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Exhibit 4.8a
NOTE TO COUNTY RECORDER:
PLEASE RECORD THIS
DOCUMENT IN THE REAL PROPERTY
RECORDS AND CROSS INDEX THIS
DOCUMENT AS A FIXTURE FILING
IN THE UCC RECORDS
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LEASE INDENTURE OF TRUST, MORTGAGE
AND SECURITY AGREEMENT
Dated as of August 24, 2000
between
CONEMAUGH LESSOR GENCO LLC,
as Owner Lessor
and
BANKERS TRUST COMPANY,
as Lease Indenture Trustee
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16.45% UNDIVIDED INTEREST IN
CONEMAUGH FACILITY
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THIS INSTRUMENT IS AN OPEN END MORTGAGE AND SECURES FUTURE ADVANCES PURSUANT TO
42 PA. C.S.A. SECTIONS 8143 AND 8144, ACT NO. 126 OF 1990.
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS.
CONEMAUGH LEASE INDENTURE
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.......................................................................... 5
SECTION 2. THE LESSOR NOTES..................................................................... 6
Section 2.1. Limitation on Notes.................................................................. 6
Section 2.2. Lessor Notes......................................................................... 6
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 Lessor, the Owner Participant, the Equity Subsidiary, the
Equity Subsidiary Holding Company, the Equity Investor, or the
Lease 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 of Transfer Resulting from Federal Securities Laws; Legend............. 15
Section 2.14. Security for and Parity of Notes.................................................... 16
Section 2.15. Acceptance of the Lease Indenture Trustee........................................... 16
SECTION 3. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM INDENTURE ESTATE............... 16
Section 3.1. Distribution of Periodic Lease Rent................................................. 16
Section 3.2. Payments Following Event of Loss or Other Early Termination......................... 17
Section 3.3. Payments After Lease Indenture Event of Default..................................... 18
Section 3.4. Investment of Certain Payments Held by the Lease Indenture Trustee.................. 19
Section 3.5. Application of Certain Other Payments............................................... 20
Section 3.6. Other Payments...................................................................... 20
Section 3.7. Excepted Payments................................................................... 20
Section 3.8. Distributions to the Owner Lessor................................................... 21
Section 3.9. Payments Under Assigned Documents................................................... 21
Section 3.10. Disbursement of Amounts Received by the Lease Indenture Trustee..................... 21
SECTION 4. DEFAULTS; REMEDIES OF LEASE INDENTURE TRUSTEE; RIGHTS OF OWNER PARTICIPANT.......... 22
Section 4.1. Occurrence of Lease Indenture Event of Default...................................... 22
Section 4.2. Remedies of the Lease Indenture Trustee............................................. 23
Section 4.3. Right to Cure Certain Lease Events of Default....................................... 25
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Section 4.4. Rescission of Acceleration.......................................................... 27
Section 4.5. Return of Indenture Estate, Etc..................................................... 28
Section 4.6. Remedies............................................................................ 28
Section 4.7. Appointment of Receiver............................................................. 29
Section 4.8. Remedies Cumulative................................................................. 29
Section 4.9. Waiver of Various Rights by the Owner Lessor........................................ 30
Section 4.10. Discontinuance of Proceedings....................................................... 30
Section 4.11. No Action Contrary to the Facility Lessee's Rights Under the Facility Lease......... 30
Section 4.12. Right of the Lease Indenture Trustee to Perform Covenants, Etc...................... 30
Section 4.13. Further Assurances.................................................................. 31
Section 4.14. Waiver of Past Defaults............................................................. 31
Section 4.15. Rights of Owner Participant to Assume the Notes..................................... 31
SECTION 5. DUTIES OF LEASE INDENTURE TRUSTEE; CERTAIN RIGHTS AND DUTIES OF OWNER LESSOR........ 31
Section 5.1. Notice of Action Upon Lease Indenture Event of Default.............................. 31
Section 5.2. Actions Upon Instructions Generally................................................. 32
Section 5.3. Action Upon Payment of Notes or Termination of the Facility Lease................... 32
Section 5.4. Compensation of the Lease Indenture Trustee; Indemnification........................ 32
Section 5.5. No Duties Except as Specified; No Action Except Under the Facility
Lease, Indenture or Instructions.................................................... 33
Section 5.6. Certain Rights of the Owner Lessor.................................................. 33
Section 5.7. Filing of Financing Statements and Continuation Statements.......................... 35
SECTION 6. LEASE INDENTURE TRUSTEE AND OWNER LESSOR............................................ 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 LEASE INDENTURE TRUSTEES AND SEPARATE TRUSTEES............................ 40
Section 7.1. Resignation or Removal of the Lease Indenture Trustee; Appointment of Successor..... 40
Section 7.2. Appointment of Additional and Separate Trustees..................................... 41
SECTION 8. SUPPLEMENTS AND AMENDMENTS TO THIS LEASE INDENTURE AND OTHER DOCUMENTS.............. 43
Section 8.1. Supplemental Indenture and Other Amendments With Consent;
Conditions and Limitations.......................................................... 43
Section 8.2. Supplemental Indentures and other Amendments Without Consent........................ 43
Section 8.3. Conditions to Action by the Lease Indenture Trustee................................. 44
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SECTION 9. MISCELLANEOUS....................................................................... 45
Section 9.1. Surrender, Defeasance and Release................................................... 45
Section 9.2. Conveyances Pursuant to Section 6.2 of Site Lease and Sublease...................... 46
Section 9.3. Appointment of the Lease Indenture Trustee as Attorney; Further Assurances.......... 47
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................................................................ 49
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. Withholding Taxes: Information Reporting........................................... 49
EXHIBIT A - Facility Site Description
EXHIBIT B - Facility Description
EXHIBIT C - Form of Lease A Note
EXHIBIT D - Form of Lease B Note
EXHICIT E - Form of Lease C Note
EXHIBIT F - Form of Certificate of Authentication
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LEASE INDENTURE OF TRUST, MORTGAGE
AND SECURITY AGREEMENT
This LEASE INDENTURE OF TRUST, MORTGAGE AND SECURITY AGREEMENT (as
amended, supplemented or modified from time to time in accordance with its
terms, this "Lease Indenture") dated as of August 24, 2000, between CONEMAUGH
LESSOR GENCO LLC (together with its successors and permitted assigns, the "Owner
Lessor") created for the benefit of PSEGR Conemaugh Generation, LLC (together
with its successors and permitted assigns, the "Owner Participant"), as grantor,
and BANKERS TRUST COMPANY, as grantee, a banking corporation organized and
existing under the laws of the State of New York, not in its individual capacity
but solely as trustee under this Lease Indenture (together with its successors
and permitted assigns, the "Lease Indenture Trustee").
WITNESSETH:
WHEREAS, the parties hereto have entered into the Participation
Agreement dated as of August 24, 2000 among the Facility Lessee (as defined
below), the Owner Lessor, the Lessor Manager (as defined below), Wilmington
Trust Company (together with its permitted successors and assigns, for purposes
of this Lease Indenture, the "Trust Company"), the Owner Participant, the Lease
Indenture Trustee, and Bankers Trust Company, not in its individual capacity,
except as expressly provided therein, but solely as trustee under the Pass
Through Trust Agreement (as amended, supplemented or otherwise modified from
time to time in accordance with the provisions thereof, the "Participation
Agreement");
WHEREAS, the Facility Site is that certain land located in East
Wheatfield and West Wheatfield, Indiana County, Pennsylvania and more
particularly described in Exhibit A attached hereto;
WHEREAS, the Facility is a 1711 MW coal fired steam turbine electric
generating station located on the Facility Site, including any and all
additional improvements and fixtures located on or under the Facility Site, and
more particularly described in Exhibit B attached hereto;
WHEREAS, the Facility Site does not include the Facility or any part
thereof, and the Facility does not include the Facility Site or any part
thereof;
WHEREAS, Reliant Energy Mid-Atlantic Power Holdings, LLC (formerly
known as Sithe Pennsylvania Holdings, LLC, together with its permitted
successors and assigns, the "Ground Lessor", or the "Facility Lessee") owns (a)
a 16.45% undivided ownership interest in the Facility Site, as tenant-in-common
with the other owners of the Facility Site (the "Ground Interest") and (b) a
16.45% undivided ownership interest in the Facility, as tenant-in-common with
the other owners of the Facility (the "Facility Interest");
CONEMAUGH LEASE INDENTURE
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WHEREAS, pursuant to the Deed and Bill of Sale dated as of August 24,
2000, the Owner Lessor has acquired from the Facility Lessee the Facility
Interest;
WHEREAS, the Owner Lessor will lease the Facility Interest to the
Facility Lessee for a term of years pursuant to that certain Facility Lease
Agreement, dated as of August 24, 2000 (as amended, supplemented or otherwise
modified from time to time in accordance with the provisions thereof, the
"Facility Lease");
WHEREAS, the Memorandum of Facility Lease (Conemaugh Facility) dated as
of August 24, 2000 (the "Memorandum of Lease") will be placed on record with the
Recorder of Deeds of Indiana County, Pennsylvania in connection with this Lease
Indenture;
WHEREAS, the Ground Lessor (which, for clarification purposes, owns the
Ground Interest) simultaneously therewith will lease the Ground Interest to the
Owner Lessor pursuant to that certain Site Lease and Sublease Agreement, dated
as of August 24, 2000 (as amended, supplemented or otherwise modified from time
to time in accordance with the provisions thereof, the "Site Lease and
Sublease"); and the Owner Lessor simultaneously therewith will sublease the
Ground Interest back to the Ground Lessor pursuant to the Site Lease and
Sublease;
WHEREAS, the Memorandum of Site Lease (Conemaugh Facility) dated as of
August 24, 2000 (the "Memorandum of Site Lease") will be placed on record with
the Recorder of Deeds of Indiana County, Pennsylvania in connection with this
Lease Indenture;
WHEREAS, the Memorandum of Sublease (Conemaugh Facility) dated as of
August 24, 2000 (the "Memorandum of Sublease") will be placed on record with the
Recorder of Deeds of Indiana County, Pennsylvania in connection with this Lease
Indenture;
WHEREAS, the Owner Lessor is required pursuant to the Participation
Agreement to enter into this Lease Indenture;
WHEREAS, the Owner Lessor was authorized and directed in the
transactions contemplated by the Management and Operating Agreement dated as of
August 17, 2000, between the Trust Company, acting thereunder not in its
individual or personal capacity but solely as manager of the Owner Lessor (as
such manager, the "Lessor Manager") and the Owner Participant (as amended,
supplemented or otherwise modified from time to time in accordance with the
provisions thereof, the "LLC Agreement"), to execute and deliver this Lease
Indenture;
WHEREAS, in accordance with this Lease Indenture, the Owner Lessor will
execute and deliver certain Lessor Notes, the proceeds of which will be used by
the Owner Lessor to finance a portion of the Purchase Price for the Facility
Interest purchased from the Facility Lessee, and will grant to the Lease
Indenture Trustee the security interests herein provided;
WHEREAS, this Lease Indenture is regarded as a mortgage under the laws
of the Commonwealth of Pennsylvania and as a security agreement under the
Uniform Commercial Code of the State of New York; and
WHEREAS, the Owner Lessor and the Lease Indenture Trustee desire to
enter into this Lease Indenture, to, among other things, provide for (a) the
issuance by the Owner Lessor of the
CONEMAUGH LEASE INDENTURE
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Lessor Notes to be issued on the Closing Date and (b) the conveyance and
assignment as collateral security to the Lease Indenture Trustee on the Closing
Date of the Facility Interest and the Owner Lessor's right, title and interest
in the Operative Documents executed in connection therewith.
NOW THEREFORE, in consideration of the foregoing premises, the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and intending to be
legally bound, and in order to secure (i) the prompt payment when and as due of
the principal of and premium, if any, and interest on the Notes and of all other
amounts owing to the Noteholders and the Lease Indenture Trustee from the Owner
Lessor and/or the Facility Lessee under the Operative Documents (including, with
respect to the Owner Lessor, under Sections 4.5(b), 4.12 and 5.4 hereof and,
with respect to the Facility Lessee, under Section 10.1 of the Participation
Agreement and as assignee hereunder of the Owner Lessor's rights as set forth
below (including under Section 20 of the Facility Lease)), in each case whether
now owing or which may hereafter be owing, however and whenever incurred,
whether direct or indirect, absolute or contingent together with any and all
renewals, refinancings, modifications, consolidations and extensions of any
thereof, secured hereby and (ii) the performance and observance by the Owner
Lessor for the benefit of the holders of the Notes and the Lease Indenture
Trustee of all other obligations, agreements, and covenants of the Owner Lessor
set forth hereinafter and in the other Operative Documents (the "Secured
Indebtedness"):
GRANTING CLAUSE:
To secure the Secured Indebtedness the Owner Lessor hereby grants,
conveys, assigns, transfers, mortgages and pledges unto the Lease Indenture
Trustee, for the benefit of the holders of the Notes and the Lease Indenture
Trustee, and creates a security interest in favor of the Lease Indenture Trustee
in, the following described property, rights and privileges, whether now held or
hereafter acquired (which collectively, including all property hereafter
specifically subjected to the security interest created by this Lease Indenture
by any supplement hereto, are included within, and are hereafter referred to as,
the "Indenture Estate"):
(1) the Facility Interest and the Ground Interest, together
with all estates, interests, rights, powers and privileges of the Owner
Lessor in respect thereof;
(2) all the estate, right, title and interest of the Owner
Lessor in, to and under the Deed and Bill of Sale, the Facility Lease,
the Site Lease and Sublease, the Assignment and Reassignment of Owners
Agreement, the Lease Pledge Agreement, the Intercreditor Agreement, the
Subsidiary Guaranty, and any Qualifying Credit Support provided
pursuant to Section 5.8 of the Participation Agreement (collectively,
the "Assigned Documents"), including (a) all amounts of Periodic Lease
Rent and Supplemental Lease Rent payable under the Facility Lease,
including 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 and (b) all rights of the Owner Lessor 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 under or in respect of any Assigned Document, as well as
all the rights, powers and remedies on the part of the Owner Lessor,
CONEMAUGH LEASE INDENTURE
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whether arising under any Assigned Document or by statute or at law or
equity or otherwise, arising out of any Significant Lease Default or
Lease Event of Default (except to the extent provided in Section 5.6
hereof);
(3) all rents (including Periodic Lease Rent and Supplemental
Lease Rent payable under the Facility Lease), issues, profits,
royalties, products, revenues, and other income of all property from
time to time subjected or required to be subjected to the Lien of this
Lease Indenture and all the estate, right, title, and interest, of
every nature whatsoever of the Owner Lessor in and to the same and
every part thereof (the "Revenues");
(4) all moneys, securities and other investment property
deposited or required to be deposited with the Lease Indenture Trustee
pursuant to any term of this Lease Indenture or any other Assigned
Document and held or required to be held by or for the benefit of the
Lease Indenture Trustee hereunder;
(5) all the estate, right, title and interest of the Owner
Lessor in and to any right to restitution from the Facility Lessee in
respect of any determination of invalidity of any Assigned Document;
(6) all other property, rights and privileges of every kind
and description, real, personal and mixed, tangible and intangible and
all interests therein, now held or hereafter acquired by the Owner
Lessor 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 Lease Indenture by a supplement hereto; and
(7) all proceeds of the foregoing;
BUT EXCLUDING from such property, rights and privileges all Excluded
Property, UNDER and SUBJECT TO the rights of the Owner Lessor and the Owner
Participant hereunder, and the rights to enforce and collect the same as set
forth herein, including, without limitation, Sections 4.3 and 5.6 hereof;
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 Lease
Indenture Trustee for the uses and purposes and subject to the terms and
provisions set forth in this Lease Indenture.
This Lease Indenture is intended to constitute a mortgage under the
laws of the Commonwealth of Pennsylvania and a security agreement as required
under the Uniform Commercial Code of the State of New York.
PROVIDED HOWEVER, that if the principal, interest and any other amounts
to become due in respect of all the Notes, all other amounts due the holders of
the Notes at the time and in the manner required hereby and by the Notes and the
other Operative Documents and all other Secured Indebtedness (but not including
Excluded Property) shall have been paid and all the covenants, agreements, terms
and provisions hereunder or thereunder to be performed or complied with by the
Owner Lessor and the Facility Lessee shall have been performed or complied with,
then this Lease Indenture shall be surrendered and cancelled and upon such
CONEMAUGH LEASE INDENTURE
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surrender and cancellation the rights hereby and thereby granted and assigned
shall terminate and cease and, in connection therewith the Lease Indenture
Trustee shall execute and deliver such releases and discharges as may be
reasonably requested to evidence such cancellation and termination.
The Lease 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 or in the Notes otherwise expressly provided and (ii)
the Lease Indenture Trustee, and for the uses and purposes and subject to the
terms and provisions set forth in this Lease Indenture (it being understood that
the Lease Indenture Trustee shall have no obligation or liability under any
Assigned Document by reason of or arising out of the assignment thereof pursuant
to this Lease Indenture, nor be required or obligated in any manner, except as
herein expressly provided, to perform or fulfill any obligation of the Owner
Lessor 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).
The Owner Lessor's rights and interests in the Lease Pledge Agreement are
limited by the terms of the Intercreditor Agreement. Solely for the purposes of
perfecting liens and security interests in Collateral (as defined in the Lease
Pledge Agreement), the Lease Indenture Trustee agrees to hold any such
Collateral in its possession (other than as a result of a distribution to it in
accordance with Section 4 of the Intercreditor Agreement) as custodian for and
on behalf of itself and each of the owner lessors under the Related Facility
Leases (or their permitted assigns), subject to the terms of the Intercreditor
Agreement.
Accordingly, the Owner Lessor, 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 Lessor, for itself and its successors and permitted assigns, hereby
covenants and agrees with the Lease Indenture Trustee, for the benefit and
security of the holders from time to time of the Notes from time to time
outstanding and to protect the security of this Lease Indenture, and the Lease
Indenture Trustee agrees to accept the trusts and duties hereinafter set forth,
as follows:
SECTION 1. DEFINITIONS
Capitalized terms used in this Lease Indenture, including those in the
recitals, and not otherwise defined herein shall have the respective meanings
set forth in Appendix A to the Participation Agreement. The general provisions
of Appendix A to the Participation Agreement shall apply to the terms used in
this Lease Indenture and specifically defined herein.
CONEMAUGH LEASE INDENTURE
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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 Lease 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 Lease Indenture shall be limited to the aggregate principal amount of
the Lessor Notes issued on the Closing Date to the Pass Through Trustees
pursuant to Section 2.3 of the Participation Agreement, 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 (i) a series of notes in the aggregate principal amount of
$50,000,000 with a final maturity date of July 2, 2005, in substantially the
form set forth in Exhibit C to this Lease Indenture (the "Lease A Notes"), (ii)
a series of notes in the aggregate principal amount of $97,382,493 with a final
maturity date of July 2, 2012, in substantially the form set forth in Exhibit D
to this Lease Indenture (the "Lease B Notes") and (iii) a series of notes in the
aggregate principal amount of $103,962,832.86 with a final maturity date of July
2, 2022, in substantially the form set forth in Exhibit E to this Lease
Indenture (the "Lease C Notes" and, together with the Lease A Notes and the
Lease B Notes, 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 Lessor 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 $1,000.
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 Lessor although at the
nominal date of such Note such Person may not have been an authorized signatory
of the Owner Lessor. No Note shall be secured by or be entitled to any benefit
under this Lease Indenture or be valid or obligatory for any purpose unless
there appears thereon a certificate of authentication in the form contained in
Exhibit F (or in the appropriate form provided for in any supplement hereto
executed pursuant to Section 2.12 hereof), executed by the Lease 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 Lease Indenture Trustee shall
authenticate and deliver the Lease A Notes, the Lease B Notes and the Lease C
Notes for original issue on the Closing Date in the respective aggregate
principal amount specified in Section 2.2, upon a written order of the Owner
Lessor signed by the Lessor Manager or other authorized representative. The
Lease Indenture Trustee shall authenticate and deliver Additional Lessor Notes,
upon a written order of the Owner Lessor executed by the Lessor Manager 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 at the Closing. On the Closing Date, there shall be issued to
the Pass Through Trustee for the Certificateholders of Series A Certificates the
Lease A Notes, to the Pass Through Trustee for the Certificateholders of Series
B Certificates the Lease B Notes and to the Pass Through Trustee for
CONEMAUGH LEASE INDENTURE
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the Certificateholders of Series C Certificates the Lease C Notes in the
principal amounts set forth in Section 2.2 hereof. All such Lessor Notes shall
be dated the Closing Date.
(b) Principal and Interest. The principal amount of the Lease A Notes
shall be due and payable in a series of installments having a final payment date
of July 2, 2005, the principal amount of the Lease B Notes shall be due and
payable in a series of installments having a final payment date of July 2, 2012
and the principal amount of the Lease C Notes shall be due and payable in a
series of installments having a final payment date of July 2, 2022. The
principal of each class of 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 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 semi-annually commencing on January 2, 2001, and on each January 2 and
July 2 thereafter until paid in full. If any day on 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 succeeding Business Day with the same effect as if
made on the date on which such payment was due.
(c) Overdue Payments. Interest (computed on the basis of a 360-day year
of twelve 30-day months on any overdue principal and, to the extent permitted by
Applicable Law, on overdue interest shall be paid on demand at the Overdue Rate
but in no event in excess of the maximum non-usurious interest rate, if any,
that at any time or from time to time may be contracted for, taken, reserved,
charged or received with respect to the Notes under Applicable Law.
Section 2.5. Payments from Indenture Estate Only; No Personal Liability
of the Owner Lessor, the Owner Participant, the Equity Subsidiary, the Equity
Subsidiary Holding Company, the Equity Investor, or the Lease Indenture Trustee.
Except as otherwise specifically provided in this Lease Indenture and in the
Participation Agreement, all payments to be made by the Lease Indenture Trustee
in respect of the Notes or under this Lease Indenture shall be made only from
the Indenture Estate, and the Owner Lessor 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 hereof; and none of the Owner Participant, the Equity
Subsidiary, the Equity Subsidiary Holding Company or the Equity Investor shall
have any obligation for payments in respect of the Notes or under this Lease
Indenture. Each of the Lease Indenture Trustee and each Noteholder, by its
acceptance of a Note, agrees that it will look solely to the income and proceeds
from the Indenture Estate to the extent available for distribution to the Lease
Indenture Trustee or such Noteholder, as the case may be, as herein provided and
that, except as expressly provided in this Lease Indenture or the Participation
Agreement, neither the Owner Participant, the Owner Lessor, the Equity
Subsidiary, the Equity Subsidiary Holding Company, the Equity Investor, the
Lease Indenture Company, nor the Lease Indenture Trustee shall be personally
liable to such Noteholder or the Lease 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
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Assigned Document. Without prejudice to the foregoing, the Owner Lessor 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 Lease
Indenture. Nothing contained in this Section 2.5 limiting the liability of the
Owner Lessor shall derogate from the right of the Lease 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.
(a) In furtherance of the foregoing, to the fullest extent
permitted by law, each Noteholder (and each assignee of such Person),
by its acceptance of a Note, agrees, as a condition to its being
secured under this Lease Indenture, that neither it nor the Lease
Indenture Trustee will exercise any statutory right to negate the
agreements set forth in this Section 2.5.
(b) Nothing herein contained shall be interpreted as affecting
the representations, warranties or agreements of the Owner Lessor set
forth in the Participation Agreement.
Section 2.6. Method of Payment. The Owner Lessor shall maintain an
office or agency where Notes may be presented for payment (the "Paying Agent").
The Owner Lessor may have one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Owner Lessor initially appoints
the Lease Indenture Trustee as Paying Agent in connection with the Notes.
(a) Subject to Section 2.5, the Owner Lessor shall deposit
with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Owner Lessor shall require each
Paying Agent (other than the Lease Indenture Trustee) to agree in
writing that the Paying Agent shall (i) hold in trust for the benefit
of Noteholders or the Lease Indenture Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Notes
and (ii) notify the Lease Indenture Trustee of any default by the Owner
Lessor in making any such payment.
(b) The principal of and premium, if any, and interest on each
Note shall be paid by the Lease 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 Lease
Indenture Trustee: (i) by crediting the amount to be distributed to
such Noteholder to an account maintained by such Noteholder with the
Lease Indenture Trustee, (ii) by making such payment to such Noteholder
in immediately available funds at the Lease Indenture Trustee Office,
or (iii) in the case of the Lessor Notes and in the case of Additional
Lessor Notes, if such Noteholder is the Pass Through Trustee, 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. Any payment made under any of the foregoing
methods shall be made without any presentment or surrender of such
Note, unless otherwise specified by the terms of the Note, except that,
in the case
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of the final payment in respect of any Note, such Note shall be
surrendered to the Owner Lessor. All payments in respect of the Notes
shall be made (A) as soon as practicable prior to the close of business
on the date the amounts to be distributed by the Lease Indenture
Trustee are actually received by the Lease Indenture Trustee if such
amounts are received by 2:00 p.m., New York City time, on a Business
Day, or (B) 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. Prior to due
presentment for registration of transfer of any Note, the Owner Lessor
and the Lease 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 Lessor nor the Lease Indenture Trustee shall be
affected by any notice 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 Lease Indenture Trustee
nor the Owner Lessor 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 and unpaid interest
(including interest on overdue principal and, to the extent permitted by
Applicable Law, overdue interest) on such Note to but excluding 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 Lease
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 hereof regarding application of funds.
Section 2.8. Registration, Transfer and Exchange of Notes. The Owner
Lessor 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
Lessor may have one or more co-registrars. The Owner Lessor initially appoints
the Lease Indenture Trustee as Registrar in connection with the Notes. The Lease
Indenture Trustee shall maintain at the Lease 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 Lessor will execute and the Lease
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 hereof) in any denomination or
denominations not prohibited by this Lease Indenture, as requested by the Person
surrendering the Note, dated the same date as the Note so surrendered and of
like tenor 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
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so that there will not be any loss or gain of interest on the Note or Notes
surrendered. 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 Lease Indenture Trustee duly executed by
the holder thereof or his attorney duly authorized in writing, and the Lease
Indenture Trustee may require an opinion of counsel as to compliance of any such
transfer with the Securities Act. Any transferee of a Note, by its acceptance of
a Note, agrees to the provisions of the Participation Agreement applicable to
Noteholders, and shall be deemed to have represented and warranted and
covenanted to the parties to the Participation Agreement as to the matters
represented, warranted and covenanted by the Pass Through Trustee in the
Participation Agreement. The Lease 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 new Note is issued and the date to which interest on such old Note or
Notes shall have been paid. The Lease 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 Lessor and the Lease 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 Lessor and the Lease 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 Lessor will execute and the Lease 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 and principal amount. Any indemnity provided by the holder on
a Note pursuant to this Section 2.9 must be sufficient in the judgment of the
Owner Lessor and the Lease Indenture Trustee to protect the Owner Lessor, the
Lease 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, but without any premium, in whole but
not in part, in the event of (i) (A) a termination of the Facility Lease
pursuant to Section 10 thereof as a result of the occurrence of an Event of Loss
(other than a Regulatory Event of Loss) unless the Facility Lessee (or the
holders of a controlling interest in the Facility, as applicable) elects to
rebuild the Facility, or (B) a termination of the Facility Lease pursuant to
Section 10 thereof as a result of a Regulatory Event of Loss, unless the
Facility Lessee effects an assumption of the Notes in accordance with paragraph
(b) of this Section 2.10 and purchases the Owner Lessor's Interest, (ii) a
termination by the Facility Lessee of the Facility Lease as a result of an event
described in clause (a) of Section 14.1 of the Facility Lease, and (iii) a
termination pursuant to Section 13.1 of the Facility Lease, unless the Facility
Lessee effectuates an assumption of the Notes in accordance with paragraph (b)
of this Section 2.10 and purchases the Owner Lessor's Interest. Any such
redemption shall be made in accordance with the applicable provisions of Section
3 hereof.
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(b) Unless a Significant Lease Default or a Lease Event of Default
shall have occurred and be continuing after giving effect to such assumption,
the obligations and liabilities of the Owner Lessor hereunder and under the
Notes may be assumed in whole by the Facility Lessee in the event of the
occurrence of (i) a Regulatory Event of Loss, or (ii) a termination by the
Facility Lessee pursuant to Section 13.1 of the Facility Lease, where in
connection with such termination the Facility Lessee acquires the Facility
Interest, pursuant to an assumption agreement (which assumption agreement may be
combined with the indenture supplemental to this Lease Indenture hereinafter in
this Section 2.10(b) referred to, and shall provide for the assumption by the
Facility Lessee of the obligations and liabilities of the Owner Lessor and the
Owner Participant under the other Operative Documents) which shall make such
obligations and liabilities fully recourse to the Facility Lessee and shall
otherwise be in form and substance acceptable to the Lease Indenture Trustee.
The Facility Lessee will execute and deliver, and the Lease Indenture Trustee
will authenticate, to each Noteholder in exchange for such old Note a new Note,
in a principal amount equal to the outstanding principal amount of such old Note
and otherwise in substantially similar form and tenor to such old Note but
indicating that the Facility Lessee is the issuer thereof. When such assumption
agreement becomes effective, the Owner Lessor shall be released and discharged
without further act from all obligations and liabilities assumed by the Facility
Lessee. The Lease Indenture Trustee shall deliver to the Owner Lessor, at the
expense of the Facility Lessee, such releases and other instruments as the Lease
Indenture Trustee shall be directed by the Owner Participant are necessary or,
in the Owner Participant's reasonable opinion, advisable to evidence the release
and discharge of the Owner Lessor following any such assumption of the Notes by
the Facility Lessee. All documentation in connection with any such assumption
(including, without limitation, an indenture supplemental to this Lease
Indenture which shall, among other things, contain provisions appropriately
amending references to the Facility Lease in this Lease Indenture and contain
covenants by the Facility Lessee similar to those contained in the Facility
Lease (other than any covenants which were solely for the benefit of the Owner
Participant or its Affiliates (other than the Owner Lessor)), changed as
appropriate, and amendments or supplements to the other Operative Documents,
officers' certificates and opinions of counsel) shall be prepared by and at the
expense of the Facility Lessee reasonably acceptable in form and substance to
the Lease Indenture Trustee. As a condition to the effectiveness of the
assumption by the Facility Lessee and the release of the Owner Lessor and the
Indenture Estate thereby effected, (A) the Lease Indenture Trustee shall have
received an opinion or opinions of counsel of the Facility Lessee, addressed to
the Lease Indenture Trustee, to the effect that (1) such assumption agreement
has been duly authorized, executed and delivered on behalf of the Facility
Lessee, (2) no material regulatory approval is necessary or required in
connection therewith (or if any such regulatory approval 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, the Notes,
constitute the legal, valid and binding obligations of the Facility 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 and other customary
exceptions), (4) unless the Facility Lessee has elected to provide to the Owner
Lessor, the Owner Participant and the Lease Indenture Trustee an indemnity
against the risk that such assumption agreement and the assumption of the Notes
cause a Tax Event to occur, such assumption agreement and the
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assumption of the Notes thereunder would not cause a Tax Event to occur, (5) the
Lien of this Lease Indenture shall continue to be a first priority perfected
mortgage and security interest on the remaining Indenture Estate, subject to
Permitted Liens, and (B) S&P and Moody's shall have confirmed that such
assumption will not result in a downgrading of the rating on the Lease Debt.
(c) The Owner Lessor 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 or in part as
provided below, at the redemption price set forth below, as follows:
(i) The Lessor Notes shall be redeemed in whole or in part at
a price equal to the principal amount of the Lessor Notes redeemed, and
accrued and unpaid interest on such principal amount so redeemed to the
Redemption Date, plus the Make Whole Premium, upon (x) an optional
refinancing pursuant to Section 12.2 of the Participation Agreement; or
(y) upon an optional prepayment elected by the Owner Lessor. The Owner
Lessor's failure to consummate such redemption as a result of an event
described in clause (x) or (y) of the first sentence of this clause (i)
following delivery of such notice shall not constitute a Lease
Indenture Event of Default or any other default under the Operative
Documents.
(ii) The Lessor Notes shall be redeemed, in whole but not in
part, at a price equal to the principal amount thereof, together with
interest accrued on such principal amount to the Redemption Date, plus
the Make Whole Premium, if any, upon receipt of moneys by the Lease
Indenture Trustee as a result of the exercise by the Facility Lessee of
its right to terminate the Facility Lease as a result of an event
described in clause (b) of Section 14.1 of the Facility Lease.
The Make Whole Premium, if any, payable with respect to the Notes shall be
calculated in the manner prescribed in the definition thereof.
(e) Subject to the last sentence of Section 2.10(d)(i), notice of
redemption having been given as provided in paragraph (f) of this Section 2.10,
the Notes shall become due and payable on the Redemption Date 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 Lease Indenture, and from and
after such date (unless the Owner Lessor shall default in the payment of the
redemption price) 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 Lessor at the applicable
redemption price.
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(f) If the Owner Lessor elects to redeem Notes pursuant to this Section
2.10, it shall notify the Lease Indenture Trustee in writing of the Redemption
Date and the Section of this Lease Indenture pursuant to which the redemption
will occur. The Owner Lessor shall give each notice to the Lease Indenture
Trustee provided for in this Section at least 30 days before the Redemption Date
unless the Lease Indenture Trustee consents in writing to a shorter period. Such
notice shall be accompanied by an Officer's Certificate and an opinion of
counsel from the Facility Lessee to the effect that such redemption will comply
with the conditions herein.
(g) At least 20 days but not more than 60 days before a Redemption
Date, the Lease Indenture Trustee shall deliver notification of such redemption
by first-class mail to each Noteholder to be redeemed at such Noteholder's
registered address; provided, that no notice shall be required so long as the
Pass Through Trustee and the Lease 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, unless the Owner Lessor defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date; and
(vi) the section of this Lease 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 hereof, the Owner Lessor or the
Lease Indenture Trustee may require from the party requesting such new Note or
Notes payment of a sum to reimburse the Owner Lessor and the Lease Indenture
Trustee for, or to provide funds for, the payment of any tax or other
governmental charge in connection therewith or any charges and expenses
connected with such tax or governmental charge paid or payable by the Owner
Lessor or the Lease Indenture Trustee.
Section 2.12. Additional Lessor Notes. (a) Additional Notes (each, an
"Additional Lessor Note") of the Owner Lessor may be issued under and secured by
this Lease Indenture, at
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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 pursuant to Section 8 of the Facility Lease, or
(ii) redeeming any previously issued Lessor Notes or Additional Lessor 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 Lessor shall have delivered to the
Lease Indenture Trustee, not less than fifteen (15) (unless a shorter period
shall be satisfactory to the Lease Indenture Trustee) days nor more than thirty
(30) 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 Lease Indenture and satisfy the conditions set forth in
Section 12.1 or 12.2 of the Participation Agreement, as applicable. 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 Lease 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 Facility Lessee and
the Owner Lessor 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 Basic Lease Term, or, in the case of Additional Lessor Notes issued pursuant
to Section 2.12(a)(i), the date that is two (2) years prior to the last day of
the Basic Lease Term.
(c) The terms, conditions and designations of such Additional Lessor
Notes (which shall be consistent with this Lease Indenture) shall be set forth
in an indenture supplemental to this Lease Indenture executed by the Owner
Lessor and the Lease Indenture Trustee. Such Additional Lessor Notes shall be
executed as provided in Section 2.3 hereof and deposited with the Lease
Indenture Trustee for authentication, but before such Additional Lessor Notes
shall be authenticated and delivered by the Lease Indenture Trustee there shall
be filed with the Lease Indenture Trustee, the Owner Lessor and the Owner
Participant 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 Facility Lessee (1)
stating that to its knowledge, no Significant Lease Default or Lease
Event of Default has occurred and is continuing, (2) stating that the
conditions in respect of the issuance of such Additional Lessor Notes
contained in this Section 2.12 and Section 12.1 or 12.2, as the case
may be, of the Participation Agreement 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 Facility Lease and all supplements thereto of
Periodic Lease Rent and Termination Value, together with all other
amounts payable
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pursuant to the terms of the Facility 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 Lessor Notes or
Additional Lessor Notes theretofore outstanding;
(iii) an Officer's Certificate from the Lessor Manager stating
that, to its knowledge, no Indenture Default under clauses (b) through
(f) of Section 4.1 hereof or Lease Indenture Event of Default has
occurred and is continuing;
(iv) such additional documents, certificates and opinions as
shall be required by Section 12.1 or 12.2, as the case may be, of the
Participation Agreement;
(v) a written order of the Owner Lessor, executed by the
Lessor Manager, delivered to the Lease Indenture Trustee to
authenticate and deliver such Additional Lessor Notes to or upon the
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 Lease Indenture Trustee, but for the account of the
Owner Lessor, of the sum or sums specified in such request and
authorization;
(vi) the consent of the Facility Lessee to such written order;
and
(vii) an opinion of counsel who shall be reasonably
satisfactory to the Lease Indenture Trustee, as to the authorization,
validity and enforceability of the Additional Lessor Notes.
(d) When the documents referred to in the foregoing clauses (i) through
(vii) above shall have been filed with the Lease Indenture Trustee, the Owner
Participant and the Owner Lessor and when the Additional Lessor Notes described
in the above mentioned written order shall have been executed and authenticated
as required by this Lease Indenture and the related supplemental indenture, the
Lease Indenture Trustee shall deliver such Additional Lessor Notes in the manner
described in clause (v) above and in Section 2.3, but only upon payment to the
Lease Indenture Trustee of the sum or sums specified in such written order.
Section 2.13. Restrictions of 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 Lease 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 Facility Lessee, the Lease
Indenture Trustee and the Owner Lessor an opinion of counsel, which opinion and
which counsel shall be reasonably satisfactory to the Lease Indenture Trustee,
the Owner Lessor and the Facility Lessee, to the effect that such transfer will
not violate the registration provisions of the Securities Act or require
qualification of this Lease 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:
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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
PURSUANT TO THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
TRANSFERRED, SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT OR SUCH
APPLICABLE STATE LAWS.
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 Lease 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 Lease Indenture Trustee. Each
Noteholder, by its acceptance of a Note, shall be deemed to have consented to
the appointment of the Lease Indenture Trustee.
SECTION 3. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM
INDENTURE ESTATE
Section 3.1. Distribution of Periodic Lease Rent. (a) Periodic Lease
Rent Distribution. Except as otherwise provided in Section 3.2 or 3.3 of this
Lease Indenture, each installment of Periodic Lease Rent and any payment of
Supplemental Lease Rent constituting interest on overdue installments of
Periodic Lease Rent received by the Lease Indenture Trustee shall be distributed
by the Lease 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 Lessor for distribution by it in accordance
with the terms of the LLC Agreement.
(b) Application of Other Amounts Held by the Lease Indenture Trustee
upon Rent Default. If, as a result of any failure by the Facility Lessee to pay
Periodic Lease Rent in full on any date when an installment of Periodic Lease
Rent is due which failure constitutes a Lease Indenture Event of Default, there
shall not have been distributed on any date (or within any applicable period of
grace) pursuant to Section 3.1(a) hereof the full amount then distributable
pursuant to clause "First" of Section 3.1(a) of this Lease Indenture, the Lease
Indenture Trustee shall distribute other payments of the character referred to
in Sections 3.5 and 3.6 hereof 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." To the extent the Lease
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Indenture Trustee thereafter receives the deficiency in Periodic Lease Rent, the
amount so received shall be applied to restore the amounts held by the Lease
Indenture Trustee under Section 3.5 or 3.6 hereof, as the case may be. The
portion of each such payment made to the Lease Indenture Trustee which is to be
distributed by the Lease Indenture Trustee in payment of Notes shall be applied
in accordance with Section 2.7 hereof. Any payment received by the Lease
Indenture Trustee pursuant to Section 4.3 hereof as a result of payment by the
Owner Lessor 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,
ratably, without priority of one over the other, in the proportion that the
amount of such payment or payments then due and unpaid on all Notes held by each
such Noteholder bears to the aggregate amount of the payments then due and
unpaid on all Notes outstanding; and the Owner Lessor 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 Periodic Lease Rent or Supplemental
Lease Rent with respect to which its payment under Sections 4.3(a) and (b)
hereof relates, and the payment of interest on account of such Periodic Lease
Rent or Supplemental Lease Rent being overdue, to the extent provided in and
subject to the provisions of Section 4.3(a) and (b) hereof.
(c) Retention of Amounts by the Lease Indenture Trustee. If at the time
of receipt by the Lease Indenture Trustee of an installment of Periodic Lease
Rent (whether or not then overdue) or of payment of interest on any overdue
installment of Periodic Lease Rent, there shall have occurred and be continuing
a Lease Indenture Event of Default of which a Responsible Officer of the Lease
Indenture Trustee shall have Actual Knowledge, the Lease Indenture Trustee shall
retain such installment of Periodic Lease 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 Periodic Lease Rent or interest pursuant to clause "Second" of
Section 3.1(a) until such time as there shall not be continuing any such Lease
Indenture Event of Default or until such time as the Lease 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
distributed to the Owner Lessor within six (6) months from receipt thereof by
the Lease Indenture Trustee unless (i) the Lease Indenture Trustee has declared
the unpaid principal of all Notes due and payable (or such amounts shall have
automatically become due and payable) pursuant to Section 4.2(a) and the Lease
Indenture Trustee is diligently pursuing any dispossessary remedies available
under Section 4.2 hereof or (ii) any other Lease Indenture Event of Default
shall have occurred during the intervening period and be continuing, in which
case, such six-month period will be restarted from the date such other Lease
Indenture Event of Default shall have occurred. Upon the cure or waiver of such
Lease Indenture Event of Default, withheld Periodic Lease Rent shall, subject to
clause (ii) of the immediately preceding sentence, be distributed to the Owner
Lessor and no further withholding of Periodic Lease Rent on account of such
Lease Indenture Event of Default shall be effected.
Section 3.2. Payments Following Event of Loss or Other Early
Termination. (a) Any payment or amount received by the Lease Indenture Trustee
as a result of (x) the occurrence of an Event of Loss (other than a Regulatory
Event of Loss in respect of which the Facility Lessee shall, pursuant to Section
2.10(b) hereof, assume the obligations and liabilities of the Owner Lessor
hereunder, in which event only clauses "First" and "Fourth" below shall be
applicable), (y) an early termination of the Facility Lease pursuant to Section
13 thereof (other than a
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termination in respect of which the Facility Lessee shall, pursuant to Section
2.10(b) hereof assume the obligations and liabilities of the Owner Lessor
hereunder, in which event only clauses "First" and "Fourth" below shall be
applicable), or (z) any early termination of the Facility 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 Lease Indenture Trustee for any unpaid fees for its
services under this Lease Indenture and any reasonable expense
(including any reasonable legal fees and disbursements) or loss
incurred by it to the extent incurred in connection with its duties as
the Lease Indenture Trustee and to the extent reimbursable by the
Facility Lessee or expressly payable by the Owner Lessor and to the
extent not previously paid to the Lease Indenture Trustee shall be
distributed to the Lease 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) hereof or any supplemental indenture hereto)
(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, 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 the
premium, if any, and accrued but unpaid interest thereon to the
scheduled date of distribution to the Noteholders bears to the
aggregate unpaid principal amount of all such Notes held by all such
holders, together with premium, if any, plus accrued but unpaid
interest thereon to the date of scheduled distribution;
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 Lease 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 Lessor for distribution in accordance with the
LLC Agreement.
Section 3.3. Payments After Lease Indenture Event of Default. All
payments received and all amounts held or realized by the Lease Indenture
Trustee after a Lease Indenture Event of Default shall have occurred and be
continuing (including any amounts realized by the Lease Indenture Trustee from
the exercise of any remedies pursuant to Section 17 of the Facility Lease or
from the application of Section 4.2 hereof) and after the Notes shall have been
declared or shall automatically have become due and payable, together with all
payments or amounts then
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held or thereafter received by the Lease Indenture Trustee hereunder, shall, so
long as such declaration shall not have been rescinded, be distributed forthwith
by the Lease Indenture Trustee in the following order of priority:
First, so much of such payments and amounts as shall be required to
reimburse the Lease Indenture Trustee for any unpaid fees for its
services under this Lease 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 Lease Indenture Trustee
and to the extent reimbursable by the Facility Lessee or expressly
payable by the Owner Lessor and to the extent not previously paid to
the Lease Indenture Trustee shall be distributed to the Lease 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 Change of Control Premium due in respect thereof required to
be paid pursuant to Section 4.2(a)) and all accrued but unpaid interest
on such Notes to but excluding 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 Change of
Control Premium due in respect thereof required to be paid pursuant to
Section 4.2(a)) and accrued but unpaid interest thereon to but
excluding the scheduled date of distribution to the Noteholders bears
to the aggregate unpaid principal amount of all such Notes held by all
such holders (plus any Change of Control Premium in respect thereof
required to be paid pursuant to Section 4.2(a)) and accrued but unpaid
interest thereon to but excluding the date of scheduled distribution to
the Noteholders;
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 Lease 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 Lessor for distribution by it in
accordance with the terms of the LLC Agreement.
Section 3.4. Investment of Certain Payments Held by the Lease Indenture
Trustee. Upon the written direction of the Owner Lessor, the Lease Indenture
Trustee shall invest and reinvest any moneys held by the Lease Indenture Trustee
pursuant to Section 3.1(c), 3.5 or 3.6
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hereof in such Cash Equivalents as may be specified in such direction. The Lease
Indenture Trustee shall have no obligation to make any investment absent such
written direction. The proceeds received upon the sale or at maturity of any
Cash Equivalents and any interest received on such Cash Equivalents 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 Lease Indenture
Trustee in the same manner as the moneys used to make such Cash Equivalents, and
any Cash Equivalents may be sold (without regard to maturity date) by the Lease
Indenture Trustee whenever necessary to make any payment or distribution
required by this Section 3.
Section 3.5. Application of Certain Other Payments. Except as otherwise
provided in Section 3.1(b) or 3.1(c) hereof, any payment received by the Lease
Indenture Trustee for which provision as to the application thereof is made in
an Operative Document, but not elsewhere in this Lease Indenture, shall, unless
a Lease 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
Lease Indenture Trustee of any payment referred to in the preceding sentence
there shall have occurred and be continuing a Lease Indenture Event of Default,
the Lease Indenture Trustee shall hold such payment as part of the Indenture
Estate, but the Lease Indenture Trustee shall, except as otherwise provided in
Section 3.1(b) or 3.1(c) hereof, cease 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 Lease
Indenture Event of Default; provided, however, that any such payment received by
the Lease Indenture Trustee which is payable to the Facility Lessee shall not be
held by the Lease Indenture Trustee unless a Significant Lease Default or Lease
Event of Default shall have occurred and be continuing.
Section 3.6. Other Payments. Except as otherwise provided in Section
3.5 hereof:
(a) any payment received by the Lease Indenture Trustee for
which no provision as to the application thereof is made in the
Participation Agreement, the Facility Lease or elsewhere in this
Section 3; and
(b) all payments received and amounts realized by the Lease
Indenture Trustee with respect to the Indenture Estate (including,
without limitation, all amounts realized after the termination of the
Facility 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 Lease
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 Lease Indenture Trustee in the order of
priority set forth in Section 3.3 hereof, omitting clause "Second" thereof.
Section 3.7. Excepted Payments. Notwithstanding any other provision of
this Lease 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 Lease Indenture Trustee at any time
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shall promptly be paid or distributed by the Lease Indenture Trustee to the
Person or Persons entitled thereto.
Section 3.8. Distributions to the Owner Lessor. Unless otherwise
directed in writing by the Owner Lessor, all amounts from time to time
distributable by the Lease Indenture Trustee to the Owner Lessor in accordance
with the provisions hereof shall be paid by the Lease Indenture Trustee to the
Owner Participant in immediately available funds to the Owner Participant's
Account. Any such distribution to the Owner Lessor shall be final after the same
is made, absent manifest error, and neither the Lease 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 Lease Indenture Trustee or any such
Noteholder to make any claim it may have against the Owner Participant or the
Owner Lessor or the Lease Indenture Trustee or to pursue any such claim in such
court as the Lease Indenture Trustee or any such holder shall deem appropriate.
Any amounts payable to the Trust Company in its individual capacity, shall be
paid to the Trust Company.
Section 3.9. Payments Under Assigned Documents. Notwithstanding
anything to the contrary contained in this Lease Indenture, until the discharge
and satisfaction of the Lien of this Lease Indenture, all payments due or to
become due under any Assigned Document to the Owner Lessor (except so much of
such payments as constitute (a) Excepted Payments or (b) insurance proceeds,
which insurance proceeds shall be applied according to Section 11.7 of the
Facility Lease) shall be made directly to the Lease Indenture Trustee's Account.
The Owner Lessor agrees that if it should receive any such payments directed to
be made to the Lease 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
Lessor is not entitled hereunder, it will promptly forward such payments to the
Lease Indenture Trustee or in accordance with the Lease Indenture Trustee's
instructions. The Lease Indenture Trustee agrees to apply payments from time to
time received by it (from the Facility Lessee, the Owner Lessor or otherwise)
with respect to the Facility Lease or any other Assigned Document, in the manner
provided in Section 2.7 hereof, and this Section 3.
Section 3.10. Disbursement of Amounts Received by the Lease Indenture
Trustee. Subject to the last sentence of this Section 3.10 and Section 3.2,
amounts to be distributed by the Lease Indenture Trustee pursuant to this
Section 3 shall be distributed on the date such amounts are actually received by
the Lease Indenture Trustee. Notwithstanding anything to the contrary contained
in this Section 3, in the event the Lease 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 Lease 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 by
wire transfer, any amounts received by the Lease Indenture Trustee after 11:00
a.m., New York City time, may be distributed on the next succeeding Business
Day.
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SECTION 4. DEFAULTS; REMEDIES OF LEASE INDENTURE TRUSTEE; RIGHTS OF OWNER
PARTICIPANT
Section 4.1. Occurrence of Lease Indenture Event of Default. Subject to
Section 4.3 hereof, the term "Lease Indenture Event of Default," wherever used
herein, shall mean any of the following events (whatever the reason for such
Lease 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 Governmental Entity):
(a) any Lease Event of Default (other than (i) the failure of
Facility Lessee to pay any amount which shall constitute an Excepted
Payment or (ii) a Lease Event of Default in consequence of the Facility
Lessee's failure to maintain the insurance required by Section 11 of
the Facility Lease if, and so long as the insurance maintained by the
Facility Lessee still constitutes Prudent Industry Practice) shall have
occurred and be continuing; or
(b) the Owner Lessor shall fail (other than as a result of a
Lease Event of Default) to make any payment in respect of the principal
of or interest on, the Notes within five (5) Business Days after the
same shall have become due; or
(c) the Owner Lessor shall fail to perform or observe any
covenant, obligation or agreement to be performed or observed by it
under this Lease Indenture (other than any covenant, obligation or
agreement contained in clause (b) of this Section 4.1), or the Owner
Lessor or the Owner Participant shall fail to perform or observe any
covenant, obligation or agreement to be performed by either of them
under the Operative Documents, or the OP Guarantor shall fail to
perform or observe any material covenant, obligation or agreement to be
performed by it under the OP Guarantee (provided the OP Guarantee shall
not have been terminated or released in accordance with the terms of
the Operative Documents), in each case, in any material respect, which
failure shall continue unremedied for 30 days after receipt by such
Person 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 Person diligently pursues such remedy and such
condition is reasonably capable of being remedied within such extended
period;
(d) any representation or warranty made by the Owner
Participant, the Lessor Manager or the Owner Lessor in the Operative
Documents or in any Officer's Certificate delivered pursuant thereto,
or any representation or warranty made by the OP Guarantor (provided
the OP Guarantee shall not have been terminated or released in
accordance with the terms of the Operative Documents) under the OP
Guarantee, 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 Person 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 120 days, so long as
such Person diligently pursues such remedy and such condition is
reasonably capable of being remedied within such extended period;
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(e) the Owner Participant, the Owner Lessor or the OP
Guarantor (provided the OP Guarantee shall not have been terminated or
released in accordance with the terms of the Operative Documents) shall
(i) commence a voluntary case or other proceeding seeking relief under
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, the Owner Lessor or the OP Guarantor
(provided the OP Guarantee shall not have been terminated or released
in accordance with the terms of the Operative Documents) seeking (i)
liquidation, reorganization or other relief with respect to it or its
debts under 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 the Owner Lessor; and such involuntary
case or other proceeding shall remain undismissed and unstayed for a
period of 60 days.
Section 4.2. Remedies of the Lease Indenture Trustee. (a) In the event
that a Lease Indenture Event of Default shall have occurred and be continuing
and a Responsible Officer of the Lease Indenture Trustee shall have Actual
Knowledge thereof, the Lease Indenture Trustee may, or upon receipt of written
instructions from a Majority in Interest of Noteholders shall declare, by
written notice to the Owner Lessor 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 a Lease 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. If the Lease Indenture
Trustee accelerates the Notes pursuant to this Section 4.2(a) as a result of the
occurrence of a Lease Indenture Event of Default caused by a Lease Event of
Default described under Section 16(j) of the Facility Leases, the Change of
Control Premium shall also be payable.
(b) If a Lease Indenture Event of Default shall have occurred and be
continuing, then and in every such case, the Lease Indenture Trustee, as
assignee under the Facility Lease or hereunder or otherwise, may, and where
required pursuant to the provisions of Section 5 hereof shall, upon written
notice to the Owner Lessor, 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 Lease 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
Facility Lease and may take possession of all or any part of the Indenture
Estate and may exclude therefrom the Owner Participant, the Owner Lessor and, in
the event such Lease Indenture Event of Default shall be a Lease Event of
Default, the Facility Lessee and all persons claiming under them, and may
exercise all remedies
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available to a secured party under the Uniform Commercial Code or any other
provision of Applicable Law. The Lease Indenture Trustee may proceed to enforce
the rights of the Lease 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 Facility
Interest or for foreclosure of the Facility Interest, together with the Owner
Lessor's interest in the Assigned Documents, and by any other action, suit,
remedy or proceeding authorized or permitted by this Lease Indenture, at law or
in equity, or 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 Lease Indenture Trustee, in its
reasonable discretion, may determine, or as may be required by law, so long as
the Owner Participant and the Owner Lessor 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 Lease 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 Lease 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 Lease
Indenture or under any of the Notes may be enforced by the Lease Indenture
Trustee without the possession of the Notes at any trial or other proceedings
instituted by the Lease 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 Lease Indenture Trustee (and
also any proceedings involving the interpretation of any provision of this Lease
Indenture to which the Lease Indenture Trustee shall be a party), the Lease
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 Lease
Indenture Trustee nor any Noteholder shall at any time, including at any time
when a Lease 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 Lease Indenture
which could or would divest the Owner Lessor of title to, or its ownership
interest in, any portion of the Indenture Estate unless, in the case of a Lease
Indenture Event of Default as a consequence of a Lease Event of Default under
Section 16 of the Facility Lease, the Lease 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 Facility Lease intending to dispossess the
Facility Lessee of the Facility 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 Lease Indenture Trustee is then
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stayed or otherwise prevented by operation of law from exercising such remedies,
the Lease Indenture Trustee will not divest the Owner Lessor of title to any
portion of the Indenture Estate until the earlier of (i) the expiration of the
six month period following the commencement of such stay or other prevention or
(ii) the date of repossession of the Facility Interest under the Facility Lease.
(e) Anything herein to the contrary notwithstanding, in the case of a
Lease Indenture Event of Default as a consequence of a Lease Event of Default
under Section 16(a) of the Facility Lease with respect to the Equity Portion of
Periodic Lease Rent only, the Lease Indenture Trustee shall not, so long as no
other Lease Indenture Event of Default shall have occurred and be continuing, be
entitled to exercise remedies under this Lease Indenture for a period of six
months unless the Owner Lessor or the Owner Participant consents to the
declaration of a Lease Event of Default by the Lease Indenture Trustee.
(f) Any provisions of the Facility Lease or this Lease Indenture to the
contrary notwithstanding, if the Facility 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 Lease 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 16 of the Facility Lease solely
to enforce such obligations in respect of any Excepted Payments (provided that
any such declaration shall not be deemed to constitute a Lease Indenture Event
of Default hereunder without the consent of the Lease Indenture Trustee).
Section 4.3. Right to Cure Certain Lease Events of Default. (a) If the
Facility Lessee shall fail to make any payment of Periodic Lease Rent due on any
Rent Payment Date when the same shall have become due, and if such failure of
the Facility Lessee to make such payment of Periodic Lease Rent shall not
constitute the fourth consecutive such failure or the eighth cumulative failure
of the Facility Lessee to make a payment of Periodic Lease Rent when due, then
the Owner Lessor may (but need not) pay to the Lease Indenture Trustee, at any
time prior to the expiration of ten (10) Business Days after the Owner Lessor
and the Owner Participant shall have received notice from the Lease Indenture
Trustee or have Actual Knowledge of the failure of the Facility Lessee to make
such payment of Periodic Lease Rent, an amount equal to the principal of, 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 Lessor shall be
deemed (for purposes of this Lease Indenture) to have cured any Lease Indenture
Event of Default which arose or would have arisen from such failure of the
Facility Lessee.
(b) If the Facility Lessee shall fail to make any payment of
Supplemental Lease Rent when the same shall become due or otherwise fail to
perform any obligation under the Facility Lease or any other Operative Document,
then the Owner Lessor 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
Lease 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 ten (10) Business Days after the Owner Lessor and the Owner
Participant shall have received notice of
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30
the occurrence of such failure, and such payment or performance by the Owner
Lessor shall be deemed to have cured any Lease Indenture Event of Default which
arose or would have arisen from such failure of the Facility Lessee.
(c) The Owner Lessor, upon exercising its rights under paragraph (a) or
(b) of this Section 4.3 to cure the Facility Lessee's failure to pay Periodic
Lease Rent or Supplemental Lease Rent or to perform any other obligation under
the Facility 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
Facility Lessee or any other party, for the repayment thereof if such claims
would impair the prior right and security interest of the Lease Indenture
Trustee in and to the Indenture Estate. Upon such payment or performance by the
Owner Lessor, the Owner Lessor shall (to the extent of such payment made by it
and the reasonable costs and expenses incurred in connection with such payments
and performance thereof together with interest thereon and so long as no Lease
Indenture Payment Default, Lease Indenture Bankruptcy Default or Lease Indenture
Event of Default hereunder shall have occurred and be continuing) be subrogated
to the rights of the Lease Indenture Trustee and the Noteholders to receive the
payment of Periodic Lease Rent or Supplemental Lease Rent, as the case may be,
with respect to which the Owner Lessor made such payment and interest on account
of such Periodic Lease Rent payment or Supplemental Lease Rent payment being
overdue. If the Lease Indenture Trustee shall thereafter receive such payment of
Periodic Lease Rent, Supplemental Lease Rent or such interest, the Lease
Indenture Trustee shall, notwithstanding the requirements of Section 3.1 hereof,
forthwith, remit such payment of Periodic Lease Rent or Supplemental Lease Rent,
as the case may be, (to the extent of the payment made by the Owner Lessor
pursuant to this Section 4.3) and such interest to the Owner Lessor in
reimbursement for the funds so advanced by it, provided that if (A) any Lease
Indenture Payment Default, Lease Indenture Bankruptcy Default or Lease 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 not be remitted to the Owner Lessor but shall be
held by the Lease Indenture Trustee as security for the obligations secured
hereby and distributed in accordance with Section 3.1 hereof. The Owner Lessor
shall not attempt to recover any amount paid by it on behalf of the Facility
Lessee pursuant to this Section 4.3 except by demanding of the Facility Lessee
payment of such amount or by commencing an action against the Facility Lessee
for the payment of such amount, and except where a Lease Indenture Event of
Default (other than a Lease Event of Default) has occurred and is continuing,
the Owner Lessor 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 Facility Lessee (but neither the
Owner Lessor nor the Owner Participant shall have any right to collect such
amounts by exercise of any of the remedies under Section 17 of the Facility
Lease) or, if paid by the Facility Lessee to the Lease Indenture Trustee, from
the Lease Indenture Trustee to the extent of funds actually received by the
Lease Indenture Trustee.
(d) Until the expiration of the period during which the Owner Lessor 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 Facility Lessee
referred to therein, neither the Lease Indenture Trustee nor any Noteholder
shall take or commence any action it would otherwise be entitled to
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take or commence as a result of such failure by the Facility Lessee, whether
under this Section 4 or Section 17 of the Facility Lease or otherwise.
(e) Each Noteholder agrees, by acceptance of a Note, that if (i)(A) a
Lease Indenture Event of Default, which also constitutes a Lease Event of
Default, shall have occurred and be continuing for a period of at least ninety
(90) days without the Notes having been accelerated or the Lease Indenture
Trustee having exercised any remedy under the Facility Lease intended to
dispossess the Facility Lessee of the Facility Interest, (B) the Notes have been
accelerated pursuant to Section 4.2(a) and such acceleration has not theretofore
been rescinded, or (C) an Enforcement Notice giving notice of the intent of the
Lease Indenture Trustee to foreclose on the Facility Interest or otherwise
dispossess Facility Lessee of the Facility Interest has been given pursuant to
Section 5.1 within the previous 30 days, (ii) no Lease Indenture Event of
Default of the nature described in any of clauses (b) through (f) of Section 4.1
hereof and which did not result from a Lease Event of Default shall have
occurred and be continuing and (iii) the Owner Lessor shall give written notice
to the Lease Indenture Trustee of the Owner Lessor's intention to purchase all
of the Notes in accordance with this paragraph, then, upon receipt within ten
(10) Business Days after such notice from the Owner Lessor 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
but excluding the date of such receipt (as well as any interest on overdue
principal and, to the extent permitted by Applicable Law, overdue interest),
plus (y) the aggregate amount, if any, of all sums which, if Section 3.3 were
then applicable, such Noteholder would be entitled to be paid before any
payments were to be made to the Owner Lessor but excluding any premium, such
Noteholder will forthwith sell, assign, transfer and convey to the Owner Lessor
(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 Lease Indenture, all Notes held by such Noteholder and
the Assigned Documents (other than the right to receive the Change of Control
Premium pursuant to Section 17.1 of the Facility Lease), and the Owner Lessor
shall thereupon assume all such Noteholder's rights and obligations in such
documents; provided, that no such Noteholder shall be required to so convey
unless (1) the Owner Lessor shall have simultaneously tendered payment on all
other Notes held by such Noteholder at such time outstanding 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 Lessor.
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 hereof, (a) all amounts of principal,
premium, if any, and interest which are then due and payable in respect of all
the Notes otherwise than as a result of such acceleration pursuant to Section
4.2 hereof 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 reasonable 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 Lease Indenture
Trustee) and (b) every other Lease Indenture Event of Default shall have been
remedied, then a Majority in Interest of Noteholders may, by written notice or
notices to the Owner Lessor, the Lease Indenture Trustee and the Facility
Lessee, rescind and annul such acceleration and any related declaration of
default under the Facility Lease and their respective consequences, but no such
rescission and
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annulment shall extend to or affect any subsequent Lease 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
Lease Indenture Trustee has the right to take possession of the Indenture Estate
pursuant to Section 4.2 hereof, at the request of the Lease Indenture Trustee,
the Owner Lessor promptly shall (i) execute and deliver to the Lease 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 Facility
Lease to be made or given by the Owner Lessor upon the occurrence and
continuance of a Lease Event of Default, in each case as the Lease Indenture
Trustee may reasonably deem necessary or advisable to enable the Lease Indenture
Trustee or an agent or representative designated by the Lease Indenture Trustee,
at such time or times and place or places as the Lease Indenture Trustee may
specify, to obtain possession of all or any part of the Indenture Estate the
possession of which the Lease Indenture Trustee shall at the time be entitled to
hereunder.
(b) Upon every such taking of possession, the Lease Indenture Trustee
may, from time to time, as a charge against proceeds of the Indenture Estate,
make all such expenditures with respect to the Indenture Estate as it may deem
proper. In each such case, the Lease 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 Lessor relating to the Indenture Estate, as the
Lease Indenture Trustee shall deem best, and, the Lease Indenture Trustee shall
be entitled to collect and receive all rents (including Periodic Lease Rent and
Supplemental Lease Rent), revenues, issues, income, products and profits of the
Indenture Estate and every part thereof (without prejudice to the right of the
Lease Indenture Trustee under any provision of this Lease Indenture to collect
and receive cash held by, or required to be deposited with, the Lease 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 Lease 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 Lessor and the Facility Lessee relating to the
Indenture Estate and the Operative Documents), or under any provision of, this
Lease Indenture, as well as just and reasonable compensation for the services of
the Lease Indenture Trustee and of all Persons properly engaged and employed by
the Lease Indenture Trustee.
Section 4.6. Remedies. If a Lease Indenture Event of Default shall have
occurred and be continuing, the Lease Indenture Trustee may, in addition to and
not in abrogation of other rights and remedies provided in this Section 4.6,
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 Lease
Indenture or any other right, and (ii) to pursue any other remedy available to
it, all as the Lease Indenture Trustee shall determine most effectual for such
purposes. Upon any foreclosure sale, the Lease Indenture Trustee may bid for and
purchase the Indenture Estate and shall be entitled to apply all or any part of
the Secured
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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 hereof. In the event of any such foreclosure sale by the
Lease Indenture Trustee, the Owner Lessor 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. The Lease Indenture Trustee, at the Lease Indenture
Trustee's option, is authorized to foreclose this Lease 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 to be by the Owner Lessor, a defense to any
proceedings instituted by the Lease Indenture Trustee to collect the Secured
Indebtedness.
(b) In addition, as part of the consideration for the Secured
Indebtedness in order to secure payment and performance of the Secured
Indebtedness, the Owner Lessor has absolutely and unconditionally assigned and
transferred to the Lease 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 Lessor
hereby authorizes the Lease Indenture Trustee or the Lease Indenture Trustee's
agents to collect the Revenues and hereby directs such tenants of the Indenture
Estate to pay the Revenues to the Lease Indenture Trustee or the Lease Indenture
Trustee's agents; provided, however, that prior to written notice given by the
Lease Indenture Trustee to the Owner Lessor of any Lease Indenture Event of
Default by the Owner Lessor, but subject to the other provisions of this Lease
Indenture, the Owner Lessor shall collect and receive the Revenues as trustee
for the benefit of the Lease Indenture Trustee and the Owner Lessor, to apply
the Revenues so collected in accordance with Section 3 hereof. The Owner Lessor
agrees that each tenant of the Indenture Estate shall pay the Revenues to the
Lease Indenture Trustee or the Lease Indenture Trustee's agents on the Lease
Indenture Trustee's written demand therefor without any liability on the part of
said tenant to inquire further as to the existence of a Lease 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 hereof, as a matter of right, the Lease Indenture Trustee shall be entitled
to the appointment of a receiver (who may be the Lease Indenture Trustee or any
successor or nominee thereof) for all or any part of the Indenture Estate,
whether such receivership be incidental to the taking of possession thereof or
otherwise, and the Owner Lessor 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 Lease Indenture Trustee.
Section 4.8. Remedies Cumulative. Each and every right, power and
remedy herein specifically given to the Lease Indenture Trustee or otherwise in
this Lease 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
Lease 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,
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power or remedy. No delay or omission by the Lease 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 Lessor or the Facility
Lessee or to be an acquiescence therein.
Section 4.9. Waiver of Various Rights by the Owner Lessor. The Owner
Lessor 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 Lease 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 Lessor covenants not to hinder, delay or impede the exercise of any
right or remedy under or in respect of this Lease Indenture, except as permitted
by Section 4.3 hereof, 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 the event that the
Lease Indenture Trustee or any Noteholder shall have proceeded to enforce any
right, power or remedy under this Lease 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 Lease Indenture
Trustee or the Noteholder, then and in every such case the Owner Lessor, the
Lease Indenture Trustee and the Facility 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 Lease Indenture Trustee or the Noteholder
shall continue as if no such proceedings had taken place.
Section 4.11. No Action Contrary to the Facility Lessee's Rights Under
the Facility Lease. Notwithstanding any other provision of any of the Operative
Documents, so long as the Facility Lease shall not have been declared (or deemed
to have been declared) in default, under the Facility Lease, the Lease Indenture
Trustee shall not take or cause to be taken any action contrary to the right of
the Facility Lessee under the Facility Lease, including its rights, as between
the Facility Lessee and the Owner Lessor and the Owner Participant and any
Person claiming by or through the Owner Lessor or the Owner Participant, to
quiet use and possession of the Facility Interest under the Facility Lease.
Section 4.12. Right of the Lease Indenture Trustee to Perform
Covenants, Etc. If the Owner Lessor shall fail to make any payment or perform
any act required to be made or performed by it hereunder or under the Facility
Lease, the Site Lease and Sublease or the Assignment and Reassignment of Owners
Agreement or if the Owner Lessor shall fail to release
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any Lien affecting the Indenture Estate which it is required to release by the
terms of this Lease Indenture, the Participation Agreement, the LLC Agreement or
the other Operative Documents, the Lease Indenture Trustee, without notice to or
demand upon the Owner Lessor 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
Facility Interest and subject to the Owners Agreement, for such purpose) as, in
the Lease Indenture Trustee's reasonable opinion, may be necessary or
appropriate therefor. No such entry shall be deemed an eviction. All sums so
paid by the Lease Indenture Trustee and all costs and expenses (including,
without limitation, reasonable legal fees and expenses) so incurred, together
with interest thereon from the date of payment or incurrence, shall constitute
additional indebtedness secured by this Lease Indenture and shall be paid from
the Indenture Estate to the Lease Indenture Trustee on demand. The Lease
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 or negligence with respect to the handling of
money on the part of the Lease Indenture Trustee.
Section 4.13. Further Assurances. The Owner Lessor 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 Lease Indenture
Trustee for the purpose of fully carrying out and effectuating this Lease
Indenture and the intent hereof.
Section 4.14. Waiver of Past Defaults. Any past Lease Indenture Event
of Default and its consequences may be waived by the Lease Indenture Trustee,
except a Lease Indenture Event of Default (i) in the payment of the principal
of, premium, if any, and or interest on any Note, subject to the provisions of
Sections 5.1 and 8.1 hereof, or (ii) in respect of a covenant or provision
hereof which, under Section 8.2 hereof, cannot be modified or amended without
the consent of each Noteholder. Upon any such waiver and subject to the terms of
such waiver, such Lease Indenture Event of Default shall cease to exist, and any
other Lease Indenture Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Lease Indenture; but no such waiver shall
extend to any subsequent or other Lease Indenture Event of Default or impair any
right consequent thereon.
Section 4.15. Rights of Owner Participant to Assume the Notes. The
Owner Participant or its Affiliates may assume or guarantee the Notes on a
recourse basis upon the occurrence and during the continuation of a Lease
Indenture Event of Default resulting from a Lease Event of Default on the terms
and conditions set forth in Section 8.7 of the Participation Agreement.
SECTION 5. DUTIES OF LEASE INDENTURE TRUSTEE; CERTAIN RIGHTS AND DUTIES OF
OWNER LESSOR
Section 5.1. Notice of Action Upon Lease Indenture Event of Default.
The Lease Indenture Trustee shall give prompt written notice to the Owner Lessor
and the Owner Participant of any Lease Indenture Event of Default with respect
to which the Lease Indenture Trustee has Actual Knowledge and will give the
Facility Lessee and the Owner Participant not
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less than 30 days' prior written notice of the date on or after which the Lease
Indenture Trustee intends to exercise remedies under Section 4.2 (and
"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 hereof, upon written instructions, at any time and
from time to time, of a Majority in Interest of Noteholders, the Lease 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 Document to be
satisfactory to the Lease Indenture Trustee. The Lease Indenture Trustee may,
and upon written instructions from a Majority in Interest of Noteholders, the
Lease Indenture Trustee shall, execute or cause to be executed any financing
statement (and any continuation statement with respect to such financing
statement) or any similar instrument or document relating to the security
interest or the assignment created by this Lease Indenture or granted by the
Owner Lessor herein as may be necessary to protect and preserve the security
interest or assignment created by or granted pursuant to this Lease 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 the
Facility Lease. Subject to the terms of Section 5.4 hereof, 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 Secured Indebtedness,
the Lease Indenture Trustee shall execute and deliver to, or as directed in
writing by, the Owner Lessor an appropriate instrument in due form for
recording, releasing the Indenture Estate from the Lien of this Lease Indenture.
Nothing in this Section 5.3 shall be deemed to expand the instances in which the
Owner Lessor is entitled to prepay the Notes.
Section 5.4. Compensation of the Lease Indenture Trustee;
Indemnification. (a) The Owner Lessor will from time to time, on demand, pay to
the Lease Indenture Trustee such compensation for its services hereunder as
shall be agreed to by the Facility Lessee and the Lease Indenture Trustee, or,
in the absence of agreement, reasonable compensation 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 Lease Indenture Trustee
agrees that it shall have no right against the Noteholders or, except as
provided in Section 3 and Section 4.2 hereof or this Section 5, the Indenture
Estate, for any fee as compensation for its services hereunder.
(b) The Lease Indenture Trustee shall not be required to take any
action or refrain from taking any action under Section 4, 5.2 or 9.1 hereof
unless it and any of its directors, officers, employees or agents shall have
been indemnified in manner and form satisfactory to the Lease Indenture Trustee.
The Lease Indenture Trustee shall not be required to take any action under
Section 4 or Section 5.2, 5.3 or 9.1 hereof, nor shall any other provision of
this Lease
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Indenture be deemed to impose a duty on the Lease Indenture Trustee to take any
action, if it shall have been advised by counsel (who shall not be an employee
of the Lease 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 Lease Indenture Trustee) may
result in personal liability to the Lease Indenture Trustee.
Section 5.5. No Duties Except as Specified; No Action Except Under the
Facility Lease, Indenture or Instructions. (a) The Lease Indenture Trustee shall
not have any duty or obligation to 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 Lease Indenture
or the other Assigned Documents except as expressly provided by the terms of
this Lease Indenture or as expressly provided in written instructions from a
Majority in Interest of Noteholders in accordance with Section 5.2 hereof; and
no implied duties or obligations shall be read into this Lease Indenture against
the Lease Indenture Trustee.
(b) The Lease Indenture Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Indenture Estate except (i) as
required by the terms of the Facility Lease, to the extent applicable to the
Lease Indenture Trustee as assignee of the Owner Lessor, (ii) in accordance with
the powers granted to, or the authority conferred upon, the Lease Indenture
Trustee pursuant to this Lease Indenture or (iii) in accordance with the express
terms hereof or with written instructions from a Majority in Interest of
Noteholders in accordance with Section 5.2 hereof.
Section 5.6. Certain Rights of the Owner Lessor. Notwithstanding any
other provision of this Lease Indenture or any provision of any Operative
Document to the contrary, and in addition to any rights conferred on the Owner
Lessor hereby:
(a) The Owner Lessor shall at all times, to the exclusion of
the Lease 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 Lessor 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 Facility Lease; (ii) retain all rights with
respect to insurance that Section 11 of the Facility Lease specifically
confers upon the Owner Lessor and to waive any failure by the Facility
Lessee to maintain the insurance required by Section 11 of the Facility
Lease before or after the fact so long as the insurance maintained by
the Facility Lessee still constitutes Prudent Industry Practice; (iii)
retain all rights to adjust Periodic Lease Rent and Termination Value
as provided in Section 3.5 of the Facility Lease, Section 14 of the
Participation Agreement or the Tax Indemnity Agreement; provided,
however, that after giving effect to any such adjustment (x) the amount
of Periodic Lease Rent 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 Facility Lessee
under the Facility Lease in respect of any early termination of the
Facility Lease) than an amount sufficient, as of the date of payment,
to pay in full the principal of, and interest on all Notes outstanding
on and as of such date of payment; (iv) retain the right to declare the
Facility Lessee to be in default with respect to
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any Excepted Payments pursuant to Section 17 of the Facility Lease; and
(v) except in connection with the exercise of remedies pursuant to the
Facility Lease, retain all rights to exercise the Owner Lessor's rights
relating to the Appraisal Procedure and to confer and agree with the
Facility Lessee on Fair Market Rental Value, Fair Market Sales Value or
any Renewal Lease Term;
(b) The Owner Lessor shall have the right, but not to the
exclusion of the Lease Indenture Trustee, (i) to receive from the
Facility Lessee all notices, certificates, reports, filings, opinions
of counsel and other documents and all information that the Facility
Lessee is permitted or required to give or furnish to the Owner Lessor
or the Owner Participant, as the case may be, pursuant to the Facility
Lease or any other Operative Document; (ii) to inspect the Facility and
the records relating thereto pursuant to Section 12 of the Facility
Lease; (iii) to obtain or provide such insurance as may be permitted by
Section 11 of the Facility Lease; (iv) to perform for the Facility
Lessee as provided in Section 20 of the Facility Lease; and (v) to
request from the Facility Lessee such further documents or assurances,
or request that the Facility Lessee take such further actions in
respect of the Owner Lessor's Interest, as shall be required to be
delivered or taken by the Facility Lessee pursuant to Section 23.11 of
the Facility Lease;
(c) So long as the Notes have not been accelerated pursuant to
Section 4.2(a) hereof (or, if accelerated, such acceleration has
theretofore been rescinded) or the Lease Indenture Trustee shall not
have exercised any of its rights pursuant to Section 4 hereof to take
possession of, foreclose, sell or otherwise take control of all or any
part of the Indenture Estate, the Owner Lessor shall retain the right
to the exclusion of the Lease Indenture Trustee to exercise the rights
of the Owner Lessor under, and to determine compliance by the Facility
Lessee with, the provisions of Sections 10 (other than Section 10.3
thereof), 13, 14 and 15 of the Facility Lease; provided, however, that
if a Lease Indenture Event of Default shall have occurred and be
continuing, the Owner Lessor shall cease to retain such rights upon
notice from the Lease Indenture Trustee stating that such rights shall
no longer be retained by the Owner Lessor;
(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)
hereof (or, if accelerated, such acceleration has theretofore been
rescinded) or the Lease Indenture Trustee shall not have exercised any
of its rights pursuant to Section 4 hereof to take possession of,
foreclose, sell or otherwise take control of all or any part of the
Indenture Estate, the Owner Lessor shall have the right, to be
exercised jointly with the Lease Indenture Trustee, (i) to exercise the
rights with respect to the Facility Lessee's use and operation,
modification or maintenance of the Facility, (ii) to amend, supplement,
modify or waive any return condition contained in Section 5 of the
Facility Lease and (iii) to exercise the rights of the Owner Lessor
under Section 10.3 of the Facility Lease; provided further, however,
that (A) the Owner Lessor shall have no right to receive any Periodic
Lease Rent or other payments other than Excepted Payments payable to
the Owner Lessor or the Owner Participant, and (B) no determination by
the Owner Lessor or the Lease Indenture Trustee that the Facility
Lessee is in compliance with the provisions of any applicable Assigned
Document shall be binding upon or otherwise affect the rights hereunder
of the Lease
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Indenture Trustee or any Noteholder on the one hand or the Owner Lessor
or the Owner Participant on the other hand;
(e) Nothing in this Lease Indenture shall give to, or create
in, or otherwise provide the benefit of to, the Lease Indenture
Trustee, any rights of the Owner Participant under or pursuant to the
Tax Indemnity Agreement or any other Operative Document and nothing in
this Section 5.6 or elsewhere in this Lease Indenture shall give to the
Owner Lessor the right to exercise any rights specifically given to the
Lease Indenture Trustee pursuant to any Operative Document;
(f) 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 Lease Indenture Trustee shall not have exercised
any of its rights pursuant to Section 4.2 to take possession of,
foreclose, sell or otherwise take control of all or any part of the
Indenture Estate, the Owner Lessor shall have the right, together with
the Lease Indenture Trustee, (i) to seek specific performance of the
covenants of the Facility Lessee under the Operative Documents relating
to protection, insurance, maintenance, possession and use of the
Facility or the Facility Interest or (ii) to enforce any manufacturer's
warranty pursuant to any of the Operative Documents; and
(g) Upon the assumption or guarantee of the Notes by the Owner
Participant pursuant to Section 4.15 hereof, the Owner Lessor shall, to
the exclusion of the Lease Indenture Trustee, have the right (but not
the obligation) (i) to give and withhold all waivers, consents,
modifications, amendments and agreements under or with respect to the
Facility Lease and the Site Lease and Sublease, (ii) to perform for, or
request performance by, the Facility Lessee of its obligations under
the Operative Documents to which the Facility Lessee is a party and
(iii) to exercise all other rights and remedies of the Owner Lessor as
lessor under the Facility Lease and sublessor under the Site Lease and
Sublease;
but nothing in clauses (a) through (g) above shall deprive the Lease Indenture
Trustee of the exclusive right, so long as this Lease Indenture shall be in
effect, to declare the Facility Lease to be in default under Section 16 thereof
(except as set forth in clause (iv) of paragraph (a) above) and thereafter to
exercise the remedies pursuant to Section 17 of the Facility Lease.
Section 5.7. Filing of Financing Statements and Continuation
Statements. Pursuant to Section 5.20 of the Participation Agreement, the
Facility Lessee has covenanted to maintain the priority of the Lien of this
Lease Indenture on the Indenture Estate. The Lease Indenture Trustee shall, at
the request and expense of the Facility Lessee, as provided in the Participation
Agreement, execute and deliver to the Facility Lessee and the Facility Lessee
shall 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 Lease Indenture in the Indenture Estate as may be supplied to the Lease
Indenture Trustee by the Facility Lessee. At any time and from time to time,
upon the request of the Facility Lessee, at the expense of the Facility Lessee
(and upon receipt of the form of document so to be executed), the Owner Lessor
shall promptly and duly execute and deliver any and all such further instruments
and documents as the Facility Lessee may reasonably
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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 Facility Lessee or the Lease Indenture Trustee, the Owner Lessor
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 Lease Indenture as may
be specified in such instructions. In addition, the Lease Indenture Trustee and
the Owner Lessor will execute such continuation statements with respect to
financing statements and other documents relating to the Lien created by this
Lease 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 to be filed). Except as otherwise
herein expressly provided, neither the Lease Indenture Trustee nor the Owner
Lessor shall have responsibility for the protection, perfection or preservation
of the Lien created by this Lease Indenture.
SECTION 6. LEASE INDENTURE TRUSTEE AND OWNER LESSOR
Section 6.1. Acceptance of Trusts and Duties. The Lease Indenture
Trustee accepts the trusts hereby created and applicable to it and agrees to
perform the same but only upon the terms of this Lease Indenture, and agrees to
receive and disburse all moneys constituting part of the Indenture Estate in
accordance with the provisions hereof. If any Lease Indenture Event of Default
shall have occurred and be continuing, the Lease Indenture Trustee shall,
subject to the provisions of Sections 4 and 5 hereof, exercise such of the
rights and remedies vested in it by this Lease 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 Lease
Indenture Trustee shall not be liable under any circumstances, except (a) for
its own gross negligence or willful misconduct, (b) in the case of the
inaccuracy of any representation or warranty contained in Section 3.5 of the
Participation Agreement, in the certificate delivered by the Lease Indenture
Trustee at the Closing pursuant to Section 4.1(f) of the Participation Agreement
or in Section 6.3(b) hereof, or (c) for the performance of its obligations under
Section 9 of the Participation Agreement; and the Lease Indenture Trustee shall
not be liable for any action or inaction of the Owner Lessor; provided, however,
that:
(i) prior to the occurrence of a Lease Indenture Event of
Default of which a Responsible Officer of the Lease Indenture Trustee
shall have Actual Knowledge, and after the curing of all such Lease
Indenture Events of Default which may have occurred, the duties and
obligations of the Lease Indenture Trustee shall be determined solely
by the express provisions of the Operative Documents, the Lease
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 Lease Indenture Trustee and,
in the absence of bad faith on the part of the Lease Indenture Trustee,
the Lease Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon any notes, certificates, orders, opinions or other written
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communications furnished to the Lease Indenture Trustee and conforming
to the requirements of this Lease Indenture;
(ii) the Lease 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 Lease Indenture Trustee;
(iii) the Lease 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 Lease
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 Lease Indenture Trustee, or
exercising or omitting to exercise any trust or power conferred upon
the Lease Indenture Trustee, under this Lease Indenture;
(iv) the Lease Indenture Trustee shall not be required to take
notice or be deemed to have notice or knowledge of any default, Lease
Event of Default, Significant Lease Default or Lease Indenture Event of
Default unless a Responsible Officer of the Lease Indenture Trustee
shall have received written notice thereof. In the absence of receipt
of such notice, the Lease Indenture Trustee may conclusively assume
that there is no default or Lease Indenture Event of Default (except
for defaults and Lease Indenture Events of Default resulting from an
event of nonpayment);
(v) the Lease 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 and none of the provisions contained in this
Lease Indenture shall in any event require the Lease Indenture Trustee
to perform, or be responsible for the manner of performance of, any of
the obligations of the Owner Lessor, under this Lease Indenture; and
(vi) the right of the Lease Indenture Trustee to perform any
discretionary act enumerated in this Lease Indenture shall not be
construed as a duty, and the Lease Indenture Trustee shall not be
answerable for other than its gross negligence or willful misconduct in
the performance of such act.
Section 6.2. Absence of Certain Duties. Except in accordance with
written instructions furnished pursuant to Section 5.2 hereof and except as
provided in Section 5.5 and 5.7 hereof, the Lease 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 thereto) or to
see to the maintenance of any such registration, recording or filing, (b) to see
to any insurance on the Facility, or the Facility Interest or to effect or
maintain any such insurance, (c) except as otherwise provided in Section 5.5 or
Section 9.13 hereof 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 Facility Lessee, (e)
to inspect the Facility at any time or ascertain or inquire as
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to the performance or observance of any of the Facility Lessee's covenants with
respect to the Facility, (f) to exercise any of the trusts or powers vested in
it by this Lease 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, pursuant to the provisions of this Lease Indenture, unless such
Noteholders shall have offered to the Lease 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 of Noteholders). Notwithstanding the
foregoing, the Lease Indenture Trustee shall furnish to each Noteholder promptly
upon receipt thereof duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Lease Indenture Trustee hereunder or under any of the Operative Documents
unless the Lease Indenture Trustee shall reasonably believe that each such
Noteholder shall have received copies thereof.
Section 6.3. Representations, Warranties and Covenants. (a) The Owner
Lessor represents and warrants that except as provided in the Operative
Documents it has not assigned or pledged, and hereby covenants that it will not
assign or pledge, so long as this Lease Indenture shall remain in effect, any of
its estate, right, title or interest subject to this Lease Indenture. Subject to
Section 5.6 hereof, the Owner Lessor further covenants that it will not, except
with the prior written consent of the Lease Indenture Trustee or as expressly
provided in or permitted by this Lease 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 Facility Lessee under any Assigned Document in
violation of Section 3.9 hereof or (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. A signed copy of any amendment or supplement
to the LLC Agreement shall be delivered by the Owner Lessor to the Lease
Indenture Trustee and the Facility Lessee. This Lease Indenture and the
Indenture Estate shall not be affected by any action taken under or in respect
of the LLC Agreement except as otherwise provided or permitted by this Lease
Indenture or the other Operative Documents.
NEITHER THE OWNER LESSOR NOR THE LEASE 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 FACILITY INTEREST, THE GROUND INTEREST OR ANY OTHER PART OF
THE INDENTURE ESTATE, except that the Owner Lessor represents and warrants that
on the Closing Date it shall have received whatever title or interest to the
Facility Interest and the Facility Site as was conveyed to it by the Facility
Lessee and that on the Closing Date the Facility Interest shall be free of Owner
Lessor's Liens and Owner Participant's Liens; or (ii) any representation or
warranty as to the validity, legality or enforceability of this Lease Indenture,
the Notes or any of the other Operative Documents, or as to the correctness of
any
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statement contained in any thereof, except that each of the Owner Lessor and the
Lease Indenture Trustee represents and warrants that this Lease Indenture and
the Participation Agreement have been, and, in the case of the Owner Lessor, the
other Operative Documents to which it is or is to become a party have been or
will be, duly 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 Lease Indenture Trustee under this
Lease 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 Facility Lease, any moneys received by
the Lease 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
Lessor nor the Lease Indenture Trustee shall be liable for any interest thereon;
provided, however, subject to Section 6.5 hereof, that any payments received or
applied hereunder by the Lease Indenture Trustee shall be accounted for by the
Lease 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 Lease 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 believed to be genuine and believed to
be signed by the proper party or parties. The Lease Indenture Trustee may accept
a certified copy of a resolution of the governing body of the Facility Lessee as
conclusive evidence that such resolution has been duly adopted by such governing
body 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 hereof, and as to the amount of any payment to which
any other Person is entitled pursuant to Section 3.5 or Section 3.7 hereof, the
Lease Indenture Trustee for all purposes hereof may conclusively 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 Lease Indenture Trustee for all purposes hereof may
conclusively rely on an Officer's Certificate of the Owner Lessor or the
Facility Lessee or a Noteholder as to such fact or matter, and such certificate
shall constitute full protection to the Lease 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 Lease 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 hereof),
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 Lease 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 competence, of any such Person,
so long as the Lease Indenture Trustee shall have exercised reasonable care in
selecting such Person.
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SECTION 7. SUCCESSOR LEASE INDENTURE TRUSTEES AND SEPARATE TRUSTEES
Section 7.1. Resignation or Removal of the Lease Indenture Trustee;
Appointment of Successor. (a) Resignation or Removal. The Lease Indenture
Trustee or any successor thereto may resign at any time with or without cause by
giving at least thirty (30) days' prior written notice to the Owner Lessor, the
Owner Participant, the Facility Lessee and each Noteholder, such resignation to
be effective on the acceptance of appointment by the successor Lease Indenture
Trustee pursuant to the provisions of subsection (b) below. In addition, a
Majority in Interest of Noteholders may at any time remove the Lease Indenture
Trustee with or without cause by an instrument in writing delivered to the Owner
Lessor, the Owner Participant and the Lease Indenture Trustee, and the Owner
Lessor shall give prompt written notification thereof to each Noteholder and the
Facility Lessee. Such removal will be effective on the acceptance of appointment
by the successor Lease Indenture Trustee pursuant to the provisions of
subsection (b) below. In the case of the resignation or removal of the Lease
Indenture Trustee, a Majority in Interest of Noteholders may appoint a successor
Lease Indenture Trustee by an instrument signed by such holders and so long as
no Lease Indenture Event of Default has occurred and is continuing (other than
as a result of a Lease Event of Default), consented to by the Owner Lessor and
so long as no Lease Event of Default has occurred and is continuing, consented
to by the Facility Lessee. If a successor Lease Indenture Trustee shall not have
been appointed within thirty (30) days after such resignation or removal, the
Lease Indenture Trustee or any Noteholder may apply to any court of competent
jurisdiction to appoint a successor Lease 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 Lease Indenture Trustee so
appointed by such court shall immediately and without further act be superseded
by any successor Lease Indenture Trustee appointed by a Majority in Interest of
Noteholders as above provided.
(b) Acceptance of Appointment. Any successor Lease Indenture Trustee
shall execute and deliver to the predecessor Lease Indenture Trustee, the Owner
Participant, the Owner Lessor and all Noteholders an instrument accepting such
appointment and thereupon such successor Lease Indenture Trustee, without
further act, shall become vested with all the estates, properties, rights,
powers and duties of the predecessor Lease Indenture Trustee hereunder in the
trusts hereunder applicable to it with like effect as if originally named the
Lease Indenture Trustee herein; but nevertheless, upon the written request of
such successor Lease Indenture Trustee or a Majority in Interest of Noteholders,
such predecessor Lease Indenture Trustee shall execute and deliver an instrument
transferring to such successor Lease Indenture Trustee, upon the trusts herein
expressed applicable to it, all the estates, properties, rights and powers of
such predecessor Lease Indenture Trustee, and such predecessor Lease Indenture
Trustee shall duly assign, transfer deliver and pay over to such successor Lease
Indenture Trustee all moneys or other property then held by such predecessor
Lease Indenture Trustee hereunder. To the extent required by Applicable Law or
upon request of the successor Lease Indenture Trustee, the Owner Lessor shall
execute any and all documents confirming the vesting of such estates,
properties, rights and powers in the successor Lease Indenture Trustee.
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(c) Qualifications. Any successor Lease 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 Lease 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 Lease Indenture Trustee hereunder upon reasonable or customary terms.
No successor Lease 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 Lease 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
Lease Indenture Trustee shall be a party, or any corporation to which all or
substantially all the corporate trust business of the Lease Indenture Trustee
may be transferred, shall, subject to the terms of subsection (c) of this
Section 7.1, be the Lease Indenture Trustee under this Lease Indenture without
further act.
Section 7.2. Appointment of Additional and Separate Trustees. (a)
Appointment. Whenever (i) the Lease 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 Lease Indenture, the Facility Lease, the Notes or any of the
transactions contemplated by the Operative Documents, (ii) the Lease 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 Lease Indenture Trustee to do so, then in any such case the Lease 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 Lease Indenture Trustee either to act as
additional trustee or trustees of all or any part of the Indenture Estate,
jointly with the Lease 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 Lease Indenture
Trustee deemed necessary or advisable by the Lease Indenture Trustee, subject to
the remaining provisions of this Section 7.2. The Owner Lessor hereby consents
to all actions taken by the Lease Indenture Trustee under the provisions of this
Section 7.2 and agrees, upon the Lease Indenture Trustee's request, to join in
and execute, acknowledge and deliver any or all such instruments or agreements;
and the Owner Lessor hereby makes, constitutes and appoints the Lease Indenture
Trustee its agent and attorney-in-fact for it and in its name, place and stead
to execute, acknowledge and deliver any such instrument or agreement in the
event that the Owner Lessor shall not itself execute and deliver the same within
fifteen (15) days after receipt by it of such request so to do; provided,
however, that the Lease 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
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Law. If at any time the Lease 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 so necessary or prudent
in the interest of the Noteholders or in the event that the Lease Indenture
Trustee shall have been requested to do so in writing by a Majority in Interest
of Noteholders, the Lease 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 Lease Indenture Trustee may act on
behalf of the Owner Lessor 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 Lease Indenture Trustee
from taking any action hereunder either alone, jointly or through a separate
trustee under the direction and control of the Lease Indenture Trustee, the
Owner Lessor, upon notice by the Lease 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 Lease Indenture Trustee, but not subject
to the same limitations in any exercise of his power and authority as those to
which the Lease Indenture Trustee is subject.
(b) The Lease Indenture Trustee as Agent. Any additional trustee or
separate trustee at any time by an instrument in writing may constitute the
Lease 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 Lease 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
Lease Indenture Trustee to any additional trustee or separate trustee shall be
sufficient to warrant 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 hereof insofar as they apply to the
Lease 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 Lease Indenture Trustee hereunder, (ii) all powers, duties,
obligations and rights conferred upon the Lease Indenture Trustee in respect of
the receipt, custody, investment and payment of moneys or the investment of
moneys shall be exercised solely by the Lease Indenture Trustee and (iii) no
power 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
Lease Indenture Trustee.
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SECTION 8. SUPPLEMENTS AND AMENDMENTS TO THIS LEASE INDENTURE AND OTHER
DOCUMENTS
Section 8.1. Supplemental Indenture and Other Amendments With Consent;
Conditions and Limitations. At any time and from time to time, subject to
Section 8.3 hereof, but only upon the written direction of a Majority in
Interest of Noteholders and the written consent of the Owner Lessor, (a) the
Lease Indenture Trustee shall execute an amendment or supplement hereto for the
purpose of adding provisions to, or changing or eliminating provisions of, this
Lease Indenture as specified in such request, and (b) the Lease Indenture
Trustee, as the case may be, 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 Lease 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
term "Majority in Interest of 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 hereof 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 Lessor, (iv) reduce the amount
(except to any amount as shall be sufficient to pay the aggregate principal of,
and interest on all outstanding Notes) or extend the time of payment of Periodic
Lease Rent or Termination Value except as expressly provided in the Facility
Lease, or except in connection with Section 8.2(j), change any of the
circumstances under which Periodic Lease Rent or Termination Value is payable,
or (v) except in connection with Section 8.2(j), consent to any assignment of
the Facility Lease if in connection therewith the Facility Lessee will be
released from its obligation to pay Periodic Lease Rent and Termination Value,
except as expressly provided in the Participation Agreement, or release the
Facility Lessee of its obligation to pay Periodic Lease Rent or Termination
Value or change the absolute and unconditional character of such obligations as
set forth in Section 9 of the Facility 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 Lessor, the Lease 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 another Person
as Lessor Manager or the appointment of a co-manager in accordance with the
terms of the LLC Agreement, or to evidence the succession of a successor as the
Lease Indenture Trustee hereunder, the removal of the Lease Indenture Trustee or
the appointment of any separate or additional trustee or trustees, in each case
if done pursuant to the provisions of Section 7 hereof and to define the rights,
powers, duties and obligations conferred upon any such separate trustee
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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 Lease
Indenture or to convey, transfer, assign, mortgage or pledge any property to or
with the Lease 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 and to establish the form and the terms of such
Additional Notes, (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 Lease Indenture or any other Operative
Document in any manner that will not in the judgment of the Lease Indenture
Trustee materially adversely affect the interests of the Noteholders, (e) to
grant or confer upon the Lease 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 Lease Indenture, (f) to add to or modify the covenants or agreements
to be observed by the Facility Lessee or the Owner Lessor and which are not
contrary to this Lease Indenture, to add Lease Indenture Events of Defaults for
the benefit of the Noteholders or surrender any right or power of the Owner
Lessor, (g) to effect the assumption of all of the Notes by the Facility Lessee,
provided that the supplemental indenture will contain all of the covenants
applicable to the Facility Lessee contained in the Facility Lease and the
Participation Agreement for the benefit of the Lease Indenture Trustees or the
holders of such Notes, such that the Facility Lessee's obligations contained
therein, if applicable in the event that the Facility Lease is terminated, will
continue to be in full force and effect, (h) to comply with requirements of the
SEC, any applicable law, rules or regulations of any exchange or quotation
system on which the Certificates are listed, or any regulatory body, (i) to
modify, eliminate or add to the provisions of any Operative Documents to such
extent as shall be necessary to qualify or continue the qualification of this
Lease Indenture or the Pass Through Trust Agreements (including any supplements
thereto) under the Trust Indenture Act of 1939, or similar federal statute
enacted after the Closing Date, and to add to this Lease Indenture such other
provisions as may be expressly permitted by the Trust Indenture Act of 1939, (j)
to effect the assumption of the Notes by the Owner Participant in accordance
with Section 8.7 of the Participation Agreement; (k) subject to Section 3.5 of
the Facility Lease, to adjust any Adjustment Item; and (l) to effect any
indenture or indentures supplemental hereto or any amendment, modification,
supplement, 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 Lease 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 hereof 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 5.3 through 5.20,
14.2 or 14.3 of the Participation Agreement (other than any amendment,
modification, supplement, waiver or consent having no adverse affect on the
interest of the Noteholders) without the consent of a Majority in Interest of
Noteholders.
Section 8.3. Conditions to Action by the Lease Indenture Trustee. If in
the reasonable opinion of the Lease 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 17.3 of the Participation
CONEMAUGH LEASE INDENTURE
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Agreement hereof adversely affects any immunity or indemnity in favor of the
Lease Indenture Trustee under this Lease 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 Lease
Indenture Trustee), the Lease Indenture Trustee may in its reasonable discretion
decline to execute such document or the election. With every such document and
election, the Lease 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 Lease Indenture, does not deprive
the Lease 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 hereof) 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 Lease Indenture Trustee shall be fully protected in relying on
such opinion.
SECTION 9. MISCELLANEOUS
Section 9.1. Surrender, Defeasance and Release. (a) Surrender and
Cancellation of Indenture. This Lease Indenture shall be surrendered and
cancelled and the trusts created hereby shall terminate and this Lease 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 Lease 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 Lessor,
and the Lease Indenture Trustee shall, upon request and at the cost and expense
of the Owner Lessor, execute and deliver proper instruments acknowledging such
cancellation and termination and evidencing the release of the security, rights
and interests created hereby. If this Lease Indenture is terminated pursuant to
this Section 9.1(a), the Lease Indenture Trustee shall promptly notify the
Facility 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 Lease 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 Lease Indenture Trustee at the same time (such sufficiency
to be established by the delivery to the Lease Indenture Trustee or such other
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 Lease 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 Lease 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
CONEMAUGH LEASE INDENTURE
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50
premium, if any, and interest on said Note. Neither the U.S. Government
Obligations nor moneys deposited with the Lease 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 Lease Indenture Trustee shall be reinvested in accordance
with Section 3.4 hereof 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 Indenture Estate or this Lease 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 Lease
Indenture Trustee, (ii) the provisions of Sections 2.8 and 2.9 shall continue to
apply to such Note and (iii) the duties and immunities of the Lease Indenture
Trustee hereunder shall continue with respect to such Note. Notwithstanding the
foregoing, the Owner Lessor 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 Lease Indenture Trustee an opinion or opinions of counsel
reasonably satisfactory to the Lease Indenture Trustee to the effect that the
deposit of such moneys or U.S. Government Obligations by the Owner Lessor or
other defeasance of the Notes will not cause a Tax Event.
(c) Release.
(i) Whenever a Component is replaced pursuant to the Facility
Lease, such Component shall automatically and without further act of
any Person be released from the Lien of this Lease Indenture and the
Lease Indenture Trustee shall, upon request of the Owner Lessor or the
Facility Lessee, execute and deliver to, and as directed in writing by,
the Facility Lessee or the Owner Lessor an appropriate instrument (in
due form for recording) releasing the replaced Component from the Lien
of this Lease Indenture.
(ii) Whenever the Facility Lessee is entitled to acquire or
have transferred to it the Facility Interest or any portion thereof
pursuant to the express terms of the Facility Lease, the Lease
Indenture Trustee shall release the Indenture Estate from the Lien of
this Lease Indenture from the affected interest and execute and deliver
to, or as directed in writing by, the Facility Lessee or the Owner
Lessor an appropriate instrument (in due form for recording) releasing
the Indenture Estate (or portion thereof) from the Lien of this Lease
Indenture; provided that all sums secured by this Lease Indenture have
been paid to the Persons entitled to such sums.
Section 9.2. Conveyances Pursuant to Section 6.2 of Site Lease and
Sublease. Sales, grants of leases or easements and conveyances of portions of
the Facility Site, rights of way, easements or leasehold interest made by the
Facility Lessee in accordance with Section 6.2 of the Site Lease and Sublease
and any Released Property sold, leased or otherwise conveyed pursuant to the
Ground Lessor's Release Rights shall automatically, without further act of any
Person, be released from this Lease Indenture.
CONEMAUGH LEASE INDENTURE
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51
Section 9.3. Appointment of the Lease Indenture Trustee as Attorney;
Further Assurances. The Owner Lessor hereby constitutes the Lease Indenture
Trustee the true and lawful attorney of the Owner Lessor irrevocably with full
power as long as this Lease Indenture is in effect (in the name of the Owner
Lessor 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 Excluded Property), 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 Facility Lease to be
made or given by the Owner Lessor upon the occurrence and continuance of a Lease
Event of Default, to enforce compliance by the Facility Lessee with all terms
and provisions of the Facility Lease (except as otherwise provided in Sections
4.3 and 5.6 hereof), and to file any claims or take any action or institute any
proceedings which the Lease Indenture Trustee may request in the premises.
Section 9.4. Indenture for Benefit of Certain Persons Only. Nothing in
this Lease Indenture, whether express or implied, shall be construed to give to
any Person other than the parties hereto, the Owner Participant, the Facility
Lessee (with respect to Sections 4.13 and 8.1 hereof) and the Noteholders (and
any successor or assign of any thereof) any legal or equitable right, remedy or
claim under or in respect of this Lease Indenture, and this Lease Indenture
shall be for the sole and exclusive benefit of the parties hereto, the Owner
Participant, the Facility Lessee (as provided in Sections 4.13 and 8.1 hereof)
and the Noteholders.
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 or (b) 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
clause (a) 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 Lessor:
Conemaugh Lessor Genco LLC
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Telephone No. (302) 651-1000
Facsimile No. (302) 651-8882
Attention: Corporate Trust Administration
CONEMAUGH LEASE INDENTURE
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52
with a copy to the Owner Participant:
PSEGR Conemaugh Generation, LLC
c/o PSEG Resources Inc.
80 Park Plaza, Suite T-22
Newark, NJ 07101
Telephone No.: (973) 456-3560
Facsimile No.: (973) 456-3569
Attention: President
If to the Lease Indenture Trustee:
Bankers Trust Company
4 Albany Street
New York, NY 10006
Telephone No.: (212) 250-1612
Facsimile No.: (212) 669-0772
Attention: Marion Zinowski
If to the Facility Lessee:
Reliant Energy Mid-Atlantic Power Holdings, LLC
1111 Louisiana Street
Houston, Texas 77002
Telephone No.: 713-207-3351
Facsimile No.: 713-207-9916
Attention: Treasurer
Section 9.6. Severability. Any provision of this Lease 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 Lease Indenture is executed and
delivered by the Trust Company, not individually or personally but solely as the
Lessor Manager under the LLC 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 Lessor is made and intended not as personal representations, undertakings
and agreements by the Trust Company, but is made and intended for the purpose
for binding only the Owner Lessor, (c)
CONEMAUGH LEASE INDENTURE
48
53
nothing herein contained shall be construed as creating any liability on the
Trust Company, 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 Trust Company,
be personally liable for the payment of any indebtedness or expenses of the
Owner Lessor or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Owner Lessor
under this Lease Indenture.
Section 9.8. Written Changes Only. Subject to Sections 8.1 and 8.2
hereof, no term or provision of this Lease 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 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 Lease 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 Lease 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 Lease 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 Obligation Law Section 5-1401), except to the extent
the laws of the Commonwealth of Pennsylvania are mandatorily applicable under
the laws of the Commonwealth of Pennsylvania.
Section 9.13. Withholding Taxes: Information Reporting. The Lease
Indenture Trustee shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due hereunder or
under the Notes any and all withholding taxes applicable thereto as required by
law. The Lease Indenture Trustee agrees (i) 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 Notes, to withhold such amounts and timely pay the same to the
appropriate authority in the name of and on behalf of the Noteholders, (ii) that
it will file any necessary withholding tax returns or statements when due, and
(iii) 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
CONEMAUGH LEASE INDENTURE
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54
documentary evidence as such Noteholders may reasonably request from time to
time. The Lease 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)
CONEMAUGH LEASE INDENTURE
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55
IN WITNESS WHEREOF, the parties have caused this Lease Indenture to be
duly executed on the day and year first above written.
CONEMAUGH LESSOR GENCO LLC,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as the Lessor Manager under the LLC
Agreement
By:
----------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Lease Indenture Trustee,
By:
--------------------------------------------
Name:
Title:
* This Lease Indenture is a mortgage and is given as security for a debt.
Accordingly, this Lease Indenture is exempt from Realty Transfer Taxes. See,
e.g., 72 P.S. Section 8101-C (definitions); 61 Pa. Code Section Section 91.101
(definitions), 91.112(c) (statement of value not required for a mortgage),
91.193(b) (23) (financing transactions are exempt).
Acknowledgement Page to Conemaugh Lease Indenture of Trust,
Mortgage and Security Agreement
56
CERTIFICATE OF RESIDENCE
Bankers Trust Company, mortgagee and trustee within named, hereby
certifies that its precise name and address are Bankers Trust Company, 4 Albany
Street, New York, New York 10006.
BANKERS TRUST COMPANY
By
-------------------------------------
Conemaugh Lease Indenture of Trust, Mortgage and Security Agreement
57
STATE OF TEXAS )
) SS
COUNTY OF HARRIS )
On this, the _____ day of ________________, 2000, before me the
undersigned, a Notary Public in and for the said County and State, personally
appeared _______________________, who acknowledged himself to be
___________________ of WILMINGTON TRUST COMPANY, a banking corporation organized
under the laws of the State of Delaware, not in its individual capacity but
solely as the Lessor Manager, a Delaware limited liability company under the LLC
Agreement, and that he as __________________, being authorized to do so,
executed the foregoing Lease Indenture of Trust, Mortgage and Security Agreement
for the purposes therein contained by signing the name of Wilmington Trust
Company, not in its individual capacity but solely as the Lessor Manager on
behalf of Conemaugh Lessor Genco LLC by himself as _______________.
I Further Certify that I am not a director or official of said
corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------------
Notary Public
Acknowledgement Page to Conemaugh Lease Indenture of Trust,
Mortgage and Security Agreement
58
STATE OF TEXAS )
) SS
COUNTY OF HARRIS )
On this, the _____ day of ________________, 2000, before me the
undersigned, a Notary Public in and for the said County and State, personally
appeared _______________________, who acknowledged himself to be
___________________ of BANKERS TRUST COMPANY, a New York state banking
corporation, and that he as __________________, being authorized to do so,
executed the foregoing Lease Indenture of Trust, Mortgage and Security Agreement
for the purposes therein contained by signing the name of the corporation by
himself as _____________.
I FURTHER CERTIFY that I am not a director or official of said
corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------------
Notary Public
Acknowledgement Page to Conemaugh Lease Indenture of Trust,
Mortgage and Security Agreement
59
EXHIBIT A
TO
LEASE INDENTURE
CONEMAUGH
DESCRIPTION OF THE FACILITY SITE
ALL those certain pieces, parcels and lots of land situate in
East Wheatfield and West Wheatfield Townships, Indiana County, Commonwealth of
Pennsylvania and described in accordance with a survey prepared by Rettew
Associates, Inc. dated 5/29/99, as revised, drawing number 983468-05 and being
more particularly bounded and described as follows to wit:
TRACT 1:
BEGINNING at a point on the westerly line of the Conemaugh
River at a corner of lands now or formerly of Pennsylvania Electric Co. (Seward
Station) said point being S 31(degrees)12'16" E a distance of 36.42 feet from a
rebar (set); thence following the line of the river downstream the following
fifty two (52) courses:
1. S 70(degrees)02'14" W a distance of 265.00 feet to a point;
2. S 57(degrees)10'04" W a distance of 145.00 feet to a point;
3. S 43(degrees)43'50" W a distance of 295.00 feet to a point;
4. S 22(degrees)58'35" W a distance of 85.00 feet to a point;
5. S 35(degrees)40'12" W a distance of 210.00 feet to a point;
6. S 47(degrees)58'50" W a distance of 160.00 feet to a point;
7. S 38(degrees)23'49" W a distance of 110.00 feet to a point;
8. S 48(degrees)41'21" W a distance of 122.00 feet to a point;
9. S 41(degrees)24'08" W a distance of 143.00 feet to a point;
10. S 52(degrees)49'29" W a distance of 165.00 feet to a point;
11. S 39(degrees)00'01" W a distance of 172.00 feet to a point;
12. S 28(degrees)57'43" W a distance of 115.00 feet to a point;
13. S 36(degrees)44'41" W a distance of 290.00 feet to a point;
A-1
60
14. S 41(degrees)28'11" W a distance of 235.00 feet to a point;
15. S 34(degrees)17'33" W a distance of 230.00 feet to a point;
16. S 34(degrees)22'18" W a distance of 295.00 feet to a point;
17. S 23(degrees)40'28" W a distance of 225.00 feet to a point;
18. S 11(degrees)37'34" W a distance of 260.00 feet to a point;
19. S 17(degrees)32'30" W a distance of 465.00 feet to a point;
20. S 12(degrees)18'01" W a distance of 312.00 feet to a point;
21. S 29(degrees)45'48" W a distance of 145.00 feet to a point;
22. S 48(degrees)00'29" W a distance of 190.00 feet to a point;
23. S 64(degrees)26'53" W a distance of 260.00 feet to a point;
24. S 68(degrees)32'25" W a distance of 258.00 feet to a point;
25. S 76(degrees)52'53" W a distance of 215.00 feet to a point;
26. S 82(degrees)35'50" W a distance of 400.00 feet to a point;
27. S 87(degrees)19'48" W a distance of 140.00 feet to a point;
28. N 79(degrees)06'32" W a distance of 180.00 feet to a point;
29. N 67(degrees)27'01" W a distance of 595.00 feet to a point;
30. N 44(degrees)58'15" W a distance of 240.00 feet to a point;
31. N 75(degrees)36'27" W a distance of 550.00 feet to a point;
32. N 68(degrees)36'53" W a distance of 185.00 feet to a point;
33. N 75(degrees)00'21" W a distance of 120.00 feet to a point;
34. N 56(degrees)15'01" W a distance of 185.00 feet to a point;
35. N 32(degrees)28'46" W a distance of 309.00 feet to a point;
36. N 21(degrees)38'28" W a distance of 455.00 feet to a point;
37. N 10(degrees)03'10" W a distance of 152.00 feet to a point;
38. N 20(degrees)42'19" W a distance of 150.00 feet to a point;
61
39. N 32degrees 13'53" W a distance of 303.70 feet to a point;
40. N 37degrees 23'43" W a distance of 396.17 feet to a point;
41. N 29degrees 48'32" W a distance of 242.00 feet to a point;
42. N 39degrees 50'57" W a distance of 215.00 feet to a point;
43. N 51degrees 51'45" W a distance of 583.99 feet to a point;
44. N 40degrees 36'47" W a distance of 210.00 feet to a point;
45. N 56degrees 11'05" W a distance of 205.00 feet to a point;
46. N 56degrees 01'50" W a distance of 637.10 feet to a point;
47. N 69degrees 17'36" W a distance of 370.00 feet to a point;
48. N 75degrees 14'50" W a distance of 371.00 feet to a point;
49. N 83degrees 20'21" W a distance of 325.00 feet to a point;
50. S 84degrees 52'26" W a distance of 214.00 feet to a point;
51. S 43degrees 17'20" W a distance of 250.00 feet to a point;
52. S 69degrees 59'35" W a distance of 140.00 feet to a point at a
corner of lands now or formerly The Florence Mining Company;
thence along said lands the following two (2) courses:
1. N 34degrees 25'27" E a distance of 382.32 feet to a rebar
(set);
2. N 31degrees 52'58" E a distance of 142.58 feet to an existing
concrete monument at a corner of lands now or formerly
Consolidated Rail Corporation;
thence along said lands the following eighteen (18) courses:
1. Along a line curving to the right and having a radius of
1,777.00 feet, an arc length of 707.42 feet and a chord
bearing of N 88degrees 32'12" E a distance of 702.76 feet to a
point;
2. S 80degrees 03'32" E a distance of 1,212.77 feet to a rebar
(set);
3. N 09degrees 56'28" E a distance of 27.00 feet to a rebar (set);
4. S 80degrees 03'32" E a distance of 1,696.38 feet to a point;
5. N 09degrees 43'31" E a distance of 13.55 feet to a point;
62
6. S 80(degrees)10'20" E a distance of 3,445.01 feet to a point;
7. Along a line curving to the left and having a radius of
1,424.87 feet, an arc length of 1,763.91 feet and a chord
bearing of N 64(degrees)21'48" E a distance of 1,653.41 feet
to a point;
8. Along a line curving to the left and having a radius of
1,910.04 feet, an arc length of 133.35 feet and a chord
bearing of N 26(degrees)53'56" E a distance of 133.32 feet to
a point;
9. N 24(degrees)53'55" E a distance of 616.60 feet to a point;
10. Along a line curving to the right and having a radius of
2,467.46 feet, an arc length of 1,390.95 feet and a chord
bearing of N 41(degrees)02'53" E a distance of 1,372.61 feet
to a point;
11. Along a line curving to the right and having a radius of
1,832.37 feet, an arc length of 582.68 feet and a chord
bearing of N 66(degrees)21'07" E a distance of 580.23 feet to
a point;
12. Along a line curving to the right and having a radius of
2,546.70 feet, an arc length of 224.75 feet and a chord
bearing of N 77(degrees)59'24" E a distance of 224.68 feet to
a point;
13. N 80(degrees)31'06" E a distance of 614.19 feet to a point;
14. N 80(degrees)31'06" E a distance of 37.12 feet to a point;
15. Along a line curving to the left and having a radius of
1,474.21 feet, an arc length of 469.57 feet and a chord
bearing of N 71(degrees)23'36" E a distance of 467.59 feet to
a point;
16. N 62(degrees)16'06" E a distance of 473.35 feet to a point;
17. Along a line curving to the left and having a radius of
2,033.68 feet, an arc length of 523.48 feet and a chord
bearing of N 54(degrees)53'39" E a distance of 522.04 feet to
a point;
18. S 42(degrees)28'48" E a distance of 30.42 feet to a point at a
corner of lands now or formerly Pennsylvania Electric Co.
(Seward Station);
thence along said lands the following fifteen (15) courses:
1. Along a line curving to the right and having a radius of
1,943.00 feet, an arc length of 58.15 feet and a chord bearing
of S 47(degrees)53'06" W a distance of 58.15 feet to a point;
2. S 31(degrees)47'05" E a distance of 22.00 feet to a point;
63
3. S 58(degrees)12'55" W a distance of 105.00 feet to a point;
4. S 60(degrees)14'58" W a distance of 534.87 feet to a point;
5. S 67(degrees)20'45" W a distance of 236.48 feet to a point;
6. S 45(degrees)53'21" E a distance of 29.70 feet to an existing
concrete monument;
7. S 64(degrees)33'40" W a distance of 274.00 feet to a point;
8. S 68(degrees)02'11" W a distance of 91.40 feet to a point;
9. S 76(degrees)03'18" W a distance of 267.84 feet to a point;
10. S 82(degrees)02'59" W a distance of 403.57 feet to a rebar
(set);
11. S 19(degrees)17'12" W a distance of 37.60 feet to a point;
12. S 74(degrees)47'14" W a distance of 503.87 feet to a point;
13. Along a line curving to the left and having a radius of
1,390.12 feet, an arc length of 425.90 feet and a chord
bearing of S 66(degrees)00'37" W a distance of 424.24 feet to
a point;
14. Along a line curving to the left and having a radius of
2,441.46 feet, an arc length of 1,193.58 feet and a chord
bearing of S 43(degrees)13'40" W a distance of 1,181.73 feet
to an existing concrete monument;
15. S 31(degrees)12'16" E a distance of 741.23 feet to a point,
the place of BEGINNING.
Containing 367.231 acres.
64
TRACT 2:
BEGINNING at a rebar (set) on the northern right-of-way line of S.R.
2008 (Power Plant Road) at a point on line of lands now or formerly Pennsylvania
Electric Company "Seward Station"; thence along said right-of-way line the
following twenty-four (24) courses:
1. S 79degrees 54'23" W a distance of 128.00 feet to a point;
2. S 74degrees 11'45" W a distance of 150.75 feet to a point;
3. S 79degrees 54'23" W a distance of 38.79 feet to a point;
4. Along a line curving to the left and having a radius of 779.30
feet, an arc length of 201.81 feet and a chord bearing of S
72degrees 29'15" W a distance of 201.25 feet to a point;
5. S 66degrees 14'27" W a distance of 73.90 feet to a point;
6. N 80degrees 50'10" W a distance of 68.68 feet to a point;
7. S 57degrees 44'33" W a distance of 150.00 feet to a point;
8. S 52degrees 47'12" W a distance of 306.16 feet to a point;
9. S 45degrees 26'44" W a distance of 206.14 feet to a point;
10. S 44degrees 27'14" W a distance of 102.19 feet to a point;
11. S 41degrees 56'52" W a distance of 101.97 feet to a point;
12. S 41degrees 00'28" W a distance of 203.43 feet to a point;
13. S 35degrees 38'58" W a distance of 404.77 feet to a point;
14. S 28degrees 25'49" W a distance of 204.86 feet to a point;
15. S 21degrees 49'48" W a distance of 100.12 feet to a point;
16. S 24degrees 41'33" W a distance of 497.09 feet to a point;
17. Along a line curving to the right and having a radius of
1,357.46 feet, an arc length of 294.24 feet and a chord
bearing of S 30degrees 54'08" W a distance of 293.67 feet to a
point;
18. S 36degrees 13'19" W a distance of 97.42 feet to a point;
19. Along a line curving to the right and having a radius of
1,362.46 feet, an arc length of 1,169.95 feet and a chord
bearing of S 65degrees 48'43" W a distance of 1,134.33 feet to
a point;
65
20. N 84degrees 35'53" W a distance of 97.42 feet to a point;
21. N 82degrees 53'45" W a distance of 34.42 feet to a point;
22. S 04degrees 05'45" E a distance of 41.74 feet to a point;
23. Along a line curving to the right and having a radius of
2,145.80 feet, an arc length of 98.30 feet and a chord bearing
of N 82degrees 19'08" W a distance of 98.30 feet to a point;
24. N 80degrees 18'12" W a distance of 1,552.76 feet to a point at
a corner of lands now or formerly The Florence Mining Company;
thence along said lands the following seven (7) courses:
1. N 05degrees 11'29" E a distance of 990.88 feet to a point;
2. N 29degrees 18'57" W a distance of 577.43 feet to a point, said
point being N 72degrees 37'28" E a distance of 150.00 feet from
a rebar (set);
3. S 72degrees 37'28" W a distance of 931.07 feet to an existing
bolt;
4. S 43degrees 50'27" E a distance of 339.71 feet to a rebar
(set);
5. S 85degrees 25'06" W a distance of 1,202.23 feet to a rebar
(set);
6. N 79degrees 47'42" W a distance of 1,058.49 feet to a rebar
(set);
7. S 67degrees 04'59" W a distance of 113.85 feet to a point in
the center of S.R. 2008, said point being S 67degrees 04'59" W
a distance of 30.62 feet from a rebar (set);
thence in and along the center of S.R. 2008 and The Florence Mining Company the
following nine (9) courses:
1. N 51degrees 36'25" W a distance of 107.45 feet to a point;
2. N 56degrees 47'44" W a distance of 163.89 feet to a point;
3. N 63degrees 12'29" W a distance of 125.67 feet to a point;
4. N 68degrees 16'20" W a distance of 99.16 feet to a point;
5. N 74degrees 45'31" W a distance of 120.33 feet to a point;
6. N 83degrees 26'07" W a distance of 187.30 feet to a point;
7. N 89degrees 34'28" W a distance of 378.02 feet to a point;
8. S 83degrees 30'38" W a distance of 200.21 feet to a point;
66
9. S 78degrees 52'08" W a distance of 624.77 feet to a P.K. nail
(set);
thence continuing along said lands of The Florence Mining Company S 31degrees
46'54" W a distance of 331.32 feet to a rebar (set) along the south side of S.R.
2008 at a corner of other lands of The Florence Mining Company; thence along
same and crossing S.R. 2008 the following five (5) courses:
1. N 24degrees 05'36" W a distance of 427.77 feet to a rebar
(set);
2. N 21degrees 29'30" W a distance of 375.00 feet to a rebar
(set);
3. N 34degrees 54'59" W a distance of 299.05 feet to an existing
concrete monument;
4. N 39degrees 07'02" W a distance of 763.37 feet to a P.K. nail
(set) in the center of S.R. 2011 (Mulligan Hill Road);
5. N 61degrees 30'29" W a distance of 163.42 feet to a P.K. nail
(set) in the center of S.R. 2011 at a corner of lands now or
formerly Wenturine Brother's Lumber, Inc., said P.K. nail
being offset S 20degrees 43'00" W a distance of 27.77 feet
from an existing concrete monument;
thence along said lands of Wenturine Brother's Lumber, Inc. the following four
(4) courses:
1. N 20degrees 43'00" E a distance of 959.95 feet to an existing
concrete monument;
2. N 62degrees 51'22" W a distance of 359.09 feet to an existing
concrete monument;
3. N 62degrees 51'22" W a distance of 231.00 feet to a rebar
(set);
4. S 87degrees 33'44" W a distance of 1,063.94 feet to a fence
post at a corner of lands now or formerly Janet M. Clawson;
thence along said lands N 25degrees 55'54" W a distance of 956.51 feet to a
rebar (set) in stones; thence continuing along same N 67degrees 44'57" W a
distance of 226.00 feet to a fence post at a corner of lands now or formerly H.
Bert Hood, Jr.; thence along said lands of Hood N 27degrees 30'15" E a distance
of 1,834.31 feet to a rebar (set) at a corner of lands now or formerly April
Shaw; thence along said lands the following three (3) courses:
1. S 65degrees 45'42" E a distance of 412.30 feet to a rebar
(set);
2. N 51degrees 11'18" E a distance of 1,622.20 feet to a fence
post;
3. N 44degrees 53'42" W a distance of 579.36 feet to a fence post
at a corner of lands now or formerly Benjamin E. & Rose C.
Scanga;
thence along said lands of Scanga N 54degrees 33'52" E a distance of 1,492.92
feet to an existing concrete monument at a corner of lands now or formerly
Tessie Boring; thence along lands of Boring the following five (5) courses:
67
1. N 54degrees 33'52" E a distance of 911.02 feet to an existing
concrete monument;
2. S 32degrees 25'24" E a distance of 24.21 feet to an existing
concrete monument;
3. N 57degrees 32'33" E a distance of 417.67 feet to an existing
concrete monument;
4. N 12degrees 32'56" W a distance of 1,720.69 feet to an
existing iron pin, said line passing through three existing
iron pins a distance of 529.68 feet, 821.80 feet and 1,669.33
feet respectively away from aforementioned concrete monument
at the end of course 3.
5. N 13degrees 11'14" W a distance of 260.45 feet to a stone pile
at a corner of lands now or formerly Fred B. McFeely;
thence along said lands of McFeely the following three (3) courses:
1. N 12degrees 55'44" W a distance of 346.99 feet to a rebar
(set);
2. N 66degrees 33'59" E a distance of 1,609.61 feet to a stone
pile;
3. N 09degrees 48'27" W a distance of 1,622.29 feet to a stone
pile at a corner of lands now or formerly Robert F. & Shirley
Robson;
thence along said lands of Robson S 58degrees 26'57" E a distance of 1,626.38
feet to a P.K. nail (set) in the center of T-840 (Clay Pike Road) at a corner of
lands now or formerly the County of Indiana; thence in and along the center of
T-840 and said lands of the County of Indiana S 32degrees 44'08" W a distance of
984.94 feet to a P.K. nail (set); thence continuing along lands of the same the
following four (4) courses:
1. S 51degrees 36'30" E a distance of 2,329.53 feet to a rebar
(set);
2. N 57degrees 26'56" E a distance of 347.53 feet to a rebar
(set);
3. S 55degrees 25'35" E a distance of 92.26 feet to a rebar
(set);
4. N 35degrees 07'09" E a distance of 175.46 feet to an existing
axle at a corner of lands now or formerly Duffola Revocable
Trust;
thence along said lands S 71degrees 57'20" E a distance of 1,584.97 feet to a
rebar (set) at a corner of lands now or formerly Doris Miller; thence along said
lands of Miller S 07 05'33" E a distance of 581.20 feet to an existing rebar at
a corner of lands now or formerly Raymond Jeffrey Hedges; thence along said
lands of Hedges the following two (2) courses:
1. S 08degrees 17'11" E a distance of 1,427.05 feet to an
existing iron pin;
2. S 64degrees 12'52" E a distance of 2,238.50 feet to a point on
line of lands now or formerly Raymond L. Cooper, said point
being S 64degrees 12'52" E a distance of 40.60 feet from an
existing iron pin;
68
thence along said lands of Cooper the following two (2) courses:
1. S 10degrees 13'36" W a distance of 1,115.95 feet to an
existing iron pipe;
2. S 40degrees 55'15" E a distance of 158.42 feet to an existing
iron pipe at a corner of lands now or formerly John W. &
Patricia A. Shaffer;
thence along said lands of Shaffer S 22degrees 45'36" W a distance of 158.23
feet to an existing concrete monument; thence continuing along same and lands
now or formerly Harold E. & Emily M. McKinney S 08degrees 27'47" W a distance of
532.46 feet to an existing concrete monument; thence along said lands of
McKinney and lands now or formerly Robert J. Ambrose S 26degrees 23'51" E a
distance of 769.72 feet to a rebar (set) at a corner of lands now or formerly
Peter & Carolyn Buchkowski; thence along said lands of Buchkowski the following
three (3) courses:
1. S 85degrees 07'29" W a distance of 92.39 feet to a rebar
(set);
2. S 25degrees 02'25" E a distance of 592.19 feet to an existing
iron pin;
3. N 81degrees 58'55" E a distance of 105.35 feet to a rebar
(set);
thence continuing along said lands of Buchkowski and lands now or formerly
William B. Schnavely and lands now or formerly Charles A. Wertheimer S26degrees
23'51" E a distance of 138.22 feet to an existing concrete monument; thence
continuing along said lands of Wertheimer and lands now or formerly Richard
James McCachren S 26degrees 23'51" E a distance of 619.77 feet to an existing
concrete monument; thence continuing along lands of McCachren and lands of
Pennsylvania Electric Company "Seward Station" S 26degrees 23'51" E a distance
of 1,178.35 feet to a rebar (set), the place of BEGINNING.
Containing 2,515.169 Acres.
EXCEPTING THE FOLLOWING TWO TRACTS OF LAND:
ONE:
That tract of land as conveyed to Lavina G. Ritenour as recorded in
Deed Book 474, page 261 and described as follows to wit:
BEGINNING at a railroad spike (set) in the center of T-840 (Clay Pike
Road) within lands now or formerly Atlantic City Electric Co. Et al; thence in
and along the center of T-840 the following three (3) courses:
1. S 06degrees 41'27" W a distance of 105.05 feet to a point;
2. S 19degrees 01'32" W a distance of 57.00 feet to a point;
3. S 29degrees 29'32" W a distance of 138.00 feet to a railroad
spike (set);
69
thence along lands now or formerly Atlantic City Electric Co. Et al the
following three (3) courses:
1. N 68degrees 56'06" W a distance of 216.50 feet to a rebar
(set);
2. N 19degrees 48'54" E a distance of 316.00 feet to a rebar
(set);
3. S 63degrees 27'06" E a distance of 216.50 feet to a railroad
spike (set), the place of BEGINNING.
Containing 1.609 Acres.
TWO:
That tract of land as conveyed to Barry P. Poglein as recorded in Deed
Book 663, page 755 and described as follows to wit:
BEGINNING at an existing concrete monument within lands now or formerly
Atlantic City Electric Co. Et al; thence along said lands the following five (5)
courses:
1. S 20degrees 45'47" E a distance of 455.30 feet to a point;
2. S 06degrees 05'25" W a distance of 880.00 feet to an existing
concrete monument;
3. N 83degrees 47'14" W a distance of 404.89 feet to a an
existing concrete monument;
4. N 06degrees 02'23" E a distance of 1,311.02 feet to an
existing concrete monument;
5. S 76degrees 36'27" E a distance of 202.02 feet to an existing
concrete monument, the place of BEGINNING.
Containing 11.068 Acres.
70
EXHIBIT B
TO
LEASE INDENTURE
FACILITY DESCRIPTION
The Facility consists of the following: (i) all of the Described Property (as
defined below), (ii) to the extent not included in (i) above, all improvements
presently located on the land described in Exhibit A attached hereto, save and
except any thereof that are Excluded Property (as defined below), (iii) to the
extent not included in (i) or (ii) above, any and all other tangible property
owned by Seller and presently located on the land described in Exhibit A
attached hereto, save and except any thereof that is Excluded Property. The
"Described Property" means the following: two coal-fired units and all
components thereof, four diesel generators and all components thereof, two
backup diesel generators, two aboveground fuel oil storage tanks, three
underground fuel storage tanks and associated support facilities, the generators
described on Schedule 1 hereto, the boilers described on Schedule 1 hereto, the
turbines described on Schedule 1 hereto; buildings, fences and other structures
and improvements; boiler plant equipment; accessory and miscellaneous electric
equipment; fuel holders, producers and accessories. The "Excluded Property"
means the following: all furniture and office equipment, including, but not
limited to, audio/visual/photo/training equipment, data processing equipment,
bookcases, chairs, daybeds or couches, files, tables, TV/video
recorders/players, desks, embossing presses and tapewriters, shelving, cabinets,
projector and screen, TV monitors/receivers, calculators, bulletin boards,
conference tables, camcorders, drawing racks, slide projectors, wipe/erase
boards, blueprint machines, cameras, fuel inventory, movable partitions, stools,
tackboard/chalkboard/bulletin boards, and work station modular attachments;
tools and small equipment, including, but not limited to, vacuum cleaner/sweeper
equipment, telephone system, cranes, hoists and derricks, laboratory equipment,
permanently installed machine shop equipment, machine shop portable/hand tools,
air piping, valves, air compressors, pumps, radio and microwave equipment,
atmospheric/weather equipment, air conditioning/heating equipment, kitchen
equipment, portable gas/oil supply tanks, time code generators, miscellaneous
power plant equipment, air compressors, respirators, samplers, welding or
burning equipment, portable gas or oil storage tanks, microscopes, battery
chargers and testers, refrigerators, freezers, wrenches, communications
equipment, mobile radio transmitters/receivers, sound equipment, stoves or
heaters, calibrators, voltmeters, extinguishers, tanks, ladders, gauges, public
address/paging system, and washing machines.
71
Schedule 1
Conemaugh Station
The station contains unit-specific and common equipment, systems and auxiliaries
used to operate the electric generating units. A listing of the Major Equipment
specific to each unit is provided in the following table.
BOILER UNIT 1 UNIT 2
- -------------------------- -------------------------------------------- --------------------------------------------
Manufacturer Combustion Engineering Combustion Engineering
Type Once through - super critical Once through - super critical
Furnace Divided: Tangential fired: balanced draft Divided: Tangential fired: balanced draft
Guns 8 - Oil/Gas 8 - Oil/Gas
Unit 1 Unit 2
Generators
Manufacturer General Electric General Electric
Rating (KVA) HP 545,000 HP 545,000
LP 495,000 LP 495,000
Main Transformers:
Manufacturer Westinghouse Westinghouse
Rating (MVA) 3 Single-Phase 3 Single-Phase
@ 347.2 each @347.2 each
Tag Number 1A, 1B, 1C 2A, 2B, 2C
B-1
72
Unit 1 Unit 2
Switch Yard North Wall North Wall
Breaker Control (C.R.) Station CR/Station Operation Station CR/Station Operation
Station Service Transformers:
Manufacturer General Electric General Electric
Rating (MVA) 3 Three-Phase 3 Three-Phase
Tag Number 1A Unit Aux 2A Unit Aux
1B Unit Aux 2B Unit Aux
1C Unit Aux 2C Unit Aux
Station Service Transformers:
Manufacturer RTE/ASEA RTE/ASEA
Rating (MVA) 44.8 44.8
Tag Number 1D Unit Aux 2D Unit Aux
FGDS Service Transformers:
Manufacturer ABB ABB
Rating (MVA) 22.4 22.4
Tag Number UAT - 1FG UAT - 2FG
Reserve Transformers:
Manufacturer General Electric RET/ASEA
Tag Number 22.4 22.4
Rating (MVA) #1 Start Up #2 Start Up
FGDS Reserve Transformers:
Manufacturer ABB ABB
Tag Number 22.4 22.4
73
Unit 1 Unit 2
Rating (MVA) SUT - 1FG SUT - 2FG
Controls:
Combustion Honeywell TDC 3000 Honeywell TDC 3000
Feedwater Honeywell TDC 3000 Honeywell TDC 3000
Burner Management Honeywell TDC 3000 Honeywell TDC 3000
Turbine Control GE Mark I GE Mark I
Data Acquisition: Honeywell TDC 3000 Honeywell TDC 3000
74
EXHIBIT C
TO
LEASE INDENTURE
EXHIBIT C - FORM OF LEASE A NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR PURSUANT TO THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT OR SUCH
APPLICABLE STATE LAWS
NONRECOURSE PROMISSORY NOTE NO. [__], DUE IN
A SERIES OF INSTALLMENTS OF PRINCIPAL
WITH FINAL PAYMENT DATE
OF JULY 2, [____]
Issued at: New York, New York
Issued Date: [___________]
CONEMAUGH LESSOR GENCO LLC (herein called the "Owner Lessor", which term
includes any successor person under the Lease Indenture hereinafter referred
to), a Delaware limited liability company and wholly owned subsidiary of PSEGR
Conemaugh Generation, LLC, a Delaware limited liability company (the "Owner
Participant") organized pursuant to the Management and Operating Agreement for
Conemaugh Lessor Genco LLC, dated as of August 17, 2000 between the Owner
Participant and Wilmington Trust Company (the "Lessor Manager"), hereby
promises to pay to Bankers Trust Company, in its capacity as trustee of the
Reliant Energy Mid-Atlantic Power Holdings, LLC - Series A Pass Through Trust,
or its registered assigns, the principal sum of [_________] DOLLARS
(S[_______]), which is due and payable in a series of installments of principal
with a final payment date of July 2, [____], as provided below, together with
simple interest at the rate of [____]% per annum, on the principal remaining
unpaid from time to time, provided, that in the event of a Registration
Default, the interest rate per annum borne by this Note shall be increased by
0.50%, from and including the date of such Registration Default, to but
excluding the date on which such Registration Default is cured.
Interest on the outstanding principal amount under this Note shall be due
and payable semiannually at the rate specified above, commencing on January 2,
[____], and on each January 2nd and July 2nd thereafter until the principal of
this Note is paid in full or made available for payment. Interest shall be
calculated at the rate specified above, computed on the basis of a 360-day year
of twelve 30-day months. The principal of this Note shall be due and payable in
installments on the payment dates and in the amounts set forth in Schedule 1
attached hereto in the column headed "Scheduled Principal Amount Payable" with
respect to the date of such installment, provided, that the final installment
of principal shall be equal to the then unpaid principal balance of this Note.
Capitalized terms used in this Note which are not otherwise defined herein
shall have the meanings ascribed thereto in the Participation Agreement, dated
as of August 24, 2000 (the "Participation Agreement"), among the Facility
Lessee, the Owner Lessor, Wilmington Trust Company, in its individual capacity
and as the Lessor Manager, the
Conemaugh Lease A Note
75
Owner Participant and Bankers Trust Company, in its individual capacity and as
the Lease Indenture Trustee and as the Pass Through Trustee.
Interest on any overdue principal and premium, if any, and (to the extent
permitted by Applicable Law) any overdue interest shall be paid, on demand, from
the due date thereof at the Overdue Rate for the period during which any such
principal, premium or interest shall be overdue computed on the basis of a
360-day year of twelve 30-day months.
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 Lease Indenture and in the
Participation Agreement, all payments of principal, premium, if any, and
interest to be made by the Owner Lessor hereunder and under the Lease Indenture
shall be made only from the Indenture Estate, and the Owner Lessor and Lease
Indenture Trustee shall have no obligation for the payment thereof except
to the extent that the Lease Indenture Trustee shall have sufficient income or
proceeds from the Indenture Estate to make such payments in accordance with the
terms of Section 3 of the Lease Indenture; and the Owner Participant shall not
have any obligation for payments in respect of this Note or under the Lease
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 Lease Indenture or the Participation
Agreement, none of the Owner Participant, the Owner Lessor, the Equity Investor,
the Equity Subsidiary, the Equity Subsidiary Holding Company, the Lessor
Manager, the Trust Company, the Lease Indenture Company or the Lease Indenture
Trustee is or shall be personally liable to the holder hereof for any amounts
payable under this Note or under the Lease Indenture, or for any performance to
be rendered under the Lease Indenture or any Assigned Document or for any
liability under the Lease Indenture or any Assigned Document.
The principal of and premium, if any, and interest on this Note shall be
paid by the Lease Indenture Trustee from amounts available in the Indenture
Estate, 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 Registrar, by mailing a check for the amount then due and
payable, in New York Clearing House funds, to the holder hereof, at the last
address of the holder hereof appearing on the Note Register, or by whichever of
the following methods specified by notice from the holder hereof to the Lease
Indenture Trustee: (a) by crediting the amount to be distributed to the holder
hereof to an account maintained by the holder hereof with the Lease Indenture
Trustee, (b) by making such payment to the holder hereof in immediately
available funds at the Lease Indenture Trustee Office, or (c) by transferring
such amount in immediately available funds for the account of the holder hereof
to the banking institution having bank wire transfer facilities as shall be
specified by the holder hereof, 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
Conemaugh Lease A Note
2
76
distributed by the Lease Indenture Trustee are actually received by the Lease
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 Lessor and
the Lease Indenture Trustee may deem and treat the Person in whose name this
Note is registered on the Note 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 Lessor nor the
Lease 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 Lease Indenture Trustee nor
the Owner Lessor shall have any liability in respect of such payment.
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 Lease Indenture, which provides that each payment on the
Note shall be applied as follows: first, to the payment of accrued and unpaid
interest (including interest on overdue principal and, to the extent permitted
by Applicable Law, overdue interest) on this Note to but excluding 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 Lease
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 one of the Notes referred to in the Lease Indenture as a
"Lease A Note" and is being issued simultaneously with the "Lease B Notes" and
the "Lease C Notes." The Lease Indenture also permits the issuance of
additional notes ("Additional Lessor Notes"), as provided in Section 2.12 of
the Lease 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 Lessor included in the Indenture
Estate are pledged or mortgaged to Lease Indenture Trustee to the extent
provided in the Lease 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 Lease Indenture.
Reference is hereby made to the Lease 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 Lessor and the
Owner Participant, as well as for a statement of the terms and conditions of
the trust created by the Lease Indenture, to all of which terms and conditions
the holder hereof agrees by its acceptance of this Note.
This Note is subject to redemption as contemplated by the Lease Indenture,
as follows: (i) in whole but not in part, in the case of redemptions under the
circumstances set forth in Section 2.10(a) of the Lease Indenture, at a price
equal to the principal amount of this Note then outstanding and accrued
interest on such principal amount to the
3
77
Redemption Date, but without any premium, (ii) in whole or in part, in the case
of redemptions under the circumstances set forth in Section 2.10(d)(i) of the
Lease 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 whole but not in part,
in the case of redemptions under the circumstances set forth in Section
2.10(d)(ii) of the Lease Indenture, at 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; provided, however, that no such
redemption shall be made until notice thereof is given by the Lease Indenture
Trustee to the holder hereof as provided in the Lease Indenture.
In circumstances set forth in Section 2.10(b) of the Lease Indenture, the
obligations of the Owner Lessor under this Note may, subject to the conditions
set forth in Section 2.10(b) of the Lease Indenture, be assumed in whole by the
Facility Lessee in accordance with Section 2.10(b) of the Lease Indenture, in
which case the Owner Lessor shall be released and discharged from all such
obligations. In connection with such an assumption, the holder of this Note may
be required to exchange this Note for a new Note evidencing such assumption.
In circumstances set forth in Section 4.15 of the Lease Indenture, the
Owner Participant or its Affiliates may assume this Note on the terms and
conditions set forth in Section 8.7 of the Participation Agreement.
If a Lease Indenture Event of Default shall occur and be continuing, the
unpaid balance of the principal of this Note together with all accrued by unpaid
interest thereon may, subject to certain rights of the Owner Lessor and Owner
Participant contained or referred to in the Lease Indenture, be declared or may
become due and payable in the manner and with the effect provided in the Lease
Indenture.
There shall be maintained at the Lease Indenture Trustee Office the Note
Register for the purpose of registering transfers and exchanges of Notes in the
manner provided in the Lease Indenture. The transfer of this Note is
registrable, as provided in the Lease Indenture, upon surrender of this Note for
registration of transfer duly 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.
78
IN WITNESS WHEREOF, the Owner Lessor has caused this Note to be duly
executed as of the date hereof.
CONEMAUGH LESSOR GENCO LLC
By: Wilmington Trust Company,
not in its individual capacity,
but solely as the Lessor Manager
under the LLC Agreement
By:
---------------------------------
Name:
Title:
This is one of the Notes referred to in the within-mentioned Lease
Indenture.
BANKERS TRUST COMPANY,
not in its individual capacity but solely
as the Lease Indenture Trustee
By:
--------------------------------------
Name:
Title:
79
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s)
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
__________________________________
__________________________________
(Please print or typewrite name and address including zip code of assignee)
__________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
__________________________________
attorney to transfer 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.
The undersigned transferee by acceptance of this Note agrees to the provisions
of the Participation Agreement applicable to Noteholders, and shall be deemed to
have represented and warranted and covenanted to the parties to the
Participation Agreement as to the matters represented, warranted and covenanted
by the Pass Through Trustee in the Participation Agreement. The undersigned
transferee represents and warrants that (i) no part of the funds to be used by
it for the purchase and holding of this Note (or any part thereof) constitutes
assets of any Plan or that such purchase and holding will not constitute or
result in a non-exempt prohibited transaction (as defined in Section 4975 of the
Code and ERISA) and (ii) the transfer of this Note to the transferee will not
violate the registration provisions of the Securities Act or require
qualification of the Lease Indenture Trustee under the Trust Indenture Act of
1939.
Date: ____________________________ __________________________________________
(Signature of Transferee)
80
SCHEDULE 1
TO NOTE
Schedule of Principal Amortization
Scheduled
Principal Scheduled Principal
Amount Interest Amount Interest
Payment Date Payable Payable Paid Paid
- ------------ --------- --------- --------- ---------
S-2-1
81
EXHIBIT D
TO
LEASE INDENTURE
EXHIBIT D - FORM OF LEASE B NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR PURSUANT TO THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT OR SUCH
APPLICABLE STATE LAWS
NONRECOURSE PROMISSORY NOTE NO. [__], DUE IN
A SERIES OF INSTALLMENTS OF PRINCIPAL
WITH FINAL PAYMENT DATE
OF JULY 2, [____]
Issued at: New York, New York
Issued Date: [___________]
CONEMAUGH LESSOR GENCO LLC (herein called the "Owner Lessor", which term
includes any successor person under the Lease Indenture hereinafter referred
to), a Delaware limited liability company and wholly owned subsidiary of PSEGR
Conemaugh Generation, LLC, a Delaware limited liability company (the "Owner
Participant") organized pursuant to the Management and Operating Agreement for
Conemaugh Lessor Genco LLC, dated as of August 17, 2000 between the Owner
Participant and Wilmington Trust Company (the "Lessor Manager"), hereby
promises to pay to Bankers Trust Company, in its capacity as trustee of the
Reliant Energy Mid-Atlantic Power Holdings, LLC - Series B Pass Through Trust,
or its registered assigns, the principal sum of [_________] DOLLARS
($[_______]), which is due and payable in a series of installments of principal
with a final payment date of July 2, [____], as provided below, together with
simple interest at the rate of [____]% per annum, on the principal remaining
unpaid from time to time, provided, that in the event of a Registration
Default, the interest rate per annum borne by this Note shall be increased by
0.50%, from and including the date of such Registration Default, to but
excluding the date on which such Registration Default is cured.
Interest on the outstanding principal amount under this Note shall be due
and payable semiannually at the rate specified above, commencing on January 2,
[____], and on each January 2nd and July 2nd thereafter until the principal of
this Note is paid in full or made available for payment. Interest shall be
calculated at the rate specified above, computed on the basis of a 360-day year
of twelve 30-day months. The principal of this Note shall be due and payable in
installments on the payment dates and in the amounts set forth in Schedule 1
attached hereto in the column headed "Scheduled Principal Amount Payable" with
respect to the date of such installment, provided, that the final installment
of principal shall be equal to the then unpaid principal balance of this Note.
Capitalized terms used in this Note which are not otherwise defined herein
shall have the meanings ascribed thereto in the Participation Agreement, dated
as of August 24, 2000 (the "Participation Agreement"), among the Facility
Lessee, the Owner Lessor, Wilmington Trust Company, in its individual capacity
and as the Lessor Manager, the
Conemaugh Lease B Note
82
Owner Participant and Bankers Trust Company, in its individual capacity and as
the Lease Indenture Trustee and as the Pass Through Trustee.
Interest on any overdue principal and premium, if any, and (to the extent
permitted by Applicable Law) any overdue interest shall be paid, on demand,
from the due date thereof at the Overdue Rate for the period during which any
such principal, premium or interest shall be overdue computed on the basis of a
360-day year of twelve 30-day months.
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 which such
payment was due.
Except as otherwise specifically provided in the Lease Indenture and in
the Participation Agreement, all payments of principal, premium, if any, and
interest to be made by the Owner Lessor hereunder and under the Lease Indenture
shall be made only from the Indenture Estate, and the Owner Lessor and Lease
Indenture Trustee shall have no obligation for the payment thereof except to
the extent that the Lease Indenture Trustee shall have sufficient income or
proceeds from the Indenture Estate to make such payments in accordance with the
terms of Section 3 of the Lease Indenture; and the Owner Participant shall not
have any obligation for payments in respect of this Note or under the Lease
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, expect as expressly provided in the Lease Indenture or the Participation
Agreement, none of the Owner Participant, the Owner Lessor, the Equity Investor,
the Equity Subsidiary, the Equity Subsidiary Holding Company, the Lessor
Manager, the Trust Company, the Lease Indenture Company or the Lease Indenture
Trustee is or shall be personally liable to the holder hereof for any amounts
payable under this Note or under the Lease Indenture, or for any performance to
be rendered under the Lease Indenture or any Assigned Document or for any
liability under the Lease Indenture or any Assigned Document.
The principal of and premium, if any, and interest on this Note shall be
paid by the Lease Indenture Trustee from amounts available in the Indenture
Estate, 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 Registrar, by mailing a check for the amount then due and
payable, in New York Clearing House funds, to the holder hereof, at the last
address of the holder hereof appearing on the Note Register, or by whichever of
the following methods specified by notice from the holder hereof to the Lease
Indenture Trustee: (a) by crediting the amount to be distributed to the holder
hereof to an account maintained by the holder hereof with the Lease Indenture
Trustee, (b) by making such payment to the holder hereof in immediately
available funds at the Lease Indenture Trustee Office, or (c) by transferring
such amount in immediately available funds for the account of the holder hereof
to the banking institution having bank wire transfer facilities as shall be
specified by the holder hereof, 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
Conemaugh Lease B Note
2
83
distributed by the Lease Indenture Trustee are actually received by the Lease
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 Lessor and the
Lease Indenture Trustee may deem and treat the Person in whose name this Note
is registered on the Note as the absolute owner and holder of the Note and for
the purpose of receiving payment of all amounts payable with respect to this
Note and for all other purposes, and neither the Owner Lessor nor the Lease
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 Lease Indenture Trustee nor the Owner
Lessor shall have any liability in respect of such payment.
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 Lease Indenture, which provides that each payment on the Note shall
be applied as follows: first, to the payment of accrued and unpaid interest
(including interest on overdue principal and, to the extent permitted by
Applicable Law, overdue interest) on this Note to but excluding 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 Lease
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 one of the Notes referred to in the Lease Indenture as a
"Lease B Note" and is being issued simultaneously with the "Lease A Notes" and
the "Lease C Notes." The Lease Indenture also permits the issuance of
additional notes ("Additional Lessor Notes"), as provided in Section 2.12 of
the Lease 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 Lessor included in the Indenture
Estate are pledged or mortgaged to Lease Indenture Trustee to the extent
provided in the Lease 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 for time to time under the Lease Indenture.
Reference is hereby made to the Lease 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 Owners Lessor and the
Owner Participant, as well as for a statement of the terms and conditions of
the trust created by the Lease Indenture, to all of which terms and conditions
the holder hereof agrees by its acceptance of the Note.
This Note is subject to redemption as contemplated by the Lease Indenture,
as follows: (i) in whole but not in part, in the case of redemptions under the
circumstances set forth in Section 2.10(a) of the Lease Indenture, at a price
equal to the principal amount of this Note then outstanding and accrued
interest on such principal amount to the
3
84
Redemption Date, but without any premium, (ii) in whole or in part, in the case
of redemptions under the circumstances set forth in Section 2.10(d)(i) of the
Lease 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 whole but not in part,
in the case of redemptions under the circumstances set forth in Section
2.10(d)(ii) of the Lease Indenture, at 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; provided, however, that no such
redemption shall be made until notice thereof is given by the Lease Indenture
Trustee to the holder hereof as provided in the Lease Indenture.
In circumstances set forth in Section 2.10(b) of the Lease Indenture, the
obligations of the Owner Lessor under this Note may, subject to the conditions
set forth in Section 2.10(b) of the Lease Indenture, be assumed in whole by the
Facility Lessee in accordance with Section 2.10(b) of the Lease Indenture, in
which case the Owner Lessor shall be released and discharged from all such
obligations. In connection with such an assumption, the holder of this Note may
be required to exchange this Note for a new Note evidencing such assumption.
In circumstances set forth in Section 4.15 of the Lease Indenture, the
Owner Participant or its Affiliates may assume this Note on the terms and
conditions set forth in Section 8.7 of the Participation Agreement.
If a Lease Indenture Event of Default shall occur and be continuing, the
unpaid balance of the principal of this Note together with all accrued but
unpaid interest thereon may, subject to certain rights of the Owner Lessor and
the Owner Participant contained or referred to in the Lease Indenture, be
declared or may become due and payable in the manner and with the effect
provided in the Lease Indenture.
There shall be maintained at the Lease Indenture Trustee Office of the
Note Register for the purpose of registering transfers and exchanges of Notes
in the manner provided in the Lease Indenture. The transfer of this Note is
registrable, as provided in the Lease Indenture, upon surrender of this Note
for registration of transfer duly 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.
4
85
IN WITNESS WHEREOF, the Owner Lessor has caused this Note to be duly
executed as of the date hereof.
CONEMAUGH LESSOR GENCO LLC
By: Wilmington Trust Company,
not in its individual capacity,
but solely as the Lessor Manager
under the LLC Agreement
By:
---------------------------------
Name:
Title:
This is one of the Notes referred to in the within-mentioned Lease
Indenture.
BANKERS TRUST COMPANY,
not in its individual capacity but solely
as the Lease Indenture Trustee
By:
--------------------------------------
Name:
Title:
86
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s)
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
__________________________________
__________________________________
(Please print or typewrite name and address including zip code of assignee)
__________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
__________________________________
attorney to transfer 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.
The undersigned transferee by acceptance of this Note agrees to the provisions
of the Participation Agreement applicable to Noteholders, and shall be deemed to
have represented and warranted and covenanted to the parties to the
Participation Agreement as to the matters represented, warranted and covenanted
by the Pass Through Trustee in the Participation Agreement. The undersigned
transferee represents and warrants that (i) no part of the funds to be used by
it for the purchase and holding of this Note (or any part thereof) constitutes
assets of any Plan or that such purchase and holding will not constitute or
result in a non-exempt prohibited transaction (as defined in Section 4975 of the
Code and ERISA) and (ii) the transfer of this Note to the transferee will not
violate the registration provisions of the Securities Act or require
qualification of the Lease Indenture Trustee under the Trust Indenture Act of
1939.
Date: ____________________________ __________________________________________
(Signature of Transferee)
87
SCHEDULE 1
TO NOTE
Schedule of Principal Amortization
Scheduled
Principal Scheduled Principal
Amount Interest Amount Interest
Payment Date Payable Payable Paid Paid
- ------------ --------- --------- --------- ---------
S-2-1
88
EXHIBIT E
TO
LEASE INDENTURE
EXHIBIT E - FORM OF LEASE C NOTE
THIS NOT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR PURSUANT TO THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT OR SUCH
APPLICABLE STATE LAWS
NONRECOURSE PROMISSORY NOTE NO. [__], DUE IN
A SERIES OF INSTALLMENTS OF PRINCIPAL
WITH FINAL PAYMENT DATE
OF JULY 2, [____]
Issued at: New York, New York
Issue Date: [____________________]
CONEMAUGH LESSOR GENCO LLC (herein called the "Owner Lessor",
which term includes any successor person under the Lease Indenture hereinafter
referred to), a Delaware limited liability company and wholly owned subsidiary
of PSEGR Conemaugh Generation, LLC, a Delaware limited liability company (the
"Owner Participant") organized pursuant to the Management and Operating
Agreement for Conemaugh Lessor Genco LLC, dated as of August 17, 2000 between
the Owner Participant and Wilmington Trust Company (the "Lessor Manager"),
hereby promises to pay to Bankers Trust Company, in its capacity as trustee of
the Reliant Energy Mid-Atlantic Power Holdings, LLC - Series C Pass Through
Trust, or its registered assigns, the principal sum of [_______________] DOLLARS
($[__________]), which is due and payable in a series of installments of
principal with a final payment date of July 2, [___], as provided below,
together with simple interest at the rate of [___%] per annum, on the principal
remaining unpaid from time to time, provided, that in the event of a
Registration Default, the interest rate per annum borne by this Note shall be
increased by 0.50%, from and including the date of such Registration Default, to
but excluding the date on which such Registration Default is cured.
Interest on the outstanding principal amount under this Note shall be due
and payable semiannually at the rate specified above, commencing on January 2,
[____], and on each January 2nd and July 2nd thereafter until the principal of
this Note is paid in full or made available for payment. Interest shall be
calculated at the rate specified above, computed on the basis of a 360-day year
of twelve 30-day months. The principal of this Note shall be due and payable in
installments on the payment dates and in the amounts set forth in Schedule 1
attached hereto in the column headed "Scheduled Principal Amount Payable" with
respect to the date of such installment, provided, that the final installment of
principal shall be equal to the then unpaid principal balance of this Note.
Capitalized terms used in this Note which are not otherwise defined herein
shall have the meanings ascribed thereto in the Participation Agreement, dated
as of August 24, 2000 (the "Participation Agreement"), among the Facility
Lessee, the Owner Lessor, Wilmington Trust Company, in its individual capacity
and as the Lessor Manager, the
Conemaugh Lease C Note
89
Owner Participant and Bankers Trust Company, in its individual capacity and as
the Lease Indenture Trustee and as the Pass Through Trustee.
Interest on any overdue principal and premium, if any, and (to the extent
permitted by Applicable Law) any overdue interest shall be paid, or demand,
from the due date thereof at the Overdue Rate for the period during which any
such principal, premium or interest shall be overdue computed on the basis of a
360-day year of twelve 30-day months.
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 Lease Indenture and in
the Participation Agreement, all payments of principal, premium, if any, and
interest to be made by the Owner Lessor hereunder and under the Lease Indenture
shall be made only from the Indenture Estate, and the Owner Lessor and Lease
Indenture Trustee shall have no obligation for the payment thereof except to
the extent that the Lease Indenture Trustee shall have sufficient income or
proceeds from the Indenture Estate to make such payments in accordance with the
terms of Section 3 of the Lease Indenture; and the Owner Participant shall not
have any obligation for payments in respect of this Note or under the Lease
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 Lease Indenture or the Participation
Agreement, none of the Owner Participant, the Owner Lessor, the Equity
Investor, the Equity Subsidiary, the Equity Subsidiary Holding Company, the
Lessor Manager, the Trust Company, the Lease Indenture Company or the Lease
Indenture Trustee is or shall be personally liable to the holder hereof for any
amounts payable under this Note or under the Lease Indenture, or for any
performance to be rendered under the Lease Indenture or any Assigned Document
or for any liability under the Lease Indenture or any Assigned Document.
The principal of and premium, if any, and interest on this Note shall be
paid by the Lease Indenture Trustee from amounts available in the Indenture
Estate, 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 Registrar, by mailing a check for the amount then due and
payable, in New York Clearing House funds, to the holder hereof, at the last
address of the holder hereof appearing on the Note Register, or by whichever
of the following methods specified by notice from the holder hereof to the Lease
Indenture Trustee: (a) by crediting the amount to be distributed to the holder
hereof to an account maintained by the holder hereof with the Lease Indenture
Trustee, (b) by making such payment to the holder hereof in immediately
available funds at the Lease Indenture Trustee Office, or (c) by transferring
such amount in immediately available funds for the account of the holder hereof
to the banking institution having bank wire transfer facilities as shall be
specified by the holder hereof, 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
Conemaugh Lease C Note
2
90
distributed by the Lease Indenture Trustee are actually received by the Lease
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 Lessor and
the Lease Indenture Trustee may deem and treat the Person in whose name this
Note is registered on the Note 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 Lessor nor the
Lease 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 Lease Indenture Trustee
nor the Owner Lessor shall have any liability in respect of such payment.
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 Lease Indenture, which provides that each payment on the
Note shall be applied as follows: first, to the payment of accrued and unpaid
interest (including interest on overdue principal and, to the extent permitted
by Applicable Law, overdue interest) on this Note to but excluding 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 Lease
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 one of the Notes referred to in the Lease Indenture as a
"Lease C Note" and is being issued simultaneously with the "Lease A Notes" and
the "Lease B Notes." The Lease Indenture also permits the issuance of
additional notes ("Additional Lessor Notes"), as provided in Section 2.12 of
the Lease 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 Lessor included in the Indenture
Estate are pledged or mortgaged to Lease Indenture Trustee to the extent
provided in the Lease 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 Lease Indenture.
Reference is hereby made to the Lease 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 Notes and of certain rights of the Owner Lessor and the Owner
Participant, as well as for a statement of the terms and conditions of the
trust created by the Lease Indenture, to all of which terms and conditions the
holder hereof agrees by its acceptance of this Note.
This Note is subject to redemption as contemplated by the Lease Indenture,
as follows: (i) in whole but not in part, in the case of redemptions under the
circumstances set forth in Section 2.10(a) of the Lease Indenture, at a price
equal to the principal amount of this Note then outstanding and accrued
interest on such principal amount to the
Conemaugh Lease C Note
3
91
Redemption Date, but without any premium, (ii) in whole or in part, in the case
of redemptions under the circumstances set forth in Section 2.10(d)(i) of the
Lease 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 whole but not in part,
in the case of redemptions under the circumstances set forth in Section
2.10(d)(ii) of the Lease Indenture, at 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; provided, however, that no such
redemption shall be made until notice thereof is given by the Lease Indenture
trustee to the holder hereof as provided in the Lease Indenture.
In circumstances set forth in Section 2.10(b) of the Lease Indenture, the
obligations of the Owner Lessor under this Note may, subject to the conditions
set forth in Section 2.10(b) of the Lease Indenture, be assumed in whole by the
Facility Lessee in accordance with Section 2.10(b) of the Lease Indenture, in
which case the Owner Lessor shall be released and discharged from all such
obligations. In connection with such an assumption, the holder of this Note may
be required to exchange this note for a new Note evidencing such assumption.
In circumstances set forth in Section 4.15 of the Lease Indenture, the
Owner Participant or its Affiliates may assume this Note on the terms and
conditions set forth in Section 8.7 of the Participation Agreement.
If a Lease Indenture Event of Default shall occur and be continuing, the
unpaid balance of the principal of this Note together with all accrued but
unpaid interest thereon may, subject to certain rights of the Owner Lessor and
the Owner Participant contained or referred to in the Lease Indenture, be
declared or may become due and payable in the manner and with the effect
provided in the Lease Indenture.
There shall be maintained at the Lease indenture Trustee Office the Note
Register for the purpose of registering transfers and exchanges of Notes in the
manner provided in the Lease Indenture. The transfer of this Note is
registrable, as provided in the Lease Indenture, upon surrender of this Note
for registration of transfer duly 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.
Conemaugh Lease C Note
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92
IN WITNESS WHEREOF, the Owner Lessor has caused this Note to be duly
executed as of the date hereof.
CONEMAUGH LESSOR GENCO LLC
By: Wilmington Trust Company,
not in its individual capacity,
but solely as the Lessor Manager
under the LLC Agreement
By:
------------------------------
Name:
Title:
This is one of the Notes referred to in the within-mentioned Lease
Indenture.
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as the Lease Indenture Trustee
By:
-----------------------------------
Name:
Title:
93
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s)
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
__________________________________
__________________________________
(Please print or typewrite name and address including zip code of assignee)
__________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
__________________________________
attorney to transfer 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.
The undersigned transferee by acceptance of this Note agrees to the provisions
of the Participation Agreement applicable to Noteholders, and shall be deemed to
have represented and warranted and covenanted to the parties to the
Participation Agreement as to the matters represented, warranted and covenanted
by the Pass Through Trustee in the Participation Agreement. The undersigned
transferee represents and warrants that (i) no part of the funds to be used by
it for the purchase and holding of this Note (or any part thereof) constitutes
assets of any Plan or that such purchase and holding will not constitute or
result in a non-exempt prohibited transaction (as defined in Section 4975 of the
Code and ERISA) and (ii) the transfer of this Note to the transferee will not
violate the registration provisions of the Securities Act or require
qualification of the Lease Indenture Trustee under the Trust Indenture Act of
1939.
Date: ____________________________ __________________________________________
(Signature of Transferee)
94
SCHEDULE 1
TO NOTE
Schedule of Principal Amortization
Scheduled
Principal Scheduled Principal
Amount Interest Amount Interest
Payment Date Payable Payable Paid Paid
- ------------ --------- --------- --------- ---------
S-2-1
95
EXHIBIT F
TO
LEASE INDENTURE
FORM OF CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Lease
Indenture.
BANKERS TRUST COMPANY,
not in its individual capacity but solely as the
Lease Indenture Trustee
By:
---------------------------------------------
Name:
Title:
F-1