a downgrading of the rating on
the Pass Through Certificates below that in effect on the Closing Date; provided
that if the Pass Through Certificates are then only rated by one such rating
agency, then confirmation is only required from the rating agency then rating
the Pass Through Certificates.
(c) The Owner Trust may, at its option, redeem any Additional
Lessor Note in whole, or in part, on any date, to the extent permitted by, and
at the prices set forth in, the supplemental indenture establishing the terms,
conditions and designations of such Additional Lessor Notes, together with the
accrued interest on such principal amount so redeemed to the Redemption Date.
(d) The Lessor Notes shall also be redeemed, in whole, but not
in part, as provided below, at the redemption price set forth below, as follows:
(i) The Lessor Notes shall be redeemed at a price equal to the
principal amount of such Lessor Notes redeemed and accrued interest on
such principal amount so redeemed to the Redemption Date, plus the
Make-Whole Premium, upon the receipt by the Indenture Trustee of moneys
as a result of (y) an optional refinancing pursuant to Section 12.2 of
the Participation Agreement; or (z) an election by the Indenture
Trustee
Indenture
11
16
pursuant to Section 4.2(a) following the occurrence of an
Indenture Event of Default caused by a Lease Event of Default and
acceleration of the Lessor Notes hereunder so long as no "Lease Event
of Default" shall have occurred under any Other Lease or Related Lease.
In the case of a redemption pursuant to clause (y) of the first
sentence of this clause (i), the Owner Trust shall indemnify the
Indenture Trustee and the Lessee for any and all costs and expenses
incurred in connection with such redemption or, in the event no
redemption occurs following delivery of any notice pursuant to Section
2.10(f), the failure to consummate any such redemption.
(ii) The Lessor Notes shall be redeemed at a price equal to the
principal amount thereof, together with interest accrued on such
principal amount to the Redemption Date, plus the Modified Make-Whole
Premium, if any, upon receipt of moneys by the Indenture Trustee as a
result of the exercise by the Lessee of its rights to terminate the
Lease as a result of an event described in clause (b) of Section 14.1
of the Lease.
The Make-Whole Premium and the Modified Make-Whole Premium, if
any, payable with respect to the Notes will be determined by an investment
banking institution of national standing (the "Investment Banker") selected by
the Lessee or, if the Indenture Trustee does not receive notice of such
selection at least ten days prior to a scheduled prepayment date or if a Lease
Event of Default under the Lease shall have occurred and be continuing, selected
by the Indenture Trustee.
(e) Notice of redemption having been given as provided in
paragraph (f) of this Section 2.10, the Notes shall, on the Redemption Date,
become due and payable at the applicable redemption price specified in this
Section 2.10, or with respect to a redemption pursuant to paragraph (c) of this
Section 2.10, in the supplemental indenture establishing the terms, conditions
and designations of Additional Lessor Notes pursuant to the applicable
provisions of this Indenture, and from and after receipt by the Indenture
Trustee of such redemption price in full in cash on such date, such Notes or
portions thereof shall cease to bear interest. Upon surrender of such Notes for
redemption in accordance with such notice, such Notes or portions thereof shall
be paid by the Owner Trust at the applicable redemption price.
(f) If the Owner Trust elects to redeem Notes pursuant to this
Section 2.10, it shall notify the Indenture Trustee in writing of the Redemption
Date, the Section of the Indenture pursuant to which the redemption will occur
(other than as a result of an event described in clause (i)(z) of Section
2.10(d) in which case the Owner Trust shall be required to redeem the Notes and
the Indenture Trustee shall notify the Owner Trust in writing of the Redemption
Date at least 30 days before such Redemption Date). The Owner Trust shall give
each notice to the Indenture Trustee provided for in this Section at least 30
days before the Redemption Date unless the Indenture Trustee consents in writing
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an opinion of counsel from the Lessee to the effect that such
redemption will comply with the conditions herein.
(g) The Indenture Trustee shall provide notice, at least 20
days but not more than 60 days before the Redemption Date, by first-class mail
to each Noteholder to be redeemed
Indenture
12
17
at such Noteholder's registered address; provided that no notice shall be
required so long as the Pass Through Trustees and the Indenture Trustee are the
same entity. Each such notice shall state:
(i) the Redemption Date;
(ii) the redemption price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(v) that, upon the receipt by the Indenture Trustee of such
redemption price in full in cash on such Redemption Date, interest on
Notes called for redemption ceases to accrue on and after such
Redemption Date; and
(vi) the paragraph of the Indenture pursuant to which the Notes
called for redemption are being redeemed.
(h) Upon surrender to the Paying Agent, such Notes shall be
paid at the redemption price stated in the notice, plus accrued interest to the
Redemption Date. Failure to give notice or any defect in the notice to any
Noteholder shall not affect the validity of the notice to any other Noteholder.
Section 2.11 Payment of Expenses on Transfer. Upon the
issuance of a new Note or Notes pursuant to Section 2.8 or 2.9, the Owner Trust
or the Indenture Trustee may require from the party requesting such new Note or
Notes payment of a sum to reimburse the Owner Trust and the Indenture Trustee
for, or to provide funds for, the payment of any tax or other governmental
charge in connection therewith or any changes and expenses connected with such
tax or governmental change paid or payable by the Owner Trust or the Indenture
Trustee.
Section 2.12 Additional Lessor Notes.
(a) Additional Notes (each, an "Additional Lessor Note") of
the Owner Trust may be issued under and secured by this Indenture, at any time
or from time to time, in addition to the Lessor Notes and subject to the
conditions hereinafter provided in this Section 2.12, for cash, in the amount of
the original principal amount of such Additional Lessor Notes, for the purpose
of (i) providing funds in connection with a Supplemental Financing pursuant to
Section 12.1 of the Participation Agreement for the payment of all or any
portion of Modifications to the Facility; or (ii) redeeming any previously
issued Notes pursuant to an optional refinancing pursuant to Section 12.2 of the
Participation Agreement and providing funds for the payment of all reasonable
costs and expenses in connection therewith.
(b) Before any Additional Lessor Note shall be issued under
the provisions of this Section 2.12, the Owner Trust shall have delivered to the
Indenture Trustee, not less than 15 (unless a shorter period shall be
satisfactory to the Indenture Trustee) days nor more than 30
13
18
days prior to the proposed date of issuance of such Additional Lessor Note, a
request and authorization to issue such Additional Lessor Note, which request
and authorization shall include the amount of such Additional Lessor Note, the
proposed date of issuance thereof and a certification that terms thereof are not
inconsistent with this Indenture. Additional Lessor Notes shall have a
designation so as to distinguish such Additional Lessor Notes from the Notes
theretofore issued, but otherwise shall rank pari passu with all Notes then
outstanding, be entitled to the same benefits and security of this Indenture as
the other Notes issued pursuant to the terms hereof, be dated the date of
original issuance of such Additional Lessor Notes, bear interest at such rates
as shall be agreed between the Lessee and the Owner Trust and indicated in the
aforementioned request and authorization, and shall be stated to be payable by
their terms not later than the last day of the Lease Basic Term.
(c) The terms, conditions and designations of such Additional
Lessor Notes (which shall be consistent with this Indenture) shall be set forth
in an indenture supplemental to this Indenture executed by the Owner Trust and
the Indenture Trustee. Such Additional Lessor Notes shall be executed as
provided in Section 2.3 and deposited with the Indenture Trustee for
authentication, but before such Additional Lessor Notes shall be authenticated
and delivered by the Indenture Trustee there shall be filed with the Indenture
Trustee the following, all of which shall be dated as of the date of the
supplemental indenture:
(i) a copy of such supplemental indenture (which shall include
the form of such Additional Lessor Notes and the certificate of
authentication in respect thereof);
(ii) an Officer's Certificate of the Lessee (1) stating that to
its knowledge, no Lease Material Default or Lease Event of Default has
occurred and is then continuing (other than any Lease Material Default
or Lease Event of Default that will be cured by the proceeds of
Additional Lessor Notes to the extent provided in Section 12.1(v) of
the Participation Agreement), (2) stating that the conditions in
respect of the issuance of such Additional Lessor Notes contained in
this Section 2.12 have been satisfied, (3) specifying the amount of the
costs and expenses relating to the issuance and sale of such Additional
Lessor Notes, and (4) stating that payments pursuant to the Lease and
all supplements thereto of Basic Rent and Termination Value, together
with all other amounts payable pursuant to the terms of the Lease, are
calculated to be sufficient to pay when due all of the principal of and
interest on the outstanding Notes, after taking into account the
issuance of such Additional Lessor Notes and any related redemption of
Notes theretofore outstanding;
(iii) an Officer's Certificate from the Owner Trust stating that,
to its knowledge, no Indenture Default under clauses (b) through (f) of
Section 4.1 or an Indenture Event of Default has occurred and is
continuing;
(iv) such additional documents, certificates and opinions as
shall be reasonably required by the Indenture Trustee, and as shall be
reasonably acceptable to the Indenture Trustee;
14
19
(v) a request and authorization to the Indenture Trustee by the
Owner Trust to authenticate and deliver such Additional Lessor Notes to
or upon order of the Person or Persons noted in such request at the
address set forth therein, and in such principal amounts as are stated
therein, upon payment to the Indenture Trustee, but for the account of
the Owner Trust, of the sum or sums specified in such request and
authorization;
(vi) the consent of the Lessee to such request and
authorization; and
(vii) an opinion of counsel who shall be reasonably satisfactory
to the Indenture Trustee, as to the authorization, validity and
enforceability of the Additional Lessor Notes and as to the Lien and
security interest securing them.
When the documents referred to in the foregoing clauses (i)
through (vii) above shall have been filed with the Indenture Trustee and when
the Additional Lessor Notes described in the above mentioned request and
authorization shall have been executed and authenticated as required by this
Indenture and the related supplemental indenture, the Indenture Trustee shall
deliver such Additional Lessor Notes in the manner described in clause (v)
above, but only upon payment to the Indenture Trustee of the sum or sums
specified in such request and authorization.
Section 2.13 Restrictions on Transfer Resulting from Federal
Securities Laws; Legend. Each Note shall be delivered to the initial Noteholder
thereof without registration of such Note under the Securities Act and without
qualification of this Indenture under the Trust Indenture Act of 1939, as
amended. Prior to any transfer of any such Note, in whole or in part, to any
Person, the Noteholder thereof shall furnish to the Lessee, the Indenture
Trustee and the Owner Trust an opinion of counsel, which opinion and which
counsel shall be reasonably satisfactory to the Indenture Trustee, the Owner
Trust and the Lessee, to the effect that such transfer will not violate the
registration provisions of the Securities Act or require qualification of this
Indenture under the Trust Indenture Act of 1939, as amended, and all Notes
issued hereunder shall be endorsed with a legend which shall read substantially
as follows:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT.
Section 2.14 Security for and Parity of Notes. All Notes
issued and outstanding hereunder shall rank on a parity with each other and
shall as to each other be secured equally and ratably by this Indenture, without
preference, priority or distinction of any thereof over any other by reason of
difference in time of issuance or otherwise.
Section 2.15 Acceptance of the Indenture Trustee. Each
Noteholder, by its acceptance of a Note, shall be deemed to have consented to
the appointment of the Indenture Trustee.
15
20
SECTION 3
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM INDENTURE ESTATE
Section 3.1 Distribution of Basic Rent.
(a) Basic Rent Distribution. Except as otherwise provided in
Section 3.2 or 3.3, each installment of Basic Rent and any payment of
Supplemental Rent constituting interest on overdue installments of Basic Rent
received by the Indenture Trustee shall be distributed by the Indenture Trustee
in the following order of priority:
First, so much of such amounts as shall be required to pay in
full the aggregate principal and accrued interest (as well as any
interest on overdue principal and, to the extent permitted by
Applicable Law, on overdue interest) then due and payable under the
Notes shall be distributed to the Noteholders ratably, without priority
of any Noteholder over any other Noteholder, in the proportion that the
amount of such payment then due and payable under each such Note bears
to the aggregate amount of the payments then due and payable under all
such Notes; and
Second, the balance, if any, of such amounts remaining shall
be distributed to the Owner Trust for distribution by it in accordance
with the terms of the Trust Agreement.
(b) Application of Other Amounts Held by the Indenture Trustee
upon Rent Default.
(i) If, as a result of any failure by the Lessee to pay Basic
Rent in full on any date when an installment of Basic Rent is due, there shall
not have been distributed on any date (or within any applicable period of grace)
pursuant to Section 3.1(a) the full amount then distributable pursuant to clause
"First" of Section 3.1(a), the Indenture Trustee shall distribute other payments
of the character referred to in Sections 3.5 and 3.6 then held by it, or
thereafter received by it, to all Noteholders to the extent necessary to enable
it to make all the distributions then due pursuant to such clause "First."
(ii) To the extent the Indenture Trustee thereafter receives
the deficiency in Basic Rent, the amount so received shall, unless a Lease
Material Default or Indenture Event of Default shall have occurred and be
continuing, be applied to restore the amounts held by the Indenture Trustee
under Section 3.5 or 3.6, as the case may be. The portion of each such payment
made to the Indenture Trustee which is to be distributed by the Indenture
Trustee in payment of Notes shall be applied in accordance with Section 2.7.
(iii) Any payment received by the Indenture Trustee (A)
pursuant to Section 4.3 (a) as a result of payment by the Owner Trust of
principal or interest or both (as well as any interest on overdue principal and,
to the extent permitted by Applicable Law, on overdue interest) then due on all
Notes shall be distributed to the Noteholders and (B) pursuant to Section 4.3(b)
as a result of the payment by the Owner Trust of any amount in respect of
Supplemental Rent shall be distributed to the Persons entitled thereto;
provided, that the Owner
16
21
Trust shall (to the extent of such payment made by it) be subrogated to the
rights of the Noteholders under this Section 3.1 to receive the payment of Basic
Rent or Supplemental Rent with respect to which its payment under Sections
4.3(a) and (b) relates, and the payment of interest on account of such Basic
Rent or Supplemental Rent being overdue, to the extent provided in and subject
to the provisions of Section 4.3(a) and (b).
(c) Retention of Amounts by the Indenture Trustee. If at the
time of receipt by the Indenture Trustee of an installment of Basic Rent
(whether or not then overdue) or of payment of interest on any overdue
installment of Basic Rent, there shall have occurred and be continuing an
Indenture Event of Default, the Indenture Trustee shall retain such installment
of Basic Rent or payment of interest (to the extent not then required to be
distributed pursuant to clause "First" of Section 3.1(a)) as part of the
Indenture Estate and shall not distribute any such payment of Basic Rent or
interest pursuant to clause "Second" of Section 3.1(a) until such time as there
shall not be continuing any such Indenture Event of Default or until such time
as the Indenture Trustee shall have received written instructions from a
Majority in Interest of Noteholders to make such a distribution; provided that
such amounts must be returned to the Owner Trust within six months from the
receipt thereof by the Indenture Trustee unless (i) such Indenture Event of
Default is declared and the Indenture Trustee is diligently pursuing any
dispossessary remedies available under Section 4.2 or (ii) any other Indenture
Event of Default shall have occurred and be continuing.
Section 3.2 Payments Following Event of Loss or Other Early
Termination.
(a) Any payment received by the Indenture Trustee as a result
of (x) an Event of Loss (other than a Regulatory Event of Loss in respect of
which the Lessee shall, pursuant to Section 2.10(b), assume the obligations and
liabilities of the Owner Trust hereunder, in which event only clauses "First"
and "Fourth" below shall be applicable); (y) an early termination of the Lease
pursuant to Section 13 thereof (other than a termination in respect of which the
Lessee shall, pursuant to Section 2.10(b), assume the obligations and
liabilities of the Owner Trust hereunder, in which event only clauses "First"
and "Fourth" below shall be applicable) or (z) any early termination of the
Lease pursuant to Section 14 thereof, shall be distributed on the applicable
Redemption Date to the extent of available funds, in the following order of
priority:
First, so much of such payments and amounts as shall be
required to reimburse the Indenture Trustee for any unpaid fees for its
services under this Indenture and any expense (including any legal fees
and disbursements) or loss incurred by it (to the extent incurred in
connection with its duties as the Indenture Trustee and to the extent
reimbursable and not previously reimbursed) shall be distributed to the
Indenture Trustee for application to itself;
Second, so much of such payment remaining as shall be required
to pay in full the applicable redemption price (as described in Section
2.10(a) or 2.10(d)) (including, interest on overdue principal and, to
the extent permitted by Applicable Law, overdue interest) which shall
be distributed to the holders of such Notes;
17
22
Third, so much of such payments and amounts as shall be
required to pay the then existing or prior Noteholders all other
amounts then payable and unpaid to them as holders of the Notes which
this Indenture by its terms secures shall be distributed to such
existing or prior holders of Notes, ratably to each such holder,
without priority of any such holder over any other, in the proportion
that the amount of such payments or amounts to which each such holder
is so entitled bears to the aggregate amount of such payments and
amounts to which all such holders are so entitled; and
Fourth, the balance, if any, of such payment remaining shall
be distributed to the Owner Trust for distribution in accordance with
the Trust Agreement.
Section 3.3 Payments After Indenture Event of Default. All
payments received and all amounts held or realized by the Indenture Trustee
after an Indenture Event of Default shall have occurred and be continuing
(including any amounts realized by the Indenture Trustee from the exercise of
any remedies pursuant to Section 17 of the Lease or from the application of
Section 4.2) and after either (a) the Indenture Trustee has declared the Lease
to be in default pursuant to Section 17 thereof or (b) the Lessor Notes shall
have been declared or shall automatically have become due and payable, together
with all payments or amounts then held or thereafter received by the Indenture
Trustee hereunder, shall, so long as such declaration shall not have been
rescinded, be distributed forthwith by the Indenture Trustee in the following
order of priority:
First, so much of such payments and amounts as shall be
required to reimburse the Indenture Trustee for any unpaid fees for its
services under this Indenture and any expense (including any legal fees
and disbursements) or loss incurred by it (to the extent incurred in
connection with its duties as the Indenture Trustee and to the extent
reimbursable and not previously reimbursed) shall be distributed to the
Indenture Trustee for application to itself;
Second, so much of such payment remaining as shall be required
to pay the aggregate unpaid principal amount of all Notes then
outstanding (plus any Make-Whole Premium due in respect thereof
required to be paid in the circumstances described in clause (i)(z) of
Section 2.10(d)) and all accrued but unpaid interest on such Notes to
the date of such distribution (including interest on overdue principal
and, to the extent permitted by Applicable Law, overdue interest) shall
be distributed to the holders of such Notes, in each case ratably
without priority of any Noteholder over any other, in the proportion
that the aggregate unpaid principal amount of all such Notes held by
each such holder (plus any Make-Whole Premium due in respect thereof
required to be paid in the circumstances described in clause (i)(z) of
Section 2.10(d)) and accrued but unpaid interest thereon to the date of
scheduled distribution to the Noteholders bears to the aggregate unpaid
principal amount of all such Notes held by all such holders (other than
any Make-Whole Premium in respect thereof required to be paid in the
circumstances described in clause (i)(z) of Section 2.10(d)), plus
accrued but unpaid interest thereon to the date of scheduled
distribution to the Noteholders;
18
23
Third, so much of such payments and amounts as shall be
required to pay the then existing or prior Noteholders all other
amounts then payable and unpaid to them as holders of the Notes which
this Indenture by its terms secures shall be distributed to such
existing or prior holders of Notes, ratably to each such holder,
without priority of any such holder over any other, in the proportion
that the amount of such payments or amounts to which each such holder
is so entitled bears to the aggregate amount of such payments and
amounts to which all such holders are so entitled; and
Fourth, the balance, if any, of such payments and amounts
remaining shall be distributed to the Owner Trust for distribution by
it in accordance with the terms of the Trust Agreement.
Section 3.4 Investment of Certain Payments Held by the
Indenture Trustee. Upon the written direction and at the risk and expense of the
Owner Trust, the Indenture Trustee shall invest and reinvest any moneys held by
the Indenture Trustee pursuant to Section 3.1(c), 3.5 or 3.6 in such Permitted
Investments as may be specified in such direction. The proceeds received upon
the sale or at maturity of any Permitted Investment and any interest received on
such Permitted Investment and any payment in respect of a deficiency
contemplated by the following sentence shall be held as part of the Indenture
Estate and applied by the Indenture Trustee in the same manner as the moneys
used to make such Permitted Investment, and any Permitted Investment may be sold
(without regard to maturity date) by the Indenture Trustee whenever necessary to
make any payment or distribution required by this Section 3. If the proceeds
received upon the sale or at maturity of any Permitted Investment (including
interest received on such Permitted Investment) shall be less than the cost
thereof (including accrued interest), the Owner Trust will pay or cause to be
paid to the Indenture Trustee an amount equal to such deficiency.
Section 3.5 Application of Certain Other Payments. Except as
otherwise provided in Section 3.1(b) or 3.1(c), any payment received by the
Indenture Trustee for which provision as to the application thereof is made in
an Operative Document, but not elsewhere in this Indenture, shall, unless an
Indenture Event of Default shall have occurred and be continuing, be applied
forthwith to the purpose for which such payment was made in accordance with the
terms of such Operative Document. If at the time of the receipt by the Indenture
Trustee of any payment referred to in the preceding sentence, there shall have
occurred and be continuing an Indenture Event of Default, the Indenture Trustee
shall hold such payment as part of the Indenture Estate, but the Indenture
Trustee shall, except as otherwise provided in Section 3.1(b) or 3.1(c), cease
so to hold such payment and shall apply such payment to the purpose for which it
was made in accordance with the terms of such Operative Document if and whenever
there is no longer continuing any Indenture Event of Default; provided, however,
that any such payment received by the Indenture Trustee which is payable to the
Lessee shall not be so held by the Indenture Trustee unless a Lease Event of
Default shall have occurred and be continuing.
Section 3.6 Other Payments. Except as otherwise provided in
Section 3.5:
19
24
(a) any payment received by the Indenture Trustee for which no
provision as to the application thereof is made in the Participation
Agreement, the Lease, the Depositary Agreement or elsewhere in this
Section 3; and
(b) all payments received and amounts realized by the
Indenture Trustee with respect to the Indenture Estate (including,
without limitation, all amounts realized after the termination of the
Lease), to the extent received or realized at any time after payment in
full of the principal of and, premium, if any, and interest on all
Notes then outstanding and all other amounts due the Indenture Trustee
or the Noteholders, as well as any other amounts remaining as part of
the Indenture Estate after such payment in full of the principal of,
premium, if any, and interest on all Notes outstanding;
shall be distributed forthwith by the Indenture Trustee in the order of priority
set forth in Section 3.3 (omitting clause "Second" thereof).
Section 3.7 Excepted Payments. Notwithstanding any other
provision of this Indenture including this Section 3 or any provision of any of
the Operative Documents to the contrary, any Excepted Payments received or held
by the Indenture Trustee at any time shall promptly be paid or distributed by
the Indenture Trustee to the Person or Persons entitled thereto.
Section 3.8 Distributions to the Owner Trust. Unless otherwise
directed in writing by the Owner Trust, all amounts from time to time
distributable by the Indenture Trustee to the Owner Trust in accordance with the
provisions hereof shall be paid by the Indenture Trustee to the Owner
Participant in immediately available funds to the Owner Participant's Account.
Any such distribution to the Owner Trust shall be final thirty (30) days after
the same is made, absent manifest error, and neither the Indenture Trustee nor
any Noteholder shall, absent manifest error, attempt to recover any such
distribution for any reason, but nothing contained in this sentence shall be
construed to limit the right of the Indenture Trustee or any such Noteholder to
make any claim it may have against the Owner Participant or the Owner Trust or
the Indenture Trustee or to pursue any such claim in such court as the Indenture
Trustee or any such holder shall deem appropriate. Any amounts payable to the
Trust Company in its individual capacity or to the Trustee pursuant to the Trust
Agreement, shall be paid directly to the Trustee.
Section 3.9 Payments Under Assigned Documents. Notwithstanding
anything to the contrary contained in this Indenture, until the discharge and
satisfaction of the Lien of this Indenture, all payments due or to become due
under any Assigned Document to the Owner Trust (except so much of such payments
as constitute Excepted Payments) shall be made directly to the Indenture
Trustee's Account and the Owner Trust shall give all notices as shall be
required under the Assigned Documents to direct payment of all such amounts to
the Indenture Trustee hereunder. The Owner Trust agrees that if it should
receive any such payments directed to be made to the Indenture Trustee or any
proceeds for or with respect to the Indenture Estate or as the result of the
sale or other disposition thereof or otherwise constituting a part of the
Indenture Estate to which the Owner Trust is not entitled hereunder, it will
promptly forward such payments to the Indenture Trustee or in accordance with
the Indenture Trustee's
20
25
instructions. The Indenture Trustee agrees to apply payments from time to time
received by it (from the Lessee, the Owner Trust or otherwise) with respect to
the Lease, any other Assigned Document or the Undivided Interest in the manner
provided in Section 2.7 and this Section 3.
Section 3.10 Disbursement of Amounts Received by the Indenture
Trustee. Subject to the last sentence of this Section 3.10 and Section 3.2,
amounts to be distributed by the Indenture Trustee pursuant to this Section 3
shall be distributed on the date such amounts are actually received by the
Indenture Trustee. Notwithstanding anything to the contrary contained in this
Section 3, in the event the Indenture Trustee shall be required or directed to
make a payment under this Section 3 on the same date on which such payment is
received, any amounts received by the Indenture Trustee after 2:00 p.m., New
York City time, or on a day other than a Business Day, may be distributed on the
next succeeding Business Day, and if such payment is to be made by wire
transfer, any amounts received by the Indenture Trustee after 10:00 a.m., New
York City time, may be distributed on the next succeeding Business Day.
SECTION 4
DEFAULTS; REMEDIES OF INDENTURE TRUSTEE
Section 4.1 Occurrence of Indenture Event of Default. Subject
to Section 4.3, the term "Indenture Event of Default," wherever used herein,
shall mean any of the following events (whatever the reason for such Indenture
Event of Default and whether it 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 order, rule or regulation of any
administrative or governmental body):
(a) any Lease Event of Default (other than the failure of the
Lessee to pay any amount which shall constitute an Excepted Payment and
other than a Lease Event of Default in consequence of the Lessee's
failure to maintain the insurance required by Section 11 of the Lease
if, and so long as, (i) such Lease Event of Default is waived by the
Owner Trust and the Owner Participant and (ii) the insurance maintained
by the Lessee still constitutes Prudent Industry Practice); or
(b) the Owner Trust shall fail (other than as a result of a
Lease Event of Default) to make any payment in respect of the principal
of, or premium, if any, or interest on, the Notes within five (5)
Business Days after the same shall have become due; or
(c) the Owner Trust shall fail to perform or observe any
material covenant, obligation or agreement to be performed or observed
by it under this Indenture (other than any covenant, obligation or
agreement contained in clause (b) of this Section 4.1), the Owner Trust
shall fail to perform or observe any material covenant, obligation or
agreement to be performed by it under the Mortgage or Section 7 of the
Participation Agreement, the Owner Participant shall fail to perform or
observe any material covenant, obligation or agreement to be performed
by it under Section 8 of the Participation
21
26
Agreement (other than Section 8.6 thereof), or the guarantor
under an Owner Participant Parent Guaranty shall fail to
perform or observe any material covenant, obligation or
agreement to be performed by it under such Owner Participant
Parent Guaranty in each case, in any material respect, which
shall continue unremedied for 30 days after receipt by such
party of written notice thereof; provided, however, that if
such condition cannot be remedied within such 30-day period,
then the period within which to remedy such condition shall be
extended up to 180 days, so long as such party diligently
pursues such remedy and such condition is reasonably capable
of being remedied within such extended period; or
(d) any material representation or warranty made by the Owner
Trust in the Mortgage or Section 3.2 of the Participation Agreement or
in the certificate delivered by the Owner Trust at the Closing pursuant
to Section 4.5 of the Participation Agreement or any material
representation or warranty made by the Owner Participant in Section 3.3
of the Participation Agreement or the certificate delivered by the
Owner Participant at the Closing pursuant to Section 4.5 of the
Participation Agreement or any material representation or warranty made
by the guarantor under an Owner Participant Parent Guaranty, shall
prove to have been incorrect in any material respect when made and
continues to be material and unremedied for a period of 30 days after
receipt by such party of written notice thereof; provided, however,
that if such condition cannot be remedied within such 30-day period,
then the period within which to remedy such condition shall be extended
up to an additional 90 days, so long as such party diligently pursues
such remedy and such condition is reasonably capable of being remedied
within such extended period; or
(e) the Owner Participant or the Owner Trust shall (i)
commence a voluntary case or other proceeding seeking relief under
Title 11 of the Bankruptcy Code or 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 apply
for or consent to the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or (ii) consent to, or fail to controvert in a timely
manner, any such relief or the appointment of or taking possession by
any such official in any voluntary case or other proceeding commenced
against it, or (iii) file an answer admitting the material allegations
of a petition filed against it in any such proceeding; or
(f) an involuntary case or other proceeding shall be commenced
against the Owner Participant or the Owner Trust, seeking (i)
liquidation, reorganization or other relief with respect to it or its
debts under Title 11 of the Bankruptcy Code or any bankruptcy,
insolvency or other similar law now or hereafter in effect, or (ii) the
appointment of a trustee, receiver, liquidator, custodian or other
similar official with respect to it or any substantial part of its
property or (iii) the winding-up or liquidation of such Person; and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days.
Section 4.2 Remedies of the Indenture Trustee.
22
27
(a) In the event that an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee in its discretion may, or upon
receipt of written instructions from a Majority in Interest of Noteholders
shall, declare, by written notice to the Owner Trust and the Owner Participant,
the unpaid principal amount of all Notes, with accrued interest and premium, if
any, thereon, to be immediately due and payable, upon which declaration such
principal amount and such accrued interest and premium, if any, shall
immediately become due and payable (except in the case of an Indenture Event of
Default under Section 4.1(e) or (f), such principal and interest shall
automatically become due and payable immediately without any such declaration or
notice) without further act or notice of any kind.
(b) If an Indenture Event of Default shall have occurred and
be continuing, then and in every such case, the Indenture Trustee, as assignee
under the Lease or hereunder or otherwise, may, and where required pursuant to
the provisions of Section 5 shall, upon written notice to the Owner Trust,
exercise any or all of the rights and powers and pursue any or all of the
remedies pursuant to this Section 4 and, in the event such Indenture Event of
Default shall be a Lease Event of Default, any and all of the remedies provided
pursuant to this Section 4 and Section 17 of the Lease and may take possession
of all or any part of the Indenture Estate and may exclude therefrom the Owner
Participant, the Owner Trust and, in the event such Indenture Event of Default
shall be a Lease Event of Default, the Lessee and all persons claiming under
them, and may exercise all remedies available to a secured party under the
Uniform Commercial Code or any other Applicable Law. The Indenture Trustee may
proceed to enforce the rights of the Indenture Trustee and of the Noteholders by
directing payment to it of all moneys payable under any agreement or undertaking
constituting a part of the Indenture Estate, by proceedings in any court of
competent jurisdiction to recover damages for the breach hereof or for the
appointment of a receiver or for sale of all or any part of the Undivided
Interest or for foreclosure of the Undivided Interest, together with the Owner
Trust's interest in the Assigned Documents, and by any other action, suit,
remedy or proceeding authorized or permitted by this Indenture, at law or in
equity, whether for the specific performance of any agreement contained herein,
or for an injunction against the violation of any of the terms hereof, or in aid
of the exercise of any power granted hereby or by law, and in addition may
foreclose upon, sell, assign, transfer and deliver, from time to time to the
extent permitted by Applicable Law, all or any part of the Indenture Estate or
any interest therein, at any private sale or public auction with or without
demand, advertisement or notice (except as herein required or as may be required
by law) of the date, time and place of sale and any adjournment thereof, for
cash or credit or other property, for immediate or future delivery and for such
price or prices and on such terms as the Indenture Trustee in its unfettered
discretion, may determine, or as may be required by law, so long as the Owner
Participant and the Owner Trust are afforded a commercially reasonable
opportunity to bid for all or such part of the Indenture Estate in connection
therewith unless Section 4.6 shall otherwise be applicable; provided that 20
days shall be deemed to be a commercially reasonable opportunity to bid for
purposes of this Section 4.2(b). The Indenture Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee and of the Noteholders asserted or
upheld in any bankruptcy, receivership or other judicial proceedings.
(c) All rights of action and rights to assert claims under
this Indenture or under any of the Notes may be enforced by the Indenture
Trustee without the possession of the
23
28
Notes at any trial or other proceedings instituted by the Indenture Trustee, and
any such trial or other proceedings shall be brought in its own name as trustee
of an express trust, and any recovery or judgment shall be for the ratable
benefit of the Noteholders as herein provided. In any proceedings brought by the
Indenture Trustee (and also any proceedings involving the interpretation of any
provision of this Indenture to which the Indenture Trustee shall be a party),
the Indenture Trustee shall be held to represent all the Noteholders, and it
shall not be necessary to make any such Persons parties to such proceedings.
(d) Anything herein to the contrary notwithstanding, neither
the Indenture Trustee nor any Noteholder shall at any time, including at any
time when an Indenture Event of Default shall have occurred and be continuing
and there shall have occurred and be continuing a Lease Event of Default, be
entitled to exercise any remedy under or in respect of this Indenture which
could or would divest the Owner Trust of title to, or its ownership interest in,
any portion of the Indenture Estate unless, in the case of an Indenture Event of
Default as a consequence of a Lease Event of Default under Section 16 of the
Lease, the Indenture Trustee shall have, to the extent it is then entitled to do
so hereunder and is not then stayed or otherwise prevented from doing so by
operation of law, commenced the exercise of one or more remedies under the Lease
intending to dispossess the Lessee of the Undivided Interest and is using good
faith efforts in the exercise of such remedies (and not merely asserting a right
or claim to do so); provided that if the Indenture Trustee is then stayed or
otherwise prevented by operation of law from exercising such remedies, the
Indenture Trustee will not divest the Owner Trust of title to any portion of the
Indenture Estate until the earlier of (a) the expiration of the 180-day period
following the commencement of such stay or other prevention or (b) the date of
repossession of the Undivided Interest under the Lease.
(e) Anything herein to the contrary notwithstanding, in the
case of an Indenture Event of Default as a consequence of a Lease Event of
Default under Section 16(a) of the Lease with respect to the Equity Portion of
Basic Rent only, the Indenture Trustee shall not, so long as no other Indenture
Event of Default shall have occurred and be continuing, be entitled to exercise
remedies under this Indenture for a period of 180 days unless the Owner Trust or
the Owner Participant consents to the declaration of a Lease Event of Default by
the Indenture Trustee.
(f) Any provisions of the Lease or this Indenture to the
contrary notwithstanding, if the Lessee shall fail to pay any Excepted Payment
to any Person entitled thereto as and when due, such Person shall have the right
at all times, to the exclusion of the Indenture Trustee, to demand, collect, sue
for, enforce performance of obligations relating to, or otherwise obtain all
amounts due in respect of such Excepted Payment or to declare a Lease Event of
Default under Section 17 of the Lease solely to enforce such obligations in
respect of any Excepted Payments (provided that any such declaration shall not
be deemed to constitute an Indenture Event of Default hereunder without the
consent of the Indenture Trustee).
Section 4.3 Right to Cure Certain Lease Events of Default.
(a) If the Lessee shall fail to make any payment of Basic Rent
due on any Rent Payment Date when the same shall have become due, and if such
failure of the Lessee to
24
29
make such payment of Basic Rent shall not constitute the fourth consecutive such
failure or the eighth cumulative failure, then the Owner Trust may (but need
not) pay to the Indenture Trustee, at any time prior to the expiration of 10
Business Days after the Owner Trust and the Owner Participant shall have
received notice from the Indenture Trustee of the failure of the Lessee to make
such payment of Basic Rent, an amount equal to the principal of, premium, if
any, and interest on the Notes, then due (otherwise than by declaration of
acceleration) on such Rent Payment Date, together with any interest due thereon
on account of the delayed payment thereof, and such payment by the Owner Trust
shall be deemed (for purposes of this Indenture) to have cured any Indenture
Event of Default which arose or would have arisen from such failure of the
Lessee.
(b) If the Lessee shall fail to make any payment of
Supplemental Rent when the same shall become due or otherwise fail to perform
any obligation under the Lease or any other Operative Document, then the Owner
Trust may (but need not) make such payment (to the extent of the amount of
principal of, and premium, if any, and interest on, the Notes then due
(otherwise than by declaration of acceleration)) on the date such Supplemental
Rent was payable, together with any interest due thereon on account of the
delayed payment thereof, or perform such obligation at any time prior to the
expiration of 10 Business Days after the Owner Trust or the Owner Participant
shall have received notice of the occurrence of such failure, and such payment
or performance by the Owner Trust shall be deemed to have cured any Indenture
Event of Default which arose or would have arisen from such failure of the
Lessee.
(c) (i) The Owner Trust, upon exercising its rights under
paragraph (a) or (b) of this Section 4.3 to cure the Lessee's failure to pay
Basic Rent or Supplemental Rent or to perform any other obligation under the
Lease or any other Operative Document, shall not obtain any Lien on any part of
the Indenture Estate on account of such payment or performance nor, except as
expressly provided in the next sentence, pursue any claims against the Lessee or
any other party, for the repayment thereof if such claims would impair the prior
right and security interest of the Indenture Trustee in and to the Indenture
Estate. Upon such payment or performance by the Owner Trust, the Owner Trust
shall (to the extent of such payment made by it and the costs and expenses
incurred in connection with such payments and performance thereof together with
interest thereon and so long as no Indenture Payment Default, Indenture
Bankruptcy Default or Indenture Event of Default hereunder shall have occurred
and be continuing) be subrogated to the rights of the Indenture Trustee and the
Noteholders to receive the payment of Basic Rent or Supplemental Rent, as the
case may be, with respect to which the Owner Trust made such payment and
interest on account of such Basic Rent payment or Supplemental Rent payment
being overdue in the manner set forth in the next two sentences.
(ii) If the Indenture Trustee shall thereafter receive such
payment of Basic Rent, Supplemental Rent or such interest, the Indenture Trustee
shall, notwithstanding the requirements of Section 3.1, forthwith, remit such
payment of Basic Rent or Supplemental Rent, as the case may be (to the extent of
the payment made by the Owner Trust pursuant to this Section 4.3), and such
interest to the Owner Trust in reimbursement for the funds so advanced by it,
provided that if (A) any Indenture Payment Default, Indenture Bankruptcy Default
or Indenture Event of Default hereunder shall have occurred and be continuing or
(B) any payment of principal, interest, or premium, if any, on any Note then
shall be overdue, such payment shall
25
30
not be remitted to the Owner Trust but shall be held by the Indenture Trustee as
security for the obligations secured hereby and distributed in accordance with
Section 3.1.
(iii) The Owner Trust shall not attempt to recover any amount
paid by it on behalf of the Lessee pursuant to this Section 4.3 except by
demanding of the Lessee payment of such amount or by commencing an action
against the Lessee for the payment of such amount, and except where an Indenture
Event of Default (other than a Lease Event of Default) has occurred and is
continuing, the Owner Trust shall be entitled to receive the amount of such
payment and the costs and expenses incurred in connection with such payments and
performance thereof together with interest thereon from the Lessee (but neither
the Owner Trust nor the Owner Participant shall have any right to collect such
amounts by exercise of any of the remedies under Section 17 of the Lease) or, if
paid by the Lessee to the Indenture Trustee, from the Indenture Trustee to the
extent of funds actually received by the Indenture Trustee.
(d) Until the expiration of the period during which the Owner
Trust or the Owner Participant shall be entitled to exercise rights under
paragraph (a) or (b) of this Section 4.3 with respect to any failure by the
Lessee referred to therein, neither the Indenture Trustee nor any Noteholder
shall take or commence any action it would otherwise be entitled to take or
commence as a result of such failure by the Lessee, whether under this Section 4
or Section 17 of the Lease or otherwise.
(e) Each Noteholder agrees, by acceptance thereof, that if
(i)(x) an Indenture Event of Default, which also constitutes a Lease Event of
Default, shall have occurred and be continuing for a period of at least 90 days
without the Notes having been accelerated or the Indenture Trustee having
exercised any remedy under the Lease intended to dispossess the Lessee, (y) the
Notes have been accelerated pursuant to Section 4.2(a) and such acceleration has
not theretofore been rescinded, or (z) an Enforcement Notice giving notice of
the intent of the Indenture Trustee to foreclose on the Undivided Interest or
otherwise dispossess the Lessee of the Undivided Interest has been given
pursuant to Section 5.1 within the previous 30 days, (ii) no Indenture Event of
Default of the nature described in any of clauses (b) through (f) of Section 4.1
hereof shall have occurred and be continuing and (iii) the Owner Trust shall
give written notice to the Indenture Trustee of the Owner Trust's intention to
purchase all of the Notes in accordance with this paragraph, accompanied by
assurances reasonably satisfactory to the Indenture Trustee of the Owner Trust's
ability to purchase the Notes, then, upon receipt within 10 Business Days after
such notice from the Owner Trust of an amount equal to the sum of (x) the
aggregate unpaid principal amount of any unpaid Notes then held by such
Noteholder, together with accrued but unpaid interest thereon to the date of
such receipt (as well as any interest on overdue principal and, to the extent
permitted by Applicable Law, overdue interest) plus the aggregate amount, if
any, of all sums which, if Section 3.3 where then applicable, such Noteholder
would be entitled to be paid before any payments were to be made to the Owner
Trust, but excluding any premium, such Noteholder will forthwith sell, assign,
transfer and convey to the Owner Trust (without recourse or warranty of any kind
other than of title to the Notes so conveyed) all of the right, title and
interest of such Noteholder in and to the Indenture Estate, this Indenture, all
Notes held by such Noteholder and the Assigned Documents, and the Owner Trust
shall thereupon assume all such Noteholder's rights and obligations in such
documents; provided, that no such holder shall be required to so convey unless
(1) the Owner
26
31
Trust shall have simultaneously tendered payment on all other Notes issued by
the Owner Trust at the time outstanding pursuant to this paragraph and (2) such
conveyance is not in violation of any Applicable Law. All charges and expenses
required to be paid in connection with the issuance of any new Note or Notes in
connection with this paragraph shall be borne by the Owner Trust.
Section 4.4 Rescission of Acceleration. If at any time after
the outstanding principal amount of the Notes shall have become due and payable
by acceleration pursuant to Section 4.2, (a) all amounts of principal, premium,
if any, and interest which are then due and payable in respect of all the Notes
otherwise than pursuant to Section 4.2 shall have been paid in full, together
with interest on all such overdue principal and (to the extent permitted by
Applicable Law) overdue interest at the rate or rates specified in the Notes,
and an amount sufficient to cover all costs and expenses of collection incurred
by or on behalf of the holders of the Notes (including, without limitation,
counsel fees and expenses and all expenses and reasonable compensation of the
Indenture Trustee) and (b) every other Indenture Event of Default shall have
been remedied, then a Majority in Interest of Noteholders may, by written notice
or notices to the Owner Trust, the Indenture Trustee and the Lessee, rescind and
annul such acceleration and any related declaration of default under the Lease
and their respective consequences, but no such rescission and annulment shall
extend to or affect any subsequent Indenture Event of Default or impair any
right consequent thereon, and no such rescission and annulment shall require any
Noteholder to repay any principal or interest actually paid as a result of such
acceleration.
Section 4.5 Return of Indenture Estate, Etc.
(a) If at any time the Indenture Trustee has the right to take
possession of the Indenture Estate pursuant to Section 4.2, at the request of
the Indenture Trustee, the Owner Trust promptly shall (i) execute and deliver to
the Indenture Trustee such instruments of title and other documents and (ii)
make all such demands and give all such notices as are permitted by the terms of
the Lease to be made or given by the Owner Trust upon the occurrence and
continuance of a Lease Event of Default, in each case as the Indenture Trustee
may deem necessary or advisable to enable the Indenture Trustee or an 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 the possession of which the Indenture
Trustee shall at the time be entitled to hereunder. If the Owner Trust shall for
any reason fail to execute and deliver such instruments and documents after such
request by the Indenture Trustee, the Indenture Trustee may (x) obtain a
judgment conferring on the Indenture Trustee the right to immediate possession
and requiring the Owner Trust to execute and deliver such instruments and
documents to the Indenture Trustee, to the entry of which judgment the Owner
Trust hereby specifically consents, and (y) pursue all or any part of the
Indenture Estate wherever it may be found and enter any of the premises wherever
all or part of the Indenture Estate may be or is supposed to be and search for
all or part of the Indenture Estate and take possession of and remove all or
part of the Indenture Estate.
(b) Upon every such taking of possession, the Indenture
Trustee may, from time to time, as a charge against proceeds of the Indenture
Estate, make all such expenditures
27
32
with respect to the Indenture Estate as it may deem proper. In each such case,
the Indenture Trustee shall have the right to deal with the Indenture Estate and
to carry on the business and exercise all rights and powers of the Owner Trust
relating to the Indenture Estate, as the Indenture Trustee shall deem best, and,
the Indenture Trustee shall be entitled to collect and receive all rents
(including Basic Rent and Supplemental Rent), revenues, issues, income, products
and profits of the Indenture Estate and every part thereof (without prejudice to
the right of the Indenture Trustee under any provision of this Indenture to
collect and receive cash held by, or required to be deposited with, the
Indenture Trustee hereunder) and to apply the same to the management of or
otherwise dealing with the Indenture Estate and of conducting the business
thereof, and of all expenditures with respect to the Indenture Estate and the
making of 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 part thereof (including the employment of engineers
and accountants to examine, inspect and make reports upon the properties and
books and records of the Owner Trust and the Lessee relating to the Indenture
Estate and the Operative Documents), or 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.
Section 4.6 Power of Sale and Other Remedies.
(a) In addition to all other remedies provided for herein, if
an Indenture Event of Default shall have occurred and be continuing, the
Indenture Trustee shall have the right to exercise the statutory power of sale
and sell the Indenture Estate or any part of the Indenture Estate at public sale
or sales, in order to pay the Secured Indenture Indebtedness, and all
impositions, if any, with accrued interest thereon, and all expenses of the sale
and of all proceedings in connection therewith, including reasonable attorney's
fees, if incurred. At any such public sale, the Indenture Trustee may execute
and deliver to the purchaser a conveyance of the Indenture Estate or any part of
the Indenture Estate, and to this end, the Owner Trust hereby constitutes and
appoints the Indenture Trustee the agent and attorney in fact of the Owner Trust
to make such sale and conveyance, and thereby to divest the Owner Trust of all
right, title or equity that the Owner Trust may have in and to the Indenture
Estate and to vest the same in the purchaser or purchasers at such sale or
sales, and all the acts and doings of said agent and attorney in fact are hereby
ratified and confirmed and any recitals in said conveyance or conveyances as to
facts essential to a valid sale shall be binding upon the Owner Trust. The
aforesaid power of sale and agency hereby granted are coupled with an interest
and are irrevocable by death or otherwise, are granted as cumulative of the
other remedies provided hereby or by law for collection of the Secured Indenture
Indebtedness and shall not be exhausted by one exercise thereof but may be
exercised until full payment of the Secured Indenture Indebtedness.
(b) Further, if an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee may, in addition to and not in
abrogation of other rights and remedies provided in this Section, either with or
without entry or taking possession as herein provided or otherwise, proceed by a
suit or suits in law or in equity or by any other appropriate proceeding or
remedy (i) to enforce payment of the Notes or the performance of any term,
covenant, condition of agreement of this Indenture or any other right, and (ii)
to pursue any
28
33
other remedy available to it, all as the Indenture Trustee shall determine to be
expedient for such purposes.
(c) Upon any foreclosure sale, the Indenture Trustee may bid
for and purchase the Indenture Estate and shall be entitled to apply all or any
part of the Secured Indenture Indebtedness as a credit to the purchase price. In
the event of a foreclosure sale of the Indenture Estate, the proceeds of said
sale shall be applied as provided in Section 3.3. In the event of any such
foreclosure sale by the Indenture Trustee, the Owner Trust shall be deemed a
tenant holding over and shall forthwith deliver possession to the purchaser or
purchasers at such sale or be summarily dispossessed according to provisions of
law applicable to tenants holding over.
(d) The Indenture Trustee, at the Indenture Trustee's option,
is authorized to foreclose this Indenture subject to the rights of any tenants
of the Indenture Estate, and the failure to make any such tenants parties to any
such foreclosure proceedings and to foreclose their rights will not be, nor be
asserted by the Owner Trust to be, a defense to any proceedings instituted by
the Indenture Trustee to collect the Secured Indenture Indebtedness.
(e) In addition, as part of the consideration for the Secured
Indenture Indebtedness, the Owner Trust has absolutely and unconditionally
assigned and transferred to the Indenture Trustee the Revenues, including those
now due, past due or to become due by virtue of any lease or other agreement for
the occupancy or use of all or any part of the Indenture Estate. The Owner Trust
hereby authorizes the Indenture Trustee or the Indenture Trustee's agents to
collect the Revenues and hereby directs such tenants of the Indenture Estate to
pay the Revenues to the Indenture Trustee or the Indenture Trustee's agents;
provided, however, that prior to written notice given by the Indenture Trustee
to the Owner Trust of any Indenture Event of Default by the Owner Trust, but
subject to the other provisions of this Indenture, the Owner Trust shall collect
and receive the Revenues as trustee for the benefit of the Indenture Trustee and
the Owner Trust, to apply the Revenues so collected to the Secured Indenture
Indebtedness with the balance, so long as no Indenture Event of Default has
occurred, to the account of the Owner Trust. The Owner Trust agrees that each
tenant of the Indenture Estate shall pay the Revenues to the Indenture Trustee
or the Indenture Trustee's agents on the Indenture Trustee's written demand
therefor without any liability on the part of said tenant to inquire further as
to the existence of an Indenture Event of Default.
Section 4.7 Appointment of Receiver. If the outstanding
principal amount of the Notes shall have been declared due and payable pursuant
to Section 4.2, as a matter of right, the Indenture Trustee shall be entitled to
the appointment of a receiver (who may be the Indenture Trustee or any successor
or nominee thereof) for all or any part 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 the Owner Trust hereby consents
to the appointment of such a receiver and will not oppose any such appointment.
Any receiver appointed for all or any part of the Indenture Estate shall be
entitled to exercise all the rights and powers with respect to the Indenture
Estate to the extent instructed to do so by the Indenture Trustee.
29
34
Section 4.8 Remedies Cumulative. Each and every right, power
and remedy herein specifically given to the Indenture Trustee or otherwise in
this Indenture shall be cumulative and shall be in addition to every other
right, power and remedy herein specifically given or now or hereafter existing
at law, in equity or by statute, and each and every right, power and remedy
whether specifically herein given or otherwise existing 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
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, remedy
or power or in the pursuance of any remedy shall impair any such right, power or
remedy or be construed to be a waiver of any default on the part of the Owner
Participant, the Owner Trust or the Lessee or to be an acquiescence therein.
Section 4.9 Waiver of Various Rights by the Owner Trust. The
Owner Trust hereby waives and agrees, to the extent permitted by Applicable Law,
that it will never seek or derive any benefit or advantage from any of the
following, whether now existing or hereafter in effect, in connection with any
proceeding under or in respect of this Indenture:
(a) any stay, extension, moratorium or other similar law;
(b) any law providing for the valuation of or appraisal of any
portion of the Indenture Estate in connection with a sale thereof; or
(c) any right to have any portion of the Indenture Estate or
other security for the Notes marshaled.
The Owner Trust covenants not to hinder, delay or impede the
exercise of any right or remedy under or in respect of this Indenture except as
permitted by Section 4.3, and agrees, to the extent permitted by Applicable Law,
to suffer and permit its exercise as though no laws or rights of the character
listed above were in effect.
Section 4.10 Discontinuance of Proceedings. In case the
Indenture Trustee or any Noteholder shall have proceeded to enforce any right,
power or remedy under this Indenture by foreclosure, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Indenture Trustee or the Noteholder,
then and in every such case the Owner Trust, the Indenture Trustee and the
Lessee shall be restored to their former positions and rights hereunder with
respect to the Indenture Estate, and all rights, remedies and powers of the
Indenture Trustee or the Noteholder shall continue as if no such proceedings had
taken place.
Section 4.11 No Action Contrary to the Lessee's Rights Under
the Lease. Notwithstanding any other provision of any of the Operative
Documents, so long as no Lease Event of Default shall have occurred and be then
continuing and the Lease shall not have been declared (or deemed to have been
declared) in default, the Indenture Trustee shall not take or cause to be taken
any action contrary to the Lessee's rights under the Lease and the Site
Sublease, including its rights, as between the Lessee and the Owner Trust and
the Owner
30
35
Participant and any Person claiming by or through the Owner Trust or the Owner
Participant, to quiet enjoyment of the use, operation and possession of the
Undivided Interest by the Lessee of the Facility, the Undivided Interest and the
Ground Interest.
Section 4.12 Right of the Indenture Trustee to Perform
Covenants, Etc. If the Owner Trust shall fail to make any payment or perform any
act required to be made or performed by it hereunder or under the Lease, the
Site Lease, the Site Sublease or the Participation Agreement, or if the Owner
Trust shall fail to release any Lien affecting the Indenture Estate which it is
required to release by the terms of this Indenture or the Participation
Agreement or the Trust Agreement, the Indenture Trustee, without notice to or
demand upon the Owner Trust and without waiving or releasing any obligation or
defaults may (but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the expense of the
Indenture Estate and may take all such action with respect thereto (including
entering upon the Facility Site or any part thereof, to the extent, of the
Undivided Interest for such purpose) as, in the Indenture Trustee's opinion, may
be necessary or appropriate therefor. No such entry shall be deemed an eviction.
All sums so paid by the Indenture Trustee and all costs and expenses (including,
without limitation, legal fees and expenses) so incurred, together with interest
thereon from the date of payment or incurrence, shall constitute additional
indebtedness secured by this Indenture and shall be paid from the Indenture
Estate to the Indenture Trustee on demand. The Indenture Trustee shall not be
liable for any damages resulting from any such payment or action unless such
damages shall be a consequence of willful misconduct or gross negligence on the
part of the Indenture Trustee.
Section 4.13 Further Assurances. The Owner Trust covenants and
agrees from time to time to do all such acts and execute all such instruments of
further assurance as shall be reasonably requested by the Indenture Trustee for
the purpose of fully carrying out and effectuating this Indenture and the intent
hereof.
Section 4.14 Waiver of Past Defaults. Any past Indenture Event
of Default and its consequences may be waived by the Indenture Trustee, except
an Indenture Event of Default (a) in respect of the payment of the principal of,
premium, if any, and or interest on any Note, subject to the provisions of
Section 5.1 and 8.1, or (b) in respect of a covenant or provision hereof which,
under Section 8.2, cannot be modified or amended without the consent of each
Noteholder. Upon any such waiver and subject to the terms of such waiver, such
Indenture Event of Default shall cease to exist, and any other Indenture Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Indenture Event of Default or impair any right consequent thereon.
31
36
SECTION 5
DUTIES OF INDENTURE TRUSTEE;
CERTAIN RIGHTS AND DUTIES OF OWNER TRUST
Section 5.1 Notice of Action Upon Indenture Event of Default.
The Indenture Trustee shall give prompt written notice to the Owner Trust and
the Owner Participant of any Indenture Event of Default with respect to which
the Indenture Trustee has Actual Knowledge and will give the Lessee and the
Owner Participant not less than 30 days' prior written notice of the date on or
after which the Indenture Trustee intends to exercise remedies under Section 4.2
(an "Enforcement Notice"), which notice may be given contemporaneously with any
notice contemplated by Section 4.2(a) or 4.2(b).
Section 5.2 Actions upon Instructions Generally. Subject to
the terms of Sections 5.4, 5.5 and 5.6, upon written instructions at any time
and from time to time of a Majority in Interest of Noteholders, the Indenture
Trustee shall take such of the following actions as may be specified in such
instructions: (a) give such notice, direction or consent or exercise such right,
remedy or power or take such action hereunder or under any Assigned Document, or
in respect of any part of or all the Indenture Estate, as it shall be entitled
to take and as shall be specified in such instructions; (b) take such action
with respect to or to preserve or protect the Indenture Estate (including the
discharge of Liens) as it shall be entitled to take and as shall be specified in
such instructions; and (c) waive, consent to, approve (as satisfactory to it) or
disapprove all matters required by the terms of any Operative Documents to be
satisfactory to the Indenture Trustee, it being understood that without such
written instructions the Indenture Trustee shall not waive, consent or approve
any such matter as satisfactory to it. The Indenture Trustee may, and upon
written instructions from a Majority in Interest of Noteholders the Indenture
Trustee shall, execute and file or cause to be executed and filed any instrument
or document relating to the security, title, Lien, security interest and
assignment granted by the Owner Trust herein as may be necessary to protect and
preserve the security title, Lien, security interest or assignment created by or
pursuant to this Indenture, to the extent otherwise entitled to do so and as
shall be specified in such instructions.
Section 5.3 Action Upon Payment of Notes or Termination of
Lease. Subject to the terms of Section 5.4, upon payment in full of the
principal of and interest on all Notes then outstanding and all other amounts
then due all Noteholders hereunder, and all other sums secured hereby or
otherwise required to be paid hereunder, under the Participation Agreement and
under the Lease, the Indenture Trustee shall execute and deliver to, or as
directed in writing by, the Owner Trust an appropriate instrument in due form
for recording, releasing the Indenture Estate from the Lien of this Indenture.
Nothing in this Section 5.3 shall be deemed to expand the instances in which the
Owner Trust is entitled to prepay the Notes.
Section 5.4 Compensation of the Indenture Trustee;
Indemnification.
(a) The Owner Trust will from time to time, on demand, pay to
the Indenture Trustee such compensation for its services hereunder as shall be
agreed to by the Owner Trust, the Lessee and the Indenture Trustee, or, in the
absence of agreement, reasonable compensation
32
37
for such services (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust), and the
Indenture Trustee agrees that it shall have no right against the Noteholders or,
except as provided in Section 3 and Section 4.2 or this Section 5, the Indenture
Estate, for any fee as compensation for its services hereunder.
(b) The Indenture Trustee shall not be required to take any
action or refrain from taking any action under Section 4, 5.2 or 9.1 unless it
and its directors, officers, employees or agents shall have been indemnified in
manner and form satisfactory to the Indenture Trustee. The Indenture Trustee
shall not be required to take any action under Section 4 or Section 5.2, 5.3 or
9.1, nor shall any other provision of this Indenture be deemed to impose a duty
on the Indenture Trustee to take any action, if it shall have been advised by
counsel (who shall not be an employee of the Indenture Trustee) that such action
is contrary to the terms hereof or is otherwise contrary to Applicable Law or
(unless it shall have been indemnified in manner and form satisfactory to the
Indenture Trustee) may result in personal liability to the Indenture Trustee.
Section 5.5 No Duties Except as Specified; No Action Except
Under Lease, Indenture or Instructions. The Indenture Trustee shall not have any
duty or obligation to and shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Indenture Estate or otherwise take or
refrain from taking any action under or in connection with this Indenture or the
other Assigned Documents except as expressly provided by the terms of this
Indenture or as expressly provided in written instructions from a Majority in
Interest of Noteholders in accordance with Section 5.2; and no implied duties or
obligations shall be read into this Indenture against the Indenture Trustee.
Section 5.6 Certain Rights of the Owner Trust. Notwithstanding
any other provision of this Indenture:
(a) The Owner Trust shall at all times, to the exclusion of
the Indenture Trustee, (i) retain all rights to demand and receive
payment of, and to commence an action for payment of, Excepted
Payments, but the Owner Trust shall have no remedy or right with
respect to any such payment against the Indenture Estate nor any right
to collect any such payment by the exercise of any of the remedies
under Section 17 of the Lease; (ii) retain all rights with respect to
insurance that Section 11 (Insurance) of the Lease specifically confers
upon the Owner Trust and to waive any failure by the Lessee to maintain
the insurance required by Section 11 of the Lease so long as the
insurance maintained by the Lessee still constitutes Prudent Industry
Practice; (iii) retain all rights to adjust Basic Rent and Termination
Value as provided in Section 3.6 (Adjustment of Basic Rent and
Termination Values) of the Lease or the Tax Indemnity Agreement;
provided, however, that after giving effect to any such adjustment (x)
the amount of Basic Rent (other than Deferrable Payments) payable on
each Rent Payment Date shall be at least equal to the aggregate amount
of all principal and accrued interest payable on such Rent Payment Date
on all Notes then outstanding and (y) Termination Value shall in no
event be less (when added to all other amounts required to be paid by
the Lessee under the Lease in respect of any early termination of the
Lease) than an amount sufficient, as of the date of payment, to pay in
full the principal of, and premium and
33
38
interest on all Notes outstanding on and as of such date of payment;
and (iv) except in connection with the exercise of remedies pursuant to
the Lease, retain all rights to exercise the Owner Trust's rights
relating to the Appraisal Procedure and to confer and agree with the
Lessee on Fair Market Rental Value or any Renewal Term;
(b) The Owner Trust shall have the right, but not to the
exclusion of the Indenture Trustee, (i) to receive from the Lessee all
notices, certificates, opinions of counsel and other documents and all
information that the Lessee is permitted or required to give or furnish
to the Owner Trust pursuant to the Lease or any other Operative
Document; (ii) to inspect the Facility and the records relating thereto
pursuant to Section 12 (Inspection) of the Lease; (iii) to provide such
insurance as may be permitted by Section 11 of the Lease; and (iv) to
perform for the Lessee as provided in Section 20 (Lessor's Right to
Perform) of the Lease;
(c) So long as the Notes have not been accelerated pursuant to
Section 4.2(a) (or, if accelerated, such acceleration has theretofore
been rescinded) or the Indenture Trustee shall not have exercised any
of its rights pursuant to Section 4 to take possession of, foreclose,
sell or otherwise take control of all or any part of the Indenture
Estate, the Owner Trust shall retain the right, to the exclusion of the
Indenture Trustee, to exercise the rights of the Owner Trust under, and
to determine compliance by the Lessee with, the provisions of Sections
3.4 (Deferrable Payments), 5 (Return of Undivided Interest) in
connection with the return of the Undivided Interest on the Lease
Expiration Date, 10 (Event of Loss) (other than Section 10.2 thereof),
13 (Termination Option for Burdensome Events), 14 (Termination for
Obsolescence) and 15 (Lease Renewal) of the Lease;
(d) Except as otherwise provided in this Section 5.6, so long
as the Notes have not been accelerated pursuant to Section 4.2(a) (or,
if accelerated, such acceleration has theretofore been rescinded) or
the Indenture Trustee shall not have exercised any of its rights
pursuant to Section 4 to take possession of, foreclose, sell or
otherwise take control of all or any part of the Indenture Estate, the
Owner Trust shall have the right, to be exercised jointly with the
Indenture Trustee, (i) to exercise the Owner Trust's rights with
respect to the Lessee's use and operation, modification or maintenance
of the Facility, under Sections 7 (Maintenance; Replacement of
Components), 8 (Modifications) and 19 (Sublease) of the Lease, and (ii)
to exercise the rights of the Owner Trust under Section 10.2 of the
Lease; provided, however, that (A) the Owner Trust shall have no right
to receive any Basic Rent payment or other payments by or on behalf of
the Lessee other than Excepted Payments payable to the Owner Trust or
the Owner Participant, (B) no determination by the Owner Trust or the
Indenture Trustee that the Lessee is in compliance with the provisions
of any such Assigned Document shall be binding upon or otherwise affect
the rights hereunder of the Indenture Trustee or any Noteholder on the
one hand or the Owner Trust or the Owner Participant on the other hand,
and (C) the Owner Trust shall not have the right to (i) declare any
Lease Event of Default pursuant to Section 16 of the Lease (except as
provided in Section 4.2(f) in respect of a failure to pay Excepted
Payments) or (ii) exercise any remedies pursuant to Section 17 of the
Lease; and
34
39
(e) Nothing in this Indenture shall give to, or create in, or
otherwise provide the benefit of to, the Indenture Trustee, any rights
of the Owner Participant under or pursuant to the Tax Indemnity
Agreement or any other Operative Document (including any Assigned
Document), and nothing in this Section 5.6 or elsewhere in this
Indenture shall give to the Owner Trust the right to exercise any
rights specifically given to the Indenture Trustee pursuant to any
Operative Document (including any Assigned Document); but nothing in
clauses (a) through (d) above shall deprive the Indenture Trustee of
the exclusive right, so long as this Indenture shall be in effect, to
declare the Lease to be in default under Section 16 thereof and
thereafter to exercise the remedies provided therein.
Section 5.7 Restrictions on Dealing with Indenture Estate.
Except as provided in the Operative Documents, but subject to the terms of this
Indenture, the Owner Trust shall not use, operate, store, lease, control,
manage, sell, dispose of or otherwise deal with the Undivided Interest, the
Facility Site, any part of the Facility Site or any other part of the Indenture
Estate.
Section 5.8 Filing of Financing Statements and Continuation
Statements. Pursuant to Section 5.10 of the Participation Agreement, the Lessee
has covenanted to maintain the priority of the Lien of this Indenture on the
Indenture Estate. The Indenture Trustee shall, at the request and expense of the
Lessee, as provided in the Participation Agreement, execute and deliver to the
Lessee and Lessee will file, if not already filed, such financing statements or
other documents and such continuation statements or other documents with respect
to financing statements or other documents previously filed relating to the Lien
created by this Indenture in the Indenture Estate as may be supplied to the
Indenture Trustee by the Lessee. At any time and from time to time, upon the
request of the Lessee or the Indenture Trustee, at the expense of the Lessee
(and upon receipt of the form of document so to be executed), the Owner Trust
shall promptly and duly execute and deliver any and all such further instruments
and documents as the Lessee or the Indenture Trustee may request in obtaining
the full benefits of the security interest and assignment created or intended to
be created hereby and of the rights and powers herein granted. Upon the
reasonable instructions (which instructions shall be accompanied by the form of
document to be filed) at any time and from time to time of the Lessee or the
Indenture Trustee, the Owner Trust shall execute and file any financing
statement (and any continuation statement with respect to any such financing
statement), and any other document relating to the security interest and
assignment created by this Indenture as may be specified in such instructions.
In addition, the Indenture Trustee and the Owner Trust will execute such
continuation statements with respect to financing statements and other documents
relating to the Lien created by this Indenture in the Indenture Estate as may be
specified from time to time in written instructions of any Noteholder (which
instructions may, by their terms, be operative only at a future date and which
shall be accompanied by the form of such continuation statement or other
document so to be filed). Except as otherwise herein expressly provided, neither
the Indenture Trustee nor the Owner Trust shall have responsibility for the
protection, perfection or preservation of the Lien created by this Indenture.
35
40
SECTION 6
INDENTURE TRUSTEE AND OWNER TRUST
Section 6.1 Acceptance of Trusts and Duties. The Indenture
Trustee accepts the trusts hereby created and applicable to it and agrees to
perform the same but only upon the terms of this Indenture, and agrees to
receive and disburse all moneys constituting part of the Indenture Estate in
accordance with the provisions hereof. If any Indenture Event of Default shall
have occurred and be continuing, the Indenture Trustee shall, subject to the
provisions of Section 4 and 5, exercise such of the rights and remedies vested
in it by this Indenture and shall at all times use the same degree of care in
their exercise as a prudent person would exercise or use in the circumstances in
the conduct of its own affairs. The Indenture Trustee shall not be liable under
any circumstances, except (a) for its own negligence or willful misconduct, (b)
for any inaccuracy of any representation or warranty contained in (x) Section
3.4 of the Participation Agreement, (y) the certificate delivered by the
Indenture Trustee at the Closing pursuant to Section 4.5 of the Participation
Agreement or (z) Section 6.3(b), or (c) for the performance of its obligations
under Section 9 of the Participation Agreement; and the Indenture Trustee shall
not be liable for any action or inaction of the Owner Trust; provided, however,
that
(i) Prior to the occurrence of an Indenture Event of Default of
which a Responsible Officer of the Indenture Trustee shall have Actual
Knowledge, and after the curing of all such Indenture Events of Default
which may have occurred, the duties and obligations of the Indenture
Trustee shall be determined solely by the express provisions of the
Operative Documents, the Indenture Trustee shall not be liable except
for the performance of such duties and obligations as are specifically
set forth in the Operative Documents, no implied covenants or
obligations shall be read into the Operative Documents against the
Indenture Trustee and, in the absence of bad faith on the part of the
Indenture Trustee, the Indenture Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any notes or opinions furnished to the
Indenture Trustee and conforming to requirements of this Indenture;
(ii) The Indenture Trustee shall not be liable in its individual
capacity for an error of judgment made in good faith by a Responsible
Officer or other officers of the Indenture Trustee, unless it shall be
proven that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) The Indenture Trustee shall not be liable in its individual
capacity with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with this Indenture or at the
direction of the Majority in Interest of Noteholders, relating to the
time, method and place of conducting any proceeding or remedy available
to the Indenture Trustee, or exercising or omitting to exercise any
trust or power conferred upon the Indenture Trustee, under this
Indenture;
(iv) The Indenture Trustee shall not be required to take notice
or be deemed to have notice or knowledge of any default, Lease Event of
Default, Lease Material Default
36
41
or Indenture Event of Default (except for defaults and Indenture Event
of Default resulting from an event of nonpayment) unless a Responsible
Officer of the Indenture Trustee shall have received written notice
thereof. In the absence of receipt of such notice, the Indenture
Trustee may conclusively assume that there is no default or Indenture
Event of Default;
(v) The Indenture Trustee shall not be required to expend or
risk its own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or the exercise of any of
its rights or powers if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it, and none of the provisions
contained in this Indenture shall in any event require the Indenture
Trustee to perform, or be responsible for the manner of performance of,
any of the obligations of the Owner Trust under this Indenture;
(vi) The right of the Indenture Trustee to perform any
discretionary act enumerated in this Indenture shall not be construed
as a duty, and the Indenture Trustee shall not be answerable for other
than its negligence or willful misconduct in the performance of such
act;
(vii) The Indenture Trustee may consult with counsel;
(viii) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed by it hereunder with due care; and
(ix) The Indenture Trustee shall not be personally liable absent
gross negligence for any action taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the direction
of rights or powers conferred upon it by this Agreement or any other
Operative Document.
Section 6.2 Absence of Certain Duties. Except in accordance
with written instructions furnished pursuant to Section 5.2 and except as
provided in Section 5.5 and 5.8, the Indenture Trustee shall have no duty (a) to
see to any registration, recording or filing of any Operative Document (or any
financing or continuation statements in respect thereof) or to see to the
maintenance of any such registration, recording or filing, (b) to see to any
insurance on the Facility or the Undivided Interest or to effect or maintain any
such insurance, (c) except as otherwise provided in Section 5.5 or in Section 9
of the Participation Agreement, to see to the payment or discharge of any Tax or
any Lien of any kind owing with respect to, or assessed or levied against, any
part of the Indenture Estate, (d) to confirm or verify the contents of any
report, notice, request, demand, certificate, financial statement or other
instrument of the Lessee, the Owner Trust or the Owner Participant, (e) to
inspect the Facility at any time or ascertain or inquire as to the performance
or observance of any of the covenants of the Lessee, the Owner Trust or the
Owner Participant with respect to the Facility, (f) to exercise any of the
trusts or powers vested in it by this Indenture or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order or
direction of any of the Noteholders,
37
42
pursuant to the provisions of this Indenture, unless such Noteholders shall have
provided to the Indenture Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby (which
in the case of the Majority in Interest of Noteholders will be deemed to be
satisfied by a letter agreement with respect to such costs from such Majority in
Interest in the Noteholders); or (g) to give any bond or surety in respect of
the execution of the trust fund created hereby or the powers granted hereunder.
Notwithstanding the foregoing, the Indenture Trustee shall furnish to each
Noteholder and to the Owner Trust and the Owner Participant promptly upon
receipt thereof of duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee hereunder or under any of the Operative Documents unless
the Indenture Trustee shall reasonably believe that each such Noteholder, the
Owner Trust and the Owner Participant shall have received copies thereof.
Section 6.3 Representations, Warranties and Covenants.
(a) Subject to Section 2.5, the Owner Trust hereby covenants
and agrees that it will duly and punctually pay the principal of, and premium,
if any, and interest on, the Notes in accordance with the terms thereof and this
Indenture. The Owner Trust represents and warrants that it has not assigned or
pledged, and hereby covenants that it will not assign or pledge, so long as this
Indenture shall remain in effect, any of its estate, right, title or interest
subject to this Indenture, to anyone other than to an additional or successor
trustee under the Trust Agreement or to the Indenture Trustee. Subject to
Section 5.6, the Owner Trust further covenants that it will not, except with the
prior written consent of the Indenture Trustee or as expressly provided in or
permitted by this Indenture or with respect to any property not constituting
part of the Indenture Estate, (i) exercise any election or option, or make any
decision or determination, or give any notice, consent, waiver or approval, or
take any other action, under or in respect of any Assigned Document, (ii) accept
and retain any payment from, or settle or compromise any claim against, the
Lessee under any Assigned Document in violation of Section 3.9, (iii) submit or
consent to the submission to arbitration of any dispute, difference or other
matter arising under or in respect of any Assigned Document, or (iv) take any
action, which would result in an alteration or impairment of any Note or any
Assigned Document (except in respect of Excepted Payments) or any of the rights
or security created or effected thereby. A signed copy of any amendment or
supplement to the Trust Agreement shall be delivered by the Owner Trust, the
Indenture Trustee and the Lessee. This Indenture and the Indenture Estate shall
not be affected by any action taken under or in respect of the Trust Agreement
except as otherwise provided or permitted by this Indenture.
(b) NEITHER THE OWNER TRUST NOR THE INDENTURE TRUSTEE MAKES,
NOR SHALL BE DEEMED TO HAVE MADE (i) ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE TITLE, VALUE, COMPLIANCE WITH PLANS OR SPECIFICATIONS,
QUALITY, DURABILITY, SUITABILITY, CONDITION, DESIGN, OPERATION, MERCHANTABILITY
OR FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE OF THE FACILITY OR ANY PART
THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED,
WITH RESPECT TO THE UNDIVIDED INTEREST OR ANY OTHER PART OF THE INDENTURE
ESTATE, except that the Owner Trust represents and warrants that on
38
43
the Closing Date it shall have received whatever title or interest to the
Undivided Interest and the Facility Site as was conveyed to it by the Sellers
under the Asset Purchase Agreement and that on the Closing Date the Undivided
Interest shall be free of Lessor's Liens and the Owner Participant's Liens or
(ii) any representation or warranty as to the validity, legality or
enforceability of this Indenture, the Notes or any of the other Operative
Documents, or as to the correctness of any statement contained in any thereof,
except that each of the Owner Trust and the Indenture Trustee represents and
warrants that this Indenture and the Participation Agreement have been, and, in
the case of the Owner Trust, the other Operative Documents to which it is or is
to become a party have been or will be, executed and delivered by one of its
officers who is and will be duly authorized to execute and deliver such document
on its behalf.
Section 6.4 No Segregation of Moneys; No Interest. All moneys
and securities deposited with and held by the Indenture Trustee under this
Indenture for the purpose of paying, or securing the payment of, the principal
of or premium or interest on the Notes shall be held in trust. Except as
specifically provided herein or in the Lease, any moneys received by the
Indenture Trustee hereunder need not be segregated in any manner except to the
extent required by Applicable Law and may be deposited under such general
conditions as may be prescribed by Applicable Law, and neither the Owner Trust
nor the Indenture Trustee shall be liable for any interest thereon; provided,
however, subject to Section 6.5, that any payments received or applied hereunder
by the Indenture Trustee shall be accounted for by Indenture Trustee so that any
portion thereof paid or applied pursuant hereto shall be identifiable as to the
source thereof.
Section 6.5 Reliance; Agents; Advice of Experts. The Indenture
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper, or any facsimile transmission, e-mail
or other electronic communication, believed to be genuine and believed to be
signed or sent by the proper party or parties. The Indenture Trustee may accept
in good faith a certified copy of a resolution of the Board of Directors of the
Lessee as conclusive evidence that such resolution has been duly adopted by such
Board and that the same is in full force and effect. As to the amount of any
payment to which any Noteholder is entitled pursuant to Clause "Third" of
Section 3.2 or Section 3.3, and as to the amount of any payment to which any
other Person is entitled pursuant to Section 3.5 or Section 3.7, the Indenture
Trustee for all purposes hereof may rely on and shall be protected in acting or
refraining from acting upon an Officer's Certificate of such Noteholder or other
Person, as the case may be. As to any fact or matter the manner of ascertainment
of which is not specifically described herein, the Indenture Trustee for all
purposes hereof may rely on an Officer's Certificate of the Owner Trust or the
Lessee or a Noteholder as to such a fact or matter, and such certificate shall
constitute full protection to the Indenture Trustee 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 may, at the expense of the Indenture Estate
(but subject to the priorities of payment set forth in Section 3), consult with
independent skilled Persons to be selected and retained by it (other than
Persons regularly in its employ) as to matters within their particular
competence, 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, within such Person's area of
39
44
competence, of any such Person, so long as the Indenture Trustee shall have
exercised reasonable care in selecting such Person.
SECTION 7
SUCCESSOR INDENTURE TRUSTEES AND SEPARATE TRUSTEES
Section 7.1 Resignation or Removal of the Indenture Trustee;
Appointment of Successor.
(a) Resignation or Removal. The Indenture Trustee or any
successor thereto may resign at any time with or without cause by giving at
least 30 days' prior written notice to the Owner Trust, the Owner Participant,
the Lessee and each Noteholder, such resignation to be effective on the
acceptance of appointment by the successor to the Indenture Trustee pursuant to
the provisions of subsection (b) below. In addition, a Majority in Interest in
the Noteholders may at any time remove the Indenture Trustee with or without
cause by an instrument in writing delivered to the Owner Trust, the Owner
Participant and the Indenture Trustee, and the Owner Trust shall give prompt
written notification thereof to each Noteholder and the Lessee. Such removal
will be effective on the acceptance of appointment by the successor Indenture
Trustee pursuant to the provisions of subsection (b) below. In the case of the
resignation or removal of the Indenture Trustee, a Majority in Interest of
Noteholders may appoint a successor Indenture Trustee by an instrument signed by
such holders. If a successor Indenture Trustee shall not have been appointed
within 30 days after such resignation or removal, the Indenture Trustee or any
Noteholder may apply to any court of competent jurisdiction to appoint a
successor Indenture Trustee to act until such time, if any, as a successor shall
have been appointed by a Majority in Interest of Noteholders as above provided.
The successor Indenture Trustee so appointed by such court shall immediately and
without further act be superseded by any successor Indenture Trustee appointed
by a Majority in Interest in the Noteholders as above provided.
(b) Acceptance of Appointment. Any successor Indenture Trustee
shall (i) execute and deliver to the predecessor Indenture Trustee, the Owner
Participant, the Owner Trust and all Noteholders an instrument accepting such
appointment, and (ii) execute and present for filing with the appropriate
Governmental Entity, if any, a notice with the relevant details of such
appointment, and thereupon 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 in the trusts hereunder
applicable to it with like effect as if originally named the Indenture Trustee
herein; but nevertheless upon the written request of such successor Indenture
Trustee or a Majority in Interest of Noteholders, such predecessor 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. To the extent required by
Applicable Law or upon request of the successor Indenture Trustee, the
40
45
Owner Trust shall execute any and all documents confirming the vesting of such
estates, properties, rights and powers in the successor Indenture Trustee.
(c) Qualifications. Any successor Indenture Trustee, however
appointed, shall be a trust company or bank with trust powers (i) which (A) has
a combined capital and surplus of at least $150,000,000, or (B) is a direct or
indirect subsidiary of a corporation which has a combined capital and surplus of
at least $150,000,000 provided such corporation guarantees the performance of
the obligations of such trust company or bank as Indenture Trustee, or (C) is a
member of a bank holding company group having a combined capital and surplus of
at least $150,000,000 provided the parent of such bank holding company group or
a member which itself has a combined capital and surplus of at least
$150,000,000 guarantees the performance of the obligations of such trust company
or bank, and (ii) is willing, able and legally qualified to perform the duties
of Indenture Trustee hereunder upon reasonable or customary terms. No successor
Indenture Trustee, however appointed, shall become such if such appointment
would result in the violation of any Applicable Law or create a conflict or
relationship involving a conflict of interest under the Trust Indenture Act of
1939, as amended.
(d) Merger, etc. 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 subsection (c) above, be the Indenture Trustee
under this Indenture without further act.
Section 7.2 Appointment of Additional and Separate Trustees.
(a) Appointments. Whenever (i) the Indenture Trustee shall
deem it necessary or prudent in order to conform to any law of any applicable
jurisdiction or to make any claim or bring any suit with respect to or in
connection with the Indenture Estate, this Indenture, the Lease, the Notes or
any of the transactions contemplated by the Operative Documents, (ii) the
Indenture Trustee shall be advised by counsel, satisfactory to it, that it is so
necessary or prudent in the interest of the Noteholders or (iii) a Majority in
Interest of Noteholders deems it so necessary or prudent and shall have
requested in writing the Indenture Trustee to do so, then in any such case the
Indenture Trustee shall execute and deliver from time to time all instruments
and agreements necessary or proper to constitute another bank or trust company
or one or more Persons approved by the Indenture Trustee either to act as
additional trustee or trustees of all or any part of the Indenture Estate,
jointly with the Indenture Trustee, or to act as separate trustee or trustees of
all or any part of the Indenture Estate, in any such case with such powers as
may be provided in such instruments or agreements, and to vest in such bank,
trust company or Person as such additional trustee or separate trustee, as the
case may be, any property, title, right or power of the Indenture Trustee deemed
necessary or advisable by the Indenture Trustee, subject to the remaining
provisions of this Section 7.2. The Owner Trust hereby consents to all actions
taken by the Indenture Trustee under the provisions of this Section 7.2 and
agrees, upon the Indenture Trustee's request, to join in and execute,
acknowledge and deliver any or all such instruments or agreements; and the Owner
Trust hereby makes, constitutes and appoints the Indenture Trustee its agent and
attorney-in-fact for it and in
41
46
its name, place and stead to execute, acknowledge and deliver any such
instrument or agreement in the event that the Owner Trust shall not itself
execute and deliver the same within 15 days after receipt by it of such request
so to do; provided, however, that the Indenture Trustee shall exercise due care
in selecting any additional or separate trustee if such additional or separate
trustee shall not be a Person possessing trust powers under Applicable Law. If
at any time the Indenture Trustee shall deem it no longer necessary or prudent
in order to conform to any such law or take any such action or shall be advised
by such counsel that it is no longer necessary or prudent in the interest of the
Noteholders or in the event that the Indenture Trustee shall have been requested
to do so in writing by a Majority in Interest of Noteholders, the Indenture
Trustee shall execute and deliver all instruments and agreements necessary or
proper to remove any additional trustee or separate trustee. In such connection,
the Indenture Trustee may act on behalf of the Owner Trust to the same extent as
is provided above. Notwithstanding anything contained to the contrary in this
Section 7.2(a), to the extent the laws of any jurisdiction preclude the
Indenture Trustee from taking any action hereunder either alone, jointly or
through a separate trustee under the direction and control of the Indenture
Trustee, the Owner Trust, at the instruction of the Indenture Trustee, shall
appoint a separate trustee for such jurisdiction, which separate trustee shall
have full power and authority to take all action hereunder as to matters
relating to such jurisdiction without the consent of the Indenture Trustee, but
not subject to the same limitations in any exercise of his power and authority
as those to which the Indenture Trustee is subject.
(b) The Indenture Trustee as Agent. Any additional trustee or
separate trustee at any time by an instrument in writing may constitute the
Indenture Trustee its agent or attorney-in-fact, with full power and authority,
to the extent not prohibited by Applicable Law, to do all acts and things and
exercise all discretions which it is authorized or permitted to do or exercise,
for and in its behalf and in its name. In case any such additional trustee or
separate trustee shall become incapable of acting or cease to be such additional
trustee or separate trustee, the property, rights, powers, trusts, duties and
obligations of such additional trustee or separate trustee, as the case may be,
so far as permitted by Applicable Law, shall vest in and be exercised by the
Indenture Trustee, without the appointment of a new successor to such additional
trustee or separate trustee, unless and until a successor is appointed in the
manner hereinbefore provided.
(c) Requests, etc. Any request, approval or consent in writing
by the Indenture Trustee to any additional trustee or separate trustee shall be
sufficient warrant to such additional trustee or separate trustee, as the case
may be, to take the requested, approved or consented to action.
(d) Subject to Indenture, etc. Each additional trustee and
separate trustee appointed pursuant to this Section 7.2 shall be subject to, and
shall have the benefit of, Sections 3 through 9 insofar as they apply to the
Indenture Trustee. Notwithstanding any other provision of this Section 7.2, (i)
the powers, duties, obligations and rights of any additional trustee or separate
trustee appointed pursuant to this Section 7.2 shall not in any case exceed
those of the Indenture Trustee hereunder, (ii) all powers, duties, obligations
and rights conferred upon the Indenture Trustee in respect of the receipt,
custody, investment and payment of moneys or the investment of moneys shall be
exercised solely by the Indenture Trustee and (iii) no power
42
47
hereby given to, or exercisable as provided herein by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of, the
Indenture Trustee.
SECTION 8
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
Section 8.1 Supplemental Indentures and Other Amendments With
Consent, Conditions and Limitations. At any time and from time to time, subject
to Section 8.3, but only upon the written direction of a Majority in Interest of
Noteholders and the written consent of the Owner Trust, (a) the Indenture
Trustee shall execute an amendment or supplement hereto for the purpose of
adding provisions to, or changing or eliminating provisions of, this Indenture
as specified in such request, and (b) the Indenture Trustee shall enter into or
consent to such written amendment of or supplement to any Assigned Document as
each other party thereto may agree to and as may be specified in such request,
or execute and deliver such written waiver or modification of or consent to the
terms of any such agreement or document as may be specified in such request;
provided, however, that without the consent of the Noteholders representing one
hundred percent (100%) of the outstanding principal amount of Notes, such
percentage to be determined in the same manner as provided in the definition of
the term "Majority in Interest of Noteholders," no such supplement to or
amendment of this Indenture or any Assigned Document, or waiver or modification
of or consent to the terms hereof or thereof, shall (i) modify the definition of
the terms "Majority in Interest in the Noteholders" or reduce the percentage of
Noteholders required to take or approve any action hereunder, (ii) change the
amount or the time of payment of any amount owing or payable under any Note or
change the rate or manner of calculation of interest payable on any Note, (iii)
alter or modify the provisions of Section 3 with respect to the manner of
payment or the order of priorities in which distributions thereunder shall be
made as between the Noteholders and the Owner Trust, (iv) reduce the amount
(except to any amount as shall be sufficient to pay the aggregate principal of,
premium, if any, and interest on all outstanding Notes) or extend the time of
payment of Basic Rent or Termination Value except as expressly provided in
Section 3.6 of the Lease, or change any of the circumstances under which Basic
Rent or Termination Value is payable, or (v) consent to any assignment of the
Lease if in connection therewith the Lessee will be released from its obligation
to pay Basic Rent and Termination Value or such assignment shall reduce the
Lessee's obligations in respect of the payment of Basic Rent or Termination
Value or change the absolute and unconditional character of such obligations as
set forth in Section 9 of the Lease.
Section 8.2 Supplemental Indentures and Other Amendments
Without Consent. Without the consent of any Noteholders but subject to the
provisions of Section 8.3, and only after notice thereof shall have been sent to
the Noteholders and with the consent of the Owner Trust, the Indenture Trustee
shall enter into any indenture or indentures supplemental hereto or execute any
amendment, modification, supplement, waiver or consent with respect to any other
Operative Document (a) to evidence the succession of a successor as the
Indenture Trustee hereunder, the removal of the Indenture Trustee or the
appointment of any separate or
43
48
additional trustee or trustees, in each case if done pursuant to the provisions
of Section 7 and to define the rights, powers, duties and obligations conferred
upon any such separate trustee or trustees or co-trustee or co-trustees, (b) to
correct, confirm or amplify the description of any property at any time subject
to the Lien of this Indenture or to convey, transfer, assign, mortgage or pledge
any property to or with the Indenture Trustee, (c) to provide for any evidence
of the creation and issuance of any Additional Notes pursuant to, and subject to
the conditions of, Section 2.12, (d) to cure any ambiguity in, to correct or
supplement any defective or inconsistent provision of, or to add to or modify
any other provisions and agreements in this Indenture or any other Operative
Document in any manner that will not in the judgment of the Indenture Trustee
materially adversely affect the interests of the Noteholders, (e) to grant or
confer upon the Indenture Trustee for the benefit of the Noteholders any
additional rights, remedies, powers, authority or security which may be lawfully
granted or conferred and which are not contrary or inconsistent with this
Indenture, (f) to add to the covenants or agreements to be observed by the Owner
Trust and which are not contrary to this Indenture, to add Indenture Events of
Defaults for the benefit of Noteholders or to surrender any right or power of
the Owner Trust, provided it has consented thereto, and (g) with respect to any
indenture or indentures supplemental hereto or any amendment, modification,
supplement or waiver or consent with respect to any other Operative Document,
provided such supplemental indenture, amendment, modification, supplement,
waiver or consent shall not, in the judgment of the Indenture Trustee,
materially adversely affect the interest of the Noteholders; provided, however,
that no such amendment, modification, supplement, waiver or consent contemplated
by this Section 8.2 shall, without the consent of the holder of each then
outstanding Note, cause any of the events specified in clauses (i) through (v)
of the first sentence of Section 8.1 to occur; and provided, further, that no
such amendment, modification, supplement, waiver or consent contemplated by this
Section 8.2 shall, without the consent of the holder of a Majority in Interest
of Noteholders, modify the provisions of Sections 5 or 6 of the Participation
Agreement without the consent of a Majority in Interest of Noteholders.
Section 8.3 Conditions to Action by the Indenture Trustee. If
in the opinion of the Indenture Trustee any document required to be executed
pursuant to the terms of Section 8.1 or 8.2 or the election referred to in
Section 9.13 adversely affects any immunity or indemnity in favor of the
Indenture Trustee under this Indenture or the Participation Agreement, or would
materially increase its administrative duties or responsibilities hereunder or
thereunder or may result in personal liability for it (unless it shall have been
provided an indemnity satisfactory to the Indenture Trustee), the Indenture
Trustee may in its discretion decline to execute such document or the election.
With every such document and election, the Indenture Trustee shall be furnished
with evidence that all necessary consents have been obtained and with an opinion
of counsel that such document complies with the provisions of this Indenture,
does not deprive the Indenture Trustee or the holders of the Notes of the
benefits of the Lien hereby created on any property subject hereto or of the
assignments contained herein (except as otherwise consented to in accordance
with Section 8.1) and that all consents required by the terms hereof in
connection with the execution of such document or the making of such election
have been obtained. The Indenture Trustee shall be fully protected in relying on
such opinion.
44
49
SECTION 9
MISCELLANEOUS
Section 9.1 Surrender, Defeasance and Release.
(a) Surrender and Cancellation of Indenture. This Indenture
shall be surrendered and canceled and the trusts created hereby shall terminate
and this Indenture shall be of no further force or effect upon satisfaction of
the conditions set forth in the proviso to the Granting Clause hereof. Upon any
such surrender, cancellation and termination, the Indenture Trustee shall pay
all moneys or other properties or proceeds constituting part of the Indenture
Estate (the distribution of which is not otherwise provided for herein) to the
Owner Trust, and the Indenture Trustee shall, upon request and at the cost and
expense of the Owner Trust, execute and deliver proper instruments acknowledging
such cancellation and termination and evidencing the release of the security,
rights and interests created hereby. If this Indenture is terminated pursuant to
this Section 9.1(a), the Indenture Trustee shall promptly notify the Lessee and
the Owner Participant of such termination.
(b) Defeasance of Notes. Any Note shall, prior to the maturity
or Redemption Date thereof, be deemed to have been paid within the meaning and
with the effect expressed in this Section 9.1 if (i) there shall have been
deposited with the Indenture Trustee either moneys in an amount which shall be
sufficient, or U.S. Government Obligations, the principal of and the interest on
which when due, and without any reinvestment thereof, will provide moneys in an
amount which shall be sufficient, together with the moneys, if any, deposited
with or held by the Indenture Trustee at the same time (such sufficiency to be
established by the delivery to the Indenture Trustee of a certificate of an
independent public accountant), to pay when due the principal of and premium, if
any, and interest due and to become due on said Note on and prior to the
Redemption Date or maturity date thereof, as the case may be, and (ii) in the
event said Note does not mature or is not to be redeemed within the next 45
days, the Indenture Trustee shall have been given irrevocable instructions to
give, as soon as practicable, a notice to the registered holder of such Note
that the deposit required by subclause (i) above has been made with the
Indenture Trustee and that said Note is deemed to have been paid in accordance
with this Section 9.1(b) and stating such maturity or Redemption Date upon which
moneys are to be available for the payment of the principal of and premium, if
any, and interest on said Note. Neither the U.S. Government Obligations nor
moneys deposited with the Indenture Trustee pursuant to this Section 9.1(b) or
principal or interest payments on any such U.S. Government Obligations shall be
withdrawn or used for any purpose other than, and shall be held in trust for the
payment of the principal of and premium, if any, and interest on said Note;
provided, however, that any cash received from such principal or interest
payments on such U.S. Government Obligations deposited with the Indenture
Trustee shall be reinvested in accordance with Section 3.4 in U.S. Government
Obligations. At such time as any Note shall be deemed paid as aforesaid, it
shall no longer be secured by or entitled to the benefits of the portions of the
Indenture Estate or this Indenture, except that (i) such Note shall be entitled
to the benefits of the portions of the Indenture Estate described in Granting
Clauses (4) and (7), to the extent such portions relate to such moneys or U.S.
Government Obligations deposited with the Indenture Trustee, (ii) the provisions
of Sections 2.8 and 2.9 shall continue to apply to such
45
50
Note and (iii) the duties and immunities of the Indenture Trustee hereunder
shall continue with respect to such Note. Notwithstanding the foregoing, the
Owner Trust shall not make or cause to be made the deposit of moneys or property
provided for by this Section 9.1(b) unless it shall have delivered to the
Indenture Trustee an opinion or opinions of counsel reasonably satisfactory to
the Indenture Trustee to the effect that the deposit of such moneys or U.S.
Government Obligations by the Owner Trust or other defeasance of the Lessor
Notes will not cause a Tax Event.
(c) Release.
(i) Whenever a Component is replaced pursuant to the Lease,
the Owner Trust's interest in such Component shall automatically and without
further act of any Person be released from the Lien of the Indenture and the
Indenture Trustee shall, upon request of the Owner Trust or the Lessee, execute
and deliver to, and as directed in writing by, the Lessee or the Owner Trust an
appropriate instrument (in due form for recording) releasing the Owner Trust's
interest in the replaced Component from the Lien of the Indenture.
(ii) Whenever the Lessee is entitled to acquire or have
transferred to it the Undivided Interest pursuant to the express terms of the
Lease, the Indenture Trustee shall release the Indenture Estate from the Lien of
the Indenture and execute and deliver to, or as directed in writing by, the
Lessee or the Owner Trust an appropriate instrument (in due form for recording)
releasing the Indenture Estate from the Lien of the Indenture; provided that all
sums secured by this Indenture have been paid to the Persons entitled to such
sums.
Section 9.2 Conveyances Pursuant to Section 5.2 of Site Lease.
Sales, grants of leases or easements and conveyances of portions of the Facility
Site, rights of way, easements or leasehold interest made by the Lessee in
accordance with Section 5.2 of the Site Lease and any such property right so
sold, leased or otherwise conveyed shall automatically, without further act of
any Person, be released from this Indenture.
Section 9.3 Appointment of the Indenture Trustee as Attorney;
Further Assurances. The Owner Trust hereby appoints the Indenture Trustee the
true and lawful attorney of the Owner Trust irrevocably with full power as long
as the Indenture is in effect (in the name of the Owner Trust or otherwise) to
ask, require, demand, receive, compound and give acquittance for any and all
moneys and claims for moneys due and to become due under or arising out of the
Assigned Documents (except to the extent that such moneys and claims constitute
Excepted Payments), to endorse any checks or other instruments or orders in
connection therewith, to make all such demands and to give all such notices as
are permitted by the terms of the Lease to be made or given by the Owner Trust
upon the occurrence and continuance of a Lease Material Default or a Lease Event
of Default, to enforce compliance by the Lessee with all terms and provisions of
the Lease (except as otherwise provided in Sections 4.3 and 5.6), and to file
any claims or take any action or institute any proceedings which the Indenture
Trustee may request in the premises.
Section 9.4 Indenture for Benefit of Certain Persons Only.
Nothing in this Indenture, whether express or implied, shall be construed to
give to any Person other than the
46
51
parties hereto, the Owner Participant, the Lessee (with respect to Sections 2.2,
2.3, 2.4, 2.10, 2.12, 3.1, 3.2, 3.3, 5.4, 5.8, 7.1, 8.1, 9.4, 9.12, and 9.14)
and the Noteholders (and any successor or assign of any thereof) any legal or
equitable right, remedy or claim under or in respect to this Indenture, and this
Indenture shall be for the sole and exclusive benefit of the parties hereto, the
Owner Participant, the Lessee (as provided in Sections 2.2, 2.3, 2.4, 2.10,
2.12, 3.1, 3.2, 3.3, 5.4, 5.8, 7.1, 8.1, 9.4, 9.12, and 9.14) and the
Noteholders of the Notes.
Section 9.5 Notices, Furnishing Documents, etc. Unless
otherwise expressly specified or permitted by the terms hereof, all
communications and notices provided for herein to a party hereto shall be in
writing or by a telecommunications device capable of creating a written record,
and any such notice shall become effective (a) upon personal delivery thereof,
including, without limitation, by overnight mail or courier service, (b) in the
case of notice by United States mail, certified or registered, postage prepaid,
return receipt requested, upon receipt thereof, or (c) in the case of notice by
such a telecommunications device, upon transmission thereof, provided such
transmission is promptly confirmed by either of the methods set forth in clauses
(a) and (b) above, in each case addressed to such party and copy party at its
address set forth below or at such other address as such party or copy party may
from time to time designate by written notice to the other party:
If to the Owner Trust:
Kintigh Facility Trust A-1
c/o Wilmington Trust Company, as Trustee
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Telephone No.: (302) 651-1000
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Administration
with a copy to the Owner Participant:
As set forth on Schedule 16.5 of the Participation Agreement.
47
52
If to the Indenture Trustee:
Bankers Trust Company
Mailbox # MS5041
4 Albany Street, 4th Floor
New York, NY 10006
Telephone No.: (212) 250-8869
Facsimile No.: (212) 250-6725
Attention: Richard L. Buckwalter, Assistant Vice President
If to AEE:
1001 North 19th Street, 20th Floor
Arlington, VA 22209
Telephone No.: (703) 522-1315
Facsimile No.: (703) 528-4510
Attention: Project Manager
Section 9.6 Severability. Any provision of this Indenture
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 9.7 Limitation of Liability. It is expressly
understood and agreed by the parties hereto that (a) this Indenture is executed
and delivered on behalf of the Owner Trust by the Trustee, not individually or
personally but solely as trustee of the Owner Trust under the Trust Agreement,
in the exercise of the powers and authority conferred and vested in it pursuant
thereto, (b) each of the representations, undertakings and agreements herein
made on the part of the Owner Trust is made and intended not as personal
representations, undertakings and agreements by the Trustee, but is made and
intended for the purpose for binding only the Owner Trust, (c) nothing herein
contained shall be construed as creating any liability on the Trustee,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto or by any Person claiming by, through or under the parties hereto
and (d) under no circumstances shall the Trustee be personally liable for the
payment of any indebtedness or expenses of the Owner Trust or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Owner Trust under this Indenture.
Section 9.8 Written Changes Only. Subject to Sections 8.1 and
8.2, no term or provision of this Indenture or any Note may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the Person against whom enforcement of
48
53
the change, waiver, discharge or termination is sought; and any waiver of the
terms hereof or of any Note shall be effective only in the specific instance and
for the specific purpose given.
Section 9.9 Counterparts. This Indenture may be executed in
separate counterparts, each of which, when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
Section 9.10 Successors and Permitted Assigns. All covenants
and agreements contained herein shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and permitted assigns and
each Noteholder. Any request, notice, direction, consent, waiver or other
instrument or action by any Noteholder shall bind the successor and assigns
thereof.
Section 9.11 Headings and Table of Contents. The headings of
the sections of this Indenture and the Table of Contents are inserted for
purposes of convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof.
Section 9.12 Governing Law. This Indenture and the Notes shall
be in all respects governed by and construed in accordance with the laws of the
State of New York, including all matters of construction, validity and
performance (without giving effect to the conflicts of laws provisions thereof,
other than New York General Obligations Law Section 5-1401).
Section 9.13 Reorganization Proceedings with Respect to the
Trust Estate. If (a) the Trust Estate becomes a debtor subject to the
reorganization provisions of Title 11 of the United States Code, or any
successor provisions, (b) pursuant to such reorganization provisions the Owner
Participant is required by reason of the Owner Participant's being held to have
recourse liability that it would not otherwise have had under Section 2.5 to the
debtor or the trustee of the debtor, directly or indirectly, to make payment on
account of any amount payable as principal or interest on the Notes and (c) any
Noteholder or the Indenture Trustee actually receives any Excess Amount (as
hereinafter defined) which reflects any payment by the Owner Participant on
account of clause (b) above, then such Noteholder or the Indenture Trustee, as
the case may be, shall promptly refund such Excess Amount, without interest, to
the Owner Participant after receipt by such Noteholder or the Indenture Trustee,
as the case may be, of a written request for such refund by the Owner
Participant (which request shall specify the amount of such Excess Amount and
shall set forth in detail the calculation thereof). For purposes of this Section
9.13, "Excess Amount" means the amount by which such payment exceeds the amount
which would have been received by such holder and the Indenture Trustee in
respect of such principal or interest if the Owner Participant had not become
subject to the recourse liability referred to in clause (b) above. Nothing
contained in this Section 9.13 shall prevent the Indenture Trustee or any
Noteholder from enforcing any personal recourse obligations (and retaining the
proceeds thereof) of the Owner Participant under the Participation Agreement.
The Noteholders and the Indenture Trustee agree that should
the Trust Estate become a debtor subject to the reorganization provisions of the
Bankruptcy Code, they shall upon the request of the Owner Participant, and
provided that the making of the election
49
54
hereinafter referred to is permitted to be made by them under Applicable Law and
will not have any adverse impact on any Noteholder, the Indenture Trustee or the
Indenture Estate other than as contemplated by the preceding paragraph, make the
election referred to in Section 1111(b)(1)(A)(i) of Title 11 of the Bankruptcy
Code or any successor provision if, in the absence of such election, the
Noteholders would have recourse against the Owner Participant for the payment of
the indebtedness represented by the Notes in circumstance in which such
Noteholders would not have recourse under this Indenture if the Trust Estate had
not become a debtor under the Bankruptcy Code.
Section 9.14 Withholding Taxes; Information Reporting. The
Indenture Trustee shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due hereunder or
under the Lessor 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 Lessor Notes, to withhold such amounts and timely pay the same
to the appropriate authority in the name of and on behalf of the Noteholders,
(b) that it will file any necessary withholding tax returns or statements when
due, and (c) that, as promptly as possible after the payment thereof, it will
deliver to each Noteholder appropriate documentation showing the payment
thereof, together with such additional documentary evidence as such Noteholders
may reasonably request from time to time. The Indenture Trustee agrees to file
any other information as it may be required to file under United States law.
(Remainder of Page Intentionally Left Blank)
50
55
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed on the date and year first above written.
KINTIGH FACILITY TRUST A-1,
as Owner Trust
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By:
-----------------------------------
Name:
Title:
Date:
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By:
-----------------------------------
Name:
Title:
51
56
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
The foregoing instrument was acknowledged before me this 14th
day of May, 1999, by ____________, ______________, to be the free act and deed
of WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its
individual capacity but solely as Trustee.
_______________________________
Notary Public
My Commission Expires__________
52
57
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
The foregoing instrument was acknowledged before me this 14th
day of May, 1999, by ____________________, ________________, to be the free act
and deed of Bankers Trust Company, a New York banking corporation, not in its
individual capacity but solely as Indenture Trustee.
Notary Public
My Commission Expires
58
Annex 1
to
Indenture
DEFINITIONS
[Attached]
59
EXHIBIT A
to
Indenture
DESCRIPTION OF THE FACILITY
60
EXHIBIT B
to
Indenture
DESCRIPTION OF THE FACILITY SITE
61
EXHIBIT C
to
Indenture
FORM OF 2017 LESSOR NOTE
(Kintigh)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT.
NONRECOURSE PROMISSORY NOTE NO. __, DUE IN A SERIES OF
INSTALLMENTS OF PRINCIPAL WITH FINAL PAYMENT DATE OF JANUARY 2, 2017.
Issued at: New York, New York
Issue Date: May 14, 1999
KINTIGH FACILITY TRUST A-1, a Delaware business trust (herein
called the "Owner Trust," which term includes any successor person under the
Indenture hereinafter referred to), hereby promises to pay to BANKERS TRUST
COMPANY, in its capacity as trustee of the Series 1999-A Pass Through Trust, or
its registered assigns, the principal sum of Forty One Million Three Hundred
Eighty Two Thousand Seven Hundred Ninety and 13/100 Dollars ($41,382,790.13),
which is due and payable in installments of principal with a final payment date
of January 2, 2017, as provided below, together with interest at the rate of
nine percent (9.00%) per annum on the principal remaining unpaid from time to
time.
Interest on the outstanding principal amount under this Note
(computed on the basis of a 360-day year of twelve 30-day months) shall be due
and payable in arrears at the rate specified above, commencing on January 2,
2000, and semi-annually on each January 2 and July 2 thereafter until the
principal of this Note is paid in full. The principal of this Note shall be due
and payable in installments on the respective dates and in the respective
amounts set forth in Schedule 1 attached hereto in the column headed "Scheduled
Principal Amount Payable", provided, that the last installment of principal
shall be equal to the then unpaid balance of the principal of this Note.
Capitalized terms used in this Note which are not otherwise
defined herein shall have the meanings ascribed thereto in the Indenture of
Trust and Security Agreement (Kintigh A-1), dated as of May 1, 1999 (the
"Indenture"), between the Owner Trust and Bankers Trust Company, as grantee (the
"Indenture Trustee").
Interest (computed on the basis of a 360-day year of twelve
30-day months) on any overdue principal and premium, if any, and, to the extent
permitted by Applicable Law, on overdue interest shall be paid on demand at the
Overdue Rate.
62
In the event any date on which a payment is due under this
Note is not a Business Day, then payment thereof shall be made on the next
succeeding Business Day with the same effect as if made on the date on which
such payment was due.
Except as otherwise specifically provided in the Indenture and
in the Participation Agreement, all payments of principal, premium, if any, and
interest to be made by the Indenture Trustee hereunder and under the Indenture
shall be made only from the Indenture Estate, and the Owner Trust shall have no
obligation for the payment thereof except to the extent that there shall be
sufficient income or proceeds from the Indenture Estate to make such payments in
accordance with the terms of Section 3 of the Indenture; and the Owner
Participant shall not have any obligation for payments in respect of this Note
or under the Indenture. The holder hereof, by its acceptance of this Note,
agrees that it will look solely to the income and proceeds from the Indenture
Estate to the extent available for distribution to the holder hereof, as herein
provided, and that, except as expressly provided in the Indenture or the
Participation Agreement, none of the Owner Participant, the Owner Trust, the
Lease Indenture Company or the Indenture Trustee is or shall be personally
liable to the holder for any amounts payable under this Note or under the
Indenture, or for any performance to be rendered under the Indenture or any
Assigned Document or for any liability under the Indenture or any Assigned
Document.
The principal of and premium, if any, and interest on this
Note shall be paid by the Indenture Trustee, without any presentment or
surrender of this Note, except that, in the case of the final payment in respect
of this Note, this Note shall be surrendered to the Indenture Trustee, by
mailing a check for the amount then due and payable, in New York Clearing House
funds, to the Noteholder, at the last address of the Noteholder appearing on the
Note Register, or by whichever of the following methods has been specified by
notice from the Noteholder to the Indenture Trustee: (a) by crediting the amount
to be distributed to the Noteholder to an account maintained by the Noteholder
with the Indenture Trustee, (b) by making such payment to the Noteholder in
immediately available funds at the Indenture Trustee Office, or (c) by
transferring such amount in immediately available funds for the account of the
Noteholder to a banking institution having bank wire transfer facilities as
shall be specified by the Noteholder, such transfer to be subject to telephonic
confirmation of payment. All payments due with respect to this Note shall be
made (i) as soon as practicable prior to the close of business on the date the
amounts to be distributed by the Indenture Trustee are actually received by the
Indenture Trustee if such amounts are received by 2:00 p.m., New York City time,
on a Business Day or (ii) on the next succeeding Business Day if received after
such time or on any day other than a Business Day. Prior to due presentment for
registration of transfer of this Note, the Owner Trust and the Indenture Trustee
may deem and treat the Person in whose name this Note is registered on the Note
Register as the absolute owner and holder of this Note for the purpose of
receiving payment of all amounts payable with respect to this Note and for all
other purposes, and neither the Owner Trust nor the Indenture Trustee shall be
affected by any notice to the contrary. All payments made on this Note in
accordance with the provisions of this paragraph shall be valid and effective to
satisfy and discharge the liability on this Note to the extent of the sums so
paid and neither the Indenture Trustee nor the Owner Trust shall have any
liability in respect of such payment.
63
The holder hereof, by its acceptance of this Note, agrees that
each payment received by it hereunder shall be applied in the manner set forth
in Section 2.7 of the Indenture, which provides that each payment on the Note
shall be applied as follows: first, to the payment of accrued interest
(including interest on overdue principal and, to the extent permitted by
Applicable Law, overdue interest) on this Note to the date of such payment;
second, to the payment of the principal amount of, and premium, if any, on this
Note then due (including any overdue installments of principal) thereunder; and
third, to the extent permitted by Section 2.10 of the Indenture, the balance, if
any, remaining thereafter, to the payment of the principal amount of, and
premium, if any, on this Note.
This Note is the Note referred to in the Indenture as the
"2017 Lessor Note" and is being issued simultaneously with the "2029 Lessor
Note". The Indenture also permits the issuance of additional notes ("Additional
Lessor Notes"), as provided in Section 2.12 of the Indenture, and the several
Notes may be for varying principal amounts and may have different maturity
dates, interest rates, redemption provisions and other terms. The properties of
the Owner Trust included in the Indenture Estate are pledged or mortgaged to
Indenture Trustee to the extent provided in the Indenture as security for the
payment of the principal of and premium, if any, and interest on this Note and
all other Notes issued and outstanding from time to time under the Indenture.
Reference is hereby made to the Indenture for a statement of
the rights of the holder of, and the nature and extent of the security for, this
Note and of the rights of, and the nature and extent of the security for, the
holders of the other Notes and of certain rights of the Owner Trust 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 the holder
hereof agrees by its acceptance of this Note.
This Note is subject to redemption, in whole or in part as
contemplated by the Indenture, as follows: (i) in the case of redemptions under
the circumstances set forth in Section 2.10(a) of the Indenture, at a price
equal to the principal amount of this Note then outstanding and accrued interest
on such principal amount to the Redemption Date, (ii) in the case of redemptions
under the circumstances set forth in Section 2.10(d)(i) of the Indenture, at a
price equal to the principal amount of this Note then outstanding and accrued
interest on such principal amount to the Redemption Date, plus the Make-Whole
Premium, if any, and (iii) in the case of redemptions under the circumstances
set forth in Section 2.10(d)(ii) of the Indenture, at a price equal to the
principal amount of this Note then outstanding and accrued interest on such
principal amount to the Redemption Date, plus the Modified Make-Whole Premium,
if any; provided, however, that no such redemption shall be made until notice
thereof is given by the Indenture Trustee to the holder hereof as provided in
the Indenture.
In case either (i) a Regulatory Event of Loss under the Lease
shall occur or (ii) a termination of the Lease pursuant to Section 13.1 or 13.2
of the Lease, where in connection with such termination the Lessee in each case
acquires the Undivided Interest pursuant to an assumption agreement, the
obligations of the Owner Trust under this Note may, subject to the conditions
set forth in Section 2.10(b) of the Indenture, be assumed in whole by the Lessee
in which case the Owner Trust shall be released and discharged from all such
obligations. In
64
connection with such an assumption, the holder of this Note may be required to
exchange this Note for a new Note indicating that the Lessee is the issuer
thereof.
In case a Lease Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Note together with all
accrued interest and premium, if any, thereon may, subject to certain rights of
the Owner Trust and the Owner Participant contained or referred to in the
Indenture, be declared or may become due and payable in the manner and with the
effect provided in the Indenture.
There shall be maintained at the Indenture Trustee Office a
register for the purpose of registering transfers and exchanges of Notes in the
manner provided in the Indenture. The transfer of this Note is registrable, as
provided in the Indenture, upon surrender of this Note for registration of
transfer duly endorsed or accompanied by a written instrument of transfer duly
executed by or on behalf of the registered holder hereof, together with the
amount of any applicable transfer taxes.
This Note shall be governed by the laws of the State of New
York.
65
IN WITNESS WHEREOF, the Owner Trust has caused this Note to be
duly executed as of the date hereof.
KINTIGH FACILITY TRUST A-1,
as Owner Trust
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:____________________
Name:
Title:
66
This is one of the Notes referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
not in its individual capacity but solely
as the Indenture Trustee
By:
------------------------------
Name:
Title:
67
SCHEDULE 1 TO 2017 LESSOR NOTE
Schedule of Principal and Interest Payments
(% of original principal amount)
Scheduled Principal Scheduled Principal Amount
Payment Date Amount Payable Interest Payable Paid Interest Paid
- ------------ ------------------- ---------------- ---------------- -------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
68
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
-------------------------
-------------------------
-------------------------
(Please print or typewrite name and
address including zip code of assignee)
-------------------------
Insert Taxpayer Identification No.
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing Bankers Trust Company its attorney to transfer said Note on the books
of the Issuer with full power of substitution in the premises.
Date:
-------------------
- -------------------------
(Signature of Transferor)
NOTE: The signature to this assignment must correspond with the name as written
upon the face of the within-mentioned instrument in every particular, without
alteration or any change whatsoever.
69
EXHIBIT D
to
Indenture
FORM OF 2029 LESSOR NOTE
(Kintigh)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT.
NONRECOURSE PROMISSORY NOTE NO. __, DUE IN A SERIES OF
INSTALLMENTS OF PRINCIPAL WITH FINAL PAYMENT DATE OF JANUARY 2, 2029.
Issued at: New York, New York
Issue Date: May 14, 1999
KINTIGH FACILITY TRUST A-1, a Delaware business trust (herein
called the "Owner Trust," which term includes any successor person under the
Indenture hereinafter referred to), hereby promises to pay to BANKERS TRUST
COMPANY, in its capacity as trustee of the Series 1999-B Pass Through Trust, or
its registered assigns, the principal sum of Fifty Two Million Three Hundred
Twenty Seven Thousand Eight Hundred Seven and 90/100 Dollars ($52,327,807.90),
which is due and payable in a series of installments of principal with a final
payment date of January 2, 2029, as provided below, together with interest at
the rate of nine and 67/100 percent (9.67%) per annum on the principal remaining
unpaid from time to time.
Interest on the outstanding principal amount under this Note
(computed on the basis of a 360-day year of twelve 30-day months) shall be due
and payable in arrears at the rate specified above, commencing on January 2,
2000, and semi-annually on each January 2 and July 2 thereafter until the
principal of this Note is paid in full. The principal of this Note shall be due
and payable in installments on the respective dates and in the respective
amounts set forth in Schedule 1 attached in the column headed "Scheduled
Principal Amount Payable", provided, that the final installment of principal
shall be equal to the then unpaid balance of the principal of this Note.
Capitalized terms used in this Note which are not otherwise
defined herein shall have the meanings ascribed thereto in the Indenture of
Trust and Security Agreement (Kintigh A-1), dated as of May 1, 1999 (the
"Indenture"), between the Owner Trust and Bankers Trust Company, as grantee (the
"Indenture Trustee").
Interest (computed on the basis of a 360-day year of twelve
30-day months) on any overdue principal and premium, if any, and (to the extent
permitted by Applicable Law), on overdue interest shall be paid, on demand at
the Overdue Rate.
70
In the event any date on which a payment is due under this
Note is not a Business Day, then payment thereof shall be made on the next
succeeding Business Day with the same force and effect as if made on the date on
which such payment was due.
Except as otherwise specifically provided in the Indenture and
in the Participation Agreement, all payments of principal, premium, if any, and
interest to be made by the Indenture Trustee hereunder and under the Indenture
shall be made only from the Indenture Estate, and the Owner Trust shall have no
obligation for the payment thereof except to the extent that there shall be
sufficient income or proceeds from the Indenture Estate to make such payments in
accordance with the terms of Section 3 of the Indenture; and the Owner
Participant shall not have any obligation for payments in respect of this Note
or under the Indenture. The holder hereof, by its acceptance of this Note,
agrees that it will look solely to the income and proceeds from the Indenture
Estate to the extent available for distribution to the holder hereof, as herein
provided, and that, except as expressly provided in the Indenture or the
Participation Agreement, none of the Owner Participant, the Owner Trust, the
Lease Indenture Company or the Indenture Trustee is or shall be personally
liable to the holder hereof for any amounts payable under this Note or under the
Indenture, or for any performance to be rendered under the Indenture or any
Assigned Document or for any liability under the Indenture or any Assigned
Document.
The principal of and premium, if any, and interest on this
Note shall be paid by the Indenture Trustee, without any presentment or
surrender of this Note, except that, in the case of the final payment in respect
of this Note, this Note shall be surrendered to the Indenture Trustee, by
mailing a check for the amount then due and payable, in New York Clearing House
funds, to the Noteholder, at the last address of the Noteholder appearing on the
Note Register, or by whichever of the following methods has been specified by
notice from the Noteholder to the Indenture Trustee: (a) by crediting the amount
to be distributed to the Noteholder to an account maintained by the Noteholder
with the Indenture Trustee, (b) by making such payment to the Noteholder in
immediately available funds at the Indenture Trustee Office, or (c) by
transferring such amount in immediately available funds for the account of the
Noteholder to a banking institution having bank wire transfer facilities as
shall be specified by the Noteholder, such transfer to be subject to telephonic
confirmation of payment. All payments due with respect to this Note shall be
made (i) as soon as practicable prior to the close of business on the date the
amounts to be distributed by the Indenture Trustee are actually received by the
Indenture Trustee if such amounts are received by 2:00 p.m., New York City time,
on a Business Day or (ii) on the next succeeding Business Day if received after
such time or if received on any day other than a Business Day. Prior to due
presentment for registration of transfer of this Note, the Owner Trust and the
Indenture Trustee may deem and treat the Person in whose name this Note is
registered on the Note Register as the absolute owner and holder of this Note
for the purpose of receiving payment of all amounts payable with respect to this
Note and for all other purposes, and neither the Owner Trust nor the Indenture
Trustee shall be affected by any notice to the contrary. All payments made on
this Note in accordance with the provisions of this paragraph shall be valid and
effective to satisfy and discharge the liability on this Note to the extent of
the sums so paid and neither the Indenture Trustee nor the Owner Trust shall
have any liability in respect of such payment.
71
The holder hereof, by its acceptance of this Note, agrees that
each payment received by it hereunder shall be applied in the manner set forth
in Section 2.7 of the Indenture, which provides that each payment on the Note
shall be applied as follows: first, to the payment of accrued interest
(including interest on overdue principal and, to the extent permitted by
Applicable Law, overdue interest) on this Note to the date of such payment;
second, to the payment of the principal amount of, and premium, if any, on this
Note then due (including any overdue installments of principal) thereunder; and
third, to the extent permitted by Section 2.10 of the Indenture, the balance, if
any, remaining thereafter, to the payment of the principal amount of, and
premium, if any, on this Note.
This Note is the Note referred to in the Indenture as the
"2029 Lessor Note" and is being issued simultaneously with the 2017 Lessor Note.
The Indenture also permits the issuance of additional notes ("Additional Lessor
Notes"), as provided in Section 2.12 of the Indenture, and the several Notes may
be for varying principal amounts and may have different maturity dates, interest
rates, redemption provisions and other terms. The properties of the Owner Trust
included in the Indenture Estate are pledged or mortgaged to Indenture Trustee
to the extent provided in the Indenture as security for the payment of the
principal of and premium, if any, and interest on this Note and all other Notes
issued and outstanding from time to time under the Indenture.
Reference is hereby made to the Indenture for a statement of
the rights of the holder of, and the nature and extent of the security for, this
Note and of the rights of, and the nature and extent of the security for, the
holders of the other Notes and of certain rights of the Owner Trust 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 the holder
hereof agrees by its acceptance of this Note.
This Note is subject to redemption, in whole or in part as
contemplated by the Indenture, as follows: (i) in the case of redemptions under
the circumstances set forth in Section 2.10(a) of the Indenture, at a price
equal to the principal amount of this Note then outstanding and accrued interest
on such principal amount to the Redemption Date, (ii) in the case of redemptions
under the circumstances set forth in Section 2.10(d)(i) of the Indenture, at a
price equal to the principal amount of this Note then outstanding and accrued
interest on such principal amount to the Redemption Date, plus the Make-Whole
Premium, if any, and (iii) in the case of redemptions under the circumstances
set forth in Section 2.10(d)(ii) of the Indenture, at a price equal to the
principal amount of this Note then outstanding and accrued interest on such
principal amount to the Redemption Date, plus the Modified Make-Whole Premium,
if any; provided, however, that no such redemption shall be made until notice
thereof is given by the Indenture Trustee to the holder hereof as provided in
the Indenture.
In case either (i) a Regulatory Event of Loss under the Lease
shall occur or (ii) a termination of the Lease pursuant to Section 13.1 or 13.2
of the Lease, where in connection with such termination the Lessee in each case
acquires the Undivided Interest pursuant to an assumption agreement, the
obligations of the Owner Trust under this Note may, subject to the conditions
set forth in Section 2.10(b) of the Indenture, be assumed in whole by the Lessee
in which case the Owner Trust shall be released and discharged from all such
obligations. In
72
connection with such an assumption, the holder of this Note may be required to
exchange this Note for a new Note indicating that the Lessee is the issuer
thereof.
In case a Lease Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Note together with all
accrued interest and premium, if any, thereon may, subject to certain rights of
the Owner Trust and the Owner Participant contained or referred to in the
Indenture, be declared or may become due and payable in the manner and with the
effect provided in the Indenture.
There shall be maintained at the Indenture Trustee Office a
register for the purpose of registering transfers and exchanges of Notes in the
manner provided in the Indenture. The transfer of this Note is registrable, as
provided in the Indenture, upon surrender of this Note for registration of
transfer duly endorsed or accompanied by a written instrument of transfer duly
executed by or on behalf of the registered holder hereof, together with the
amount of any applicable transfer taxes.
This Note shall be governed by the laws of the State of New
York.
73
IN WITNESS WHEREOF, the Owner Trust has caused this Note to be
duly executed as of the date hereof.
KINTIGH FACILITY TRUST A-1,
as Owner Trust
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:____________________
Name:
Title:
74
This is one of the Notes referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, not in its
individual capacity but solely as the
Indenture Trustee
By:____________________
Name:
Title:
75
SCHEDULE 1 TO 2029 LESSOR NOTE
Schedule of Principal and Interest Payments
(% of original principal amount)
Scheduled Scheduled Principal
Principal Interest Amount
Payment Date Amount Payable Payable Paid Interest Paid
- ------------ ------------------- ---------------- ---------------- -------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
76
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
-------------------------
-------------------------
-------------------------
(Please print or typewrite name and
address including zip code of assignee)
-------------------------
Insert Taxpayer Identification No.
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing Bankers Trust Company its attorney to transfer said Note on the books
of the Issuer with full power of substitution in the premises.
Date:
--------------------
- -------------------------
(Signature of Transferor)
NOTE: The signature to this assignment must correspond with the name as written
upon the face of the within-mentioned instrument in every particular, without
alteration or any change whatsoever.