Exhibit 4.22.23
Document Name:
Document Number Indenture of Trust, Mortgage and
Security Agreement
=====================================================
Recording Area
==========================
Name and Return Address
▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Preparer of the
Document:
▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Parcel Identification
Number (PIN)
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INDENTURE OF TRUST, MORTGAGE
AND SECURITY AGREEMENT
Dated as of October 18, 2001
between
ROCKGEN OL-1, LLC
and
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
as Indenture Trustee and Account Bank
--------------------------------------
ROCKGEN FACILITY
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.................................................................... 8
SECTION 2. THE LESSOR NOTES............................................................... 9
Section 2.1. Limitation on Lessor Notes.............................................. 9
Section 2.2. Initial Lessor Notes.................................................... 9
Section 2.3. Execution and Authentication of Lessor Notes............................ 9
Section 2.4. Issuance and Terms of the Initial Lessor Notes.......................... 10
Section 2.5. Payments from Indenture Estate Only; No Personal Liability of
the Owner Lessor, the Owner Participant or the Indenture
Trustee................................................................. 11
Section 2.6. Method of Payment....................................................... 12
Section 2.7. Application of Payments................................................. 13
Section 2.8. Registration, Transfer and Exchange of Lessor Notes..................... 13
Section 2.9. Mutilated, Destroyed, Lost or Stolen Lessor Notes....................... 14
Section 2.10. Redemptions; Assumption................................................. 15
Section 2.11. Payment of Expenses on Transfer......................................... 20
Section 2.12. Additional Lessor Notes................................................. 20
Section 2.13. Restrictions of Transfer Resulting from Federal Securities
Laws; Legend............................................................ 23
Section 2.14. Security for and Parity of Lessor Notes................................. 23
Section 2.15. Acceptance of the Indenture Trustee..................................... 23
SECTION 3. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM INDENTURE ESTATE.......... 23
Section 3.1. Distribution of Periodic Rent........................................... 23
Section 3.2. Payments Following Event of Loss or Other Early Termination............. 25
Section 3.3. Payments After Lease Indenture Event of Default......................... 27
Section 3.4. Investment of Certain Payments Held by the Indenture Trustee............ 28
Section 3.5. Application of Certain Other Payments................................... 28
Section 3.6. Other Payments.......................................................... 29
Section 3.7. Excepted Payments....................................................... 29
Section 3.8. Distributions to the Owner Lessor....................................... 29
Section 3.9. Payments Under Assigned Documents....................................... 30
Section 3.10. Disbursement of Amounts Received by the Indenture Trustee............... 30
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SECTION 4. COVENANTS OF OWNER LESSOR; DEFAULTS; REMEDIES OF INDENTURE TRUSTEE............. 34
Section 4.1. Covenants of Owner Lessor............................................... 34
Section 4.2. Lease Indenture Events of Default....................................... 34
Section 4.3. Remedies of the Indenture Trustee....................................... 37
Section 4.4. Right to Cure Certain Lease Events of Default........................... 39
Section 4.5. Rescission of Acceleration.............................................. 42
Section 4.6. Return of Indenture Estate, Etc......................................... 42
Section 4.7. Power of Sale and Other Remedies........................................ 43
Section 4.8. Appointment of Receiver................................................. 44
Section 4.9. Remedies Cumulative..................................................... 44
Section 4.10. Waiver of Various Rights by the Owner Lessor............................ 45
Section 4.11. Discontinuance of Proceedings........................................... 46
Section 4.12. No Action Contrary to the Facility Lessee's Rights Under the
Facility Lease.......................................................... 46
Section 4.13. Right of the Indenture Trustee to Perform Covenants, Etc................ 46
Section 4.14. Further Assurances...................................................... 47
Section 4.15. Waiver of Past Defaults................................................. 47
SECTION 5. DUTIES OF INDENTURE TRUSTEE; CERTAIN RIGHTS AND DUTIES OF OWNER LESSOR......... 47
Section 5.1. Notice of Action Upon Lease Indenture Event of Default.................. 47
Section 5.2. Actions Upon Instructions Generally..................................... 47
Section 5.3. Action Upon Payment of Lessor Notes or Termination of Facility Lease.... 48
Section 5.4. Compensation of the Indenture Trustee; Indemnification.................. 48
Section 5.5. No Duties Except as Specified; No Action Except Under
Facility Lease, Indenture or Instructions............................... 49
Section 5.6. Certain Rights of the Owner Lessor...................................... 49
Section 5.7. Restrictions on Dealing with Indenture Estate........................... 52
Section 5.8. Filing of Financing Statements and Continuation Statements.............. 52
SECTION 6. INDENTURE TRUSTEE AND OWNER LESSOR............................................. 53
Section 6.1. Acceptance of Trusts and Duties......................................... 53
Section 6.2. Absence of Certain Duties............................................... 55
Section 6.3. Representations and Warranties.......................................... 55
Section 6.4. No Segregation of Moneys; No Interest................................... 56
Section 6.5. Reliance; Agents; Advice of Experts..................................... 56
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SECTION 7. SUCCESSOR INDENTURE TRUSTEES AND SEPARATE TRUSTEES............................. 57
Section 7.1. Resignation or Removal of the Indenture Trustee; Appoint-
ment of Successor....................................................... 57
Section 7.2. Appointment of Additional and Separate Trustees......................... 60
SECTION 8. SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS............... 62
Section 8.1. Supplemental Indenture and Other Amendment With Consent;
Conditions and Limitations ............................................. 62
Section 8.2. Supplemental Indentures and other Amendments Without Consent............ 63
Section 8.3. Conditions to Action by the Indenture Trustee........................... 64
SECTION 9. MISCELLANEOUS.................................................................. 65
Section 9.1. Surrender, Defeasance and Release....................................... 65
Section 9.2. Conveyances Pursuant to the Site Sublease............................... 66
Section 9.3. Appointment of the Indenture Trustee as Attorney; Further
Assurances.............................................................. 66
Section 9.4. Indenture for Benefit of Certain Persons Only........................... 66
Section 9.5. Notices; Furnishing Documents, etc...................................... 66
Section 9.6. Severability............................................................ 68
Section 9.7. Limitation of Liability................................................. 69
Section 9.8. Written Changes Only.................................................... 69
Section 9.9. Counterparts............................................................ 69
Section 9.10. Successors and Permitted Assigns........................................ 69
Section 9.13. Reorganization Proceedings with Respect to the Lessor Estate............ 70
Section 9.14. Withholding Taxes: Information Reporting................................ 71
Section 9.15. Fixture Financing Statement............................................. 72
EXHIBITS
Exhibit A Description of Facility Site
Exhibit B Form of Lessor Note
Exhibit C Form of Certificate of Authentication
Exhibit D Description of the Facility
APPENDIX A Definitions
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INDENTURE OF TRUST, MORTGAGE
AND SECURITY AGREEMENT
This INDENTURE OF TRUST, MORTGAGE AND SECURITY AGREEMENT (as amended,
supplemented or otherwise modified from time to time in accordance with the
provisions hereof, this "Indenture"), dated as of October 18, 2001, between
ROCKGEN OL-1, LLC, a Delaware limited liability company created for the benefit
of the Owner Participant referred to below, as mortgagor (the "Owner Lessor")
and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION as
mortgagee on behalf of the Noteholders (the "Indenture Trustee") and as the
Account Bank.
WITNESSETH:
WHEREAS, RockGen Energy LLC (the "Facility Lessee") has sold the Undivided
Interest to the Owner Lessor pursuant to the ▇▇▇▇ of Sale and leased the Ground
Interest to the Owner Lessor pursuant to the Facility Site Lease, a memorandum
of which shall be recorded with this Indenture in the appropriate registry of
deeds described in Exhibit A attached hereto;
WHEREAS, the Owner Lessor has entered into the Facility Lease, dated as of
the date hereof (as amended, supplemented or otherwise modified from time to
time in accordance with the provisions thereof, the "Facility Lease"), with the
Facility Lessee pursuant to which the Facility Lessee has leased from the Owner
Lessor for a term of years the Owner Lessor's Undivided Interest in the
Facility;
WHEREAS, the Owner Lessor has entered into the Facility Site Sublease,
dated as of the date hereof (as amended, supplemented or otherwise modified
from time to time in accordance with the provisions thereof, the "Facility Site
Sublease"), with the Facility Lessee pursuant to which the Facility Lessee has
subleased the Ground Interest from the Owner Lessor for a term of years;
WHEREAS, the Facility is more particularly described on Exhibit D hereto
and made a part hereof and the Facility Site is more particularly described on
Exhibit A hereto and made a part hereof;
WHEREAS, in accordance with this Indenture, the Owner Lessor will (i)
execute and deliver the Lessor Notes, the proceeds of which will be used by the
Owner Lessor to finance a portion of the Purchase Price for the Undivided
Interest purchased from the Facility Lessee (ii) grant to the Indenture Trustee
the security interests herein provided;
WHEREAS, this Indenture is intended to be regarded as a mortgage under the
laws of the State of Wisconsin (and not intended to qualify as an indenture),
as a security agreement under the Uniform Commercial Codes of the States of New
York, Delaware and Wisconsin, and as a fixture filing under the laws of the
State of Wisconsin;
WHEREAS, the Owner Lessor and the Indenture Trustee desire to enter into
this Indenture, to, among other things, provide for (a) the issuance by the
Owner Lessor of the Lessor Notes to be issued on the Closing Date, and
Additional Lessor Notes from time to time and (b) the conveyance and assignment
to the Indenture Trustee on the Closing Date of the Undivided Interests
conveyed to the Owner Lessor and the Owner Lessor's right, title and interest
in and under the Operative Documents executed in connection therewith and all
payments and other amounts received hereunder or thereunder in accordance
herewith (excluding Excepted Payments);
WHEREAS, all things have been done to make the Lessor Notes, when executed
by the Owner Lessor, authenticated and delivered hereunder and issued, the
valid obligations of the Owner Lessor; and
WHEREAS, all things necessary to make this Indenture the valid, binding
and legal obligation of the Owner Lessor, for the uses and purposes herein set
forth, in accordance with its terms, have been done and performed and have
happened.
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 in order to
secure (i) the prompt payment when and as due of the principal of and the
Make-Whole Amount, if any, and interest on the Lessor Notes and of all other
amounts owing with respect to all Lessor Notes from time to time outstanding
hereunder, and the prompt payment when and as due of any and all other amounts
from time to time owing in respect of the Secured Indebtedness and (ii) the
performance and observance by the Owner Lessor for the benefit of the holders
of the Lessor Notes and the Indenture Trustee of all other obligations,
agreements, and covenants of the Owner Lessor set forth hereinafter and in
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the Lessor Notes, the Operative Documents and the other documents, certificates
and agreements delivered in connection therewith:
GRANTING CLAUSE:
The Owner Lessor hereby irrevocably grants, conveys, assigns, transfers,
pledges, bargains, sells and confirms unto the Indenture Trustee and its
successors and permitted assigns, for the benefit of the holders of the Lessor
Notes from time to time, a first priority security interest in and mortgage
lien on all estate, right, title and interest of the Owner Lessor in, to and
under the following described property, rights, interests and privileges,
whether now held or hereafter acquired (which collectively, including all
property hereafter specifically subjected to the security interest created by
this Indenture by any supplement hereto, exclusive of Excepted Payments) are
included within, and are hereafter referred to as, the "Indenture Estate"):
(1) the Undivided Interest, the Owner Lessor's interest in any
Components; the Owner Lessor's interest in any Improvements; the Ground
Interest; the Facility Lease and all payments of any kind by the Facility
Lessee thereunder (including Rent); any rights of the Owner Lessor as
collateral assignee of the Facility Lessee under the Facility Lease; the
Facility Site Lease (and all rights with respect to the Ground Interest
conveyed thereby); the Facility Site Sublease and all payments of any kind by
the Facility Lessee thereunder; the ▇▇▇▇ of Sale (and all rights with respect
to the Facility conveyed thereby); the Owner Lessor's interest in all tangible
property located on or at or attached to the Facility Site as to which an
interest in such tangible property arises under applicable real estate law
("fixtures"); the Calpine Guaranty, the Ownership and Operation Agreement and
all and any interest in any property now or hereafter granted to the Owner
Lessor pursuant to any provision of the Facility Lease; and each other
Operative Document to which the Owner Lessor is a party other than the Tax
Indemnity Agreement and the LLC Agreement (the Undivided Interest, the Owner
Lessor's interest in any Components, the Owner Lessor's interest in any
fixtures, Improvements and the Ground Interest are collectively referred to as
the "Property Interest" and the documents specifically referred to above in
this paragraph (1) are collectively referred to as the "Assigned Documents"),
including, without limitation, (x) all rights of the Owner Lessor to receive
any payments or other amounts or, subject to Section 5.6 hereof, 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 make any demand or to
take any other action under or in respect of any such document, to accept
surrender or redelivery of the Property Interest or any part thereof, as well
as all the rights, powers and remedies on the part of the Owner Lessor, whether
acting under any such document or by statute or
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at law or in equity or otherwise, arising out of any Lease Default or Lease
Event of Default and (y) any right to restitution from the Facility Lessee, any
sublessee or any other person in respect of any determination of invalidity of
any such document;
(2) all rents (including Periodic Rent and Supplemental Rent),
royalties, issues, profits, revenues, proceeds, damages, claims, warranties and
other income from the property described in this Granting Clause, including,
without limitation, all payments or proceeds payable to the Owner Lessor as the
result of the sale of the Property Interest or the lease or other disposition
of the Property Interest, and all estate, right, title and interest of every
nature whatsoever of the Owner Lessor in and to such rents, issues, profits,
revenues and other income and every part thereof (the "Revenues");
(3) any sublease of the Facility and any assignment thereof now or
hereafter in effect, including, without limitation, (i) all rents or other
amounts or payments of any kind paid or payable by the obligor(s) thereunder or
in respect thereof and all collateral security or credit support with respect
thereto (whether cash or in the nature of a guarantee, letter of credit, credit
insurance, lien on or security interest in property or otherwise) for the
obligations of the sublessee thereunder as well as all rights of the Owner
Lessor to enforce payment of any such rents, amounts or payments, (ii) 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 sublease of the
Facility and any assignment thereof or to accept surrender or redelivery of the
Facility or any part thereof, as well as all the rights, powers and remedies on
the part of the Owner Lessor, whether acting under any sublease of the Facility
or any assignment thereof or by statute or at law or in equity, or otherwise,
arising out of any default under such sublease or any assignment thereof, and
(iii) any right to restitution from the Facility Lessee, the applicable
sublessee or any guarantor of such sublessee in respect of any determination of
invalidity of any sublease of the Facility or any assignment thereof;
(4) all condemnation proceeds with respect to the Property Interest or
any part thereof (to the extent of the Owner Lessor's interest therein), and
all proceeds (to the extent of the Owner Lessor's interest therein) of all
insurance maintained pursuant to Section 11 of the Facility Lease or otherwise;
(5) all other property of every kind and description and interests
therein now held or hereafter acquired by the Owner Lessor pursuant to the
terms of any Assigned Document, wherever located; and
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(6) all proceeds of the foregoing;
BUT EXCLUDING from such property, rights and privileges all Excepted
Payments and SUBJECT TO the rights of the Owner Lessor and the Owner
Participant hereunder, including under Sections 4.3(d), 4.4 and 5.6 hereof;
TO HAVE AND TO HOLD the Indenture Estate and all parts, rights, members
and appurtenances thereof, unto the Indenture Trustee and the successors and
permitted assigns of the Indenture Trustee, for the benefit and security of the
Noteholders from time to time;
PROVIDED, HOWEVER, that if the principal of and the Make-Whole Amount, if
any, and interest on the Lessor Notes, and all other Secured Indebtedness
hereunder shall have been paid and the Owner Lessor shall have performed and
complied with all the covenants, agreements, terms and provisions hereof, then
this Indenture and the rights hereby granted shall terminate and cease.
Subject to the terms and conditions hereof, the Owner Lessor does hereby
irrevocably constitute and appoint the Indenture Trustee the true and lawful
attorney of the Owner Lessor (which appointment is coupled with an interest)
with full power (in the name of the Owner Lessor or otherwise) to ask, require,
demand and receive any and all moneys an claims for moneys (in each case,
including, without limitation, insurance and requisition proceeds to the extent
of the Owner Lessor's interest therein but excluding in all cases Excepted
Payments) due and to become due under or arising out of the Assigned Documents
and all other property which now or hereafter constitutes part of the Indenture
Estate and, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or to take any action or to institute any
proceedings (other than in connection with the enforcement or collection of
Excepted Payments) which the Indenture Trustee may deem to be necessary or
advisable. Pursuant to the Facility Lease, the Facility Lessee is directed to
make all payments of Rent required to be paid or deposited with the Owner
Lessor (other than Excepted Payments) and all other amounts which are required
to be paid to or deposited with the Owner Lessor pursuant to the Facility Lease
(other than Excepted Payments) directly to the Indenture Trustee at such
address or addresses as the Indenture Trustee shall specify, for application as
provided in this Indenture. Further, the Owner Lessor agrees that promptly on
receipt thereof, it will transfer to the Indenture Trustee any and all moneys
from time to time received by it constituting part of the Indenture Estate,
whether or not expressly referred to in the immediately preceding sentence, for
distribution pursuant to this Indenture.
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Concurrently with the delivery of this Indenture, the Owner Lessor is
delivering to the Indenture Trustee the chattel paper originally-executed
counterpart of the Facility Lease. All property referred to in this Granting
Clause, whenever acquired by the Owner Lessor, shall secure all obligations
under and with respect to the Lessor Notes at any time outstanding. Any and all
properties referred to in this Granting Clause which are hereafter acquired by
the Owner Lessor, shall, without further conveyance, assignment or act by the
Owner Lessor or the Indenture Trustee thereby become and be subject to the
security interest hereby granted as fully and completely as though specifically
described herein.
This Indenture is intended to constitute a security agreement as required
under the Uniform Commercial Codes of the States of New York, Delaware and
Wisconsin. This Indenture is also intended to be a mortgage under Wisconsin
law. The maximum principal indebtedness secured by this Indenture, including
future advances and contingent obligations but excluding protective advances,
shall not at any time exceed the total amount of One Hundred Eighty One Million
Eight Hundred Thousand Dollars ($181,800,000); provided, however, that nothing
herein contained shall limit the amount secured by this Indenture if the
Secured Indebtedness is increased by protective advances; and provided,
further, such limitation as to such future advances and contingent obligations
shall only pertain to the record priority of the amount thereof secured hereby
and does not otherwise limit the amount of total indebtedness of Owner Lessor
secured hereby or limit the liability of Owner Lessor to Indenture Trustee for
such total indebtedness, including future advances and contingent obligations.
The future advances secured hereby shall be made to or for the account of Owner
Lessor and may be made under the Additional Lessor Notes, or pursuant to
promissory notes or other instruments evidencing such future advances which may
be hereafter executed and delivered by Owner Lessor to Indenture Trustee.
The Indenture Trustee, for itself and its successors and permitted
assigns, hereby agrees that it shall hold the Indenture Estate, in trust for
the benefit and security of (i) the holders from time to time of the Lessor
Notes from time to time outstanding, without any priority of any one Lessor
Note over any other except as herein otherwise expressly provided and (ii) the
Indenture Trustee, and for the uses and purposes and subject to the terms and
provisions set forth in this Indenture. It is expressly agreed that anything
herein contained to the contrary notwithstanding, the Owner Lessor shall remain
liable under the Assigned Documents to perform all of the obligations assumed
by it thereunder, all in accordance with and pursuant to the terms and
provisions thereof, and the Indenture Trustee and the Noteholders shall have no
obligation or liability under any Assigned Document by reason of or arising out
of the assignment hereunder, nor shall
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the Indenture Trustee or the Noteholders 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 does hereby warrant and represent that it has not
assigned, pledged or granted a lien or security interest in, to or under, and
hereby covenants that, so long as this Indenture shall remain in effect and the
Lien hereof shall not have been released pursuant to Section 9.1 hereof, it
will not assign, pledge or ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest in any of its
estate, right, title or interest in, to or under, the Indenture Estate to
anyone other than the Indenture Trustee for the benefit of the Noteholders. The
Owner Lessor hereby further covenants that with respect to its estate, right,
title and interest in, to or under the Indenture Estate, it will not, except as
provided in this Indenture and except as to Excepted Payments, (i) accept any
payment from the Facility Lessee or any sublessee or enter into any agreement
amending, modifying or supplementing any of the Assigned Documents, execute any
waiver or modification of, or consent under, the terms of any of the Assigned
Documents or revoke or terminate any of the Assigned Documents, (ii) settle or
compromise any claim arising under any of the Assigned Documents, or (iii)
submit or consent to the submission of any dispute, difference or other matter
arising under or in respect of any of the Assigned Documents to arbitration
thereunder.
Except as provided herein, the Owner Lessor hereby ratifies and confirms
its obligations under the Assigned Documents and does hereby agree that it will
not take or omit to take any action, the taking or omission of which might
result in an alteration or impairment of any of the Assigned Documents or of
any of the rights created by any such Assigned Document or the assignment
(subject to the previous) paragraph hereunder.
Accordingly, the Owner Lessor, for itself and its successors and permitted
assigns, agrees that all Lessor 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 Indenture Trustee, for the benefit and security
of the holders from time to time of the Lessor Notes
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from time to time outstanding and to protect the security of this Indenture,
and the Indenture Trustee agrees to accept the trusts and duties hereinafter
set forth, as follows:
SECTION 1.
DEFINITIONS
(a) Unless the context hereof shall otherwise require, capitalized terms
used, including those in the recitals, and not otherwise defined herein shall
have the respective meanings set forth in Appendix A to the Participation
Agreement (a copy of which is attached hereto for reference), dated as of the
date hereof, among the Facility Lessee, the Owner Lessor the Lessor Manager,
the Guarantor, the Indenture Trustee and the Pass Through Trustee (as amended,
supplemented or otherwise modified from time to time in accordance with the
provisions thereof, the "Participation Agreement"). The general provisions of
such Appendix A to the Participation Agreement shall apply to the terms used in
this Indenture and specifically defined herein.
(b) In addition, the following terms shall have the following meanings.
"Assumption Documents" has the meaning set forth in Section 2.10(b).
"Facility" means the 520 MW nameplate capacity gas-fired simple cycle
merchant power plant located in Christiana, Wisconsin and more fully described
in Exhibit D to this Indenture. The Facility does not include the Facility Site.
"Secured Indebtedness" means principal of and the Make-Whole Amount, if
any, and interest on and other amounts due under all Lessor Notes and all other
sums payable to the Indenture Trustee or the Noteholders from time to time
hereunder and under the Participation Agreement and the other Operative
Documents by the Facility Lessee, the Owner Participant and the Owner Lessor,
including:
(i) The indebtedness evidenced by the Lessor Notes, together with
interest thereon at the rate provided in each Lessor Note and the
Make-Whole Amount thereon and together with any and all renewals,
modifications, consolidations and extensions of the indebtedness evidenced
by such Lessor Notes, and principal of such Lessor Notes being due and
payable as provided in such Lessor Notes;
(ii) Any and all other indebtedness now owing or which may hereafter
be owing by the Owner Lessor to or for the benefit of the Indenture
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Trustee under the Operative Documents including indemnities and
other Supplemental Rent payable by the Facility Lessee under the Operative
Documents, whether evidenced by Additional Lessor Notes issued pursuant to
Section 2.12 hereof or otherwise, however and whenever incurred or
evidenced, whether direct or indirect, absolute or contingent, due or to
become due, together with interest thereon at the rate provided in each
Additional Lessor Note and the Make-Whole Amount thereon (if any) and
together with any and all renewals, modifications, consolidations and
extensions of the indebtedness evidenced by such Additional Lessor Notes,
and principal of such Additional Lessor Notes being due and payable as
provided in each such Additional Lessor Note.
(iii) Any and all additional advances made by the Indenture Trustee to
protect or preserve the Indenture Estate or the security interest and other
interests created hereby on the Indenture Estate or for taxes, assessments
or insurance premiums as hereinafter provided or for performance of any of
the Owner Lessor's obligations hereunder or for any other purpose provided
herein, including advances made pursuant to Section 4.13 hereof (whether or
not the Owner Lessor remains the owner of the Indenture Estate at the time
of such advances); and
(iv) Any and all expenses incident to the collection of the Secured
Indebtedness and the foreclosure hereof by action in any court or by
exercise of the power of sale herein contained.
"Undivided Interest" means the Owner Lessor's 25% undivided interest in
the Facility.
SECTION 2.
THE LESSOR NOTES
Section 2.1. Limitation on Lessor Notes. No Lessor Notes may be issued
under the provisions of, or become secured by, this Indenture except in
accordance with the provisions of this Section 2. The aggregate principal
amount of the Lessor Notes which may be authenticated and delivered and
outstanding at any one time under this Indenture shall be limited to the
principal amount of the Initial Lessor Notes issued on the Closing Date to the
Pass Through Trustees plus the aggregate principal amount of Additional Lessor
Notes issued pursuant to Section 2.12.
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Section 2.2. Initial Lessor Notes. There are hereby created and
established hereunder one series of Lessor Notes consisting of the Series A
Lessor Notes, in substantially the form set forth in Exhibit B to this
Indenture and in the aggregate principal amount, having installments payable on
the dates and in the amounts and having the final maturity date and interest
rate set forth in Schedule I to this Indenture (the "Series A Lessor Notes" or,
collectively, the "Initial Lessor Notes" or, individually, an "Initial Lessor
Note").
Section 2.3. Execution and Authentication of Lessor Notes. Each Lessor
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 Lessor Note and be in denominations
of not less than $1,000. Any Lessor Note may be signed by a Person who, at the
actual date of the execution of such Lessor Note, is an authorized signatory of
the Owner Lessor although at the nominal date of such Lessor Note such Person
may not have been an authorized signatory of the Owner Lessor. No Lessor Note
shall be secured by or be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears thereon a certificate
of authentication in the form contained in Exhibit C (or in the appropriate
form provided for in any supplement hereto executed pursuant to Section 2.12
hereof), executed by the Indenture Trustee by the manual signature of one of
its authorized officers, and such certificate upon any Lessor Note shall be
conclusive evidence that such Lessor Note has been duly authenticated and
delivered hereunder. The Indenture Trustee shall authenticate and deliver the
Initial Lessor Notes for original issue on the Closing Date in the principal
amount specified in Section 2.2, upon a written order of the Owner Lessor
signed by the Lessor Manager. The 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 Initial Lessor Notes.
(a) Issuance of the Lessor Notes at the Closing. On the Closing Date,
the Initial Lessor Notes shall be issued to the applicable Pass Through Trustee
in the amounts set forth in Schedule I hereto, and shall be dated the Closing
Date.
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(b) Principal and Interest. The principal amount of each series of
Initial Lessor Notes shall be due and payable in a series of installments
having final payment dates set forth in Schedule I hereto. The principal of
each Initial Lessor Note shall be due and payable in installments on the dates
and in the amounts set forth in Schedule I hereto. Schedule I hereto to the
contrary notwithstanding, the last payment made under such Initial Lessor Note
shall be equal to the then unpaid balance of the principal of such Lessor Note
plus all accrued and unpaid interest on, and any other amounts due under, such
Initial Lessor Note. Each Initial 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 Initial Lessor Note and Schedule I
hereto. Each Initial Lessor Note shall accrue additional interest under the
circumstances and at the rate per annum set forth in the third paragraph of
each Initial Lessor Note. Interest on each Initial Lessor Note shall be due and
payable in arrears semi-annually commencing on May 30, 2002, and on each May 30
and November 30 thereafter until paid in full. If any day on which principal,
Make-Whole Amount, if any, or interest on the Initial Lessor Notes are payable
is not a Business Day, payment thereof shall be made on the next succeeding
Business Day with the same effect as if made on the date on which such payment
was due.
(c) Overdue Payments. Interest (computed on the basis of a 360-day year
of twelve 30-day months) on any overdue principal, Make-Whole Amount (if any)
and, to the extent permitted by Applicable Law, interest and any other amounts
payable shall be paid on demand at the Overdue Rate.
(d) Indemnity Amounts. The Owner Lessor agrees to pay to the Indenture
Trustee for distribution in accordance with Section 3.5 hereof any and all
indemnity amounts received by the Owner Lessor which are payable by the
Facility Lessee to (i) the Indenture Trustee, (ii) the Pass Through Trusts, or
(iii) the Pass Through Trustees.
Section 2.5. Payments from Indenture Estate Only; No Personal Liability
of the Owner Lessor, the Owner Participant or the Indenture Trustee. Except as
otherwise specifically provided in this Indenture or the Participation
Agreement, all payments in respect of the Lessor
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Notes or under this 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 the Owner Participant shall not have any obligation for payments in respect
of the Lessor Notes or under this Indenture. The Indenture Trustee and each
Noteholder, by its acceptance thereof, agrees that it will look solely to the
income and proceeds from the Indenture Estate to the extent available for
distribution to the Indenture Trustee or such Noteholder, as the case may be,
as herein provided and that, except as expressly provided in this Indenture,
the Participation Agreement or any other Operative Document, none of the Owner
Participant, the Owner Lessor, the Trust Company, the Lease Indenture Company,
nor the Indenture Trustee, nor any Affiliate of any thereof, shall be
personally liable to such Noteholder or the Indenture Trustee for any amounts
payable hereunder, under such Lessor Note or for any performance to be rendered
under any Assigned Document or for any liability under any Assigned Document.
Without prejudice to the foregoing, the Owner Lessor will duly and punctually
pay or cause to be paid the principal of, Make-Whole Amount, if any, and
interest on all Lessor Notes according to their terms and the terms of this
Indenture. Nothing contained in this Section 2.5 limiting the liability of the
Owner Lessor shall derogate from the right of the Indenture Trustee and the
Noteholders to proceed against the Indenture Estate and the Calpine Guaranty to
secure and enforce all payments and obligations due hereunder and under the
Assigned Documents and the Lessor 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
thereof, agrees that neither it nor the 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 or the LLC Agreement.
Section 2.6. Method of Payment. The Owner Lessor shall maintain an
office or agency where Lessor 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 Indenture Trustee as Paying Agent in connection with the
Lessor Notes.
(a) 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 Indenture Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Noteholders or the Indenture Trustee all money held by the Paying Agent for
the payment of principal of or interest
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on the Lessor Notes and shall notify the Indenture Trustee of any default by
the Owner Lessor in making any such payment.
(b) The principal of and the Make-Whole Amount, if any, and interest on
each Lessor Note shall be paid by the Paying Agent from amounts available in
the Indenture Estate on the dates provided in the Lessor Notes by mailing a
check for such amount, payable in New York Clearing House funds, to each
Noteholder at the last address of each such Noteholder appearing on the Note
Register, or by whichever of the following methods shall be specified by notice
from a Noteholder to the Indenture Trustee: (i) by crediting the amount to be
distributed to such Noteholder to an account maintained by such Noteholder with
the Indenture Trustee, (ii) by making such payment to such Noteholder in
immediately available funds at the Indenture Trustee Office, or (iii) in the
case of the Initial 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 free and clear of and without reduction for
or on account of all wire and like charges and without any presentment or
surrender of such Lessor Note, unless otherwise specified by the terms of the
Lessor Note, except that, in the case of the final payment in respect of any
Lessor Note, such Lessor Note shall be surrendered to the Indenture Trustee for
cancellation after such payment. All payments in respect of the Lessor Notes
shall be made (1) as soon as practicable prior to the close of business on the
date the amounts to be distributed by the Indenture Trustee are actually
received by the Indenture Trustee if such amounts are received by 12:00 noon
New York City time, on a Business Day, or (2) 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 Lessor Note.
Prior to due presentment for registration of transfer of any Lessor Note, the
Owner Lessor and the Indenture Trustee may deem and treat the Person in whose
name any Lessor Note is registered on the Note Register as the absolute owner
and holder of such Lessor Note for the purpose of receiving payment of all
amounts payable with respect to such Lessor Note and for all other purposes,
and neither the Owner Lessor nor the Indenture Trustee shall be affected by any
notice to the contrary. All payments made on any Lessor Note in accordance with
the provisions of this Section 2.6 shall be valid and effective to satisfy and
discharge the liability on such Lessor Note to the extent of the sums so paid
and (except as provided herein) neither the Indenture Trustee nor the Owner
Lessor shall have any liability in respect of such payment.
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Section 2.7. Application of Payments. Each payment on any outstanding
Lessor Note shall be applied, first, to the payment of accrued interest
(including interest on overdue principal and the Make-Whole Amount, if any,
and, to the extent permitted by Applicable Law, overdue interest) on such
Lessor Note to the date of such payment, second, to the payment of the
principal amount of, and the Make-Whole Amount, if any, on such Lessor Note
then due (including any overdue installments of principal) thereunder and
third, to the extent permitted by Section 2.10 of this Indenture, the balance,
if any, remaining thereafter, to the payment of the principal amount of, and
the Make-Whole Amount, if any, on such Lessor 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 Lessor Notes. The
Owner Lessor shall maintain an office or agency where Lessor Notes may be
presented for registration of transfer or for exchange (the "Registrar"). The
Registrar shall keep a register of the Lessor Notes and of their transfer and
exchange. The Owner Lessor may have one or more co-registrars. The Owner Lessor
initially appoints the Indenture Trustee as Registrar in connection with the
Lessor Notes. The Indenture Trustee shall maintain at the Indenture Trustee
Office a register in which it will provide for the registration, registration
of transfer and exchange of Lessor Notes (such register being referred to
herein as the "Note Register"). If any Lessor 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 Indenture Trustee will authenticate and deliver, in the
name of the designated transferee or transferees, if any, one or more new
Lessor Notes (subject to the limitations specified in Sections 2.3 and 2.13
hereof) in any denomination or denominations not prohibited by this Indenture,
as requested by the Person surrendering the Lessor Note, dated the same date as
the Lessor Note so surrendered and of like tenor and aggregate unpaid principal
amount. Any Lessor Note or Lessor Notes issued in a registration of transfer or
exchange shall be valid obligations of the Owner Lessor entitled to the same
security and benefits to which the Lessor Note or Lessor Notes so transferred
or exchanged were entitled, including rights as to interest accrued but unpaid
and to accrue so that there will not be any loss or gain of interest on the
Lessor Note or Lessor Notes surrendered. Every Lessor 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 reasonably
satisfactory to the Indenture Trustee duly executed by the holder thereof or
his attorney duly authorized in writing, and the Indenture Trustee may require
an
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opinion of counsel as to compliance of any such transfer with the Securities
Act. The Indenture Trustee shall make a notation on each new Lessor Note of the
amount of all payments of principal previously made on the old Lessor Note or
Lessor Notes with respect to which such new Lessor Note is issued and the date
on which such new Lessor Note is issued and the date to which interest on such
old Lessor Note or Lessor Notes shall have been paid. The Indenture Trustee
shall not be required to register the transfer or exchange of any Lessor Note
during the 10 days preceding the due date of any payment on such Lessor Note.
Each Noteholder, by its acceptance of a Lessor Note, shall be deemed to
have consented to, and agreed to be bound by, the terms and conditions hereof,
of such Lessor Note (and any instrument of assignment or transfer) and of the
other Operative Documents.
Section 2.9. Mutilated, Destroyed, Lost or Stolen Lessor Notes. Upon
receipt by the Owner Lessor and the Indenture Trustee of evidence satisfactory
to each of them of the loss, theft, destruction or mutilation of any Lessor
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 Indenture
Trustee of all reasonable expenses incidental thereto and payment or
reimbursement for any transfer taxes, and upon surrender and cancellation of
such Lessor Note, if mutilated, the Owner Lessor will execute and the Indenture
Trustee will authenticate and deliver in lieu of such Lessor Note, a new Lessor
Note, dated the same date as such Lessor Note and of like tenor and principal
amount. Any indemnity provided by the holder of a Lessor Note pursuant to this
Section 2.9 must be sufficient in the reasonable judgment of the Owner Lessor
and the Indenture Trustee to protect the Owner Lessor, the Indenture Trustee,
the Paying Agent, the Registrar and any co-registrar or co-paying agent from
any loss which any of them may suffer if a Lessor 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, all Lessor Notes outstanding
under this Indenture shall be redeemed, in whole but not in part, at a price
equal to the principal amount thereof, together with accrued interest thereon,
if any, on the earliest to occur on the date of redemption, but without any
Make-Whole Amount or other premium:
(i) if the Facility Lease is terminated pursuant to Section 10 thereof
as a result of the occurrence of an Event of Loss (other than a Regulatory
Event
15
of Loss or an Event of Loss described in clause (v) or (vi) of the
definition of "Event of Loss"), on the applicable Termination Date
provided in Section 10.2(a) of the Facility Lease;
(ii) if the Facility Lease is terminated pursuant to Section 10
thereof as a result of a Regulatory Event of Loss, unless the Facility
Lessee effects an assumption of the applicable Lessor Notes in accordance
with paragraph (b) of this Section 2.10, on the applicable Termination Date
provided in Section 10.2(a) of the Facility Lease;
(iii) if the Facility Lease is terminated pursuant to Section 13.1
thereof, unless the Facility Lessee purchases the Facility and effectuates
an assumption of the applicable Lessor Notes in accordance with paragraph
(b) of this Section 2.10, on the applicable Termination Date provided in
Section 13.1 of the Facility Lease; and
(iv) if the Facility Lease is terminated pursuant to clause (a) of
Section 14.1 thereof, on the Obsolescence Termination Date.
Any such redemption shall be made in accordance with the applicable provisions
of Section 3 hereof.
(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 all of the
Lessor Notes may be assumed in whole (but not in part) 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 or 13.2 of the
Facility Lease, where in connection with such termination the Facility Lessee
acquires the Undivided Interest pursuant to an assumption agreement (which
assumption agreement may be combined with the indenture supplemental to this
Indenture hereinafter referred to in this Section 2.10(b), 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 Operative Documents
pertaining to the Undivided Interest) which shall make such obligations and
liabilities fully recourse to the Facility Lessee and shall otherwise be in
form and substance acceptable to the Indenture Trustee and the Owner Lessor.
The Facility Lessee will execute and deliver, and the Indenture Trustee will
authenticate, to each Noteholder in exchange for such old Lessor Note a new
Lessor Note, in a principal amount equal to the outstanding principal amount of
such old Lessor Note and otherwise in substantially similar form and tenor to
such old
16
Lessor 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. All documentation in connection with any such
assumption (including an indenture supplemental to this Indenture which shall,
among other things, contain provisions appropriately amending references to the
Facility Lease in this 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), changed as
appropriate, and amendments or supplements to the other Operative Documents,
officers' certificates, opinions of counsel and regulatory approvals) shall be
prepared by and at the expense of the Facility Lessee acceptable in form and
substance to the 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:
(i) the Indenture Trustee shall have received an Opinion of Counsel of
the Facility Lessee including, in the case of clause (5) below, a
nationally recognized outside counsel selected by the Facility Lessee and
reasonably acceptable to the Noteholders (it being acknowledged and agreed
that the Facility Lessee's counsel on the Closing Date shall be deemed
acceptable), addressed to the Indenture Trustee and the Noteholders, to the
effect that (1) the assumption agreement and each other instrument,
document or agreement executed and delivered by the Facility Lessee in
connection with the assumption contemplated by the assumption agreement
(collectively, the "Assumption Documents") have been duly authorized,
executed and delivered by the Facility Lessee, (2) each Assumption Document
and the assumptions contemplated thereby do not contravene (x) the Organic
Documents of the Facility Lessee, (y) any provision of any security issued
by the Facility Lessee or of any agreement, instrument or other undertaking
to which the Facility Lessee is a party or by which it or any of its
property is bound or (z) any Applicable Law, (3) no Governmental Approval
is necessary or required in connection with any Assumption Document or the
assumption contemplated thereby (or, if any such Governmental Approval is
necessary or required, that the same has been duly obtained and is final
and in full force and effect and any period for the filing of notice of
rehearing or application for judicial review of the issuance of such
Governmental Approval has expired without any such notice or application
having been made), (4) each Assumption Document is a legal, valid and
binding obligation of the Facility Lessee, enforceable in accordance with
its terms, (5)
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such assumption agreement and the assumption of the Lessor Notes
thereunder shall not cause a Tax Event to occur as to any holder of any
Lessor Note or any Certificateholder and (6) the lien of this Indenture
will continue to be a first priority perfected lien on the Indenture
Estate;
(ii) the Facility Lessee shall have provided the Indenture Trustee
with (x) an indemnity against the risk that such assumption of the Lessor
Notes will cause a Tax Event to occur as to any holder of any Lessor Note
or any Certificateholder or (y) an opinion of counsel to the Facility
Lessee, which opinion of counsel shall be reasonably acceptable to the
Indenture Trustee, confirming that such assumption shall not cause any
adverse tax consequence to any holder of any Lessor Note or any
Certificateholder ;
(iii) ▇▇▇▇▇'▇ and S&P shall have confirmed that such assumption will
not result in a downgrading of the rating on the Certificates;
(iv) the Indenture Trustee shall have received copies of all
Governmental Approvals (if any) referred to in the opinion of counsel
referred to in clause (i) above; and
(v) the Indenture Trustee shall have received UCC lien searches,
supplemental title reports and such other evidence as may reasonably be
required by the Indenture Trustee demonstrating that no impairment exists
or will exist of the first-priority perfected lien and secured interest in
the Undivided Interest.
(c) The Owner Lessor may, at its option, redeem any Additional Lessor
Notes 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 plus the Make Whole Amount, if any,
so redeemed to the date of redemption.
(d) The Lessor Notes shall be redeemed, in whole but not in part, as
provided below, at the redemption price equal to the principal amount thereof,
together with accrued and unpaid interest thereon, if any, to the date of
redemption plus the Make-Whole Amount, as follows:
(i) All of the Lessor Notes outstanding under this Indenture shall be
redeemed at such redemption price upon an optional refinancing pursuant to
Section 11.2 of the Participation Agreement. The Owner Lessor's failure to
18
consummate such redemption as a result of an event described in 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) All of the Lessor Notes outstanding under this Indenture shall be
redeemed at such redemption price on the Termination Date or Obsolescence
Termination Date, as applicable, if the Facility Lease is terminated as a
result of an event described in Section 13.2 or clause (b) of Section 14.1
of the Facility Lease. The Owner Lessor's failure to consummate such
redemption as a result of an event described in this clause (ii) following
delivery of such notice shall not constitute a Lease Indenture Event of
Default or any other default under the Operative Documents.
(iii) The Lessor Notes shall be redeemed at such redemption price upon
termination of the Facility Lease pursuant to Section 10 thereof as a
result of the occurrence of an Event of Loss described in clause (v) or
(vi) of the definition of "Event of Loss".
The Make-Whole Amount, if any, payable with respect to the Lessor Notes will be
determined by an investment banking institution of national standing in the
United States (the "Investment Banker") selected by the Facility Lessee or, if
the Owner Lessor or the Indenture Trustee does not receive notice of such
selection at least ten days prior to a scheduled prepayment date or if a Lease
Event of Default under the Facility Lease shall have occurred and be
continuing, selected by the Owner Lessor.
(e) If the Owner Lessor elects to redeem Lessor Notes, or Lessor Notes
are otherwise required to be redeemed pursuant to this Section 2.10, the Owner
Lessor shall notify the Indenture Trustee in writing of the date of redemption,
the Section of this Indenture pursuant to which the redemption will occur. The
Owner Lessor shall give each notice to the Indenture Trustee provided for in
this Section 2.10 at least 30 days before the date of redemption unless the
Indenture Trustee consents in writing to a shorter period. Such notice shall be
accompanied by an Officers' Certificate and an opinion of counsel from the
Facility Lessee to the effect that such redemption will comply with the
conditions herein.
(f) At least 20 days but not more than 60 days before a date of
redemption, the 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
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no notice shall be required so long as the Pass Through Trustee and the
Indenture Trustee are the same entity. Each such notice shall state:
(i) the date of redemption;
(ii) the redemption price;
(iii) the name and address of the Paying Agent;
(iv) that Lessor 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 Lessor Notes called for redemption ceases to accrue on
and after the redemption date; and
(vi) the paragraph of this Indenture pursuant to which the Lessor
Notes called for redemption are being redeemed.
(h) With respect to any notice of redemption of the Lessor Notes such
notice shall state that such redemption shall be conditional upon the receipt
by the Indenture Trustee, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and Make-Whole Amount, if any, and
interest on such Notes and that, if such money shall not have been so received,
such notice shall be of no force or effect and the Owner Lessor shall not be
required to redeem such Lessor Notes. In the event that such notice of
redemption contains such a condition and such money is not so received, the
redemption shall not be made and, within a reasonable time thereafter, notice
shall be given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to be made.
(i) Upon surrender to the Paying Agent, such Lessor Notes shall be paid
at the redemption price stated in the notice, plus accrued interest to the date
of redemption. 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 Lessor Note or Lessor Notes pursuant to Section 2.8 or 2.9 hereof, the
Owner Lessor or the Indenture Trustee may require from the party requesting
such new Lessor Note or Lessor Notes payment of a sum to reimburse the Owner
Lessor and the Indenture
20
Trustee for, or to provide funds for, the payment on an After-Tax Basis to the
Owner Lessor, the Indenture Trustee and the Owner Participant 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 Indenture Trustee.
Section 2.12. Additional Lessor Notes.
(a) Additional Lessor Notes (each, an "Additional Lessor Note") of the
Owner Lessor may be issued under and secured by this Indenture, at any time or
from time to time, in addition to the Initial Lessor Notes and subject to the
conditions hereinafter provided in this Section 2.12, for cash in the amount
equal to the original principal amount of such Additional Lessor Notes, for the
purpose of (i) providing funds in connection with Supplemental Financing
pursuant to Section 11.1 of the Participation Agreement for the payment of all
or any portion of Modifications to the Facility pursuant to Section 8 of the
Facility Lease, or (ii) redeeming any previously issued Lessor Notes pursuant
to an optional refinancing pursuant to Section 11.2 of the Participation
Agreement and providing funds for the payment of all reasonable costs and
expenses in connection therewith.
(b) Before any Additional Lessor Notes shall be issued under the
provisions of this Section 2.12, the Owner Lessor shall have delivered to the
Indenture Trustee, not less than fifteen (15) (unless a shorter period shall be
satisfactory to the Indenture Trustee) days nor more than thirty (30) days
prior to the proposed date of issuance of any Additional Lessor Notes, a
request and authorization to issue such Additional Lessor Notes, which request
and authorization shall include the amount of such Additional Lessor Notes, the
proposed date of issuance thereof and (except in connection with a refinancing
of all of the Lessor Notes pursuant to Section 11.2 of the Participation
Agreement) a certification that terms thereof are not inconsistent with this
Indenture. Additional Lessor Notes shall have a designation so as to
distinguish such Additional Lessor Notes from the Initial Lessor Notes
theretofore issued, but otherwise shall rank pari passu with any Lessor Notes
then outstanding, be entitled to the same benefits and security of this
Indenture as the other Lessor 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 final maturity
date of the Initial Lessor Notes issued on the closing date. The Additional
Lessor Notes shall not be subject to (i) purchase except as provided in Section
4.4(e) hereof or (ii) redemption or assumption except as provided in Section
2.10 hereof.
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(c) The terms, conditions and designations of such Additional Lessor
Notes (which shall be consistent with this Indenture), except in the case of a
refinancing of all of the Lessor Notes pursuant to Section 11.2 of the
Participation Agreement) shall be set forth in an indenture supplemental to
this Indenture executed by the Owner Lessor and the Indenture Trustee. Such
Additional Lessor Notes shall be executed as provided in Section 2.3 hereof and
deposited with the Indenture Trustee for authentication, but before such
Additional Lessor Notes shall be authenticated and delivered by the Indenture
Trustee there shall be filed with the Indenture Trustee the following, all of
which shall be dated as of the date of the supplemental indenture:
(i) a copy of such supplemental indenture (which shall include the
form of such Additional Lessor Notes and the certificate of authentication
in respect thereof);
(ii) an Officer's Certificate from the Facility Lessee (1) stating
that no Significant Lease Default or Lease Event of Default has occurred
and is continuing under the Facility Lease, (2) stating that the conditions
in respect of the issuance of such Additional Lessor Notes contained in
this Section 2.12 have been satisfied, (3) specifying the amount of the
costs and expenses relating to the issuance and sale of such Additional
Lessor Notes, (4) stating that payments pursuant to the Facility Lease and
all supplements thereto of Periodic Rent and Termination Value, together
with all other amounts payable 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 Lessor Notes, after taking into account the
issuance of such Additional Lessor Notes and any related redemption of
Lessor Notes theretofore outstanding and (5) all conditions to the
Supplemental Financing or refinancing contained in Section 11.1 or ll.2 of
the Participation Agreement or in any other provision of the Operative
Documents have been satisfied;
(iii) with respect to any Supplemental Financing, an Officer's
Certificate from the Owner Lessor and an Officer's Certificate from the
Lessor Manager stating that no Indenture Default under clauses (b) through
(f) of Section 4.2 hereof or Lease Indenture Event of Default as to the
Owner Lessor or the Lessor Manager, as the case may be, has occurred and is
continuing;
22
(iv) such additional documents, certificates and opinions as shall be
reasonably required by the Indenture Trustee, and as shall be reasonably
acceptable to the Indenture Trustee;
(v) a request and authorization to the Indenture Trustee by the Owner
Lessor 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 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 request and
authorization; and
(vii) an opinion of counsel to the Owner Lessor who shall be
reasonably satisfactory to the Indenture Trustee, as to the authorization,
validity and enforceability of the Additional Lessor Notes and that all
conditions hereunder to the authentication and delivery of such Additional
Lessor Notes have been complied with.
(d) When the documents referred to in the foregoing clauses (i) through
(vii) above shall have been filed with the Indenture Trustee and when the
Additional Lessor Notes described in the above mentioned request and
authorization shall have been executed and authenticated as required by this
Indenture and the related supplemental indenture, the Indenture Trustee shall
deliver such Additional Lessor Notes in the manner described in clause (v)
above, but only upon payment to the Indenture Trustee of the sum or sums
specified in such request and authorization.
Section 2.13. Restrictions of Transfer Resulting from Federal Securities
Laws; Legend. Each Lessor Note shall be delivered to the initial Noteholder
thereof without registration of such Lessor Note under the Securities Act and
without qualification of this Indenture under the Trust Indenture Act of 1939,
as amended. Prior to any transfer of any such Lessor Note, in whole or in part,
to any Person, the Noteholder thereof shall furnish to the Facility Lessee, the
Indenture Trustee and the Owner Lessor an opinion of counsel, which opinion and
which counsel shall be reasonably satisfactory to the 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 Indenture under the Trust Indenture Act of 1939, as
amended, and all Lessor 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 AND MAY
NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT.
Section 2.14. Security for and Parity of Lessor Notes. All Lessor Notes
issued and outstanding hereunder shall rank on a parity with each other and
shall as to each other be secured equally and ratably by this Indenture,
without preference, priority or distinction of any thereof over any other by
reason of difference in time of issuance or otherwise.
Section 2.15. Acceptance of the Indenture Trustee. Each Noteholder, by
its acceptance of a Lessor Note, shall be deemed to have consented to the
appointment of the Indenture Trustee.
SECTION 3.
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM INDENTURE ESTATE
Section 3.1. Distribution of Periodic Rent.
(a) Periodic Rent Distribution. Except as otherwise provided in Section
3.1(c), 3.2, 3.3 or 3.7 of this Indenture, each installment of Periodic Rent
and any payment of Supplemental Rent constituting interest on overdue
installments of Periodic Rent received by the Indenture Trustee shall be
distributed by the Indenture Trustee in the following order of priority:
First, so much of such amounts as shall be required to pay in full the
aggregate principal and accrued interest (as well as any interest on
overdue principal and, to the extent permitted by Applicable Law, on
overdue interest) then due and payable under the Lessor 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 Lessor Note bears to the
aggregate amount of the payments then due and payable under all such
Lessor Notes; and
24
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 Indenture Trustee upon Rent
Default. If, as a result of any failure by the Facility Lessee to pay Periodic
Rent in full on any date when an installment of Periodic Rent is due, there
shall not have been distributed on any date (or within any applicable period of
grace) pursuant to Section 3.1(a) hereof the full amount then distributable
pursuant to clause "First" of Section 3.1(a) of this Indenture, the 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
Indenture Trustee thereafter receives the deficiency in Periodic Rent, the
amount so received shall, unless a Significant Lease Default or Lease Indenture
Event of Default shall have occurred and be continuing, be applied to restore
the amounts held by the Indenture Trustee under Section 3.5 or 3.6 hereof and
distributed pursuant to this Section 3.1(b), as the case may be. The portion of
each such payment made to the Indenture Trustee which is to be distributed by
the Indenture Trustee in payment of Lessor Notes shall be applied in accordance
with Section 2.7 hereof. Any payment received by the 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 Lessor
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 Lessor Notes held by each such Noteholder bears to
the aggregate amount of the payments then due and unpaid on all Lessor 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 Rent or Supplemental 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 Rent or Supplemental 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 Indenture Trustee. If at the time of
receipt by the Indenture Trustee of an installment of Periodic Rent (whether or
not then overdue) or of payment of interest on any overdue installment of
Periodic Rent, there shall have occurred and be continuing a Lease Indenture
Event of Default, the Indenture Trustee shall retain such installment of
Periodic Rent or payment of interest (to the
25
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 Rent or interest pursuant to clause "Second" of
Section 3.1(a) until such time as such Lease Indenture Event of Default shall
be cured or waived or until such time as the Indenture Trustee shall have
received written instructions from a Majority in Interest of Noteholders to
make such a distribution; provided that such amounts must be returned to the
Owner Lessor within six (6) months from the receipt thereof by the Indenture
Trustee unless (i) the Indenture Trustee has declared the unpaid principal of
all Lessor Notes due and payable (or such amounts shall have automatically
become due and payable), pursuant to Section 4.2(a) and the Indenture Trustee
is diligently pursuing any dispossessary remedies available under Section 4.3
hereof (unless such remedies are stayed or prevented by operation of law) 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 Rent shall, subject to clause (ii) of the
immediately preceding sentence, be distributed to the Owner Lessor (to the
extent that all payments to be distributed pursuant to clause "First" of
Section 3.1(a) have been made), and no further withholding of Periodic 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. Any payment received by the Indenture Trustee as a result of (x)
an Event of Loss (other than a Regulatory Event of Loss in respect of which the
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) early termination
of the Facility Lease pursuant to Section 13 thereof (other than a 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, in whole or in part, pursuant
to Section 14 thereof, shall be distributed on the applicable date of
redemption to the extent of available funds, in the following order of
priority:
First, so much of such payments and amounts as shall be required to
reimburse the Indenture Trustee for any unpaid fees for its services under
this Indenture and any expense (including any legal fees and
disbursements) or loss incurred by it (to the extent incurred in
connection with its duties as the Indenture Trustee
26
and to the extent reimbursable and not previously reimbursed) shall be
distributed to the Indenture Trustee for application to itself;
Second, so much of such payments or amounts 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) upon all of the Lessor Notes which shall be distributed
to the holders of such Lessor 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 Lessor Notes held by each
such holder, plus the Make-Whole Amount, 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 Lessor Notes
held by all such holders, together with the Make-Whole Amount, if any,
plus accrued but unpaid interest thereon to 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 Lessor Notes which this Indenture by its
terms secures shall be distributed to such existing or prior holders of
Lessor 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 Indenture Trustee
after a Lease Indenture Event of Default shall have occurred and be continuing
(including any amounts realized by the Indenture Trustee from the exercise of
any remedies pursuant to Section 17 of the Facility Lease or from the
application of Section 4.3 hereof) and after either (a) the Indenture Trustee
has declared the Facility Lease to be in default pursuant to Section 17 thereof
or (b) the entire principal amount of Lessor Notes shall have been declared or
shall automatically have become due and payable, together with all payments or
amounts then held or thereafter received by the Indenture Trustee
27
hereunder, shall, so long as such declaration shall not have been rescinded, be
distributed forthwith by the Indenture Trustee in the following order of
priority:
First, so much of such payments and amounts as shall be required to
reimburse the Indenture Trustee for any unpaid fees for its services under
this Indenture and any expense (including any legal fees and
disbursements) or loss incurred by it (to the extent incurred in
connection with its duties as the Indenture Trustee and to the extent
reimbursable and not previously reimbursed) shall be distributed to the
Indenture Trustee for application to itself;
Second, so much of such payments or amounts as shall be required to pay
the aggregate unpaid principal amount of all Lessor Notes then outstanding
and all accrued but unpaid interest on such Lessor Notes to the date of
such distribution (including interest on overdue principal and, to the
extent permitted by Applicable Law, overdue interest) shall be distributed
to the holders of such Lessor 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 Lessor Notes held by each
such holder 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 Lessor Notes held by all such holders and accrued but
unpaid interest thereon to 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 Lessor Notes which this Indenture by its
terms secures, including the Make-Whole Amount, if any, required to be
paid pursuant to Section 2.10(d) hereof, in respect of such Lessor Notes
required to be paid pursuant to Section 4.3(a) hereof, shall be
distributed to such existing or prior holders of Lessor 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.
28
Section 3.4. Investment of Certain Payments Held by the Indenture
Trustee. Upon the written direction and at the risk and expense of the Owner
Lessor, the Indenture Trustee shall invest and reinvest any moneys held by the
Indenture Trustee pursuant to Section 3.1(c), 3.5 or 3.6 hereof in such
Permitted Investments as may be specified in such direction. The proceeds
received upon the sale or at maturity of any Permitted Investment and any
interest received on such Permitted Investment and any payment in respect of a
deficiency contemplated by the following sentence shall be held as part of the
Indenture Estate and applied by the Indenture Trustee in the same manner as the
moneys used to buy such Permitted Investment, and any Permitted Investment may
be sold (without regard to maturity date) by the Indenture Trustee whenever
necessary to make any payment or distribution required by this Section 3. If
the proceeds received upon the sale or at maturity of any Permitted Investment
(including interest received on such Permitted Investment) shall be less than
the cost thereof (including accrued interest), the Owner Lessor will pay or
cause to be paid to the Indenture Trustee an amount equal to such deficiency.
Section 3.5. Application of Certain Other Payments. Except as otherwise
provided in Section 3.1(b) or 3.1(c) hereof, any payment received by the
Indenture Trustee for which provision as to the application thereof is made in
an Operative Document, but not elsewhere in this Indenture (including payments
received by the Indenture Trustee under the Calpine Guaranty), 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
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
Indenture Trustee shall hold such payment as part of the Indenture Estate, but
the Indenture Trustee shall, except as otherwise provided in Section 3.1(b) or
3.1(c) 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
Indenture Trustee which is payable to the Facility Lessee shall not be held by
the 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:
29
(a) any payment received by the 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 Indenture Trustee
with respect to the Indenture Estate (including 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, Make-Whole Amount, if any,
and interest on all Lessor Notes then outstanding and all other amounts due the
Indenture Trustee or the Noteholders, as well as any other amounts remaining as
part of the Indenture Estate after such payment in full of the principal of,
Make-Whole Amount, if any, and interest on all Lessor Notes outstanding;
shall be distributed forthwith by the Indenture Trustee in the order of
priority set forth in Section 3.3 hereof, omitting clause "Third" thereof.
Section 3.7. Excepted Payments. Notwithstanding any other provision of
this Indenture including this Section 3 or any provision of any of the
Operative Documents to the contrary, any Excepted Payments received or held by
the Indenture Trustee at any time shall promptly be paid or distributed by the
Indenture Trustee to the Person or Persons entitled thereto.
Section 3.8. Distributions to the Owner Lessor. Unless otherwise
directed in writing by the Owner Lessor, all amounts from time to time
distributable by the Indenture Trustee to the Owner Lessor in accordance with
the provisions hereof shall be paid by the Indenture Trustee in immediately
available funds to the Owner Participant's Account. 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 Indenture, until the discharge and
satisfaction of the Lien of this Indenture, all payments due or to become due
under any Assigned Document to the Owner Lessor (except so much of such
payments as constitute Excepted Payments) shall be made directly to the
Indenture Trustee's Account and the Owner Lessor shall give all notices as
shall be required under the Assigned Documents to direct payment of all such
amounts to the Indenture Trustee hereunder. The Owner Lessor agrees that if it
should receive any such payments directed to be made to the Indenture Trustee
or any proceeds for or with respect to the Indenture Estate or as the result of
the sale or other disposition thereof or otherwise constituting a part of the
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to which the Owner Lessor is not entitled hereunder, it will
promptly forward such payments to the Indenture Trustee or in accordance with
the Indenture Trustee's instructions. The 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, any other Assigned
Document or the Facility in the manner provided in Section 2.7 hereof, and this
Section 3.
Section 3.10. Disbursement of Amounts Received by the Indenture Trustee.
Subject to the last sentence of this Section 3.10 and Section 3.2, amounts to
be distributed by the Indenture Trustee pursuant to this Section 3 shall be
distributed on the date such amounts are actually received by the Indenture
Trustee. Notwithstanding anything to the contrary contained in this Section 3,
in the event the Indenture Trustee shall be required or directed to make a
payment under this Section 3 on the same date on which such payment is
received, any amounts received by the Indenture Trustee after 12:00 noon, New
York City time, or on a day other than a Business Day, may be distributed on
the next succeeding Business Day.
Section 3.11 Establishment of the Indenture Trustee's Account; and Lien
and Security Interest; Etc.
(a) The Account Bank hereby confirms that it has established a
securities account entitled the "Indenture Trustee's Account" (the "Indenture
Trustee's Account"), which Indenture Trustee's Account shall be maintained by
the Account Bank until the date this Indenture is terminated pursuant to
Section 7.1 hereof. The account number of the Indenture Trustee's Account
established hereunder is specified in Schedule II hereto. The Indenture
Trustee's Account shall not be evidenced by passbooks or similar writings. This
Indenture governs and shall be the only agreement governing the Indenture
Trustee's Account.
(b) All amounts from time to time held in the Indenture Trustee's
Account shall be maintained (i) in the name of the Owner Lessor subject to the
lien and security interest of the Indenture Trustee for the benefit of the
Indenture Trustee and each of the Noteholders as set forth herein and (ii) in
the custody of the Account Bank for and on behalf of the Indenture Trustee for
the benefit of the Indenture Trustee and each of the Noteholders for the
purposes and on the terms set forth in this Indenture. All such amounts shall
constitute a part of the Indenture Trustee Account Collateral and shall not
constitute payment of any Indebtedness or any other obligation of the Owner
Lessor until applied as hereinafter provided.
31
(c) As collateral security for the prompt payment in full when due of
the Lessor Secured Obligations owed to the Indenture Trustee and each
Noteholder, the Owner Lessor hereby pledges, assigns, hypothecates and
transfers to the Indenture Trustee for the benefit of the Indenture Trustee and
each of the Noteholders, and hereby grants to the Indenture Trustee for the
benefit of the Indenture Trustee and each of the Noteholders, a lien on and
security interest in and to, (i) the Indenture Trustee's Account and any
successor account thereto and (ii) all cash, investments, investment property,
securities or other property at any time on deposit in or credited to the
Indenture Trustee's Account, including all income or gain earned thereon and
any proceeds thereof (the "Indenture Trustee Account Collateral").
Section 3.12 The Account Bank; Limited Rights of the Owner Lessor
(a) The Account Bank.
(i) Establishment of Securities Account. The Account Bank hereby
agrees and confirms that (A) the Account Bank has established the Indenture
Trustee's Account as set forth in Section 3.11, (B) the Indenture Trustee's
Account is and will be maintained as a "securities account" (within the
meaning of Section 8-501(a) of the UCC), (C) the Owner Lessor is the
"entitlement holder" (within the meaning of Section 8-102(a)(7) of the UCC)
in respect of the "financial assets" (within the meaning of Section
8-102(a)(9) of the UCC) credited to the Indenture Trustee's Account, (D)
all property delivered to the Account Bank pursuant to this Indenture or
any other Operative Document will be held by the Account Bank and promptly
credited to the Indenture Trustee's Account by an appropriate entry in its
records in accordance with this Indenture, (E) all "financial assets"
(within the meaning of Section 8-102(a)(9) of the UCC) in registered form
or payable to or to the order of and credited to the Indenture Trustee's
Account shall be registered in the name of, payable to or to the order of,
or indorsed to, the Account Bank or in blank, or credited to another
securities account maintained in the name of the Account Bank, and in no
case will any financial asset credited to the Indenture Trustee's Account
be registered in the name of, payable to or to the order of, or indorsed
to, the Owner Lessor except to the extent the foregoing have been
subsequently indorsed by the Owner Lessor to the Account Bank or in blank,
(F) the Account Bank shall not change the name or account number of the
Indenture Trustee's Account without the prior written consent of the
Indenture Trustee, (G) the Account Bank is acting and shall at all times
act as and perform all of the duties of the "securities intermediary,"
within the meaning of Article 8 of the UCC, with respect to the
32
Indenture Trustee's Account and the financial assets credited thereto and
(H) the Account Bank shall not enter into any other agreement governing,
or with respect to, the Indenture Trustee's Account without the prior
written consent of the Indenture Trustee.
(ii) Financial Assets Election. The Account Bank agrees that each item
of property (including any security, instrument or obligation, share,
participation, interest, cash or cash equivalent or other property
whatsoever) credited to the Indenture Trustee's Account shall be treated as
a "financial asset" within the meaning of Section 8-l02(a)(9) of the UCC.
(iii) Entitlement Orders. Notwithstanding anything in this Indenture
to the contrary, if at any time the Account Bank shall receive any
"entitlement order" (within the meaning of Section 8-102(a)(8) of the UCC)
or any other order from the Indenture Trustee directing the transfer or
redemption of any financial asset relating to the Indenture Trustee's
Account or with respect to any "security entitlements" (within the meaning
of Section 8-102(a)(17) of the UCC) carried or to be carried in the
Indenture Trustee's Account, the Account Bank shall comply with such
entitlement order or other order without further consent by the Owner
Lessor or any other Person. The parties hereto hereby agree that the
Indenture Trustee shall have "control" (within the meaning of Section
8-106(d) of the UCC) of (A) the Indenture Trustee's Account, (B) all
security entitlements carried or to be carried in the Indenture Trustee's
Account and (C) the Owner Lessor's security entitlements with respect to
the financial assets credited to the Indenture Trustee's Account and the
Owner Lessor hereby disclaims any entitlement to claim "control" of such
"security entitlements". Unless a Lease Indenture Event of Default shall
have occurred and is continuing, the Indenture Trustee shall not deliver
any entitlement order directing the transfer or redemption of any financial
asset relating to the Indenture Trustee's Account.
(iv) Subordination of Lien; Waiver of Set-Off. In the event that the
Account Bank has or subsequently obtains by agreement, operation of law or
otherwise a lien or security interest in the Indenture Trustee's Account or
any security entitlement credited thereto, the Account Bank agrees that
such lien or security interest shall be subordinate to the lien and
security interest of the Indenture Trustee for the benefit of the Indenture
Trustee and each Noteholder. The financial assets standing to the credit of
the Indenture Trustee's Account will not be subject to deduction, set-off,
banker's lien, or any other right in favor
33
of any Person other than the Indenture Trustee for the benefit of the
Indenture Trustee and each Noteholder (except for the face amount of any
checks which have been credited to the Indenture Trustee's Account but are
subsequently returned unpaid because of uncollected or insufficient
funds).
(v) No Other Agreements. The Account Bank and the Owner Lessor have
not entered into any agreement governing or with respect to the Indenture
Trustee's Account or any financial assets credited to the Indenture
Trustee's Account other than this Indenture. The Account Bank has not
entered into any agreement with the Owner Lessor or any other Person
purporting to limit or condition the obligation of the Account Bank to
comply with entitlement orders originated by the Indenture Trustee in
accordance with Section 3.12(a)(iii) hereof. In the event of any conflict
between this Section 3.12 or any other agreement now existing or hereafter
entered into, the terms of this Section 3.12 shall prevail.
(vi) Notice of Adverse Claims. Except for the claims and interest of
the Indenture Trustee for the benefit of the Indenture Trustee and each
Noteholder and the Owner Lessor in the Indenture Trustee's Account, the
Account Bank does not know of any claim to, or interest in, the Indenture
Trustee's Account or in any financial asset credited thereto. If any Person
asserts any lien, encumbrance or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process)
against the Indenture Trustee's Account or in any financial asset credited
thereto, the Account Bank will promptly notify the Indenture Trustee and
the Owner Lessor in writing thereof.
(vii) Rights and Powers of the Indenture Trustee. The rights and
powers granted by the Indenture Trustee to the Account Bank have been
granted in order to perfect its lien and security interests in the
Indenture Trustee's Account, are powers coupled with an interest and will
neither be affected by the bankruptcy of the Owner Lessor nor the lapse of
time.
(b) Limited Rights of the Owner Lessor. The Owner Lessor shall not have
any rights against or to monies held in the Indenture Trustee's Account, as
third party beneficiary or otherwise, or any right to direct the Account Bank
or the Indenture Trustee to apply or transfer monies in the Indenture Trustee's
Account, except the right to receive or make requisitions of monies held in the
Indenture Trustee's Account, as expressly provided in this Indenture, and to
direct the investment of monies held in the
34
Indenture Trustee's Account as expressly provided in Section 3.7 hereof. Except
as expressly provided in this Indenture, in no event shall any amounts or
Permitted Investments deposited in or credited to the Indenture Trustee's
Account be registered in the name of the Owner Lessor, payable to the order of
the Owner Lessor or specially indorsed to the Owner Lessor except to the extent
that the foregoing have been specially indorsed to the Indenture Trustee or in
blank.
SECTION 4.
COVENANTS OF OWNER LESSOR; DEFAULTS;
REMEDIES OF INDENTURE TRUSTEE
Section 4.1. Covenants of Owner Lessor. The Owner Lessor hereby
covenants and agrees as follows:
(a) the Owner Lessor will duly and punctually pay the principal of,
Make-Whole Amount, if any, and interest on and other amounts due under the
Lessor Notes and hereunder in accordance with the terms of the Lessor Notes and
this Indenture and all amounts payable by it to the Noteholders under the
Participation Agreement; and
(b) the Owner Lessor will not, except as provided in this Indenture
(including Sections 4.4, 5.6, 8.1 and 8.2) and except as to Excepted Payments
(i) enter into any agreement amending, modifying or supplementing any of the
Assigned Documents, or 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 arising under, any
of the Assigned Documents, except that it may forward any payment to the
Indenture Trustee in accordance with Section 3.9, (iii) give any notice or
exercise any right or take any action under any of the Assigned Documents, or
(iv) submit or consent to the submission of any dispute, difference or other
matter arising under or in respect of any of the Assigned Documents to
arbitration thereunder.
Section 4.2. Lease Indenture Events of Default. Subject to Section 4.4
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 court or any order, rule or
regulation of any administrative or governmental body):
35
(a) any Lease Event of Default (other than the failure of the Facility
Lessee to pay any amount which shall constitute an Excepted Payment unless the
Facility Lessee has been declared in default pursuant to Section 17 thereof by
the Owner Lessor and the Indenture Trustee has consented to such event
constituting a Lease Indenture Event of Default pursuant to Section 4.3(e)
hereof) and other than 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, (i) such Lease Event of Default is waived by
the Owner Lessor and the Owner Participant and (ii) the insurance maintained by
the Facility Lessee still constitutes Prudent Industry Practice); or
(b) the Owner Lessor shall fail to make any payment in respect of the
principal of, or Make-Whole Amount, if any, or interest on, or any scheduled
fees due and payable under or with respect to any Lessor Note within five
Business Days after the same shall have become due or any other amounts due and
payable under or with respect to any Lessor Note within ten Business Days after
the Owner Lessor receives notice that such amount is due and payable; 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 Indenture
(other than any covenant, obligation or agreement contained in clause (b) of
this Section 4.2), the Owner Lessor or the Lessor Manager shall fail to perform
or observe any covenant, obligation or agreement to be performed by it under
Section 6 of the Participation Agreement, the Owner Participant shall fail to
perform or observe any covenant, obligation or agreement to be performed by it
under Section 7 of the Participation Agreement, or the OP Guarantor shall fail
to perform or observe any covenant, obligation or agreement to be performed by
it under the OP Guaranty in each case, in any material respect, which failure
shall continue unremedied for 30 days after receipt by such party of written
notice thereof; provided, however, that if such condition cannot be remedied
within such 30-day period, then the period within which to remedy such
condition shall be extended up to 180 days, so long as such party diligently
pursues such remedy and such condition is reasonably capable of being remedied
within such extended period;
(d) any representation or warranty made by the Lessor Manager or the
Owner Lessor in Section 3.2 or 3.3 of the Participation Agreement or in the
certificate delivered by the Lessor Manager or the Owner Lessor at the Closing
pursuant to Section 4.6 of the Participation Agreement or any representation or
warranty made by the Owner Participant in Section 3.4 of the Participation
Agreement (other than Section 3.4(i)) or the certificate delivered by the Owner
Participant at the Closing
36
pursuant to Section 4.6 of the Participation Agreement, or any representation
or warranty made by the OP Guarantor (provided the OP Guaranty shall not have
been terminated or released) under the OP Guaranty or in the certificate
delivered by such OP Guarantor at the Closing pursuant to Section 4.6 of the
Participation Agreement, shall prove to have been incorrect in any material
respect when made and continues to be material and unremedied for a period of
30 days after receipt by such party of written notice thereof; provided,
however, that if such condition cannot be remedied within such 30-day period,
then the period within which to remedy such condition shall be extended up to
an additional 120 days, so long as such party diligently pursues such remedy
and such condition is reasonably capable of being remedied within such extended
period;
(e) the Owner Participant, the Owner Lessor or the OP Guarantor
(provided the OP Guaranty shall not have been terminated or released) shall (i)
commence a voluntary case or other proceeding seeking relief under Title 11 of
the Bankruptcy Code or liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or apply for or consent to the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or (ii) consent to, or fail to controvert in
a timely manner, any such relief or the appointment of or taking possession by
any such official in any voluntary case or other proceeding commenced against
it, or (iii) file an answer admitting the material allegations of a petition
filed against it in any such proceeding; or (iv) make a general assignment for
the benefit of creditors; or (v) become unable, admit in writing its inability
or fail generally to pay its debts as they become due; or (vi) take corporate
action for the purpose of effecting any of the foregoing; 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
Guaranty shall not have been terminated or released) seeking (i) liquidation,
reorganization or other relief with respect to it or its debts under Title 11
of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now
or hereafter in effect, or (ii) the appointment of a trustee, receiver,
liquidator, custodian or other similar official with respect to it or any
substantial part of its property or (iii) the winding-up or liquidation of the
Owner Lessor; and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days.
Section 4.3. Remedies of the Indenture Trustee.
(a) In the event that a Lease Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee in its discretion may, or
upon receipt of written
37
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 Lessor Notes, with accrued interest thereon, to be
immediately due and payable, upon which declaration such principal amount and
such accrued interest shall immediately become due and payable (except in the
case of a Lease Indenture Event of Default under Section 4.2(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 any Make-Whole amount is due and payable pursuant to Section 2.10 (c)
or (d) at the time of any such acceleration, such Make-Whole Amount shall also
be due and payable in connection with such acceleration.
(b) If a Lease Indenture Event of Default shall have occurred and be
continuing, then and in every such case, the 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, subject to Section 4.4, 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 available to a secured party under the Uniform
Commercial Code or any other provision of Applicable Law. The Indenture Trustee
may proceed to enforce the rights of the Indenture Trustee and of the
Noteholders by directing payment to it of all moneys payable under any
agreement or undertaking constituting a part of the Indenture Estate, by
proceedings in any court of competent jurisdiction to recover damages for the
breach hereof or for the appointment of a receiver or for sale of all or any
part of the Property Interest or for foreclosure of the Property 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
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
38
such price or prices and on such terms as the Indenture Trustee, in its
unfettered discretion, may determine, or as may be required by law, so long as
the Owner Participant and the Owner Lessor are afforded a commercially
reasonable opportunity to bid for all or such part of the Indenture Estate in
connection therewith unless Section 4.7 shall otherwise be applicable; provided
that 20 days shall be deemed to be a commercially reasonable opportunity to bid
for purposes of this Section 4.3(b). The Indenture Trustee may file such proofs
of claim and other papers or documents as may be necessary or advisable in
order to have the claims of the Indenture Trustee and of the Noteholders
asserted or upheld in any bankruptcy, receivership or other judicial
proceedings.
(c) All rights of action and rights to assert claims under this
Indenture or under any of the Lessor Notes may be enforced by the Indenture
Trustee without the possession of the Lessor Notes at any trial or other
proceedings instituted by the Indenture Trustee, and any such trial or other
proceedings shall be brought in its own name as mortgagee of an express trust,
and any recovery or judgment shall be for the ratable benefit of the
Noteholders as herein provided. In any proceedings brought by the Indenture
Trustee (and also any proceedings involving the interpretation of any provision
of this Indenture), the Indenture Trustee shall be held to represent all the
Noteholders, and it shall not be necessary to make any such Persons parties to
such proceedings.
(d) Anything herein to the contrary notwithstanding, neither the
Indenture Trustee nor any Noteholder shall at any time, including at any time
when 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 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 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 its leasehold interest in the Undivided Interest and is
using good faith efforts in the exercise of such remedies (and not merely
asserting a right or claim to do so); provided that during any period that the
Indenture Trustee is stayed or otherwise prevented by operation of law from
exercising such remedies, the Indenture Trustee will not divest the Owner
Lessor of title to any portion of the Indenture Estate until the earlier of (a)
the expiration of the 180-
39
day period following the date of commencement of a stay or other prevention or
(b) the date of repossession of the Facility under the applicable Facility
Lease.
(e) Any provisions of the Facility Lease or this 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 Indenture Trustee, to demand,
collect, ▇▇▇ 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 Indenture Trustee).
Section 4.4. Right to Cure Certain Lease Events of Default.
(a) If the Facility Lessee shall fail to make any payment of Periodic
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 Rent shall
not constitute the fourth consecutive such failure or the eighth cumulative
failure of the Facility Lessee, then the Owner Lessor may (but need not) pay to
the 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 Indenture Trustee or have Actual Knowledge of the failure of
the Facility Lessee to make such payment of Periodic Rent, an amount equal to
the principal of, Make-Whole Amount, if any, and interest on the Lessor 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 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 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 on the date such
Supplemental Rent was payable, together with any interest due thereon on
account of the delayed payment thereof, or perform such obligation at any time
prior to the expiration of ten (10) Business Days after the Owner Lessor or the
Owner Participant shall have received notice or have Actual Knowledge of the
occurrence of such failure, and such payment or performance by the
40
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 4.4 to cure the Facility Lessee's failure to pay Periodic
Rent or Supplemental 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 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 costs and
expenses incurred in connection with such payments and performance thereof
together with interest thereon and so long as no event which would, with the
passing of time or giving of notice or both, become a Lease Indenture Event of
Default under Section 4.2(b), (e) or (f), or any Lease Indenture Event of
Default hereunder shall have occurred and be continuing) be subrogated to the
rights of the Indenture Trustee and the Noteholders to receive the payment of
Periodic Rent or Supplemental Rent, as the case may be, with respect to which
the Owner Lessor made such payment and interest on account of such Periodic
Rent payment or Supplemental Rent payment being overdue in the manner set forth
in the next two sentences. If the Indenture Trustee shall thereafter receive
such payment of Periodic Rent, Supplemental Rent or such interest, the
Indenture Trustee shall, notwithstanding the requirements of Section 3.1
hereof, forthwith, remit such payment of Periodic Rent or Supplemental Rent, as
the case may be (to the extent of the payment made by the Owner Lessor pursuant
to this Section 4.4) and such interest to the Owner Lessor in reimbursement for
the funds so advanced by it, provided that if (A) any event which, with the
passing of time or giving of notice or both, would become a Lease Indenture
Event of Default under Section 4.2(b), (e) or (f) hereof, or any Lease
Indenture Event of Default hereunder shall have occurred and be continuing or
(B) any payment of principal, interest, or Make-Whole Amount, if any, on any
Lessor Note then shall be overdue, such payment shall not be remitted to the
Owner Lessor but shall be held by the 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 4.4 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
41
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 Indenture Trustee, from the Indenture
Trustee to the extent of funds actually received by the Indenture Trustee.
(d) Until the expiration of the period during which the Owner Lessor or
the Owner Participant shall be entitled to exercise rights under paragraph (a)
or (b) of this Section 4.4 with respect to any failure by the Facility Lessee
referred to therein, neither the Indenture Trustee nor any Noteholder shall
take or commence any action it would otherwise be entitled to take or commence
as a result of such failure by the Facility Lessee, whether under this Section
4 or Section 17 of the Facility Leases or otherwise.
(e) Each Noteholder agrees, by acceptance thereof, that if (i) (x) 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 90 days
without the Lessor Notes having been accelerated or the Indenture Trustee
having exercised any remedy under the Facility Lease intended to dispossess the
Facility Lessee of the Facility, (y) the Lessor Notes have been accelerated
pursuant to Section 4.3(a) and such acceleration has not theretofore been
rescinded, or (z) an Enforcement Notice giving notice of the intent of the
Indenture Trustee to dispossess the Facility Lessee of the Facility under the
Facility Lease 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 4.2 hereof shall have occurred and be
continuing and (iii) the Owner Lessor shall give written notice to the
Indenture Trustee of the Owner Lessor's intention to purchase all of the Lessor
Notes in accordance with this paragraph, then, upon receipt within 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 Lessor Notes then held
by the Noteholders, together with accrued but unpaid interest thereon to the
date of such receipt (as well as any interest on overdue principal and, to the
extent permitted by Applicable Law, overdue interest), plus (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 Make-Whole Amount, such Noteholder will
forthwith (and upon its receipt of the payment referred to in clause (1) below,
will be deemed to) sell, assign, transfer and convey to the Owner Lessor
(without recourse or warranty of any kind other than of title to the Lessor
Notes so conveyed) all of the right, title and interest of such Noteholder in
and to the Indenture Estate, this Indenture, all Lessor Notes held by such
Noteholder and the
42
Assigned Documents, and the Owner Lessor shall thereupon assume all such
Noteholder's rights and obligations in such documents; provided, that no such
holder shall be required to so convey unless (1) the Owner Lessor shall have
simultaneously tendered payment on all other Lessor Notes issued by the Owner
Lessor at the time outstanding pursuant to this paragraph and (2) such
conveyance is not in violation of any Applicable Law. All charges and expenses
required to be paid in connection with the issuance of any new Lessor Note or
Lessor Notes in connection with this paragraph shall be borne by the Owner
Lessor. Notwithstanding the foregoing, the Owner Lessor may exercise the right
set forth in this clause (e) prior to the end of the 90 day period set forth
above but, in such case, the Make-Whole Amount, if any, shall also be payable.
Section 4.5. Rescission of Acceleration. If at any time after the
outstanding principal amount of the Lessor Notes shall have become due and
payable by acceleration pursuant to Section 4.3 hereof, (a) all amounts of
principal, Make-Whole Amount, if any, and interest which are then due and
payable in respect of all the Lessor Notes other than pursuant to Section 4.3
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 Lessor Notes, and an amount sufficient to
cover all costs and expenses of collection incurred by or on behalf of the
holders of the Lessor Notes (including counsel fees and expenses and all
expenses and reasonable compensation of the 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 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 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 4.6. Return of Indenture Estate, Etc.
(a) If at any time the Indenture Trustee has the right to take
possession of the Indenture Estate pursuant to Section 4.3 hereof, at the
request of the Indenture Trustee, the Owner Lessor promptly shall (i) execute
and deliver to the Indenture Trustee such instruments of title and other
documents and (ii) make all such demands and give all such notices as are
permitted by the terms of the 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 Indenture Trustee may deem necessary or advisable to enable the
43
Indenture Trustee or an agent or representative designated by the Indenture
Trustee, at such time or times and place or places as the Indenture Trustee may
specify, to obtain possession of all or any part of the Indenture Estate the
possession of which the Indenture Trustee shall at the time be entitled to
hereunder. If the Owner Lessor shall for any reason fail to execute and deliver
such instruments and documents after such request by the Indenture Trustee, the
Indenture Trustee may (i) obtain a judgment conferring on the Indenture Trustee
the right to immediate possession and requiring the Owner Lessor to execute and
deliver such instruments and documents to the Indenture Trustee, to the entry
of which judgment the Owner Lessor hereby specifically consents, and (ii)
pursue all or any part of the Indenture Estate wherever it may be found and
enter any of the premises wherever all or part of the Indenture Estate may be
or is supposed to be and search for all or part of the Indenture Estate and
take possession of and remove all or part of the Indenture Estate.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, as a charge against proceeds of the Indenture Estate, make
all such expenditures with respect to the Indenture Estate as it may deem
proper. In each such case, the Indenture Trustee shall have the right to deal
with the Indenture Estate and to carry on the business and exercise all rights
and powers of the Owner Lessor relating to the Indenture Estate, as the
Indenture Trustee shall deem best, and, the Indenture Trustee shall be entitled
to collect and receive all rents (including Periodic Rent and Supplemental
Rent), revenues, issues, income, products and profits of the Indenture Estate
and every part thereof (without prejudice to the right of the Indenture Trustee
under any provision of this Indenture to collect and receive cash held by, or
required to be deposited with, the Indenture Trustee hereunder) and to apply
the same to the management of or otherwise dealing with the Indenture Estate
and of conducting the business thereof, and of all expenditures with respect to
the Indenture Estate and the making of all payments which the Indenture Trustee
may be required or may elect to make, if any, for taxes, assessments, insurance
or other proper charges upon the Indenture Estate or any part thereof
(including the employment of engineers and accountants to examine, inspect and
make reports upon the properties and books and records of the Owner Lessor and
the Facility Lessee relating to the Indenture Estate and the Operative
Documents), or under any provision of, this Indenture, as well as just and
reasonable compensation for the services of the Indenture Trustee and of all
Persons properly engaged and employed by the Indenture Trustee.
Section 4.7. Power of Sale and Other Remedies. In addition to all other
remedies provided for herein if a Lease Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee shall, subject to Sections
4.3 and 4.4, have the
44
right to foreclose this Indenture and to have a judicial sale of the Indenture
Estate or any part of the Indenture Estate as the Indenture Trustee shall
determine, in its sole discretion, with any such sale(s) to be under the
judgment or decree of a court of competent jurisdiction. Further, if a Lease
Indenture Event of Default shall have occurred and be continuing, the Indenture
Trustee may, in addition to and not in abrogation of other rights and remedies
provided in this Section, 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 Lessor
Notes or the performance of any term, covenant, condition or agreement of this
Indenture or any other right, and (ii) to pursue any other remedy available to
it, all as the Indenture Trustee shall determine most effectual for such
purposes. Upon any foreclosure sale, the Indenture Trustee may bid for and
purchase the Indenture Estate and shall be entitled to apply all or any part of
the Secured 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 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 Indenture Trustee, at the Indenture
Trustee's option, is authorized to foreclose this Indenture subject to the
rights of any tenants of the Indenture Estate, and the failure to make any such
tenants parties to any such foreclosure proceedings and to foreclose their
rights will not be, nor be asserted to be by the Owner Lessor, a defense to any
proceedings instituted by the Indenture Trustee to collect the Secured
Indebtedness.
Section 4.8. Appointment of Receiver. If the outstanding principal
amount of the Lessor Notes shall have been declared due and payable pursuant to
Section 4.3 hereof, as a matter of right, the Indenture Trustee shall be
entitled to the appointment of a receiver (who may be the Indenture Trustee or
any successor or nominee thereof) for all or any part of the Indenture Estate,
whether such receivership be incidental to a proposed sale of the Indenture
Estate or the taking of possession thereof or otherwise, and the Owner 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 Indenture Trustee.
Section 4.9. Remedies Cumulative. Each and every right, power and remedy
herein specifically given to the Indenture Trustee or otherwise in this
Indenture shall be cumulative and shall be in addition to every other right,
power and remedy herein specifically given or now or hereafter existing at law,
in equity or by statute, and each
45
and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee, and the exercise or
the beginning of the exercise of any right, power or remedy shall not be
construed to be a waiver of the right to exercise at the same time or
thereafter any other right, power or remedy. No delay or omission by the
Indenture Trustee in the exercise of any right, remedy or power or in the
pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Participant,
the Owner Lessor or the Facility Lessee or to be an acquiescence therein.
Section 4.10. 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 Applicable 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 Lessor 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, 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; provided that
this shall not affect or reduce Owner Lessor's rights under Sections 4.3 and
4.4 hereof. Owner Lessor agrees for itself, its successors and assigns, that
the acceptance, before the expiration of the right of redemption and after the
commencement of foreclosure proceedings of this Indenture, of insurance
proceeds, eminent domain awards, rents or anything else of value to be applied
on or to the Secured Indebtedness by Indenture Trustee or any person or party
holding under it shall not constitute a waiver of such foreclosure. This
agreement by Owner Lessor is intended to apply to the acceptance and such
application of any such proceeds, awards, rents and other sums or anything else
of value whether the same shall be accepted from, or for the account of, Owner
Lessor or from any other source whatsoever by Indenture Trustee or by any
person or party holding under Indenture
46
Trustee at any time or times in the future while any of the obligations secured
hereby shall remain outstanding.
Section 4.11. Discontinuance of Proceedings. In case the Indenture
Trustee or any Noteholder shall have proceeded to enforce any right, power or
remedy under this Indenture by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Indenture Trustee or the Noteholder, then
and in every such case the Owner Lessor, the 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
Indenture Trustee or the Noteholder shall continue as if no such proceedings
had taken place.
Section 4.12. 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 no Lease Event of Default under the Facility Lease shall
have been declared (or deemed to have been declared), the Indenture Trustee and
the Noteholders shall be subject to the Facility Lessee's rights under the
Facility Lease, and neither the Indenture Trustee nor any Noteholders shall
take or cause to be taken any action contrary to the right of the Facility
Lessee, including its rights to quiet use and possession of the Facility.
Section 4.13. Right of the 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 Assigned Documents, or if
the Owner Lessor shall fail to release any Lien affecting the Indenture Estate
which it is required to release by the terms of this Indenture or the
Participation Agreement or the LLC Agreement, the 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, and, except as
provided in the last sentence hereof, shall incur no liability in connection
therewith) 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, or the Facility for such purpose) as may be necessary or appropriate
therefor. No such entry shall be deemed an eviction. All sums so paid by the
Indenture Trustee and all costs and expenses (including legal fees and
expenses) so incurred, together with interest thereon from the date of payment
or incurrence, shall constitute additional indebtedness secured by this
Indenture and shall be paid from the Indenture Estate to the Indenture Trustee
on demand. The Indenture Trustee shall not be liable for any damages resulting
from
47
any such payment or action unless such damages shall be a consequence of
willful misconduct or gross negligence on the part of the Indenture Trustee.
Section 4.14. 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 Indenture Trustee for
the purpose of fully carrying out and effectuating this Indenture and the
intent hereof.
Section 4.15. Waiver of Past Defaults. Any past Lease Indenture Event of
Default and its consequences may be waived by the Indenture Trustee or a
Majority in Interest of Noteholders, except a Lease Indenture Event of Default
(i) in the payment of the principal of, Make-Whole Amount, if any, and or
interest on any Lessor 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 8.1 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 Indenture; but no such waiver shall extend to
any subsequent or other Lease Indenture Event of Default or impair any right
consequent thereon.
SECTION 5.
DUTIES OF INDENTURE TRUSTEE;
CERTAIN RIGHTS AND DUTIES OF OWNER LESSOR
Section 5.1. Notice of Action Upon Lease Indenture Event of Default.
The 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 Indenture Trustee has Actual Knowledge and will give the Facility
Lessee and the Owner Participant not less than 30 days' prior written notice of
the date on or after which the Indenture Trustee intends to exercise remedies
under Section 4.3 (an "Enforcement Notice"), which notice may be given
contemporaneously with any notice contemplated by Section 4.3(a) or 4.3(b). The
Indenture Trustee shall take such action, or refrain from taking such action,
as the Majority in Interest of Noteholders shall instruct in writing.
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 Indenture
Trustee shall take such action, or refrain from taking such action, including
any of the following actions as may
48
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 Indenture Trustee.
The Indenture Trustee may, and upon written instructions from a Majority in
Interest of Noteholders, the Indenture Trustee shall, execute and file or cause
to be executed and filed any 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
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 Indenture, to the extent otherwise entitled to do so and as shall be
specified in such instructions.
Section 5.3. Action Upon Payment of Lessor Notes or Termination of
Facility Lease. Subject to the terms of Section 5.4 hereof, upon payment in
full of the principal of and interest on all Lessor Notes then outstanding and
all other amounts then due all Noteholders hereunder, and all other sums
secured hereby or otherwise required to be paid hereunder, under the
Participation Agreement and under the Facility Lease, the Indenture Trustee
shall execute and deliver to, or as directed in writing by, the Owner Lessor
and the Facility Lessee an appropriate instrument in due form for recording,
releasing the Indenture Estate from the Lien of this Indenture. Nothing in this
Section 5.3 shall be deemed to expand the instances in which the Owner Lessor
is entitled to prepay the Lessor Notes.
Section 5.4. Compensation of the Indenture Trustee; Indemnification.
(a) The Owner Lessor will from time to time, on demand, pay to the
Indenture Trustee such compensation for its services hereunder as shall be
agreed to by the Owner Lessor and the Indenture Trustee, or, in the absence of
agreement, reasonable compensation for such services (which compensation shall
include reasonable fees and expenses of its outside counsel and shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust), and the Indenture Trustee agrees that it shall have no right
against the Noteholders or, except as provided in Section 3 and Section 4.3
hereof or this Section 5, the Indenture Estate, for any fee as compensation for
its services hereunder.
49
(b) The Indenture Trustee shall not be required to take any action or
refrain from taking any action under Section 4, 5.2 or 9.1 hereof unless it and
any of its directors, officers, employees or agents shall have been indemnified
in manner and form satisfactory to the Indenture Trustee. The Indenture Trustee
shall not be required to take any action under Section 4 or Section 5.2, 5.3 or
9.1 hereof, nor shall any other provision of this Indenture be deemed to impose
a duty on the Indenture Trustee to take any action, if it shall have been
advised by counsel (who shall not be an employee of the Indenture Trustee) that
such action is contrary to the terms hereof or is otherwise contrary to
Applicable Law or (unless it shall have been indemnified in manner and form
satisfactory to the Indenture Trustee) may result in personal liability to the
Indenture Trustee.
Section 5.5. No Duties Except as Specified; No Action Except Under
Facility Lease, Indenture or Instructions.
(a) The 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 Indenture or the other Assigned Documents except as
expressly provided by the terms of this Indenture or as expressly provided in
written instructions from a Majority in Interest of Noteholders in accordance
with Section 5.2 hereof; and no implied duties or obligations shall be read
into this Indenture against the Indenture Trustee.
(b) The Indenture Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Indenture Estate except (a) as
required by the terms of the Facility Lease, to the extent applicable to the
Indenture Trustee as assignee of the Owner Lessor, (b) in accordance with the
powers granted to, or the authority conferred upon, the Indenture Trustee
pursuant to this Indenture or 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 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
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
50
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 except as expressly provided in this Section
5.6; (ii) retain all rights with respect to insurance that Section 11 of the
Facility Lease and Schedule 5.31 of the Participation Agreement 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 conforms to Prudent Industry Practice; (iii) retain all rights to adjust
Periodic Rent and Termination Value as provided in Section 3.4 of the Facility
Lease, Section 12 of the Participation Agreement or the Tax Indemnity
Agreement; provided, however, that after giving effect to any such adjustment
(x) the amount of Periodic 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 Lessor 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 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 Lessor Notes outstanding on
and as of such date of payment; (iv) 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, or any Renewal
Lease Term; and (v) retain the right to declare the Facility Lease to be in
default with respect to any Excepted Payment pursuant to Section 17 of the
Facility Lease.
(b) The Owner Lessor shall have the right, together with or
independently of the Indenture Trustee, (i) to receive from the Facility Lessee
and the Guarantor 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 provide such
insurance as may be permitted by Section 11 of the Facility Lease; (iv) to
provide notices to the Facility Lessee or the Guarantor to the extent otherwise
permitted by the Operative Documents; and (v) to perform for the Facility
Lessee as provided in Section 20 of the Facility Lease.
(c) So long as the Lessor Notes have not been accelerated pursuant to
Section 4.3(a) hereof (or, if accelerated, such acceleration has theretofore
been rescinded) or the Indenture Trustee shall not have exercised any of its
rights pursuant
51
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 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 Indenture Trustee
stating that such rights shall no longer be retained by the Owner Lessor;
(d) Except as expressly provided in this Section 5.6, so long as the
Lessor Notes have not been accelerated pursuant to Section 4.3(a) hereof (or,
if accelerated, such acceleration has theretofore been rescinded) or the
Indenture Trustee shall not have exercised any of its rights pursuant to
Section 4 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 Indenture Trustee, (i) to exercise
the rights with respect to the Facility Lessee's use and operation,
modification or maintenance of the Undivided Interest, (ii) to exercise the
Owner Lessor's right under Section 13.1 of the Participation Agreement to
withhold or grant its consent to an assignment by the Facility Lessee of its
rights under the Facility Lease, and (iii) to exercise the rights of the Owner
Lessor under Section 10.3 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 exercise such rights under this clause (iii) upon
notice from the Indenture Trustee stating that such rights shall no longer be
retained by the Owner Lessor; provided further, however, that (A) the Owner
Lessor shall have no right to receive any Periodic 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 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
Indenture Trustee or any Noteholder on the one hand or the Owner Lessor or the
Owner Participant on the other hand;
(e) So long as the Lessor Notes have not been accelerated pursuant to
Section 4.3(a) hereof and the 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, together with the Indenture Trustee and to the
extent permitted by the Operative Documents and Applicable Law, to seek
specific performance of the covenants of the
52
Facility Lessee under the Operative Documents relating to the protection,
insurance, maintenance, possession, use and return of the Property Interest; and
(f) Nothing in this Indenture shall give to, or create in, or otherwise
provide the benefit of to, the Indenture Trustee, any rights of the Owner
Participant under or pursuant to the Tax Indemnity Agreement or any other
Operative Document and nothing in this Section 5.6 or elsewhere in this
Indenture shall give to the Owner Lessor the right to exercise any rights
specifically given to the Indenture Trustee pursuant to any Operative Document;
and nothing in this Indenture shall give to, or create in, the Indenture
Trustee the right to, and the Indenture Trustee shall not, release the
Guarantor of its obligations under the Calpine Guaranty in respect of payment
of the Equity Portion of Termination Value, unpaid amounts of the Equity
Portion of Periodic Rent (and all amounts of overdue interest relating to such
amount) and other amounts constituting Excepted Payments, unless such release
results in payment in full to the Owner Lessor of all such unpaid amounts as
certified to the Indenture Trustee by the Owner Lessor, and all claims of the
Noteholders;
but nothing in clauses (a) through (f) above shall deprive the Indenture
Trustee of the exclusive right, so long as this Indenture shall be in effect,
to declare the Facility Lease to be in default under Section 16 thereof and
thereafter to exercise the remedies pursuant to Section 17 of the Facility
Lease (except as expressly set forth in the proviso of Section 5.6(b)).
Section 5.7. Restrictions on Dealing with Indenture Estate. Except as
provided in the Operative Documents, but subject to the terms of this
Indenture, the Owner Lessor shall not use, operate, store, lease, control,
manage, sell, dispose of or otherwise deal with the Facility, the Facility
Site, any part of the Facility Site or any other part of the Indenture Estate.
Section 5.8. Filing of Financing Statements and Continuation Statements.
Pursuant to Section 5.10 of the Participation Agreement, the Facility Lessee
has covenanted to maintain the priority of the Lien of this Indenture on the
Indenture Estate. The Indenture Trustee shall, at the written request and
expense of the Facility Lessee, as provided in the Participation Agreement,
execute and deliver to the Facility Lessee and the Facility Lessee will file,
if not already filed, such financing statements or other documents and such
continuation statements or other documents with respect to financing statements
or other documents previously filed relating to the Lien created by this
Indenture in the Indenture Estate as may be supplied to the Indenture Trustee
by the Facility Lessee. At any time and from time to time, upon the request of
the Facility
53
Lessee or the Indenture Trustee, 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 or the Indenture Trustee may request in
obtaining the full benefits of the security interest and assignment created or
intended to be created hereby and of the rights and powers herein granted. Upon
the reasonable instructions (which instructions shall be accompanied by the
form of document to be filed) at any time and from time to time of the Facility
Lessee or the 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 Indenture as may be specified in such
instructions. In addition, the 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 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). Neither the Indenture Trustee nor,
except as otherwise herein expressly provided, the Owner Lessor shall have
responsibility for the protection, perfection or preservation of the Lien
created by this Indenture.
SECTION 6.
INDENTURE TRUSTEE AND OWNER LESSOR
Section 6.1. Acceptance of Trusts and Duties. The Indenture Trustee
accepts the trusts hereby created and applicable to it and agrees to perform
the same but only upon the terms of this Indenture, and agrees to receive and
disburse all moneys constituting part of the Indenture Estate in accordance
with the provisions hereof. If any Lease Indenture Event of Default shall have
occurred and be continuing, the 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 Indenture and shall at all times use the same degree of
care in their exercise as a prudent person would exercise or use in the
circumstances in the conduct of its own affairs. The Indenture Trustee shall
not be liable under any circumstances, except (a) for its own negligence or
willful misconduct, (b) in the case of any inaccuracy of any representation or
warranty of the Indenture Trustee or the Lease Indenture Company contained in
Section 3.5 of the Participation Agreement, in the certificate delivered by the
Indenture Trustee at the Closing pursuant to Section 4.6 of the Participation
Agreement, or (c) for the performance of its obligations under Section 8 of the
Participation Agreement; and the Lease Indenture
54
Company and the Indenture Trustee shall not be liable for any action or
inaction of the Owner Trust; provided, however, that:
(i) Prior to the occurrence of a Lease Indenture Event of Default of
which a Responsible Officer of the Indenture Trustee shall have Actual
Knowledge, and after the curing of all such Indenture Events of Default
which may have occurred, the duties and obligations of the Indenture
Trustee shall be determined solely by the express provisions of the
Operative Documents to which it is a party, the Indenture Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in the Operative Documents, no implied covenants or
obligations shall be read into the Operative Documents against the
Indenture Trustee and, in the absence of bad faith on the part of the
Indenture Trustee, the Indenture Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any notes or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture;
(ii) The Indenture Trustee shall not be liable in its individual
capacity for an error of judgment made in good faith by a Responsible
Officer or other officers of the Indenture Trustee, unless it shall be
proven that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) The Indenture Trustee shall not be liable in its individual
capacity with respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with this Indenture or at the direction
of the Majority in Interest of Noteholders, relating to the time, method
and place of conducting any proceeding or remedy available to the Indenture
Trustee, or exercising or omitting to exercise any trust or power conferred
upon the Indenture Trustee, under this Indenture;
(iv) The Indenture Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default, Lease Event of Default,
Significant Lease Default or Lease Indenture Event of Default (except for a
Lease Indenture Event of Default resulting from an event of nonpayment)
unless a Responsible Officer of the Indenture Trustee shall have received
written notice thereof. In the absence of receipt of such notice, the
Indenture Trustee may conclusively assume that there is no default or Lease
Indenture Event of Default;
55
(v) The Indenture Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability for the performance of any
of its duties hereunder or the exercise of any of its rights or powers if
there is reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Indenture shall
in any event require the Indenture Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the Owner
Lessor, under this Indenture; and
(vi) The right of the Indenture Trustee to perform any discretionary
act enumerated in this Indenture shall not be construed as a duty, and the
Indenture Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act.
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 5.8 hereof, the Indenture Trustee shall have no
duty (a) to see to any registration, recording or filing of any Operative
Document (or any financing or continuation statements in respect thereto) or to
see to the maintenance of any such registration, recording or filing, (b) to
see to any insurance on the Facilities or the Facilities or to effect or
maintain any such insurance, (c) except as otherwise provided in Section 5.5
hereof or in Section 10 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 to the performance or
observance of any of the Facility Lessee's covenants with respect to the
Facility or (f) to exercise any of the trusts or powers vested in it by this
Indenture or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the Noteholders,
pursuant to the provisions of this Indenture, unless such Noteholders shall
have offered to the Indenture Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or thereby
(which in the case of the Majority in Interest of Noteholders will be deemed to
be satisfied by a letter agreement with respect to such costs from such
Majority in Interest of Noteholders). Notwithstanding the foregoing, the
Indenture Trustee shall furnish to each Noteholder and to the Owner Lessor and
the Owner Participant promptly upon receipt thereof duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
other instruments furnished to the Indenture Trustee hereunder or under any of
the Operative Documents
56
unless the Indenture Trustee shall reasonably believe that each such
Noteholder, the Owner Lessor and the Owner Participant shall have received
copies thereof.
Section 6.3. Representations and Warranties.
(a) The Owner Lessor represents and warrants that it has not assigned or
pledged any of its estate, right, title or interest subject to this Indenture,
to anyone other than the Indenture Trustee.
(b) NEITHER THE OWNER LESSOR NOR THE INDENTURE TRUSTEE MAKES, NOR SHALL
BE DEEMED TO HAVE MADE (i) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
AS TO THE TITLE, VALUE, COMPLIANCE WITH PLANS OR SPECIFICATIONS, QUALITY,
DURABILITY, SUITABILITY, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR
FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE OF THE FACILITY, OR ANY PART
THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE FACILITIES 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 Undivided
Interests and the Facility Site as were conveyed to it by the Facility Lessee
and that on the Closing Date the Undivided Interests shall be free of Owner
Lessor's Liens and the Owner Participant's Liens; or (ii) any representation or
warranty as to the validity, legality or enforceability of this Indenture, the
Lessor Notes or any of the other Operative Documents, or as to the correctness
of any statement contained in any thereof, except that each of the Owner Lessor
and the Indenture Trustee represents and warrants that this 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, executed and delivered by one of its officers who is and will be duly
authorized to execute and deliver such document on its behalf.
Section 6.4. No Segregation of Moneys; No Interest. All moneys and
securities deposited with and held by the Indenture Trustee under this
Indenture for the purpose of paying, or securing the payment of, the principal
of or Make-Whole Amount or interest on the Lessor Notes shall be held in trust.
Except as specifically provided herein or in the Facility Lease, any moneys
received by the Indenture Trustee hereunder need not be segregated in any
manner except to the extent required by Applicable Law and may be deposited
under such general conditions as may be prescribed by Applicable Law, and
neither the Owner Lessor nor the Indenture Trustee shall be liable for any
57
interest thereon; provided, however, subject to Section 6.5 hereof, that any
payments received or applied hereunder by the Indenture Trustee shall be
accounted for by the Indenture Trustee so that any portion thereof paid or
applied pursuant hereto shall be identifiable as to the source thereof to the
extent known to the Indenture Trustee.
Section 6.5. Reliance; Agents; Advice of Experts. The Indenture Trustee
shall be authorized and protected and 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 Indenture
Trustee may accept in good faith a certified copy of a resolution of the
managing member (or equivalent body) of the Facility Lessee as conclusive
evidence that such resolution has been duly adopted by such Board and that the
same is in full force and effect. As to the amount of any payment to which any
Noteholder is entitled pursuant to clause "Third" of Section 3.2 or clause
"Fourth" of 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
Indenture Trustee for all purposes hereof may rely on and shall be authorized
and protected in acting or refraining from acting upon an Officer's Certificate
of such Noteholder or other Person, as the case may be. As to any fact or
matter the manner of ascertainment of which is not specifically described
herein, the Indenture Trustee for all purposes hereof may rely on an Officer's
Certificate of the Owner Lessor or the Facility Lessee or a Noteholder as to
such fact or matter, and such certificate shall constitute full protection to
the Indenture Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon. The Indenture Trustee shall have the right to
request instructions from the Owner Lessor or the Majority in Interest of
Noteholders with respect to taking or refraining from taking any action in
connection with the Lease Indenture or any other Operative Document to which it
is a party, and shall be entitled to act or refrain from taking such action
unless and until the Indenture Trustee shall have received written instructions
from the Owner Lessor or the Majority in Interest of Noteholders, and the
Indenture Trustee shall not incur liability by reason of so acting (except as
provided in Section 6.1) or refraining from acting. In the administration of
the trusts hereunder, the Indenture Trustee may execute any of the trusts or
powers hereof and perform its powers and duties hereunder directly or through
agents or attorneys and may, at the expense of the Indenture Estate (but
subject to the priorities of payment set forth in Section 3 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 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
58
competence, of any such Person, so long as the Indenture Trustee shall have
exercised reasonable care in selecting such Person.
SECTION 7.
SUCCESSOR INDENTURE TRUSTEES
AND SEPARATE TRUSTEES
Section 7.1. Resignation or Removal of the Indenture Trustee;
Appointment of Successor.
(a) Resignation or Removal. Either of the Indenture Trustee or the
Account Bank 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
Indenture Trustee or Account Bank pursuant to the provisions of subsection (b)
below. In addition, a Majority in Interest of Noteholders may at any time
remove the Indenture Trustee or the Account Bank with or without cause by an
instrument in writing delivered to the Owner Lessor, the Owner Participant, the
Indenture Trustee and the Account Bank, 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
Indenture Trustee or Account Bank pursuant to the provisions of subsection (b)
below. In the case of the resignation or removal of the Indenture Trustee or
Account Bank, a Majority in Interest of Noteholders may appoint a successor
Indenture Trustee or Account Bank by an instrument signed by such holders. If a
successor Indenture Trustee or Account Bank shall not have been appointed
within thirty (30) days after such resignation or removal, the Indenture
Trustee, Account Bank or any Noteholder may apply to any court of competent
jurisdiction to appoint a successor Indenture Trustee or Account Bank to act
until such time, if any, as a successor shall have been appointed by a Majority
in Interest of Noteholders as above provided. The successor Indenture Trustee
or Account Bank so appointed by such court shall immediately and without
further act be superseded by any successor Indenture Trustee or Account Bank
appointed by a Majority in Interest of Noteholders as above provided.
(b) Acceptance of Appointment. Any successor Indenture Trustee or
Account Bank shall execute and deliver to the predecessor Indenture Trustee or
Account Bank, the Owner Participant, the Owner Lessor and all Noteholders an
instrument accepting such appointment and thereupon such successor Indenture
Trustee or Account Bank, without further act, shall become vested with all the
estates, properties, rights,
59
powers and duties of the predecessor Indenture Trustee or Account Bank
hereunder in the trusts hereunder applicable to it with like effect as if
originally named the Indenture Trustee or Account Bank herein; but
nevertheless, upon the written request of such successor Indenture Trustee or
Account Bank or a Majority in Interest of Noteholders, such predecessor
Indenture Trustee or Account Bank shall execute and deliver an instrument
transferring to such successor Indenture Trustee or Account Bank, upon the
trusts herein expressed applicable to it, all the estates, properties, rights
and powers of such predecessor Indenture Trustee or Account Bank, and such
predecessor Indenture Trustee or Account Bank shall duly assign, transfer
deliver and pay over to such successor Indenture Trustee all moneys or other
property then held by such predecessor Indenture Trustee or Account Bank
hereunder. To the extent required by Applicable Law or upon request of the
successor Indenture Trustee or Account Bank, the Owner Lessor shall execute any
and all documents confirming the vesting of such estates, properties, rights
and powers in the successor Indenture Trustee or Account Bank.
(c) Qualifications. Any successor Indenture Trustee or Account Bank,
however appointed, shall be a trust company or bank with trust powers (i) which
(A) has a combined capital and surplus of at least $150,000,000, or (B) is a
direct or indirect subsidiary of a corporation which has a combined capital and
surplus of at least $150,000,000 provided such corporation guarantees the
performance of the obligations of such trust company or bank as Indenture
Trustee or Account Bank, or (C) is a member of a bank holding company group
having a combined capital and surplus of at least $150,000,000 provided the
parent of such bank holding company group or a member which itself has a
combined capital and surplus of at least $150,000,000 guarantees the
performance of the obligations of such trust company or bank, and (ii) is
willing, able and legally qualified to perform the duties of Indenture Trustee
or Account Bank hereunder upon reasonable or customary terms. No successor
Indenture Trustee or Account Bank, 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) Appointment of Account Bank. The Indenture Trustee and each
Noteholder hereby irrevocably designate and appoint State Street Trust Bank and
Trust Company of Connecticut, National Association as the Account Bank under
this Indenture (the "Account Bank"). The Account Bank hereby agrees to act as
"securities intermediary" (within the meaning of Section 8-102(a)(14) of the
UCC) with respect to the Indenture Trustee's Account. The Owner Lessor hereby
acknowledges that the Account Bank shall act as securities intermediary with
respect to the Indenture Trustee's Account pursuant to this Indenture. The
Account Bank shall not have duties or
60
responsibilities except those expressly set forth in Sections 3.11 and 3.12 of
this Indenture. The Indenture Trustee, at the written direction of a Majority
in Interest of Noteholders, may remove and replace the Account Bank pursuant to
the terms of Section 7.1(a) and direct such Account Bank according to the terms
of this Indenture.
(e) Merger, etc. Any Person into which the Indenture Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Indenture
Trustee shall be a party, or any Person to which substantially all the
corporate trust business of the Indenture Trustee may be transferred, shall,
subject to the terms of subsection (c) of this Section 7.1, be the Indenture
Trustee under this Indenture without further act.
Section 7.2. Appointment of Additional and Separate Trustees.
(a) Appointment. Whenever (i) the Indenture Trustee shall deem it
necessary or prudent in order to conform to any law of any applicable
jurisdiction or to make any claim or bring any suit with respect to or in
connection with the Indenture Estate, this Indenture, the Facility Lease, the
Lessor Notes or any of the transactions contemplated by the Operative
Documents, (ii) the Indenture Trustee shall be advised by counsel, satisfactory
to it, that it is so necessary or prudent in the interest of the Noteholders or
(iii) a Majority in Interest of Noteholders deems it so necessary or prudent
and shall have requested in writing the Indenture Trustee to do so, then in any
such case the Indenture Trustee shall execute and deliver from time to time all
instruments and agreements necessary or proper to constitute another bank or
trust company or one or more Persons approved by the Indenture Trustee either
to act as additional trustee or trustees of all or any part of the Indenture
Estate, jointly with the Indenture Trustee, or to act as separate trustee or
trustees of all or any part of the Indenture Estate, in any such case with such
powers as may be provided in such instruments or agreements, and to vest in
such bank, trust company or Person as such additional trustee or separate
trustee, as the case may be, any property, title, right or power of the
Indenture Trustee deemed necessary or advisable by the Indenture Trustee,
subject to the remaining provisions of this Section 7.2. The Owner Lessor
hereby consents to all actions taken by the Indenture Trustee under the
provisions of this Section 7.2 and agrees, upon the Indenture Trustee's
request, to join in and execute, acknowledge and deliver any or all such
instruments or agreements; and the Owner Lessor hereby makes, constitutes and
appoints the 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
61
request so to do; provided, however, that the Indenture Trustee shall exercise
due care in selecting any additional or separate trustee if such additional or
separate trustee shall not be a Person possessing trust powers under Applicable
Law. If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law or take any such action or shall be
advised by such counsel that it is no longer so necessary or prudent in the
interest of the Noteholders or in the event that the Indenture Trustee shall
have been requested to do so in writing by a Majority in Interest of
Noteholders, the Indenture Trustee shall execute and deliver all instruments
and agreements necessary or proper to remove any additional trustee or separate
trustee. In such connection, the Indenture Trustee may act on behalf of the
Owner 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 Indenture Trustee from taking any action hereunder
either alone, jointly or through a separate trustee under the direction and
control of the Indenture Trustee, the Owner Lessor, at the instruction of the
Indenture Trustee, shall appoint a separate trustee for such jurisdiction,
which separate trustee shall have full power and authority to take all action
hereunder as to matters relating to such jurisdiction without the consent of
the Indenture Trustee, but not subject to the same limitations in any exercise
of his power and authority as those to which the Indenture Trustee is subject.
(b) The Indenture Trustee as Agent. Any additional trustee or separate
trustee at any time by an instrument in writing may constitute the Indenture
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by Applicable Law, to do all acts and things and exercise
all discretions which it is authorized or permitted to do or exercise, for and
in its behalf and in its name. In case any such additional trustee or separate
trustee shall become incapable of acting or cease to be such additional trustee
or separate trustee, the property, rights, powers, trusts, duties and
obligations of such additional trustee or separate trustee, as the case may be,
so far as permitted by Applicable Law, shall vest in and be exercised by the
Indenture Trustee, without the appointment of a new successor to such
additional trustee or separate trustee, unless and until a successor is
appointed in the manner hereinbefore provided.
(c) Requests, etc. Any request, approval or consent in writing by the
Indenture Trustee to any additional trustee or separate trustee shall be
sufficient to warrant such additional trustee or separate trustee, as the case
may be, to take the requested, approved or consented to action.
62
(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
Indenture Trustee. Notwithstanding any other provision of this Section 7.2, (i)
the powers, duties, obligations and rights of any additional trustee or
separate trustee appointed pursuant to this Section 7.2 shall not in any case
exceed those of the Indenture Trustee hereunder, (ii) all powers, duties,
obligations and rights conferred upon the Indenture Trustee in respect of the
receipt, custody, investment and payment of moneys or the investment of moneys
shall be exercised solely by the Indenture Trustee and (iii) no power hereby
given to, or exercisable as provided herein by, any such additional trustee or
separate trustee shall be exercised hereunder by such additional trustee or
separate trustee except jointly with, or with the consent of, the Indenture
Trustee.
SECTION 8.
SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE
AND OTHER DOCUMENTS
Section 8.1. Supplemental Indenture and Other Amendment With Consent;
Conditions and Limitations. At any time and from time to time, subject to
Sections 8.2 and 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
Indenture Trustee shall execute an amendment or supplement hereto for the
purpose of adding provisions to, or changing or eliminating provisions of, this
Indenture as specified in such request, and (b) the Indenture Trustee, 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 the Lessor Notes, such percentage to be
determined in the same manner as provided in the definition of the term
"Majority in Interest of Noteholders," no such supplement to or amendment of
this Indenture or any Assigned Document, or waiver or modification of or
consent to the terms hereof or thereof, shall (i) modify the definition of the
terms "Majority in Interest 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 Lessor
Note or change the rate or manner of calculation of interest payable on any
Lessor 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
63
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, Make-Whole
Amount, if any, and interest on all outstanding Lessor Notes) or extend the
time of payment of Periodic Rent or Termination Value except as expressly
provided in Section 3.5 of the Facility Lease, or change any of the
circumstances under which Periodic Rent or Termination Value is payable, (v)
consent to any assignment of the Facility Lease if in connection therewith the
Facility Lessee will be released from its obligation to pay Periodic Rent and
Termination Value, except as expressly provided in Section 13 of the
Participation Agreement, or release the Facility Lessee of its obligation to
pay Periodic Rent or Termination Value or change the absolute and unconditional
character of such obligations as set forth in Section 9 of the Facility Lease;
(vi) consent to any release of the Guarantor under Section 8.4 of the Calpine
Guaranty or (vii) deprive the Indenture Trustee of the Lien on the Indenture
Estate or permit the creation of any Lien on the Indenture Estate ranking
equally or prior to the Lien of the Indenture Trustee, except for Permitted
Liens.
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 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 a
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
Indenture Trustee hereunder, the removal of the 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 or
trustees or co-trustee or co-trustees, (b) to correct, confirm or amplify the
description of any property at any time subject to the Lien of this Indenture
or to convey, transfer, assign, mortgage or pledge any property to or with the
Indenture Trustee, (c) to provide for any evidence of the creation and issuance
of any Additional Lessor Notes pursuant to, and subject to the conditions of,
Section 2.12 and to establish the form and the terms of such Additional Lessor
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 Indenture or any other Operative Document in any manner
that will not in the judgment of the Indenture Trustee materially adversely
affect the interests of the Noteholders, (e) to grant or confer upon the
Indenture Trustee for the benefit of the Noteholders any additional rights,
remedies, powers, authority or security which may
64
be lawfully granted or conferred and which are not contrary or inconsistent
with this Indenture, (f) to add to the covenants or agreements to be observed
by the Facility Lessee or the Owner Lessor and which are not contrary to this
Indenture, to add Indenture Events of Defaults for the benefit of Noteholders
or surrender any right or power of the Owner Lessor, provided it has consented
thereto, (g) to effect the assumption of all or, to the extent otherwise
provided hereunder, part of the Lessor 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 Indenture Trustees or the holders of such
Lessor Notes, such that the Facility Lessee's obligations contained therein, if
applicable in the event that the Facility Lease are 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, or similar federal statute enacted
after the Closing Date, and to add to this Indenture such other provisions as
may be expressly required or permitted by the Trust Indenture Act of 1939 (if
such qualification is required), and (j) 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 reasonably be expected to materially and 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 Lessor 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 5.1, 5.2, 5.6, 5.14, 5.31, 6,
or 13.1 of the Participation Agreement or Section 19 of the Lease, or modify in
any material respect the provisions of the Calpine Guaranty (other than, in
each case, any amendment, modification, supplement, waiver or consent having no
adverse affect on the interest of the Noteholders).
Section 8.3. Conditions to Action by the Indenture Trustee. If in the
opinion of the Indenture Trustee any document required to be executed pursuant
to the terms of Section 8.1 or 8.2 or the election referred to in Section 9.13
hereof adversely affects any immunity or indemnity in favor of the Indenture
Trustee under this Indenture or the
65
Participation Agreement, or would materially increase its administrative duties
or responsibilities hereunder or thereunder or may result in personal liability
for it (unless it shall have been provided an indemnity satisfactory to the
Indenture Trustee), the Indenture Trustee may in its discretion decline to
execute such document or the election. With every such document and election,
the Indenture Trustee shall be furnished with evidence that all necessary
consents have been obtained and with an opinion of counsel that such document
complies with the provisions of this Indenture, does not deprive the Indenture
Trustee or the holders of the Lessor 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
Indenture Trustee shall be fully authorized and protected in relying on such
opinion.
SECTION 9.
MISCELLANEOUS
Section 9.1. Surrender, Defeasance and Release.
(a) Surrender and Cancellation of Indenture. This Indenture shall be
surrendered and cancelled and the trusts created hereby shall terminate and
this Indenture shall be of no further force or effect upon satisfaction of the
conditions set forth in the proviso to the Granting Clause hereof. Upon any
such surrender, cancellation, and termination, the Indenture Trustee shall pay
all moneys or other properties or proceeds constituting part of the Indenture
Estate (the distribution of which is not otherwise provided for herein) to the
Owner Lessor, and the 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 Indenture is
terminated pursuant to this Section 9.1(a), the Indenture Trustee shall
promptly notify the Facility Lessee and the Owner Participant of such
termination.
(b) 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 Indenture Trustee
shall, upon the written request of the Owner Lessor or the Facility Lessee,
execute and deliver to, and as directed in writing by, the Facility Lessee
or the
66
Owner Lessor an appropriate instrument (in due form for recording)
releasing the replaced Component from the Lien of this Indenture.
(ii) Whenever the Facility Lessee is entitled to acquire the Facility
or have the Facility transferred to it pursuant to the express terms of the
Facility Lease, the Indenture Trustee shall release the Indenture Estate
from the Lien of this Indenture 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 from
the Lien of this Indenture; provided that all sums secured by this
Indenture have been paid to the Persons entitled to such sums.
Section 9.2. Conveyances Pursuant to the Site 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 Article VIII of the Facility Site Sublease shall automatically, without
further act of any Person, be released from this Lease Indenture.
Section 9.3. Appointment of the Indenture Trustee as Attorney; Further
Assurances. The Owner Lessor hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Lessor irrevocably with full power as long as
the 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
Excepted Payments), to endorse any checks or other instruments or orders in
connection therewith, to make all such demands and to give all such notices as
are permitted by the terms of the 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 Indenture Trustee may request in the premises.
Section 9.4. Indenture for Benefit of Certain Persons Only. Nothing in
this Indenture, whether express or implied, shall be construed to give to any
Person other than the parties hereto, the Owner Participant, the Facility
Lessee (with respect to Sections 4.12 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 Indenture, and this Indenture shall be for
the sole and exclusive benefit of the parties
67
hereto, the Owner Participant, the Facility Lessee (as provided in Sections
4.12 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 by
overnight mail or courier service, (b) in the case of notice by United States
mail, certified or registered, postage prepaid, return receipt requested, upon
receipt thereof, or (c) in the case of notice by such a telecommunications
device, upon transmission thereof, provided such transmission is promptly
confirmed by either of the methods set forth in clauses (a) and (b) above, in
each case addressed to such party and copy party at its address set forth below
or at such other address as such party or copy party may from time to time
designate by written notice to the other party:
If to the Owner Lessor:
▇▇▇▇▇ Fargo Bank Northwest, National Association
MAC U1254-031
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services
with a copy to the Owner Participant:
▇▇▇▇▇ Fargo Bank Northwest, National Association
MAC U1254-031
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services
and
68
Newcourt Capital USA Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
If to the Indenture Trustee:
State Street Bank and Trust Company of Connecticut,
National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
with a copy to:
State Street Bank and Trust Company of California,
National Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
If to the Facility Lessee:
RockGen Energy LLC
c/o Calpine Center Northbrook Office
Attention: Senior Counsel
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
69
Calpine Corporation
Attention: General Counsel
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 9.6. Severability. Any provision of this Indenture which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating or rendering unenforceable the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 9.7. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Indenture is executed and delivered
by ▇▇▇▇▇ Fargo Bank Northwest, National Association ("▇▇▇▇▇ Fargo"), not
individually or personally but solely as trustee of the Owner Lessor 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 ▇▇▇▇▇ Fargo, but is
made and intended for the purpose for binding only the Owner Lessor, (c)
nothing herein contained shall be construed as creating any liability on ▇▇▇▇▇
Fargo, 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 ▇▇▇▇▇ Fargo, 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 Indenture.
Section 9.8. Written Changes Only. Subject to Sections 8.1 and 8.2
hereof, no term or provision of this Indenture or any Lessor Note may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the parties hereto; and any waiver of the terms hereof or of
any Lessor Note shall be effective only in the specific instance and for the
specific purpose given.
Section 9.9. Counterparts. This Indenture may be executed in separate
counterparts, each of which, when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
70
Section 9.10. Successors and Permitted Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns and
each Noteholder. Any request, notice, direction, consent, waiver or other
instrument or action by any Noteholder shall bind the successor and assigns
thereof.
Section 9.11. Headings and Table of Contents. The headings of the
sections of this Indenture and the Table of Contents are inserted for purposes
of convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof.
Section 9.12. Governing Law. This Indenture and the Lessor 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 mandatory choice of law rules require the application of laws of another
jurisdiction and except with respect to matters related to the enforcement of
any Lien related to the real property covered hereby or the foreclosure on any
real property covered hereby which shall be governed by the laws of the State
of Wisconsin (without giving effect to the conflicts of laws provisions
thereof). Regardless of any provision in any other agreement, for purposes of
the Uniform Commercial Code (as in effect from time to time in any jurisdiction
including the State of New York), the "Securities Intermediary's Jurisdiction"
of the Account Bank with respect to the Indenture Trustee's Account is the
State of New York.
Section 9.13. Reorganization Proceedings with Respect to the Lessor
Estate. If (a) the Lessor Estate becomes a debtor subject to the reorganization
provisions of Title 11 of the United States Code, or any successor provisions,
(b) pursuant to such reorganization provisions the Owner Participant is
required by reason of the Owner Participant's being held to have recourse
liability that it would not otherwise have had under Section 2.5 hereof to the
debtor or the trustee of the debtor, directly or indirectly, to make payment on
account of any amount payable as principal or interest on the Lessor Notes and
(c) any Noteholder or the Indenture Trustee actually receives any Excess Amount
(as hereinafter defined) which reflects any payment by the Owner Participant on
account of clause (b) above, then such Noteholder or the Indenture Trustee, as
the case may be, shall promptly refund such Excess Amount, without interest, to
the Owner Participant after receipt by such Noteholder or the Indenture
Trustee, as the case may be, of a written request for such refund by the Owner
Participant (which request shall specify the amount of such Excess Amount and
shall
71
set forth in detail the calculation thereof). For purposes of this Section
9.13, "Excess Amount" means the amount by which such payment exceeds the amount
which would have been received by such holder and the Indenture Trustee in
respect of such principal or interest if the Owner Participant had not become
subject to the recourse liability referred to in clause (b) above. Nothing
contained in this Section 9.13 shall prevent the Indenture Trustee or any
Noteholder from enforcing any personal recourse obligations (and retaining the
proceeds thereof) of the Owner Participant under the Participation Agreement.
The Noteholders and the Indenture Trustee agree that should the Lessor
Estate become a debtor subject to the reorganization provisions of the
Bankruptcy Code, they shall upon the request of the Owner Participant, and
provided that the making of the election hereinafter referred to is permitted
to be made by them under Applicable Law and will not have any adverse impact on
any Noteholder, the Indenture Trustee or the Indenture Estate other than as
contemplated by the preceding paragraph, make the election referred to in
Section 1111(b)(1)(A)(i) of Title 11 of the Bankruptcy Code or any successor
provision if, in the absence of such election, the Noteholders would have
recourse against the Owner Participant for the payment of the indebtedness
represented by the Lessor Notes in circumstance in which such Noteholders would
not have recourse under this Indenture if the Lessor Estate had not become a
debtor under the Bankruptcy Code.
Section 9.14. Withholding Taxes: Information Reporting. The Indenture
Trustee shall exclude and withhold from each distribution of principal,
Make-Whole Amount, if any, and interest and other amounts due hereunder or
under the Lessor Notes any and all withholding taxes applicable thereto as
required by law. The Indenture Trustee agrees (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 Lessor Notes, to withhold such amounts and timely pay the
same to the appropriate authority in the name of and on behalf of the
Noteholders and to pay to the Noteholders from amounts received by Paying Agent
pursuant hereto such additional amounts so that the net amount actually
received by the Noteholders, after reduction for such withheld amounts, shall
be equal to the full amount of principal, Make-Whole Amount, interest and other
amounts otherwise due and payable hereunder; provided, however, that,
notwithstanding the foregoing, the Paying Agent shall be required to pay such
additional amounts only if and to the extent that (a) the Facility Lessee is
required to indemnify the Noteholders for such amounts under Section 9 of the
Participation Agreement and (b) the Facility Lessee has not paid such amounts
within three (3) days after notice of nonpayment, (ii) that it will file any
72
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 documentary evidence as such Noteholders may reasonably request
from time to time. The Indenture Trustee agrees to file any other information
as it may be required to file under United States law.
Any Noteholder which is organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date such Noteholder becomes a
Noteholder, (a) so notify the Indenture Trustee, (b) (i) provide the Indenture
Trustee with Internal Revenue Service form ▇-▇ ▇▇▇, ▇-▇ ECI or W-9, as
appropriate, or (ii) notify the Indenture Trustee that it is not entitled to an
exemption from United States withholding tax or a reduction in the rate thereof
on payments of interest. Any such Noteholder agrees by its acceptance of a
Lessor Note, on an ongoing basis, to provide like certification for each
taxable year and to notify the Indenture Trustee should subsequent
circumstances arise affecting the information provided the Indenture Trustee in
clauses (a) and (b) above. The Indenture Trustee shall be fully protected in
relying upon, and each Noteholder by its acceptance of a Lessor Note hereunder
agrees to indemnify and hold the Indenture Trustee harmless against all claims
or liability of any kind arising in connection with or related to the Indenture
Trustee's reliance upon any such documents, forms or information provided by
such Noteholder to the Indenture Trustee. In addition, if the Indenture Trustee
has not withheld taxes on any payment made to any Noteholder, and the Indenture
Trustee is subsequently required to remit to any taxing authority any such
amount not withheld, such Noteholder shall return such amount to the Indenture
Trustee upon written demand by the Indenture Trustee. The Indenture Trustee
shall be liable only for direct (but not consequential) damages to any
Noteholder due to the Indenture Trustee's violation of the Code and only to the
extent such liability is caused by the Indenture Trustee's violation of the
Code and only to the extent such liability is caused by the Indenture Trustee's
failure to act in accordance with its standard of care under this Lease
Indenture.
Section 9.15. Fixture Financing Statement. This Indenture also is
intended to serve as a fixture financing statement under the Wisconsin Uniform
Commercial Codes. In connection therewith, the following information is
provided:
(a) Name and address of Debtor:
RockGen OL-1, LLC
c/o Wells Fargo Bank Northwest, National Association
MAC U1254-031
73
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Services
(b) Name and Address of Secured Party (from which information concerning
the security interest may be obtained):
State Street Bank and Trust Company of Connecticut,
National Association,
as Indenture Trustee
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
(c) The personal property covered by the security interest granted
hereunder includes goods which are or are to become fixtures upon the real
property described in Exhibit A hereto.
(d) Recording: This Indenture is to be recorded in the real estate
records of Dane County, Wisconsin.
(Remainder of Page Intentionally Left Blank)
74
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed on the day and year first above written.
ROCKGEN OL-1, LLC
By: ▇▇▇▇▇ Fargo Bank Northwest, National
Association, not in its individual
capacity but solely as the Lessor Manager
By:
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Indenture Trustee and Account Bank
By:
Name:
Title:
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this ___ day of
October 2001, by ________________________________, the _______________________
of ▇▇▇▇▇ Fargo Bank Northwest, National Association, not in its individual
capacity but solely as the Lessor Manager of South Point OL-1, LLC, a Delaware
limited liability company, as the Owner Lessor (the "Owner Lessor"), to be the
free act and deed on behalf of the national banking association as the Lessor
Manager of the Owner Lessor under the LLC Agreement dated as of __________,
2001.
Notary Public
My Commission Expires
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this the ___ day of
October 2001, by , the of State Street Bank and Trust Company of Connecticut,
National Association, a national banking association, to be the free act and
deed on behalf of the corporation.
Notary Public
My Commission Expires
3
EXHIBIT A
TO LEASE INDENTURE
DESCRIPTION OF FACILITY SITE
The West Half of the Northwest Quarter (W1/2NW1/4) of Section Twenty-Three
(23), Township Six (6) North, Range Twelve (12) East, in the Town of
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ County, Wisconsin.
Tax Parcel No: 016-0612-232-8500-2
016-0612-232-9000-5
Property Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
EXHIBIT B
TO LEASE INDENTURE
FORM OF ROCKGEN LESSOR NOTE
ROCKGEN OL-1, LLC
NONRECOURSE PROMISSORY NOTE (ROCKGEN) DUE IN
A SERIES OF INSTALLMENTS OF PRINCIPAL
WITH FINAL PAYMENT DATE
OF MAY 30, 2012
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT
Issued at: New York, New York
Issue Date: October __, 2001
$[_____]
ROCKGEN OL-1, LLC, a Delaware limited liability company (herein called the
"Owner Lessor", which term includes any successor person under the Collateral
Trust Indenture hereinafter referred to), hereby promises to pay to State
Street Bank and Trust Company of Connecticut, National Association, in its
capacity as pass through trustee of the South Point, Broad River and RockGen
Series A Trust, (the "Pass Through Trustee") or its registered assigns, the
principal sum of $[_____], which is due and payable in a series of installments
of principal with a final payment date of May 30, 2012 as provided below,
together with interest at the rate of [___]% per annum on the principal
remaining unpaid from time to time from and including the Issue Date until paid
in full. Interest on the outstanding principal amount under this Note shall be
due and payable in arrears semiannually at the rate specified above, commencing
on May 30, 2002, and on each May 30 and November 30 thereafter until the
principal of this Note is paid in full or made available for payment. Interest
shall be 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
each of the dates set forth on Schedule I hereto. The installment of principal
payable on any such
B-1-1
date shall be in an aggregate amount equal to the product of the Principal
Portion set forth on Schedule I multiplied by the percentage set forth on
Schedule I under the column headed "Percentage of Principal Amount Payable" for
such date unless the Principal Portion has been prepaid; 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 that are not otherwise defined herein
shall have the meanings ascribed thereto in the Indenture of Trust, Mortgage
and Security Agreement dated as of October 18, 2001 (the "Collateral Trust
Indenture"), between the Owner Lessor and State Street Bank and Trust Company
of Connecticut, National Association, as trustee (the "Indenture Trustee").
Interest (computed on the basis of a 360-day year of twelve 30-day months)
on any overdue principal and premium, if any, and (to the extent permitted by
Applicable Law) 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.
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 Collateral Trust
Indenture and in the Participation Agreement, all payments of principal,
premium, if any, and interest on this Note, and all payments of any other
amounts due hereunder or under the Collateral Trust Indenture shall be made
only from the Indenture Estate, and the Indenture Trustee shall have no
obligation for the payment thereof except to the extent that the 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 Collateral
Trust 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, none of the Owner Participant, the Owner Lessor or the Indenture Trustee
is or shall be personally liable to the holder hereof for any amounts payable
under this Note or under the Collateral Trust Indenture, or, except as
expressly provided in the Collateral Trust Indenture or, in the case of the
Owner Participant and the Owner Lessor, the Participation Agreement for any
performance to be rendered under the Collateral Trust Indenture or any Assigned
Document or for any liability under the Collateral Trust Indenture or any
Assigned Document.
B-1-2
The principal of and premium, if any, and interest on this Note shall be
paid by the Indenture Trustee, without any presentment or surrender of this
Note, except that, in the case of the final payment in respect of this Note,
this Note shall be surrendered to the Indenture Trustee, by mailing a check for
the amount then due and payable, in New York Clearing House funds, to the
Noteholder, at the last address of the Noteholder appearing on the Note
Register, or by whichever of the following methods specified by notice from the
Noteholder to the Indenture Trustee: (a) by crediting the amount to be
distributed to the Noteholder to an account maintained by the Noteholder with
the Indenture Trustee, (b) by making such payment to the Noteholder in
immediately available funds at the Indenture Trustee Office, or (c) by
transferring such amount in immediately available funds for the account of the
Noteholder to the banking institution having bank wire transfer facilities as
shall be specified by the Noteholder, such transfer to be subject to telephonic
confirmation of payment. All payments due with respect to this Note shall be
made (i) as soon as practicable prior to the close of business on the date the
amounts to be distributed by the Indenture Trustee are actually received by the
Indenture Trustee if such amounts are received by 12:00 noon, 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 Indenture Trustee may deem and treat the Person in whose name this Note is
registered on the Note Register as the absolute owner and holder of this Note
for the purpose of receiving payment of all amounts payable with respect to
this Note and for all other purposes, and neither the Owner Lessor nor the
Indenture Trustee shall be affected by any notice to the contrary. All payments
made on this Note in accordance with the provisions of this paragraph shall be
valid and effective to satisfy and discharge the liability on this Note to the
extent of the sums so paid and neither the Indenture Trustee nor the Owner
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 Collateral Trust Indenture, which provides that each payment
on the Note shall be applied as follows: first, to the payment of accrued
interest (including interest on overdue principal and the Make Whole Amount, if
any, and, to the extent permitted by Applicable Law, overdue interest) on this
Note to the date of such payment; second, to the payment of the principal
amount of, and the Make Whole Amount, 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 Collateral Trust Indenture, the balance, if
any, remaining thereafter, to the payment of the principal amount of, and the
Make Whole Amount, if any, on this Note.
B-1-3
This Note is the Note referred to in the Collateral Trust Indenture as the
"Lessor Note". The Collateral Trust Indenture permits the issuance of
additional notes ("Additional Lessor Notes"), as provided in Section 2.12 of
the Collateral Trust Indenture, and the several Notes may be for varying
principal amounts and may have different maturity dates (not later than the
final maturity date of the Initial Lessor Notes), interest rates, redemption
provisions and other terms. The properties of the Owner Lessor included in the
Indenture Estate are pledged or mortgaged to the Indenture Trustee to the
extent provided in the Collateral Trust 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 Collateral Trust
Indenture.
Reference is hereby made to the Collateral Trust 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 Collateral Trust Indenture, to all of which terms
and conditions the holder hereof agrees by its acceptance of this Note.
This Note is subject to redemption, in whole but not in part as provided
in the Collateral Trust Indenture, as follows: (x) in the case of redemptions
under the circumstances set forth in Section 2.10(a) of the Collateral Trust
Indenture, at a price equal to the principal amount of this Note being redeemed
together with accrued interest on such principal amount to the Redemption Date,
and (y) in the case of redemptions under the circumstances set forth in
Sections 2.10(d) of the Collateral Trust Indenture, at a price equal to the
principal amount of this Note then outstanding together with accrued interest
on such principal amount to the Redemption Date, plus the Make-Whole Amount, if
any; provided, however, that no such redemption shall be made until notice
thereof is given by the Indenture Trustee to the holder hereof as provided in
the Collateral Trust Indenture.
In case either (i) a Regulatory Event of Loss under the Facility Lease
shall occur or (ii) the Facility Lease shall have been terminated pursuant to
Section 13.1 or 13.2 thereof where the Facility Lessee purchases the Undivided
Interest from the Owner Lessor, the obligations of the Owner Lessor under this
Note may, subject to the conditions set forth in Section 2.10(b) of the
Collateral Trust Indenture, be assumed in whole (but not in part) by the
Facility Lessee in which case the Owner Lessor shall be released and discharged
from all such obligations. In connection with such an
B-1-4
assumption, the holder of this Note may be required to exchange this Note for a
new Note evidencing such assumption.
In case a Collateral Trust 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 Collateral
Trust Indenture, be declared or may become due and payable in the manner and
with the effect provided in the Collateral Trust Indenture.
There shall be maintained at the Indenture Trustee Office a register for
the purpose of registering transfers and exchanges of Notes in the manner
provided in the Collateral Trust Indenture. The transfer of this Note is
registrable, as provided in the Collateral Trust 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.
It is expressly understood and agreed by the holder of this Note that (a)
this Note is executed and delivered by ▇▇▇▇▇ Fargo Bank Northwest, National
Association, not individually or personally but solely as the lessor manager
(the "Lessor Manager"), of the Owner Lessor, in the exercise of the powers and
authority conferred and vested in it pursuant thereto, (b) each of the
undertakings and agreements in this Note made on the part of the Owner Lessor
is made and intended not as personal undertakings and agreements by the Lessor
Manager but is made and intended for the purpose for binding only the Owner
Lessor, (c) nothing contained in this Note shall be construed as creating any
liability on the Lessor Manager individually or personally, to perform any
covenant either expressed or implied contained in this Note, all such
liability, if any, being expressly waived by the holder of this Note or by any
Person claiming by, through or under such holder, and (d) under no
circumstances shall the Lessor Manager, 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 Note.
This Note shall be governed by the laws of the State of New York.
B-1-5
IN WITNESS WHEREOF, the Owner Lessor has caused this Note to be duly
executed as of the date hereof.
ROCKGEN OL-1, LLC
a Delaware limited liability company,
By: ▇▇▇▇▇ Fargo Bank Northwest, National
Association, not in its individual capacity
but solely as the Lessor Manager
By:
Name:
Title:
This is the Lessor Note referred to in the within-mentioned Collateral
Trust Indenture duly executed as of the date hereof.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as
the Indenture Trustee
Name:
Title:
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.
SCHEDULE I
TO NOTE
Schedule Of Principal Amortization
Series A Lessor Notes
Principal Portion: $45,450,000
Percentage of Principal
-----------------------
Regular Distribution Date Amount Payable
------------------------- --------------
May 30, 2002 .............................................................. 1.21012101%
November 30, 2002.......................................................... 2.58525853%
May 30, 2003 .............................................................. 3.02530253%
November 30, 2003.......................................................... 3.24532453%
May 30, 2004............................................................... 3.52035204%
November 30, 2004.......................................................... 3.68536854%
May 30, 2005 .............................................................. 3.96039604%
November 30, 2005.......................................................... 4.12541254%
May 30, 2006 .............................................................. 4.07040704%
November 30, 2006.......................................................... 4.18041804%
May 30, 2007 .............................................................. 4.73047305%
November 30, 2007.......................................................... 5.00550055%
May 30, 2008 .............................................................. 5.50055006%
November 30, 2008.......................................................... 5.77557756%
May 30, 2009 .............................................................. 6.16061606%
November 30, 2009.......................................................... 6.43564356%
May 30, 2010 .............................................................. 6.65566557%
November 30, 2010.......................................................... 6.93069307%
May 30, 2011 .............................................................. 7.20572057%
November 30, 2011.......................................................... 6.60066007%
May 30, 2012 .............................................................. 5.39053905%
------------
Total...................................................................... 100.00000000%
============
EXHIBIT C
TO LEASE INDENTURE
FORM OF CERTIFICATE OF AUTHENTICATION
This is one of the Lessor Notes referred to in the within-mentioned Lease
Indenture.
______________________________,
not in its individual capacity but
solely as the Indenture Trustee
By: __________________________
Name:
Title:
C-1
EXHIBIT D
TO LEASE INDENTURE
DESCRIPTION OF THE FACILITY
That certain approximately 520 megawatt net nameplate capacity generating
facility, (known also as the "RockGen Facility") together with all structures
or improvements, all alterations thereto or replacements thereof, and all other
fixtures, attachments, appliances, equipment, machinery and other articles
(including, but not limited to, the property set forth below (the "Included
Property")), in each case located on the land, or on the easements appurtenant
to the land, consisting of approximately 78 acres located in the Town of
Christiana near the Village of Rockdale, in Dane County, Wisconsin, described
more particularly on Exhibit A.
Included Property
1. Three Combustion Turbines - General Electric Model PG7241 FA; Serial
#: 297570, 297571 and 297572.
2. Three CT Generators - General Electric, Hydrogen Cooled, Model 7FH2,
18kV, 220000 KVA, 0.85 pf; Serial #: 337X167, 337X168 and 337X169.
3. Three Combustion Turbine Step-up Transformers - GE Prolec, 18/138 KV,
220 MVA FA, WYE/DELTA, Serial #: G720-01, G720-02 and G720-03 and
other interconnection equipment associated with the RockGen Facility.
D-1-1
SCHEDULE I
TO LEASE INDENTURE
SERIES A LESSOR NOTE
Initial Aggregate Principal Amount: $45,450,000
Final Maturity Date: May 30, 2012
Interest Rate: 8.400%
Amortization Schedule:
Percentage of Principal
-----------------------
Regular Distribution Date Amount Payable
------------------------- --------------
May 30, 2002 .............................................................. 1.21012101%
November 30, 2002.......................................................... 2.58525853%
May 30, 2003 .............................................................. 3.02530253%
November 30, 2003.......................................................... 3.24532453%
May 30, 2004 .............................................................. 3.52035204%
November 30, 2004.......................................................... 3.68536854%
May 30, 2005 .............................................................. 3.96039604%
November 30, 2005.......................................................... 4.12541254%
May 30, 2006 .............................................................. 4.07040704%
November 30, 2006.......................................................... 4.18041804%
May 30, 2007 .............................................................. 4.73047305%
November 30, 2007.......................................................... 5.00550055%
May 30, 2008 .............................................................. 5.50055006%
November 30, 2008.......................................................... 5.77557756%
May 30, 2009 .............................................................. 6.16061606%
November 30, 2009.......................................................... 6.43564356%
May 30, 2010 .............................................................. 6.65566557%
November 30, 2010.......................................................... 6.93069307%
May 30, 2011 .............................................................. 7.20572057%
November 30, 2011.......................................................... 6.60066007%
May 30, 2012 .............................................................. 5.39053905%
------------
Total...................................................................... 100.00000000%
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SCHEDULE 1-1