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TRUST INDENTURE
dated as of October ___, 2005
between
TERMOEMCALI FUNDING CORP.
and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
SENIOR SECURED NOTES DUE DECEMBER 31, 2019
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1).................................................... 9.9
(a)(2).................................................... 9.9
(a)(3).................................................... N.A.
(a)(4).................................................... N.A.
(a)(5).................................................... 9.9
(b)....................................................... 9.7; 9.9
(c)....................................................... N.A.
311(a)....................................................... 9.10
(b)....................................................... 9.10
(c)....................................................... N.A.
312(a)....................................................... 10.2
(b)....................................................... 15.4
(c)....................................................... 15.4
313(a)....................................................... 10.1
(b)(1).................................................... 7.3
(b)(2).................................................... 10.1; 9.6
(c)....................................................... 7.3; 10.1;15.3
(d)....................................................... 10.1
314(a)....................................................... 5.2; 5.3; 15.3; 15.6
(b)....................................................... 7.2
(c)(1).................................................... 15.5
(c)(2).................................................... 15.5
(c)(3).................................................... N.A.
(d)....................................................... 7.3, 7.4, 7.5
(e)....................................................... 15.6
(f)....................................................... 15.5; 15.6
315(a)....................................................... 9.1
(b)....................................................... 9.5,15.3
Trust Indenture
Act Section Indenture Section
(c)....................................................... 9.1
(d)....................................................... 9.1
(e)....................................................... 8.9
316(a) (last sentence)....................................... 1.1 ("Outstanding")
(a)(1)(A)................................................. 8.6
(a)(1)(B)................................................. 8.7
(a)(2).................................................... N.A.
(b)....................................................... 8.10
(c)....................................................... 2.12
317(a)(1).................................................... 8.4
(a)(2).................................................... 8.4
(b)....................................................... 9.11(c)
318(a)....................................................... 15.2
N.A. means not applicable.
* THIS CROSS REFERENCE TABLE SHALL NOT BE DEEMED PART OF
THE INDENTURE FOR ANY PURPOSE.
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............3
Section 1.1 Definitions; Construction..................................3
Section 1.2 Incorporation by Reference of Trust Indenture Act..........9
Section 1.3 Acts of Holders............................................9
Section 1.4 Legal Holidays............................................10
ARTICLE II THE NOTES.........................................................11
Section 2.1 Terms of the Senior Secured Notes Due 2019................11
Section 2.2 Interest, Principal and Maturity Date.....................15
Section 2.3 Redemption................................................16
Section 2.4 Form of Trustee's Authentication..........................18
Section 2.5 Amount; Limitations on Issuance...........................18
Section 2.6 Authentication and Delivery of Notes......................18
Section 2.7 Form and Denominations....................................19
Section 2.8 Execution of Notes........................................20
Section 2.9 Temporary Notes...........................................20
Section 2.10 Registration, Transfer and Exchange.......................20
Section 2.11 Mutilated, Destroyed, Lost and Stolen Notes...............21
Section 2.12 Payment of Principal and Interest; Principal and Interest
Rights Preserved..........................................22
Section 2.13 Persons Deemed Owners.....................................23
Section 2.14 Cancellation..............................................23
Section 2.15 Dating of Notes; Computation of Interest..................24
Section 2.16 Source of Payments Limited................................24
Section 2.17 Parity of Notes...........................................24
Section 2.18 Allocation of Principal and Interest......................24
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................25
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Section 3.1 Representations and Warranties............................25
ARTICLE IV ACCOUNTS AND PROJECT REVENUES.....................................25
Section 4.1 Establishment of Indenture Account........................25
Section 4.2 Reserved..................................................25
Section 4.3 Payments into Note Account................................25
Section 4.4 Application of Funds in Interest Sub-Account, Principal
Sub-Account and Redemption Sub-Account....................25
Section 4.5 Investment of Monies in the Accounts......................26
Section 4.6 Monies to be Held in Trust................................26
Section 4.7 Dominion and Control......................................26
ARTICLE V COVENANTS.........................................................26
Section 5.1 Common Agreement Covenants................................26
Section 5.2 Reports...................................................27
Section 5.3 Compliance Certificate....................................27
ARTICLE VI REDEMPTION AND PREPAYMENT OF SECURITIES...........................28
Section 6.1 Applicability of Article..................................28
Section 6.2 Election to Redeem or Prepay; Notice to Trustee...........28
Section 6.3 Optional Redemption; Mandatory Redemption; Prepayment;
Selection of Notes to Be Redeemed or Prepaid..............28
Section 6.4 Notice of Redemption or Prepayment........................29
Section 6.5 Notes Payable on Redemption Date or Prepayment Date.......30
Section 6.6 Notes Redeemed or Prepaid in Part.........................30
ARTICLE VII COLLATERAL AND SECURITY...........................................31
Section 7.1 Collateral................................................31
Section 7.2 Recording and Opinions....................................31
Section 7.3 Release of Indenture Collateral...........................32
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Section 7.4 Certificates of Funding Corp..............................33
Section 7.5 Certificates of Trustee...................................33
Section 7.6 Authorization of Actions to be Taken by the Trustee.......33
Section 7.7 Authorization of Receipt of Funds by Trustee..............34
Section 7.8 Termination of Security Interests.........................34
ARTICLE VIII EVENTS OF DEFAULT; REMEDIES.......................................34
Section 8.1 Events of Default.........................................34
Section 8.2 Enforcement of Remedies...................................34
Section 8.3 Specific Remedies.........................................36
Section 8.4 Judicial Proceedings Instituted by Trustee................36
Section 8.5 Holders May Demand Enforcement of Rights by Trustee.......38
Section 8.6 Control by Holders........................................39
Section 8.7 Waiver of Past Defaults...................................39
Section 8.8 Holder May Not Bring Suit Except Under Certain
Conditions................................................39
Section 8.9 Undertaking to Pay Court Costs............................40
Section 8.10 Right of Holders to Receive Payment Not to Be Impaired....40
Section 8.11 Application of Monies Collected by Trustee................40
Section 8.12 Notes Held by Certain Persons Not to Share in
Distribution..............................................41
Section 8.13 Waiver of Appraisement, Valuation, Stay, Right to
Marshalling...............................................41
Section 8.14 Remedies Cumulative; Delay or Omission Not a Waiver.......42
Section 8.15 The Collateral Agency Agreement...........................42
ARTICLE IX THE TRUSTEE.......................................................42
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Section 9.1 Duties of Trustee.........................................42
Section 9.2 Rights of Trustee.........................................44
Section 9.3 Individual Rights of Trustee..............................45
Section 9.4 Trustee's Disclaimer......................................44
Section 9.5 Notice of Defaults........................................45
Section 9.6 Compensation and Indemnity................................45
Section 9.7 Replacement of Trustee....................................46
Section 9.8 Successor Trustee by Merger, etc..........................47
Section 9.9 Eligibility; Disqualification.............................47
Section 9.10 Preferential Collection of Claims Against Funding Corp....48
Section 9.11 Maintenance of Offices and Agencies.......................48
Section 9.12 Taxes.....................................................50
Section 9.13 Funds May Be Held by Trustee or Paying Agent;
Investments...............................................50
ARTICLE X HOLDERS' LISTS AND REPORTS........................................51
Section 10.1 Reports by Trustee to Holders of the Notes................51
Section 10.2 Holder Lists..............................................51
ARTICLE XI SUPPLEMENTAL INDENTURES...........................................52
Section 11.1 Supplements and Amendments to Financing
Documents Without Consent of Holders......................52
Section 11.2 Supplemental Indenture with Consent of Holders............53
Section 11.3 Documents Affecting Immunity or Indemnity.................54
Section 11.4 Execution of Supplemental Indentures......................54
Section 11.5 Effect of Supplemental Indentures.........................54
Section 11.6 Reference in Notes to Supplemental Indentures.............54
Section 11.7 Compliance with Trust Indenture Act.......................54
ARTICLE XII SATISFACTION AND DISCHARGE........................................55
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Section 12.1 Satisfaction and Discharge of Notes.......................55
Section 12.2 Satisfaction and Discharge of Indenture...................56
Section 12.3 Application of Trust Money................................57
ARTICLE XIII MEETINGS OF HOLDERS OF NOTES ACTION WITHOUT MEETING...............57
Section 13.1 Purposes for Which Meetings May Be Called.................57
Section 13.2 Call, Notice and Place of Meetings........................57
Section 13.3 Persons Entitled to Vote at Meetings......................58
Section 13.4 Quorum; Action............................................58
Section 13.5 Attendance at Meetings; Determination of Voting
Rights; Conduct of Adjournment of Meetings................59
Section 13.6 Counting Votes and Recording Action of Meetings...........60
Section 13.7 Action Without Meeting....................................60
ARTICLE XIV NONRECOURSE LIABILITY OF FUNDING CORP.............................60
Section 14.1 No Recourse...............................................60
ARTICLE XV MISCELLANEOUS.....................................................61
Xxxxxxx 00.0 Xxxxxxxxxxx xx Xxxxxxxxxx Agent...........................61
Section 15.2 Trust Indenture Act Controls..............................61
Section 15.3 Notices...................................................61
Section 15.4 Communication by Holders of Notes with Other
Holders of Notes..........................................62
Section 15.5 Certificate and Opinion as to Conditions Precedent........63
Section 15.6 Statements Required in Certificate or Opinion.............63
Section 15.7 Form of Documents Delivered to Trustee....................63
Section 15.8 Rules by Trustee and Agents...............................64
Section 15.9 No Personal Liability.....................................64
Section 15.10 Governing Law.............................................64
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Section 15.11 Table of Contents, Headings, etc..........................64
Section 15.12 Successors and Assigns....................................64
Section 15.13 Severability Clause.......................................65
Section 15.14 Benefits of Indenture.....................................65
Section 15.15 Execution in Counterparts.................................65
Section 15.16 U.S. Patriot Act..........................................65
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TRUST INDENTURE
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TRUST INDENTURE, dated as of October ____, 2005 (this "Indenture"),
between TERMOEMCALI FUNDING CORP., a Delaware corporation (together with its
successors and assigns, "Funding Corp."), its principal place of business and
mailing address being c/o Oak Power Services LLC, 000 Xxxxx Xxxxxx, Xxxxx 0-000,
Xxxxxx, Xxxxxxxxxxxxx 00000, AND DEUTSCHE BANK TRUST COMPANY AMERICAS, as
trustee (the "Trustee"), its corporate trust office and mailing address being at
00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, TermoEmcali I S.C.A. E.S.P. (the "Company") is a Colombian
mixed economy sociedad en comandita por acciones established to develop,
construct, start-up, test and operate an approximately 233.8 MW (net)
natural-gas fired power station near Cali, Colombia (the "Facility") on land
owned by the Company;
WHEREAS, Funding Corp. is a company established to provide a portion of
the funds necessary to finance the development, construction, start-up, testing
and operation by the Company of the Facility;
WHEREAS, Emcali E.I.C.E. E.S.P. ("Emcali"), an industrial and commercial
Colombian state enterprise of the public utility type of the municipal level
created by virtue of Acuerdo 050 of 1961, as amended by Acuerdo 082 of 1987,
Acuerdo 014 of 1996 and Acuerdo 034 of 1999, all the foregoing issued by the
municipal council of the city of Xxxxxxxx xx Xxxx, Colombia, owns (prior to the
restructuring of the debts of the Company) approximately 43% of the Company;
WHEREAS, Funding Corp. executed and delivered to Deutsche Bank Trust
Company Americas, as successor to Bankers Trust Company, as trustee (in such
capacity, the "Original Trustee") an indenture (the "Original Indenture") dated
as of April 15, 1997, providing for the issuance from time to time of Securities
(as defined in the Original Indenture) to be issued in one or more series;
WHEREAS, Funding Corp. issued its 10?% Senior Secured Notes Due 2014 in
an aggregate principal amount of $165,000,000 (the "Original Notes") pursuant to
the First Supplemental Indenture to the Original Indenture, dated as of April
15, 1997 (the "First Supplemental Indenture"), between Funding Corp. and the
Original Trustee (the Original Indenture, as supplemented by the First
Supplemental Indenture, being hereinafter called the "Existing Indenture");
WHEREAS, the Company and certain financial institutions (the "LOC
Banks") entered into (i) the Project Contract Letter of Credit and Reimbursement
Agreement, dated as of February 7, 1997 (the "Contract LOC Agreement"), as
amended, among the Company and Dresdner Bank AG, New York Branch, as Project
Contract LOC Agent,
and (ii) the Debt Service Reserve Letter of Credit and Reimbursement Agreement,
dated as of February 7, 1997 (the "Debt Service LOC Agreement" and together with
the Contract LOC Agreement, collectively, the "LOC Agreements"), as amended,
among the Company and Dresdner Bank AG, New York Branch, as DSR LOC Issuer and
DSR LOC Agent;
WHEREAS, pursuant to the terms of the Exchange Offer (as hereinafter
defined), each of the holders of the Original Notes agreed to participate in the
Exchange Offer and to exchange all of its outstanding Original Notes for its pro
rata share of the Notes (as hereinafter defined) to be issued to the holders of
the Original Notes under this Indenture and certain cash payments;
WHEREAS, because all holders of Original Notes are participating in the
Exchange Offer, the Existing Indenture will be terminated; and
WHEREAS, pursuant to the terms of the Bank Exchange (as hereinafter
defined), each of the LOC Banks, as assignor, agreed to assign its obligations
under the LOC Agreements to the Financial Institution, as assignee, in exchange
for its pro rata share of the Notes to be issued to the LOC Banks under this
Indenture and certain cash payments;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, in consideration of the
premises and of the exchange of the Original Notes pursuant to the Exchange
Offer and the obligations under the LOC Agreements pursuant to the Bank
Exchange, in each case, for the Notes, and in order to secure the payment of the
principal of and interest on the Notes and the performance of the covenants
therein and herein contained and to declare the terms and conditions on which
such Notes are secured, Funding Corp. hereby grants, bargains, mortgages, sells,
releases, conveys, assigns, transfers, pledges, sets over and confirms to the
Trustee, and grants to the Trustee a security interest in, the following:
All right, title and interest of Funding Corp. in and to the Indenture
Account (including any and all monies contained therein or hereafter delivered
to the Trustee for deposit therein), including, in each case, all monies
received and the right to receive monies thereunder;
TO HAVE AND TO HOLD all the same with all privileges and appurtenances
hereby given, granted, pledged and assigned or agreed or intended so to be, unto
the Trustee, and its successors in said trust and to it and its assigns forever;
IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the Holders from time to time of all Outstanding Notes without any
priority of any such Note over any other such Note;
PROVIDED, HOWEVER, that if, after the right, title and interest of the
Trustee in and to the Indenture Account shall have ceased, terminated and become
void in accordance with Article XII hereof, and the principal of and interest on
the Notes shall have been paid to the Holders thereof, then and in that case
this Indenture and the estate
2
and rights hereby granted shall cease, terminate and be void, and the Trustee
shall cancel and discharge this Indenture and execute and deliver to Funding
Corp. such instruments as Funding Corp. shall require to evidence the discharge
hereof; otherwise this Indenture shall be and remain in full force and effect;
and
THE PARTIES HEREBY COVENANT AND AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions; Construction. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) any capitalized term appearing herein and not defined in
Section 1.1 of this Indenture shall have the meaning ascribed to such
term in Appendix A to the Common Agreement;
(2) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(3) all references in this Indenture to designated "Schedules,"
"Exhibits," "Articles," "Sections" and other subdivisions are to the
designated Schedules, Exhibits, Articles, Sections and other
subdivisions of this Indenture;
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) unless otherwise specified herein or in any Financing
Document, all accounting terms used in any Financing Document shall be
interpreted, all accounting determinations made pursuant to the terms of
any Financing Document shall be made, and all financial statements
delivered pursuant to the terms of any Financing Document shall be
prepared, in accordance with GAAP.
"Act" means an act as defined in Section 1.3 of this Indenture.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise.
"Agent Members" has the meaning specified in Section 2.1(c)(i) of this
Indenture.
3
"Authenticating Agent" means any Person acting as Authenticating Agent
hereunder pursuant to Section 9.11(b) of this Indenture.
"Authorized Agent" means any Paying Agent, Authenticating Agent, or Note
Registrar or other agent appointed by the Trustee in accordance with this
Indenture to perform any function that this Indenture authorizes the Trustee or
such agent to perform.
"Authorized Officer" shall mean, (i) with respect to an entity
incorporated in a state of the U.S., the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, any Assistant Vice
President, the Treasurer, General Manager, Financial Comptroller,
Administrative/Legal Manager or any Assistant Treasurer of such Person at the
time being listed as such by the Secretary or any Assistant Secretary of such
Person in a certificate of such Secretary or such Assistant Secretary then in
the possession of the Collateral Agent, or (ii) in the case of an entity
organized under the laws of a jurisdiction outside the U.S., persons who hold an
office equivalent to the aforementioned persons and who are duly registered and
authorized to act for and on behalf of such entity in accordance with the laws
of that jurisdiction.
"Automatic Acceleration Default" has the meaning specified in Section
8.2(a) of this Indenture.
"Bank Exchange" means the exchange transaction pursuant to which each of
the LOC Banks, as assignor, agreed to assign its rights and obligations under
the LOC Agreements to the Financial Institution, as assignee, in exchange for
its pro rata share of the Notes to be issued to the LOC Banks under this
Indenture and certain cash payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal, state
or foreign law for the relief of debtors.
"Board of Directors" shall mean, (i) when used with respect to an entity
incorporated in a state of the U.S., either the board of directors of the
entity, or any committee of that board, duly authorized to act for it hereunder,
and (ii) when used with respect to an entity organized under the laws of
jurisdiction outside the U.S., an equivalent meaning to the aforementioned
meaning, in each case.
"Cash Surplus Redemption Amount" has the meaning specified in Section
2.3(b)(ii) of this Indenture.
"Common Agreement" means the Agreement as to Certain Undertakings,
Common Representations, Warranties, Covenants and other Terms, dated as of
[_________], 2005, among Funding Corp., the Company, Leaseco, the Collateral
Agent, the Colombian Security Agent, the Trustee and the Financial Institution.
"Company" has the meaning specified in the Recitals of this Indenture.
"Contract LOC Agreement" has the meaning specified in the Recitals of
this Indenture.
4
"Corporate Trust Office" means the designated corporate trust office of
the Trustee at which at any particular time corporate trust business of the
Trustee shall be administered, which at the date of this Indenture is 00 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, or such other office as may be designated by the
Trustee to Funding Corp. from time to time.
"Debt Service LOC Agreement" has the meaning specified in the Recitals
of this Indenture.
"DTC" has the meaning specified in Section 2.1(b)(i) of this Indenture.
"Emcali" has the meaning specified in the Recitals of this Indenture.
"Event of Default" has the meaning specified in Section 8.1 of this
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the exchange offer and consent solicitation
described in the Offering Memorandum and Disclosure Statement, dated August 11,
2005, pursuant to which all holders of the Original Notes agreed to participated
in such exchange offer and exchange all of its outstanding Original Notes for
its pro rata share of the Notes to be issued to the holders of the Original
Notes under this Indenture and certain cash payments.
"Existing Indenture" has the meaning specified in the Recitals of this
Indenture.
"Facility" has the meaning specified in the Recitals of this Indenture.
"First Supplemental Indenture" has the meaning specified in the Recitals
of this Indenture.
"Funding Corp." has the meaning specified in the Preamble of this
Indenture.
"Funding Corp. Request" or "Funding Corp. Order" means a written request
or order signed in the name of Funding Corp. by an Authorized Officer and
delivered to the Trustee.
"Global Notes" has the meaning specified in Section 2.1(b)(i) of this
Indenture.
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Indenture" means this indenture of trust to be dated as of October
____, 2005 as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the provisions hereof.
"Indenture Account" means the Note Account (and each sub-account
thereof) created pursuant to Section 4.1 of this Indenture.
5
"Indenture Collateral" means the Indenture Account and all other
property, rights and interests that are or are intended to be subject to the
Liens of the Security Documents.
"Interest Payment Date" means the 15th day of each calendar month, the
first date of payment being the first such date after the Closing Date.
"Interest Sub-Account" means the Interest Sub-Account created pursuant
to Section 4.1 of this Indenture.
"Leaseco" means TermoEmcali Leasing, Ltd. (formerly known as Intergen
Colombia Leasing Ltd.), a Cayman Island company.
"Lien" means, with respect to any asset, rights or interests, any
mortgage, lien, pledge, charge, security interest, encumbrance, trust
arrangement, judgment, easement, title retention, preferential right or any
other security agreement, arrangement or similar right of any kind in respect of
such asset, right or interest, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction.
"LOC Agreements" has the meaning specified in the Recitals of this
Indenture.
"LOC Banks" has the meaning specified in the Recitals of this Indenture.
"Luxembourg Agent" has the meaning assigned to such term in Section 15.1
of this Indenture.
"Notes" has the meaning assigned to such term in Section 2.1(a) of this
Indenture.
"Note Account" means the Note Account created pursuant to Section 4.1 of
this Indenture.
"Note Register" has the meaning specified in Section 2.10 of this
Indenture.
"Note Registrar" means any Person acting as Note Registrar hereunder
pursuant to Section 9.11.
"Notice of Acceleration" has the meaning specified in Section 8.2(b) of
this Indenture.
"Officer's Certificate" means a certificate delivered to the Trustee
that has been signed by an Authorized Officer and which satisfies the
requirements of Section 15.6 of this Indenture.
"Opinion of Counsel" means a written opinion of counsel for any Person
either expressly referred to herein or otherwise satisfactory to the Trustee
which may include,
6
without limitation, counsel for Funding Corp. whether or not such counsel is an
employee of Funding Corp. and, in any case, which satisfies the requirements of
Section 15.6 of this Indenture.
"Original Indenture" has the meaning specified in the Recitals of this
Indenture.
"Original Issue Date" means the date that the Notes are first issued to
the Holders in connection with the closing of the Exchange Offer.
"Original Notes" has the meaning specified in the Recitals of this
Indenture.
"Original Trustee" has the meaning specified in the Recitals of this
Indenture.
"Outstanding" when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes or portions thereof deemed to have been paid within
the meaning of Section 12.1 of this Indenture; and
(iii) Notes that have been exchanged for other Notes or Notes in
lieu of which other Notes have been authenticated and delivered;
provided, however, that in determining whether the Holders of the requisite
principal amount of Notes Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Notes, Notes owned by Funding
Corp., the Company, Emcali or Leaseco, or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
Funding Corp., the Company, Emcali or Leaseco, as the case may be, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to presence of a quorum, only Notes that a Responsible Officer
of the Trustee knows to be so owned shall be so disregarded.
"Paying Agent" means any Person acting as Paying Agent hereunder
pursuant to Section 9.11(b) of this Indenture.
"Payment Date" has the meaning assigned to such term in the Notes.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
7
"Place of Payment" when used with respect to the Notes, means the office
or agency maintained pursuant to Section 9.11(a) of this Indenture.
"Prepayment Date" has the meaning specified in Section 6.2 of this
Indenture.
"Principal Payment Date" means the 15th day of each calendar month, the
first date of payment being the first such date after the Closing Date.
"Principal Sub-Account" means the Principal Sub-Account created pursuant
to Section 4.1 of this Indenture.
"Redemption Date" has the meaning specified in Section 6.2 of this
Indenture.
"Redemption Sub-Account" means the Redemption Sub-Account created
pursuant to Section 4.1 of this Indenture.
"Regular Record Date" for the Stated Maturity of any Note, or for the
Stated Maturity of any installment of principal thereof or payment of interest
thereon, means the last day of the month (whether or not a Business Day) prior
to the next succeeding Stated Maturity.
"Regulation S" has the meaning specified in Section 2.1(b)(i) of this
Indenture.
"Regulation S Global Note" has the meaning specified in Section
2.1(b)(i) of this Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer assigned to the Corporate Trust Office of the Trustee, including any
managing director, vice president, assistant vice president or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and having direct responsibility for the
administration of this Indenture and also, with respect for a particular matter,
any officer to whom a matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Restricted Global Note" has the meaning specified in Section 2.1(b)(i)
of this Indenture.
"SEC" means the Securities and Exchange Commission.
"Senior Secured Notes Due 2019" has the meaning assigned to such term in
Section 2.1(a) of this Indenture.
"Special Record Date" for the payment of any defaulted principal or
interest means a date fixed by the Trustee pursuant to Section 2.12 of this
Indenture.
"Stated Maturity," when used with respect to any Note or any installment
of principal thereof or payment of interest thereon, means the date specified in
such Note as
8
the fixed date on which such Note or such installment of principal or payment of
interest is due and payable.
"TIA" means the Trust Indenture Act of 1939, as in effect on the date on
which this Indenture is qualified under the TIA.
"Trustee" means Deutsche Bank Trust Company Americas, and any successor
Trustee appointed pursuant to the applicable terms and subject to the conditions
of this Indenture.
Section 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means Funding Corp. and any successor obligor upon the
Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.3 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing or, alternatively, may be embodied in and
evidenced by the record of Holders of Notes voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of
Notes duly called and held in accordance with the provisions of Article XIII, or
a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record, or both, are delivered to the Trustee. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 9.1) conclusive in favor of the Trustee or Funding Corp., as
the case may be, if made in the manner provided in this Section 1.3. The record
of any meeting of Holders of Notes shall be proved in the manner provided in
Section 13.6.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary
public or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the Person executing
such instrument acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such notary
or other such officer, and where such execution is by an officer of a
corporation or association or a member of a partnership, on behalf of
such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date or dates of holding the same, shall be proved by
the Note Register and the Trustee shall not be affected by notice to the
contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind the
Holder of every Note issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such action is
made upon such Note. (e) Until such time as written instruments shall
have been delivered with respect to the requisite percentage of
principal amount of Notes for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf
of a Holder of Notes may be revoked with respect to any or all of such
Notes by written notice by such Holder or any subsequent Holder, proven
in the manner in which such instrument was proven.
(f) Notes authenticated and delivered after any Act of Holders
may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by such Act of Holders.
If Funding Corp. shall so determine, new Notes so modified as to
conform, in the opinion of Funding Corp., to such action may be prepared
and executed by Funding Corp. and authenticated and delivered by the
Trustee in exchange for Outstanding Notes.
Section 1.4 Legal Holidays. In any case where the Redemption Date,
Prepayment Date or the Stated Maturity of any Note or of any installment of
principal thereof or payment of interest thereon, or any date on which any
defaulted interest is proposed to be paid, shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or such Note) payment of
interest and/or principal need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
Redemption Date, Prepayment Date or at the Stated Maturity, or on the date on
which the defaulted interest is proposed to be paid, and, if such payment is
timely made, no interest shall accrue for the period from and after such
Redemption Date, Prepayment Date or Stated Maturity, or date for the payment of
defaulted interest, as the case may be, to the date of such payment.
10
ARTICLE II
THE NOTES
Section 2.1 Terms of the Senior Secured Notes Due 2019.
(a) There is hereby created one series of Notes of Funding Corp.
designated Senior Secured Notes Due 2019, in the aggregate principal
amount of $153,707,880 (the "Senior Secured Notes Due 2019," or the
"Notes"). Upon delivery of a Funding Corp. Order to the Trustee in
accordance with the provisions of Section 2.6 below, the Trustee shall
authenticate and deliver the Notes. Such Funding Corp. Order shall
specify the amount of the Notes to be authenticated and the date on
which such Notes are to be authenticated.
(b) (i) The Notes issued in the Exchange Offer for the Original
Notes evidenced by the "Restricted Global Note" referred to in the
Original Indenture, any Notes issued pursuant to the Bank Exchange and
any Note thereafter sold in reliance on Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act") will be
represented by a single, permanent global note (the "Restricted Global
Note") in fully registered form, without coupons, substantially in the
form of Exhibit A, which will be deposited with a custodian for, and
registered in the name of, The Depository Trust Company ("DTC") or its
nominee. The Notes issued in the Exchange Offer for the Original Notes
evidenced by the "Regulation S Global Note" referred to in the Original
Indenture, any Notes issued pursuant to the Bank Exchange and any Note
thereafter sold in reliance on Regulation S ("Regulation S") under the
Securities Act will be represented by a single, permanent global note
(the "Regulation S Global Note," and, together with the Restricted
Global Note, the "Global Notes") in fully registered form, without
coupons, substantially in the form of Exhibit B, which will be deposited
with a custodian for, and registered in the name of, DTC or its nominee.
If issued in certificated definitive form as otherwise provided in the
Indenture, the Notes shall be substantially in the form of Exhibit A.
(ii) Beneficial interests in the Global Notes (and any
Notes issued in exchange therefor) will be subject to certain
restrictions on transfer set forth therein and in the Indenture.
Beneficial interests in the Restricted Global Note may be transferred to
a person who takes delivery in the form of an interest in the Regulation
S Global Note only upon receipt by the Trustee of a written
certification substantially in the form of Exhibit C hereto from the
transferor to the effect that such transfer is being made in accordance
with Rule 144A under the Securities Act. Any beneficial interest in the
Global Notes that is transferred to a Person who takes delivery in the
form of an interest in the other Global Note will, upon transfer, cease
to be an interest in such Global Note and become an interest in the
other Global Note and, accordingly, will thereafter be subject to all
transfer restrictions and other procedures applicable to beneficial
interests in such other Global Note for as long as it remains such an
interest.
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(iii) Except in the limited circumstances described under
Section 2.1(d) below, beneficial interests in the Global Notes will only
be recorded by book-entry and owners of beneficial interests in the
Global Notes will not be entitled to receive physical delivery of
certificates representing the Notes.
(iv) The Notes will be issued only in fully registered
form, without coupons, in minimum denominations of $100,000 or amounts
in excess thereof. No service charge will be made for any registration
of transfer or exchange of the Notes, but the Trustee may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
(c) (i) Upon the issuance of the Global Notes, DTC or its
nominee will credit, on its internal system, the respective principal
amount of the individual beneficial interests represented by such Global
Notes to the accounts of persons who have accounts with DTC. Such
accounts initially will be designated by Funding Corp. in connection
with the closing of the Exchange Offer and the Bank Exchange. Ownership
of beneficial interests in a Global Note will be limited to persons who
have accounts with DTC ("Agent Members") or persons who hold interests
through Agent Members. Ownership of beneficial interests in the Global
Notes will be shown on, and the transfer of that ownership will be
effected only through, records maintained by DTC or its nominee (with
respect to interests of Agent Members) and the records of Agent Members
(with respect to interests of persons other than Agent Members).
(ii) So long as DTC or its nominee is the registered owner
or Holder of a Global Note, DTC or its nominee, as the case may be, will
be considered the sole owner or Holder of the Notes represented by such
Global Note for all purposes under the Indenture and under the Notes. No
beneficial owner of an interest in a Global Note will be able to
transfer that interest except in accordance with DTC's applicable
procedures (and, if applicable, the procedures of Euroclear and Cedel)
unless Funding Corp. shall issue certificates for the Notes in
definitive registered form as under Section 2.1(d) below.
(iii) Initially, Holders will hold their interests in the
Regulation S Global Note either directly through Euroclear or Cedel, if
they are participants in such system, or indirectly through
organizations that are participants in such systems. Holders may also
hold such interests through organizations other than Euroclear or Cedel
that are Agent Members. Euroclear and Cedel will hold interests in the
Regulation S Global Note on behalf of their participants through their
respective depositories, which in turn will hold such interests in such
Regulation S Global Note in customers' securities accounts in the
depositories' names on the books of DTC. Holders may hold their
interests in the Restricted Global Note directly through DTC if they are
Agent Members, or indirectly through organizations that are Agent
Members.
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(iv) All payments of the principal of, and interest and
additional amounts on the Global Notes will be made to DTC or its
nominees, as the registered owners thereof.
(v) Transfers between participants in DTC will be effected
in the ordinary way in accordance with DTC rules and will be settled in
same-day funds. Transfers between participants in Euroclear and Cedel
will be effected in the ordinary way in accordance with their respective
rules and operating procedures. Subject to compliance with the transfer
restrictions applicable to the Notes, cross-market transfers between
DTC, on the one hand, and directly or indirectly through Euroclear or
Cedel participants, on the other, will be effected through DTC in
accordance with DTC rules on behalf of Euroclear or Cedel, as the case
may be by its respective depository.
(d) If (i) DTC or any successor depository notifies Funding
Corp. that it is unwilling or unable to continue as a depository for a
Global Note or ceases to be a "clearing agency" registered under the
Exchange Act and a successor depository is not appointed by Funding
Corp. within 90 days of such notice, or (ii) an Event of Default under
the Notes has occurred and is continuing and payment of principal and
interest has been accelerated, Funding Corp. shall issue certificates
for the Notes in definitive registered form in exchange for the
Restricted Global Note and the Regulation S Global Note, as the case may
be. In the case of certificates for Notes issued in exchange for the
Restricted Global Note, such certificates will bear the following
legend:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ANY EVENT MAY
BE SOLD OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH THE INDENTURE,
COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST
OFFICE OF THE TRUSTEE IN NEW YORK CITY.
EACH HOLDER OF THIS NOTE REPRESENTS TO TERMOEMCALI FUNDING
CORP. ("FUNDING CORP.") THAT (A) SUCH HOLDER WILL NOT SELL, PLEDGE OR
OTHERWISE TRANSFER THIS NOTE (WITHOUT THE CONSENT OF FUNDING CORP.)
OTHER THAN (I) TO A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
COMPLYING WITH RULE 144A UNDER THE SECURITIES ACT, (II) IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (III) IN ACCORDANCE WITH
RULE 144 UNDER THE SECURITIES ACT, (IV) PURSUANT TO
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ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT; PROVIDED THAT
ANY TRANSFER PURSUANT TO CLAUSES (III) AND (IV) ABOVE ARE SUBJECT TO THE
RECEIPT BY FUNDING CORP. OF AN OPINION OF COUNSEL OR SUCH OTHER EVIDENCE
ACCEPTABLE TO FUNDING CORP. THAT SUCH RESALE, PLEDGE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN AND
DELIVER TO THE TRANSFEREE (OTHER THAN A QUALIFIED INSTITUTIONAL BUYER)
PRIOR TO THE SALE A COPY OF A NOTICE TO INVESTORS (COPIES OF WHICH MAY
BE OBTAINED FROM THE TRUSTEE)."
The holder of a certificated definitive registered Note
may transfer such Note in whole or part by surrendering it at the
Corporate Trust Office of the Trustee, or at the office of the
Luxembourg Agent in Luxembourg. Upon the transfer, exchange or
replacement of definitive Notes bearing the foregoing legend, or upon
specific request for removal of such legend on a definitive Note,
Funding Corp. will deliver only definitive Notes that bear such legend,
or will refuse to remove such legend, as the case may be, unless there
is delivered to Funding Corp. such satisfactory evidence, which may
include an opinion of counsel, as may reasonably be required by Funding
Corp. that neither the legend nor the restrictions on transfer set forth
therein are required to ensure compliance with the provisions of the
Securities Act.
In case any definitive Note shall become mutilated,
destroyed, lost or stolen, Funding Corp. will execute, and, upon Funding
Corp.'s request, the Trustee or the Luxembourg Agent will authenticate
and deliver, a new definitive Note, of like tenor (including the same
date of issuance) and equal principal amount, registered in the same
manner, dated the date of its authentication and bearing interest from
the last date for which interest has been paid on such Note, in exchange
and substitution for such Note (upon surrender and cancellation thereof)
or in lieu of and substitution for such Note. In each case where a Note
is mutilated, destroyed, lost or, stolen, the applicant for a substitute
Note shall furnish Funding Corp. and either the Trustee or the
Luxembourg Agent such security or indemnity as may be required by them
to save each of them harmless, and satisfactory evidence of the
mutilation, destruction, loss or theft of such Note. Upon the issuance
of any substituted Note, Funding Corp. may require the payment by the
registered holder thereof of a sum sufficient to cover a reasonable
charge and expenses connected therewith. If the Holder of a certificated
definitive registered Note transfers a partial interest in such Note,
Funding Corp. will issue such Holder a new Note representing the amount
of the original Note that has not been transferred.
14
(e) Where the Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given if in writing and mailed,
first-class postage prepaid, to each Holder, at its address as it
appears in the Note Register and, for so long as the Notes are listed on
the Luxembourg Stock Exchange, when published in a daily newspaper of
general circulation in Luxembourg.
(f) Any Note in certificated definitive form sold pursuant to
Regulation S that is to be redeemed or prepaid only in part shall be
surrendered at the office of the Luxembourg Agent.
(g) In the event of an early redemption or Event of Default,
payment of principal of Notes in certificated definitive form sold
pursuant to Regulation S will be made upon surrender of such Notes at
the office of the Luxembourg Agent.
(h) Copies of the Indenture, the Security Documents, the Emcali
Guarantees, the other Financing Documents, the Annual Operating Budget,
the bylaws of the Company and Funding Corp., the articles of association
of Leaseco and the most recent annual audited financial statements of
the Company and Leaseco, along with the unaudited interim financial
statements of the Company and Leaseco for the first, second and third
quarters of the most recent fiscal year, will be available in English,
for so long as the Notes are listed on the Luxembourg Stock Exchange and
the rules of the Luxembourg Stock Exchange so require, at the office of
the Luxembourg Agent in the City of Luxembourg, and, so long as any
Notes are outstanding, at the Corporate Trust Office of the Trustee.
(i) Each Note shall have and be subject to such other terms as
are provided in this Indenture.
Section 2.2 Interest, Principal and Maturity Date.
(a) Each Note created hereby shall bear interest on the unpaid
principal amount thereof (and, in the case of a Default or Event of
Default, on any overdue amounts thereunder) from time to time
outstanding from the first day of the month in which the Closing Date
occurs until such amount is paid in full at the rate of interest set
forth in the form of the Notes attached hereto. Interest on each Note
will be payable monthly in arrears to the person in whose name such Note
is registered at the close of business on the Regular Record Date
applicable to the payment of such interest on the Notes. The outstanding
principal amount of the Notes and interest on each Note shall be due and
payable in installments of principal and interest on the fifteenth
(15th) calendar day of each calendar month, commencing on the first such
date following the Closing Date, in the amounts set forth in the form of
the Notes attached hereto.
(b) Principal of, and interest on, the Notes will be payable at
the- principal Corporate Trust Office of the Trustee (which shall be the
principal paying agent for the Notes) in the Borough of Manhattan, The
City of New York or at the
15
office of the Luxembourg Agent in Luxembourg. Payment of principal of
and interest on each Note shall be made by check mailed to the holder at
his registered address or otherwise as provided in this Indenture except
that the final payment of principal of any Note shall be made upon
presentation and surrender of such Note at the Corporate Trust Office of
the Trustee or at the office of the Luxembourg Agent in Luxembourg. Upon
application by a record Holder of at least $1,000,000 in aggregate
principal amount of the Notes to the Trustee not later than 15 days
prior to the applicable Payment Date, such record holder may receive
payment on the Notes by wire transfer to a U.S. dollar account
maintained by such record holder with a bank in The City of New York or
in Europe.
(c) If any payment on a Note is due on a day that is a day on
which banks in Xxx Xxxx xx Xxx Xxxx, Xxxxxxxxxx or Bogota, Colombia are
authorized or required to close, then such payment may be made on the
next succeeding day that is not a day on which commercial banks in Xxx
Xxxx xx Xxx Xxxx, Xxxxxxxxxx or Bogota, Colombia are authorized or
required to close and no interest shall accrue on the amount of such
payment for the period after the specified payment date.
(d) Each Note shall mature on December 31, 2019.
Section 2.3 Redemption.
(a) Optional Redemption. Funding Corp. shall have the option to
redeem the Notes pursuant to this Section 2.3(a) at any time in whole or
in part at 100% of the outstanding principal amount, plus accrued and
unpaid interest to and including the date of redemption. Notes that are
subject to redemption pursuant to this Section 2.3(a) shall be redeemed
in accordance with their terms and in accordance with this Section
2.3(a) and Article VI of this Indenture.
All proceeds received by the Trustee from the Collateral Agent
pursuant to the Collateral Agency Agreement with respect to an optional
redemption of the Notes under this Section 2.3(a) shall be deposited
into the Redemption Sub-Account and applied by the Trustee to the
redemption of the Notes within 10 days after the receipt by the Trustee
of such proceeds from the Collateral Agent. The Trustee shall apply all
proceeds received in respect of an optional redemption of the Notes
under this Section 2.3(a) to the remaining monthly installments of the
Notes on a pro rata basis among all such remaining installments.
(b) Mandatory Redemption. The Notes are subject to mandatory
redemption in accordance with and on the terms set forth in Section 6.3
of this Indenture and as follows:
16
(i) Initial Redemption. Within ten (10) Business Days
after the Closing Date, Funding Corp. shall redeem $11,592,020(1) principal
amount of the Notes at a redemption price equal to 100% of the principal amount
thereof. Such principal amount shall be applied to the Outstanding Notes on a
pro rata basis and shall not affect the amount of any subsequent monthly
installment payment due under this Indenture or the Notes.
(ii) Cash Surplus for Prepayment under the Emcali Debt
Restructuring Agreement. The Notes shall be redeemed prior to maturity, in whole
or in part, on May 5 and November 5 of each year (each a "Cash Surplus
Redemption Date"), commencing with November 5, 2005, at a redemption price equal
to the principal amount of the Notes to be redeemed together with interest
accrued thereon through the Redemption Date, from proceeds received by the
Trustee from Funding Corp. or the Collateral Agent for deposit into the
Redemption Sub-Account in respect of the Cash Surplus for Prepayment received by
the Company under the Emcali Debt Restructuring Agreement. Except to the extent
that a portion of any Cash Surplus Redemption Amount may be applied to the
Arrears Obligations as described below, Funding Corp. shall make each such
redemption in an amount equal to 100% of the Cash Surplus for Prepayment amount
received by the Company under the Tranche E Debt as described in the Emcali Debt
Restructuring Agreement (the "Cash Surplus Redemption Amount") for the
semi-annual periods ending June 30 and December 31 of each year, such payments
to be made to the Trustee promptly upon receipt by the Company of any such Cash
Surplus Redemption Amount. The Trustee shall deposit any Cash Surplus Redemption
Amounts received by it into the Redemption Sub-Account. Except to the extent
that a portion of any Cash Surplus Redemption Amount may be applied to the
Arrears Obligations as described below, any Cash Surplus Redemption Amount
received by the Trustee shall be applied by the Trustee to the redemption of the
Notes pursuant to this Section 2.3(b)(ii) in accordance with the following
schedule: (A) in the case of a Cash Surplus Redemption Amount for the period
ending June 30 of any year, on November 5 of such year, or (B) in the case of a
Cash Surplus Redemption Amount for the period ending December 31 of any year, on
May 5 of the following year. In connection with each such Cash Surplus
Redemption Amount, the Company shall certify to the Trustee as to whether, based
upon application of prepayments required under the Emcali Debt Restructuring
Agreement, such Cash Surplus Redemption Amount is to be applied by the Trustee
to (X) to the remaining monthly installments of the Notes in the inverse order
of maturity, or (Y) first, to not more than the six monthly installments of the
Notes next following the applicable Cash Surplus Redemption Date, and then, the
remainder (if any), to the remaining monthly installments of the Notes in the
inverse order of maturity. If any Cash Surplus Redemption Amount is applied in
accordance with clause (X) of the immediately
--------------------
(1) This initial redemption amount assumes that (i) 100% of the outstanding
Original Notes and the obligations under the LOC Agreements are exchanged for
the Notes pursuant to the Exchange Offer and the Bank Exchange, (ii) a closing
of the Exchange Offer and the Bank Exchange on September 9, 2005 and (iii) no
additional payments are made in the Emcali Exclusive Sub-Account after August 5,
2005. This amount will need to be adjusted in the event that these assumptions
are not correct.
17
preceding sentence, the Company will include in its certification an updated
schedule of remaining monthly installments of the Notes after giving effect to
the applicable prepayment. If any Cash Surplus Redemption Amount is applied in
accordance with clause (Y) of such sentence, the Company will include in its
certification an updated schedule of remaining monthly installments of the Notes
after giving effect to the applicable prepayment and an identification of the
corresponding monthly installments to be made in respect of the Arrears
Obligations for the same period described in subclause "first" of such clause
(Y) and, in accordance with the Collateral Agency Agreement, such amounts shall
be held by the Collateral Agent for application, subject to the Subordination
Agreements, to the Arrears Obligations as and when each monthly installment on
the Arrears Obligations for such period shall become due and payable. Based on
such certification, the Trustee shall apply such Cash Surplus Redemption Amount
to the Notes as indicated on such certification and shall notify the Holders of
such application and provide an updated schedule of remaining monthly
installments of the Notes based on the Company's certification. All Cash Surplus
Redemption Amounts applied to the Outstanding Notes shall be applied to all of
the Outstanding Notes on a pro rata basis. Notes that are subject to redemption
pursuant to this Section 2.3(b)(ii) shall be redeemed in accordance with their
terms and in accordance with this Section 2.3(b)(ii) and Article VI of this
Indenture.
Section 2.4 Form of Trustee's Authentication. The Trustee's certificate
of authentication on all Notes shall be in substantially the following form:
This Note is one of the Notes referred to in the
within-mentioned Indenture.
[ ] as Trustee
By ______________________
Authorized Officer
Section 2.5 Amount; Limitations on Issuance. The aggregate principal
amount of Notes outstanding at any time may not exceed the aggregate amount of
Notes authenticated for original issuance by Funding Corp. pursuant to all
Funding Corp. Orders, except as provided in Section 2.11 hereof. The Notes shall
be issued in one series.
Section 2.6 Authentication and Delivery of Notes. Subject to Section
2.5, at the time of the execution and delivery of this Indenture, Funding Corp.
shall deliver Notes executed by Funding Corp. to the Trustee for authentication,
together with a Funding Corp. Order for the authentication and delivery of such
Notes, and the Trustee shall thereupon authenticate and make available for
delivery such Notes in accordance with such Funding Corp. Order without any
further action by Funding Corp. No Note shall be secured by or entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Note a certificate of authentication, in the form provided
for herein, executed by the Trustee by the manual signature of one of its
Responsible Officers or any Authorized Officer, and such certificate upon any
Note shall
18
be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder. In authenticating such Notes
and accepting the additional responsibilities under this Indenture in relation
to such Notes, the Trustee shall be entitled to receive, and (subject to Section
9.1) shall be fully protected in relying upon:
(a) an Officer's Certificate of Funding Corp. (i) certifying as
to resolutions of the Board of Directors of Funding Corp. authorizing
this Indenture and the Notes, (ii) certifying that all conditions
precedent under this Indenture to the Trustee's authentication and
delivery of the Notes have been complied with, and (iii) certifying as
to the incumbency of the persons named in such certificate;
(b) an Opinion of Counsel to the effect that (i) the Indenture
and the Notes have been duly authorized, executed and delivered by
Funding Corp., and (ii) the Notes, when authenticated and made available
for delivery by the Trustee and issued by Funding Corp. in the manner
and subject to any conditions specified in such Opinion of Counsel, will
constitute legal, valid and binding obligations of Funding Corp.,
enforceable against Funding Corp. in accordance with their terms, except
as (A) may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights and remedies generally, and (B) is
subject to general principles of equity (regardless of whether
considered in a proceeding in equity or at law); and
(c) such other documents and evidence with respect to Funding
Corp. as the Trustee may reasonably request.
Notwithstanding the foregoing, if any Note shall have been authenticated
and delivered hereunder but never issued and sold by Funding Corp., Funding
Corp. shall deliver such Note to the Trustee for cancellation as provided in
Section 2.14 together with a written statement (which need not comply with
Section 15.6 and need not be accompanied by an Opinion of Counsel) stating that
such Note has never been issued and sold by Funding Corp., and thereafter for
all purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall never have been or be entitled
to the benefits hereof.
Section 2.7 Form and Denominations. Except to the extent they are in
book-entry form, the Notes shall be in registered form and may have such
letters, numbers or other marks of identification and such legends or
endorsements printed, lithographed, engraved, typewritten or photocopied
thereon, as may be required to comply with the rules of any securities exchange
(if any) upon which the Notes are to be listed or to conform to any usage in
respect thereof, or as may, consistently herewith, be prescribed by the Board of
Directors of Funding Corp. or by the officers executing such Notes, such
determination by said officers to be evidenced by their signing the Notes.
The definitive Notes shall be printed, lithographed, engraved,
typewritten, photocopied or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange, all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
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All Notes shall be substantially identical except as to denomination and
except as may otherwise be provided herein.
All Notes in book-entry form shall comply with the requirements of the
clearing corporation or clearing agency with whom the registered form of such
Note will be deposited.
Section 2.8 Execution of Notes. The Notes shall be executed on behalf of
Funding Corp. by its President or its Secretary, with or without its corporate
seal reproduced thereon. The signature of any such officers on the Notes may be
manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who were
at the time such signatures were affixed the proper officers of Funding Corp.
shall bind Funding Corp. notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
Section 2.9 Temporary Notes. Pending the preparation of definitive
Notes, Funding Corp. may execute, and upon a Funding Corp. Order, the Trustee
shall authenticate and make available for delivery, temporary Notes that are
printed, lithographed, typewritten, photocopied or otherwise produced, in any
denomination, substantially of the tenor of the definitive Notes in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, Funding Corp. will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable, for definitive Notes upon
surrender of the temporary Notes at the Corporate Trust Office of the Trustee or
at the Place of Payment, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, Funding Corp. shall execute and
the Trustee shall authenticate and make available for delivery, in exchange
therefor, definitive Notes of authorized denominations and of like tenor and
aggregate principal amount. Until so exchanged such temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
Section 2.10 Registration, Transfer and Exchange. The Trustee shall
cause to be kept at the Corporate Trust Office a register in which, subject to
such reasonable regulations as Funding Corp. may prescribe, Funding Corp. shall
provide for the registration of Notes and for the registration of transfers and
exchanges of Notes. This register and, if there shall be more than one Note
Registrar, the combined registers maintained by all such Note Registrars, are
herein sometimes referred to as the "Note Register."
Upon surrender for registration of transfer of any Notes at the
Corporate Trust Office, or at any office or agency maintained for such purpose
pursuant to Section
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9.11(a), Funding Corp. shall execute, and the Trustee shall authenticate and
make available for delivery, in the name of the designated transferee or
transferees, one or more new Notes, of authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holders, Notes may be exchanged for other Notes, of
authorized denominations and of like tenor and aggregate principal amount, upon
surrender of the Notes to be exchanged at any office or agency maintained for
such purpose pursuant to Section 9.11(a). Whenever any Notes are so surrendered
for exchange, Funding Corp. shall execute, and the Trustee or a duly authorized
authenticating agent shall authenticate and make available for delivery, the
Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of Funding Corp. evidencing the same debt, and
entitled to the same security and benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to Funding Corp. and the Note Registrar or any
transfer agent, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be required of any Holders participating in any
transfer or exchange of Notes in respect of such transfer or exchange, but the
Note Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Notes, other than exchanges pursuant to Section 2.9, 6.6 or 11.6 not
involving any transfer.
The Note Registrar shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 6.2 and ending at the close of
business on the day of such mailing or (ii) to issue, register the transfer of
or exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note selected for redemption in part.
Section 2.11 Mutilated, Destroyed, Lost and Stolen Notes. If (a) any
mutilated Note is surrendered to the Trustee or Funding Corp. or Funding Corp.
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Note, and (b) there is delivered to Funding Corp. and the
Trustee evidence to their satisfaction of the ownership and authenticity
thereof, and such security or indemnity as may be required by them to save each
of them harmless, Funding Corp. shall execute and upon its request the Trustee
shall authenticate and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Note, a new Note of like tenor
and principal amount, bearing a number not then outstanding.
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Notwithstanding the foregoing, in case any such mutilated, destroyed,
lost or stolen Note has become or is about to become due and payable, Funding
Corp. upon satisfaction of the conditions set forth in clauses (a) and (b) of
the immediately preceding paragraph, may, instead of issuing a new Note, pay
such Note.
Upon the issuance of any new Note under this Section 2.11, Funding Corp.
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. If required by the Trustee or Funding Corp., an
indemnity bond must be supplied by any Holder that shall be sufficient in the
judgment of the Trustee and Funding Corp. to protect Funding Corp., the Trustee
and any authenticating agent from any loss that any of them may suffer if a Note
is replaced.
Without prejudice to any rights of Funding Corp. under any indemnity
bond or other security provided by any Holders pursuant to this Section 2.11,
every new Note issued pursuant to this Section 2.11 in lieu of any mutilated,
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of Funding Corp., whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the security and benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.11 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.12 Payment of Principal and Interest; Principal and Interest
Rights Preserved. Principal or interest on any Note that is payable, and is
punctually paid or duly provided for, at any Stated Maturity shall be paid to
the Person in whose name that Note (or one or more predecessor Notes) is
registered at the close of business on the Regular Record Date for such
principal or interest. Payment of principal of and interest on the Notes shall
be made at the Corporate Trust Office of the Trustee or by check or in another
manner or manners if so provided in this Indenture.
Any principal of or interest on any Note that is payable, but is not
punctually paid or duly provided for, at any Stated Maturity of an installment
of principal or payment of interest shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder
to the extent that such defaulted principal or interest may be paid by Funding
Corp., at its election in each case, as provided in paragraph (a) or paragraph
(b) below:
(a) Funding Corp. may elect to make payment of all or any
portion of such defaulted principal or interest to the Persons in whose
names the Notes (or their respective predecessor Notes) in respect of
which principal or interest is in default are registered at the close of
business on a Special Record Date for the payment of such defaulted
principal or interest, which shall be fixed in the following manner:
Funding Corp. shall notify the Trustee and the Paying Agent in writing
of the amount of defaulted principal or interest proposed to be paid on
each Note and the
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date of the proposed payment, and concurrently there shall be deposited
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted principal or interest
or there shall be made arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such defaulted principal or interest as provided in this paragraph.
Thereupon Funding Corp. shall fix a Special Record Date for the payment
of such defaulted principal or interest (together with other amounts
payable with respect to such defaulted principal or interest) which
shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. Funding Corp. shall
promptly notify the Trustee and the Note Registrar of such Special
Record Date and shall direct the Note Registrar to immediately provide
notice of the proposed payment of such defaulted principal or interest
and the Special Record Date therefor to be mailed, first class postage
prepaid, to each Holder of a Note at his address as it appears in the
Note Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such defaulted principal or interest
and the Special Record Date therefor having been mailed as aforesaid,
such defaulted principal or interest shall be paid to the Persons in
whose names the Notes (or their respective predecessor Notes) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following paragraph (b).
(b) Funding Corp. may make, or cause to be made, payment of any
defaulted principal or interest (together with other amounts payable
with respect to such defaulted interest) in any other lawful manner not
inconsistent with the requirements of any securities exchange (if any)
on which the Notes in respect of which principal or interest is in
default may be listed, and upon such notice as may be required by such
exchange, if, after notice given by Funding Corp. to the Trustee of the
proposed payment pursuant to this paragraph, such payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note, and each such Note
shall bear interest from whatever date shall be necessary so that neither gain
nor loss in interest shall result, from such registration of transfer, exchange
or replacement.
Section 2.13 Persons Deemed Owners. Subject to Section 2.12, the Person
in whose name any Note is registered shall be deemed to be the owner of such
Note for the purpose of receiving payment of principal of and interest on, such
Note and for all other purposes whatsoever, whether or not such Note be overdue,
regardless of any notice to anyone to the contrary.
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Section 2.14 Cancellation. All Notes surrendered for payment,
redemption, credit against any installment payment or registration of transfer
or exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee for cancellation. Funding Corp. may at any time deliver
to the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which Funding Corp. may have acquired in any manner whatsoever, and
all Notes so delivered shall be promptly canceled by the Trustee. No Notes shall
be authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be destroyed and certification of their
destruction delivered to Funding Corp. unless, by Funding Corp. Request, Funding
Corp. otherwise directs. Funding Corp. shall at any time deliver to the Trustee
for cancellation any Notes previously authenticated and delivered hereunder
which the Company, Leaseco or any Affiliate of any of them (other than Emcali)
may have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Trustee.
Section 2.15 Dating of Notes; Computation of Interest. (a) Except as
otherwise provided in this Indenture, each Note shall be dated the date of its
authentication.
(b) Except as otherwise provided in this Indenture, interest on
the Notes shall be computed on the basis of a 365/366-day year.
Section 2.16 Source of Payments Limited. Each Holder, by its acceptance
of a Note, agrees that recourse for the payment of the Notes shall be limited in
accordance with Section 14.1.
Section 2.17 Parity of Notes. All Notes issued and outstanding hereunder
rank on a parity with each other Note and each Note shall be secured equally and
ratably by this Indenture and the Security Documents with each other Note,
without preference, priority or distinction of any one thereof over any other by
reason of difference in time of issuance or otherwise, and each Note shall be
entitled to the same benefits and security in this Indenture and the Security
Documents as each other Note.
Section 2.18 Allocation of Principal and Interest. Except as otherwise
provided in this Indenture with respect to any payments made on the Closing
Date, each payment of principal of and interest on each Note shall be applied,
first, to the payment of accrued but unpaid interest on such Note (as well as
any interest on overdue principal or, to the extent permitted by applicable Law,
overdue interest) to the date of such payment, second, to the payment of the
principal amount of such Note then due (including any overdue installment of
principal) thereunder, and third, the balance, if any, to the payment of the
principal amount of such Note remaining unpaid.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties. Funding Corp. hereby makes
for the benefit of the Trustee all of the representations and warranties of
Funding Corp. contained in Article IV of the Common Agreement (which
representations and warranties are incorporated by reference herein as if fully
set forth herein).
ARTICLE IV
ACCOUNTS AND PROJECT REVENUES
Section 4.1 Establishment of Indenture Account. The Note Account is
hereby established and created by Funding Corp. in the name of the Trustee.
The following sub-accounts of the Note Account are hereby established
and created with the Trustee:
(a) the Interest Sub-Account;
(b) the Principal Sub-Account; and
(c) the Redemption Sub-Account.
Section 4.2 Reserved.
Section 4.3 Payments into Note Account. The Note Account shall be funded
(a) following the Closing Date, from monies transferred by the Collateral Agent
under the Collateral Agency Agreement pursuant to the terms thereof, and (b)
from monies transferred by the Trustee pursuant to Section 6.3 hereof. The
Trustee shall (i) deposit all monies received by it for the payment of interest
on the Notes into the Interest Sub-Account for disbursement in accordance with
Section 4.4 of this Indenture, and (ii) deposit all monies received by it for
the payment of principal on the Notes (including any monies transferred from the
Redemption Sub-Account pursuant to Section 4.4(b)) into the Principal
Sub-Account for disbursement in accordance with Section 4.4 of this Indenture.
Section 4.4 Application of Funds in Interest Sub-Account, Principal
Sub-Account and Redemption Sub-Account. (a) The Trustee is hereby authorized and
directed to disburse from (i) the Interest Sub-Account of the Note Account, the
amount required to pay interest on the Notes when due (whether on an Interest
Payment Date or upon call for redemption or by acceleration or otherwise), and
(ii) the Principal Sub-Account of the Note Account, the amount required to pay
principal on the Notes when due (whether on a Principal Payment Date or upon
call for redemption or by acceleration or otherwise).
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(b) The Trustee is hereby authorized and directed to disburse
monies from the Redemption Sub-Account, (i) for the redemption of the
Notes in accordance with Section 2.3 of this Indenture, and (ii) for the
redemption of Notes in accordance with Section 6.3 of this Indenture.
The foregoing notwithstanding, the Trustee shall transfer monies
remaining in the Redemption Sub-Account for more than one (1) year and
not applied to the redemption of Notes pursuant to this Section and
Section 6.3 to the Principal Sub-Account of the Note Account for
application by the Trustee in accordance with Section 4.4(a).
Section 4.5 Investment of Monies in the Accounts. (a) Amounts deposited
in the Note Account (and each sub-account thereof), shall be invested by the
Trustee, at the written request and direction of Funding Corp., in Permitted
Investments. Such investments shall mature in such amounts and not later than
such times as may be necessary to provide monies when needed to make payments
from such monies as provided in this Indenture. Net interest or gain received
from such investments shall remain in the Note Account, as the case may be,
pending application as provided in this Indenture. Absent written instructions
from Funding Corp., the Trustee shall invest the amounts held in the Note
Account (and each sub-account thereof) in Permitted Investments which are set
forth on Schedule 4.5 hereto (which schedule may be updated from time to time
upon written instructions delivered by Funding Corp. to the Trustee).
(b) So long as an outstanding balance shall remain in the Note
Account, the Trustee shall provide Funding Corp., the Company and the
Independent Engineer with monthly statements showing the amount of all
receipts, the net investment income or gain received and collected, all
disbursements and the amount then available in the Note Account.
Section 4.6 Monies to be Held in Trust. All monies required to be
deposited with or paid to the Trustee for the account of the Note Account under
any provision of this Indenture and all investments made therewith, and all
monies of this Indenture and all investments made therewith, and all monies
withdrawn from the Note Account and held by the Trustee or any Paying Agent,
shall be held by the Trustee or the Paying Agent in trust, and while so held
shall be held in trust for the Holders of the Notes.
Section 4.7 Dominion and Control. Funding Corp. hereby transfers,
assigns and sets over all of its right, title and interest in and to all amounts
deposited or held in any Indenture Account under this Indenture and grants the
Trustee (acting on behalf of the Holders of the Notes) sole dominion and control
over such amounts. Funding Corp. shall not have the right to withdraw monies
from any Indenture Account hereunder.
ARTICLE V
COVENANTS
Section 5.1 Common Agreement Covenants. Funding Corp. hereby covenants
and agrees that for so long as any Notes are outstanding hereunder, Funding
Corp. shall observe and perform all of the covenants of Funding Corp. contained
in Article V of the
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Common Agreement (which covenants are incorporated by reference herein as if
fully set forth herein).
Section 5.2 Reports.
(a) Funding Corp. shall file with the Trustee and the SEC, and
transmit to the Holders, such information, documents and other reports and such
summaries thereof, as may be required pursuant to the TIA and the rules and
regulations of the SEC at the times and in the manner provided pursuant thereto.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including Funding Corp.'s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates). Funding Corp. shall at
all times comply with TIA Section 314(a).
(b) For so long as any Notes remain outstanding, Funding Corp.
shall furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
(c) For so long as any Notes remain outstanding, Funding Corp.
shall furnish to the Trustee and the Holders the information required to be
delivered pursuant to Article V of the Common Agreement.
Section 5.3 Compliance Certificate.
(a) Funding Corp. shall furnish to the Trustee, within 120 days
after the end of each fiscal year of Funding Corp., an Officer's Certificate (i)
as to such Person's knowledge of Funding Corp.'s compliance with all conditions
and covenants under this Indenture, such compliance to be determined without
regard to any period of grace or other requirement of notice provided under this
Indenture, and (ii) stating that, to such Authorized Officer's knowledge, no
non-compliance has occurred during the preceding fiscal year and no
non-compliance exists as of the date of such Officer's Certificate (or if
non-compliance has occurred during the preceding fiscal year or exists as of the
date of such Officer's Certificate, describing all such non-compliance and what
action Funding Corp. is taking or proposes to take with respect thereto).
(b) So long as any of the Notes are outstanding, Funding Corp.
will deliver to the Trustee, forthwith upon any Authorized Officer becoming
aware of any such non-compliance, an Officer's Certificate specifying such
non-compliance and what action Funding Corp. is taking or proposes to take with
respect thereto.
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ARTICLE VI
REDEMPTION AND PREPAYMENT OF SECURITIES
Section 6.1 Applicability of Article. Notes that are subject to
redemption or prepayment before their Stated Maturity (or, if the principal of
the Notes is payable in installments, the Stated Maturity of the final
installment of the principal thereof) shall be redeemed or prepaid in accordance
with their terms and in accordance with Section 2.3 of this Indenture and this
Article VI.
Section 6.2 Election to Redeem or Prepay; Notice to Trustee. The
election of Funding Corp. to redeem or prepay any Notes otherwise than through
an installment payment or pursuant to Section 2.3(b) of this Indenture shall be
evidenced by a Funding Corp. Order. If Funding Corp. determines or is required
to redeem or prepay any Notes, Funding Corp. shall, at least 15 days prior to
the date upon which notice of redemption or prepayment is required to be given
to the Holders pursuant to Section 6.4 hereof (unless a shorter notice period
shall be satisfactory to the Trustee), deliver to the Trustee a Funding Corp.
Order specifying the date on which such redemption or prepayment shall occur
(the "Redemption Date," or "Prepayment Date," as the case may be) and the
principal amount of Notes to be redeemed or prepaid. Upon receipt of any such
Funding Corp. Order, the Trustee shall establish a special purpose account into
which shall be deposited amounts to be held by the Trustee and applied to the
redemption or prepayment of such Notes. In the case of any redemption or
prepayment of Notes (a) prior to the expiration of any restriction on such
redemption or prepayment provided in the terms of the Notes or elsewhere in this
Indenture, or (b) pursuant to an election of Funding Corp. that is subject to a
condition specified in the terms of the Notes, Funding Corp. shall furnish the
Trustee with an Officer's Certificate and Opinion of Counsel evidencing
compliance with such restriction or condition.
Section 6.3 Optional Redemption; Mandatory Redemption; Prepayment;
Selection of Notes to Be Redeemed or Prepaid. (a) The Notes shall be subject to
redemption from time to time at the option of Funding Corp. only as provided in
Sections 2.3 and 6.3 of this Indenture.
(b) All Outstanding Notes shall be redeemed prior to maturity,
as a whole, at a redemption price equal to the principal amount thereof,
together with interest on the principal amount of the Notes accrued
through the Redemption Date, if either an Event of Loss or an Event of
Eminent Domain shall occur that has been determined in accordance with
Section 3.1(d) of the Collateral Agency Agreement to render the Project
incapable of being rebuilt, repaired or restored to permit operation of
the Project. All Casualty Proceeds or Eminent Domain Proceeds, as the
case may be, received by the Trustee from the Collateral Agent pursuant
to Section 6.1(b) of the Collateral Agency Agreement with respect to
such Event of Loss or Event of Eminent Domain, as the case may be, shall
be applied by the Trustee to the redemption of the Notes pursuant to
this Section 6.3(b). Any redemption pursuant to this Section 6.3(b)
shall be made within 90
28
days after the receipt by the Trustee of the Casualty Proceeds or
Eminent Domain Proceeds, as the case may be, from the Collateral Agent.
(c) The Outstanding Notes shall be redeemed prior to maturity,
in part, at a redemption price equal to the principal amount thereof,
together with interest on the principal amount of the Notes accrued
through the Redemption Date, if either an Event of Loss or an Event of
Eminent Domain shall occur that has been determined in accordance with
Section 3.1(d) of the Collateral Agency Agreement to render a portion of
the Project incapable of being rebuilt, repaired or restored, but
permits the remaining portion of the Project to be rebuilt, repaired or
restored to permit operation of the remaining portion of the Project.
The amount (rounded down to the nearest $1,000) received by the Trustee
from the Collateral Agent pursuant to Section 6.1 of the Collateral
Agency Agreement shall be applied by the Trustee to the redemption of
the Notes pursuant to this Section 6.3(c), provided the amount so
received is greater than $5,000,000. Any monies received by the Trustee
pursuant to this Section 6.3(c) in an amount equal to or less than
$5,000,000 shall be transferred to the Redemption Sub-Account of the
Note Account. Any redemption pursuant to this Section 6.3(c) shall be
made within 90 days after the receipt by the Trustee of such Casualty
Proceeds or Eminent Domain Proceeds (other than such proceeds
transferred to the Redemption Sub-Account of the Note Account), as the
case may be.
(d) Reserved.
(e) Except as otherwise specified herein, if less than all the
Notes are to be redeemed or prepaid pursuant to Section 6.3(a), the
Notes shall be redeemed or prepaid on a pro rata basis in accordance
with the outstanding principal amount of the Notes held by each Holder.
(f) The Trustee shall promptly notify Funding Corp. in writing
of the Notes to be redeemed or prepaid and, in the case of any Notes to
be redeemed or prepaid in part, the principal amount thereof to be
redeemed or prepaid.
(g) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption or
prepayment of Notes shall relate, in the case of any Notes redeemed or
prepaid or to be redeemed or prepaid only in part, to the portion of the
principal amount of such Notes that has been or is to be redeemed or
prepaid.
Section 6.4 Notice of Redemption or Prepayment. Except in connection
with any monthly installment payments or pursuant to Section 2.3(b)(i) of this
Indenture (with respect to which a notice of redemption shall not be required)
or as otherwise specified in this Indenture, notice of redemption or prepayment
shall be given in the manner provided in Section 15.3 to the Holders of Notes to
be redeemed or prepaid at least 30 days but not more than 60 days prior to the
Redemption Date or Prepayment Date, as the case may be. All notices of
redemption or prepayment shall state:
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(a) the Redemption Date or Prepayment Date, as the case may be;
(b) if less than all the Outstanding Notes are to be redeemed or
prepaid in whole, the portion of the principal amount of each Note to be
redeemed or prepaid in part, and a statement that, on and after the
Redemption Date or Prepayment Date, as the case may be, upon surrender
of such Note, a new Note or Notes in principal amount equal to the
remaining unpaid principal amount thereof will be issued;
(c) that on the Redemption Date or Prepayment Date, as the case
may be, interest thereon will cease to accrue on and after said date;
and
(d) the Place or Places of Payment where such Notes are to be
surrendered for payment of the amount in respect of such redemption or
prepayment.
Notice of redemption of Notes to be redeemed at the election of Funding
Corp. shall be given by Funding Corp.
Section 6.5 Notes Payable on Redemption Date or Prepayment Date. Notice
of redemption or prepayment, as the case may be, having been given as aforesaid,
and the conditions, if any, set forth in such notice having been satisfied, the
Notes or portions thereof so to be redeemed or prepaid shall, on the Redemption
Date or Prepayment Date, as the case may be, become due and payable, and from
and after such date such Notes or portions thereof shall cease to bear interest.
Upon surrender of any such Note for redemption or prepayment in accordance with
such notice, an amount in respect of such Note or portion thereof shall be paid
as provided therein; provided, however, that any payment of interest on any
Note, the Stated Maturity of which payment is on or prior to the Redemption Date
or Prepayment Date, as the case may be, shall be payable to the Holder of such
Note, registered as such at the close of business on the related Regular Record
Date according to the terms of such Note and subject to the provisions of
Section 2.10.
Section 6.6 Notes Redeemed or Prepaid in Part. Any Note that is to be
redeemed or prepaid only in part shall be surrendered at a Place of Payment
therefor (with, if Funding Corp. or the Trustee so requires, due endorsement by
or a written instrument of transfer in form satisfactory to Funding Corp. and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and Funding Corp. shall execute, and the Trustee shall authenticate
and make available for delivery to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination requested by such
Holder and of like tenor and in aggregate principal amount equal to and in
exchange for the remaining unpaid principal amount of the Note so surrendered.
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ARTICLE VII
COLLATERAL AND SECURITY
Section 7.1 Collateral. The due and punctual payment of the principal
of, interest on and other amounts (if any) owing in respect of, the Notes when
and as the same shall be due and payable, whether on an interest payment date,
at maturity, by acceleration, repurchase, redemption or otherwise, and interest
on the overdue principal of, interest on and other amounts (if any) owing in
respect of, the Notes and performance of all other obligations of Funding Corp.
to the Holders of Notes or the Trustee under this Indenture and the Notes,
according to the terms hereunder or thereunder, are secured by the Indenture
Collateral as provided in this Indenture and in the Security Documents, each of
which has been entered into simultaneously with the execution of this Indenture.
Each Holder of Notes, by its acceptance thereof, consents and agrees to the
terms of each of the Security Documents (including, without limitation, the
provisions providing for foreclosure and release of Indenture Collateral), as
each may be in effect or may be amended from time to time in accordance with its
terms, and authorizes and directs the Collateral Agent to enter into each of the
Security Documents and to perform its obligations and exercise its rights
thereunder in accordance therewith. Funding Corp. shall deliver to the Trustee
copies of all documents delivered to the Collateral Agent pursuant to the
Security Documents, and will do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions of the
Security Documents, to assure and confirm to the Trustee and the Collateral
Agent the security interest in the Indenture Collateral contemplated hereby and
by the Security Documents, or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Notes secured hereby, according to the intent and
purposes herein expressed. Funding Corp. shall take upon request of the Trustee,
any and all actions reasonably required to cause the Security Documents to
create and maintain, as security for the obligations of Funding Corp. hereunder
and under the Notes, a valid and enforceable perfected first priority Lien in
and on all the Indenture Collateral, in favor of the Collateral Agent or the
Trustee, as the case may be, for the benefit of the Holders of Notes, superior
to and prior to the rights of all third Persons and subject to no other Liens
other than Permitted Liens.
Section 7.2 Recording and Opinions. (a) Funding Corp. will furnish to
the Trustee promptly after, and in any event within 60 days of, the execution
and delivery of this Indenture an Opinion of Counsel either:
(i) stating that, in the opinion of such counsel, all
action has been taken with respect to the recording, registering and
filing of this Indenture, financing statements or other instruments
necessary to make effective the Lien intended to be created by the
Security Documents, and reciting with respect to the security interests
in the Indenture Collateral, the details of such action; or
(ii) stating that, in the opinion of such counsel, no such
action is necessary to make such Lien effective.
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(b) Funding Corp. will furnish to the Collateral Agent and the Trustee
on July 1 in each year beginning with July 1, 2006, an Opinion of Counsel, dated
as of such date, either:
(i) stating that, in the opinion of such counsel, action
has been taken with respect to the recording, filing, re-recording, and
re-filing of this Indenture, all supplemental indentures, financing
statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of the Security
Documents, and reciting with respect to the security interests in the
Indenture Collateral the details of such action or referring to prior
Opinions of Counsel in which such details are given; or
(ii) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien and assignment.
(c) Funding Corp. will otherwise comply with the provisions of TIA
Section 314(b).
Section 7.3 Release of Indenture Collateral. (a) Subject to subsections
(b), (c), and (d) of this Section 7.3, Indenture Collateral may be released from
the Lien and security interest created hereunder or by the Security Documents at
any time or from time to time in accordance with the provisions of the Security
Documents or as provided hereby. In addition, upon the request of Funding Corp.
pursuant to an Officer's Certificate certifying that all conditions precedent
hereunder and under the other Financing Documents have been met (and at the sole
cost and expense of Funding Corp.), the Collateral Agent will release Indenture
Collateral that is sold, conveyed or disposed of in compliance with the
provisions of this Indenture and under the other Financing Documents. Upon
receipt of such Officer's Certificate the Collateral Agent shall execute,
deliver or acknowledge any necessary or proper instruments of termination,
satisfaction or release to evidence the release of any Indenture Collateral
permitted to be released pursuant to this Indenture or the other Financing
Documents.
(b) No Indenture Collateral may be released from the Lien and security
interest created by the Security Documents pursuant to this Indenture and the
other Financing Documents unless the certificate required by this Section 7.3
has been delivered to the Collateral Agent.
(c) At any time when a Default or Event of Default has occurred and is
continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise) and the Trustee has delivered a notice of acceleration
to the Collateral Agent, no release of Indenture Collateral pursuant to the
provisions of the Security Documents will be effective as against the Holders of
Notes.
(d) The release of any Indenture Collateral from the terms of this
Indenture and the Security Documents will not be deemed to impair the security
under this Indenture in contravention of the provisions hereof if and to the
extent the Indenture Collateral is released pursuant to the terms of the
Financing Documents. To the extent applicable, Funding Corp. will cause TIA
Section 313(b), relating to reports, and TIA Section 314(d),
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relating to the release of property or securities from the Lien and security
interest of the Security Documents and relating to the substitution therefor of
any property or securities to be subjected to the Lien and security interest of
the Security Documents, to be complied with. Any certificate or opinion required
by TIA Section 314(d) may be made by an Authorized Officer of Funding Corp.
except in cases where TIA Section 314(d) requires that such certificate or
opinion be made by an independent Person, which Person will be an independent
engineer, appraiser or other expert selected or approved by the Trustee and the
Collateral Agent in the exercise of reasonable care.
Section 7.4 Certificates of Funding Corp. Funding Corp. will furnish to
the Trustee and the Collateral Agent, prior to each proposed release of
Indenture Collateral pursuant to the Financing Documents:
(a) all documents required by TIA Section 314(d); and
(b) an Opinion of Counsel, which may be rendered by internal
counsel to Funding Corp., to the effect that such accompanying documents
constitute all documents required by TIA Section 314(d).
The Trustee may, to the extent permitted by Sections 9.1 and 9.2 hereof,
accept as conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such documents and such Opinion of Counsel.
Section 7.5 Certificates of Trustee. In the event that Funding Corp.
wishes to release Indenture Collateral in accordance with the Financing
Documents and has delivered the certificates and documents required by the
Financing Documents and Sections 7.3 and 7.4 of this Indenture, the Trustee will
determine whether it has received all documentation required by TIA Section
314(d) in connection with such release and, based on such determination and the
Opinion of Counsel delivered pursuant to Section 7.4(b), will deliver a
certificate to the Collateral Agent setting forth such determination.
Section 7.6 Authorization of Actions to be Taken by the Trustee. Subject
to the provisions of Sections 9.1 and 9.2 hereof, the Trustee may direct, on
behalf and at the written direction of the Holders of Notes in accordance with
Section 8.6, the Collateral Agent to, take all actions it deems necessary or
appropriate in order to:
(a) enforce any of the terms of the Security Documents; and
(b) collect and receive any and all amounts payable in respect of
the Obligations of Funding Corp. hereunder.
The Trustee, at the written direction of the Holders of Notes, will have
power to institute and maintain such suits and proceedings to prevent any
impairment of the Indenture Collateral by any acts that may be unlawful or in
violation of this Indenture or the other Financing Documents, and such suits and
proceedings as the Holders of Notes may deem expedient to preserve or protect
the interests of the Trustee and/or the Holders of Notes in the Indenture
Collateral (including power to institute and maintain suits or
33
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders of Notes or of the Trustee).
Section 7.7 Authorization of Receipt of Funds by Trustee. The Trustee is
authorized to receive any funds for the benefit of the Holders of Notes
distributed under the Security Documents, and to make further distributions of
such funds to the Holders of Notes according to the provisions of this Indenture
and the other Financing Documents.
Section 7.8 Termination of Security Interests. Upon the payment in full
of all obligations of Funding Corp. under this Indenture and the Notes, the
Trustee will, at the request of Funding Corp., deliver a certificate to the
Collateral Agent stating that all such obligations have been paid in full, and
instruct the Collateral Agent to release the Liens pursuant to this Indenture
and the Security Documents.
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
Section 8.1 Events of Default. The occurrence of an "Event of Default"
under the Common Agreement shall constitute an Event of Default hereunder.
Section 8.2 Enforcement of Remedies. If one or more Events of Default
shall have occurred and be continuing, then:
(a) in the case of an Event of Default described in Section
6.1(f) or 6.1(g) of the Common Agreement (an "Automatic Acceleration
Default"), the entire principal amounts of the Notes Outstanding, all
interest accrued and unpaid thereon, and other amounts payable under the
Notes and this Indenture, if any, shall automatically become due and
payable without presentment, demand, protest or notice of any kind, all
of which are hereby waived; or
(b) (i) in the case of an Event of Default described in Section
6.1(a) of the Common Agreement, subject to the immediately following
sentence, upon the direction of the Holders of not less than 25% in
aggregate principal amount of the Outstanding Notes, or (ii) in the case
of an Event of Default described in Sections 6.1(b), (c), (d), (e), (h),
(i), (j), (k), (1), (m), (n), (o) or (p) of the Common Agreement, upon
the direction of the Holders of not less than 33 1/3% in aggregate
principal amount of the Outstanding Notes, the Trustee shall, by notice
to Funding Corp. and the Collateral Agent (a "Notice of Acceleration"),
declare the entire principal amounts of the Notes Outstanding, all
interest accrued and unpaid thereon, and other amounts payable under the
Notes and this Indenture, if any, to be due and payable, whereupon the
same shall become due and payable without presentment, demand, protest
or further notice of any kind, all of which are hereby waived. In the
event that Funding Corp. fails to pay any principal of or
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interest on, or any other amounts due in respect of, the Notes or the
Original Notes which remain outstanding after the Closing Date within
five (5) Business Days of when the same becomes due, the Trustee shall,
and each of the Holders hereby authorizes and directs the Trustee to,
(i) direct the Collateral Agent to make a claim for payment under the
Emcali Guarantees in respect of the Company's failure to make the
required payments under the Company Loan Agreement and the Lease which
correspond with Funding Corp.'s failure to pay such principal, interest
or other amounts, all in order to afford Emcali the opportunity to cure
such Default; and (ii) delay the Trustee's delivery of a Notice of
Acceleration in respect of an Event of Default described in Section
6.1(a) of the Common Agreement until the later of (x) five (5) Business
Days after the Collateral Agent makes a claim for payment under the
Emcali Guarantees (unless Emcali has cured the corresponding Default
prior to such date) or (y) receipt of direction from the Holders of not
less than 25% in aggregate principal amount of the Outstanding Notes as
described in clause (i) above.
(c) If an Event of Default occurs and is continuing and is known
to the Trustee, the Trustee shall mail to each Holder a notice of the
Event of Default within 30 days after the occurrence thereof. Except in
the case of an Event of Default in payment of principal of or interest
on any Note, the Trustee may withhold the notice to the Holders if a
committee of its Responsible Officers in good faith determines that
withholding the notice is in the interest of Holders.
(d) Subject to the last sentence of Section 8.2(b), in addition,
if the Event of Default described in Section 6.1(a) of the Common
Agreement shall have occurred and be continuing, the Trustee may
accelerate the maturity of the Notes as provided in clause (b) of
Section 8.2 notwithstanding the absence of direction from the Holders if
in the judgment of the Trustee such action is necessary to protect the
interests of the Holders.
(e) At any time after the principal of the Notes shall have
become due and payable upon a declared (but not an automatic)
acceleration as provided herein, and before any judgment or decree for
the payment of the money so due, or any portion thereof, shall be
entered, the Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes, by written notice to Funding Corp. and
the Trustee, may rescind and annul such declaration and its consequences
if:
(A) there shall have been paid to or deposited with the
Trustee a sum sufficient to pay
(i) all overdue installments of interest on the Notes;
(ii) the principal of any Notes that have become due
otherwise than by such declaration of acceleration and interest
thereon at the respective rates provided in the Notes for late
payments of principal;
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(iii) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the
respective rates provided in the Notes for late payments of
interest;
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements, and
advances of the Trustee, its agents and counsel; and
(B) all Events of Default, other than the non-payment of
the principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section
8.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 8.3 Specific Remedies. If any Event of Default shall have
occurred and be continuing and an acceleration shall have occurred pursuant to
Section 8.2, subject to the provisions of Sections 8.2, 8.5, and 8.6, the
Trustee, by such officer or agent as it may appoint, may deliver notice to the
Collateral Agent in accordance with the Collateral Agency Agreement requesting
that the Collateral Agent sell, without recourse, for cash, or credit or for
other property, for immediate or future delivery, and for such price or prices
and on such terms as the Collateral Agent may determine, the Indenture
Collateral as an entirety, or in such portions as the Holders of a majority in
aggregate principal amount of the Notes then Outstanding shall request by an Act
of Holders, at public or private sale.
Section 8.4 Judicial Proceedings Instituted by Trustee. (a) Trustee May
Bring Suit. If an Event of Default specified in Section 6.1(a) of the Common
Agreement in respect of Notes occurs and is continuing, then the Trustee shall
be authorized to recover judgment in its own name and as trustee of an express
trust against Funding Corp. for the whole amount of principal of and interest
then due and owing (together with interest on overdue principal and, to the
extent lawful, interest) and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
(b) Trustee May Recover Unpaid Indebtedness after Sale of
Indenture Collateral. Subject to Sections 2.16, 8.2, 8.5 and 8.6 in the
case of a sale of the Indenture Collateral and of the application of the
proceeds of such sale and the monies contained in the Indenture Account
to the payment of the indebtedness secured by this Indenture, the
Trustee, after receiving indemnification or assurance of indemnification
for its costs pursuant to Section 9.2(f), in its own name as trustee of
an express trust, shall be entitled and empowered, by any appropriate
means, legal, equitable or otherwise, to enforce payment of, and to
receive all amounts then remaining due and unpaid upon, all or any of
the Notes, for the benefit of the Holders thereof, and upon any other
portion of the indebtedness remaining unpaid, with interest at the rates
specified in the
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respective Notes on the overdue principal of and (to the extent that
payment of such interest is legally enforceable) on the overdue
installments of interest.
(c) Recovery of Judgment Does Not Affect Lien of this Indenture
or Other Rights. No recovery of any such judgment or final decree by the
Trustee and no levy of any execution under any such judgment upon any of
the Indenture Collateral, or upon any other property, shall in any
manner or to any extent affect the Lien of this Indenture upon any of
the Indenture Collateral, or any rights, powers or remedies of the
Trustee, or any liens, rights, powers or remedies of the Holders, but
all such liens, rights, powers or remedies shall continue unimpaired as
before.
(d) Trustee May File Proofs of Claim; Appointment of Trustee as
Attorney-in-Fact in Judicial Proceedings. Subject to Sections 8.2, 8.5
and 8.6, the Trustee (irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any
demand for the payment of overdue principal or interest), shall be
entitled and empowered to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee and of the Holders (whether such claims be based upon the
provisions of the Notes or of this Indenture) allowed in any equity,
receivership, insolvency, bankruptcy, liquidation, readjustment,
reorganization or any other judicial proceedings relating to Funding
Corp. or any obligor on the Notes, the creditors of Funding Corp. or any
such obligor, the Indenture Collateral or any other property of Funding
Corp. or any such obligor and any receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel, and
any other amounts due to the Trustee under Section 9.6. The Trustee is
hereby irrevocably appointed (and the successive respective Holders of
the Notes, by taking and holding the same, shall be conclusively deemed
to have so appointed the Trustee) the true and lawful attorney-in-fact
of the respective Holders, with authority to (i) make and file in the
respective names of the Holders (subject to deduction from any such
claims of the amounts of any claims filed by any of the Holders
themselves), any claim, proof of claim or amendment thereof, debt, proof
of debt or amendment thereof, petition or other document in any such
proceedings, and to receive payment of any amounts distributable on
account thereof, (ii) execute any such other papers and documents and to
do and perform any and all such acts and things for and on behalf of
such Holders, as may be necessary or advisable in order to have the
respective claims of the Trustee and of the Holders against Funding
Corp. or any such obligor, the Indenture Collateral or any other
property of Funding Corp. or any such obligor allowed in any such
proceeding, and (iii) receive payment of or on account of such claims
and debt; provided, however, that nothing contained in
37
this Indenture shall be deemed to give to the Trustee any right to
accept or consent to any plan or reorganization or otherwise by action
of any character in any such proceeding to waive or change in any way
any right of any Holder. Any monies collected by the Trustee under this
Section shall be applied as provided in Section 8.11.
(e) Trustee Need Not have Possession of Notes. All proofs of
claim, rights of action and rights to assert claims under this Indenture
or under any of the Notes may be enforced by the Trustee without the
possession of the Notes or the production thereof at any trial or other
proceedings instituted by the Trustee. In any proceedings brought by the
Trustee (and also any proceedings involving the interpretation of any
provision of this Indenture to which the Trustee shall be a party) the
Trustee shall be held to represent all the Holders of the Notes and it
shall not be necessary to make any such Holders parties to such
proceedings.
(f) Suit to Be Brought for Ratable Benefit of Holders. Any suit,
action or other proceeding at law, in equity or otherwise which shall be
instituted by the Trustee under any of the provisions of this Indenture
shall be for the equal, ratable and common benefit of all the Holders,
subject to the provisions of this Indenture.
(g) Trustee May Be Restored to Former Position and Rights in
Certain Circumstances. In case the Trustee shall have instituted any
proceeding 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 Trustee, then and in every such case Funding Corp. and
the Trustee shall be restored to their former positions and rights
hereunder, and all rights, powers and remedies of the Trustee shall
continue as if no such proceedings had been taken.
Section 8.5 Holders May Demand Enforcement of Rights by Trustee. If an
Event of Default shall have occurred and shall be continuing, the Trustee shall,
upon the written request of the Holders of a majority in aggregate principal
amount of the Notes then Outstanding and upon the offering of indemnity provided
in Section 9.2(f), but subject in all cases to the provisions of Section 8.3,
proceed to institute one or more suits, actions or proceedings at law, in equity
or otherwise, or take any other appropriate remedy, to enforce payment of the
principal of or interest on, the Notes or to foreclose the Lien of this
Indenture or to sell the Indenture Collateral under a judgment or decree of a
court or courts of competent jurisdiction or under the power of sale herein
granted, or take such other appropriate legal, equitable, or other remedy, as
the Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights or powers of the Trustee or the Holders, or, in case
such Holders' shall have requested a specific method of enforcement permitted
hereunder, in the manner requested, provided that such action shall not be
otherwise than in accordance with law and the provisions of this Indenture, and
the Trustee, subject to such indemnity provisions, shall have the right to
decline to follow any such request if the Trustee in good faith shall determine
that the
38
suit, proceeding or exercise of the remedy so requested would involve the
Trustee in personal liability or expense.
Section 8.6 Control by Holders. Subject to Section 5.2 of the Collateral
Agency Agreement, the Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes shall have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee, provided that (a)
such direction shall not be in conflict with any rule of law or with this
Indenture, and (b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 8.7 Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes may on behalf of
the Holders of all Notes waive any past default and its consequences except that
only the Holders of all Notes affected thereby may waive a Default (a) in the
payment of the principal of or interest on, or other amounts due under, any Note
then Outstanding, or (b) in respect of a covenant or provision hereof that under
Article XI cannot be modified or amended without the consent of the Holder of
each Note Outstanding affected. Upon any such waiver such Default shall cease to
exist and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
Section 8.8 Holder May Not Bring Suit Except Under Certain Conditions. A
Holder shall not have the right to institute any suit, action or proceeding at
law or in equity or otherwise for the foreclosure of the Lien of this Indenture,
for the appointment of a receiver or for the enforcement of any other remedy
under or upon this Indenture, unless:
(a) such Holder previously shall have given written notice to
the Trustee of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of
the Outstanding Notes shall have requested the Trustee in writing to
institute such action, suit or proceeding and shall have offered to the
Trustee indemnity as provided in Section 9.2(f);
(c) the Trustee shall have failed to institute any such action,
suit or proceeding for 60 days after receipt of such notice, request and
offer of indemnity; and
(d) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of Outstanding Notes.
It is understood and intended that no one or more of the Holders shall
have any right in any manner whatever hereunder or under the Notes to (i)
surrender, impair, waive, affect, disturb or prejudice the Lien of this
Indenture on any property subject
39
thereto or the rights of the Holders of any other Notes, (ii) obtain or seek to
obtain priority or preference over any other such Holder, or (iii) enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all the Holders subject to the provisions
of this Indenture.
Section 8.9 Undertaking to Pay Court Costs. All parties to this
Indenture, and each Holder by his acceptance of a Note, shall be deemed to have
agreed that any court may in its discretion require, in any suit, action or
proceeding for the enforcement of any right or remedy under this Indenture, or
in any suit, action or proceeding against the Trustee for any action taken or
omitted by it as Trustee hereunder, the filing by any party litigant in such
suit, action or proceeding of an undertaking to pay the costs of such suit,
action or proceeding, and that such court may, in its discretion, assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, action or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 8.9 regarding such agreement by the
parties to this Indenture and each Holder shall not apply to (a) any suit,
action or proceeding instituted by the Trustee, (b) any suit, action or
proceeding instituted by any Holder or group of Holders holding in the aggregate
more than 10% in aggregate principal amount of the Outstanding Notes, or (c) any
suit, action or proceeding instituted by any Holder for the enforcement of the
payment of the principal of or interest on, any of the Notes, on or after the
respective due dates expressed therein.
Section 8.10 Right of Holders to Receive Payment Not to Be Impaired.
Anything in this Indenture or in the Collateral Agency Agreement to the contrary
notwithstanding, the right of any Holder to receive payment of the principal of
and interest on, such Note, on or after the respective due dates expressed in
such Note (or, in case of redemption, on the Redemption Date fixed for such
Note), or to institute suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 8.11 Application of Monies Collected by Trustee. Any money
collected or to be applied by the Trustee pursuant to this Article VIII in
respect of Outstanding Notes together with any other monies which may then be
held by the Trustee under any of the provisions of this Indenture as security
for the Outstanding Notes shall be applied in the following order from time to
time, on the date or dates fixed by the Trustee and, in the case of a
distribution of such monies on account of principal or interest, upon
presentation of such Outstanding Notes and stamping thereon of payment, if only
partially paid, and upon surrender thereof, if fully paid:
FIRST: to the payment of all taxes, assessments or liens prior to
the Lien of the Security Documents, except those subject to which any
sale shall have been made, all reasonable costs and expenses of
collection, including the reasonable costs and expenses of handling the
Indenture Collateral and of any sale thereof pursuant to the provisions
of the Security Documents, and to the payment of all amounts due the
Trustee or any predecessor Trustee or any Authorized Agent
40
under Section 9.6;
SECOND: in case the unpaid principal amount of the Outstanding
Notes shall not have become due, to the payment of any interest in
default, in the order of the maturity of the payments thereof, with
interest at the rates specified in the respective Notes in respect of
overdue payments (to the extent that payment of such interest shall be
legally enforceable) on the payments of interest then overdue;
THIRD: in case the unpaid principal amount of any of but not all
the Outstanding Notes shall have become due, first to the payment of
accrued interest on all Outstanding Notes in the order of the maturity
of the payments thereof, with interest at the respective rates specified
in the Notes for overdue payments of principal and (to the extent that
payment of such interest shall be legally enforceable) interest then
overdue, and next to the payment of the unpaid principal amount of all
Notes then due;
FOURTH: in case the unpaid principal amount of all the
Outstanding Notes shall have become due, to the payment of the whole
amount then due and unpaid upon the Outstanding Notes for principal and
interest, together with interest at the respective rates specified in
the Notes for overdue payments on principal and (to the extent that
payment of such interest shall be legally enforceable) interest then
overdue; and
FIFTH: in case the unpaid principal amount of all the Outstanding
Notes shall have become due, and all of the Outstanding Notes shall have
been fully paid, any surplus then remaining shall be paid to the
Collateral Agent (to be applied pursuant to the terms and conditions of
the Collateral Agency Agreement), or to whomsoever may be lawfully
entitled to receive the same, or as a court of competent jurisdiction
may direct;
provided, however, that all payments in respect of the Notes to be made pursuant
to clauses "SECOND" through "FOURTH" of this Section 8.11 shall be made ratably
to the Holders of Notes entitled thereto, without discrimination or preference,
based upon the ratio of the unpaid principal amount of the Notes in respect of
which such payments are to be made held by each such Holder to the unpaid
principal amount of all Notes.
Section 8.12 Notes Held by Certain Persons Not to Share in Distribution.
Any Notes known to a Responsible Officer of the Trustee to be owned or held by,
or for the account or benefit of, Funding Corp., Leaseco, the Company or Emcali
or an Affiliate of any of them shall not be entitled to share in any payment or
distribution provided for in this Article VIII until all Notes held by other
Persons have been indefeasibly paid in full.
Section 8.13 Waiver of Appraisement, Valuation, Stay, Right to
Marshalling. To the full extent it may lawfully do so, Funding Corp. for itself
and for any other Person who may claim through or under it, hereby:
41
(a) agrees that neither it nor any such Person will set up,
plead, claim or in any manner whatsoever take advantage of, any
appraisal, valuation, stay, extension or redemption laws, now or
hereafter in force in any jurisdiction which may delay, prevent or
otherwise hinder (i) the performance or enforcement or foreclosure of
this Indenture, (ii) the sale of any of the Indenture Collateral, or
(iii) the putting of the purchaser or purchasers thereof into possession
of such Indenture Collateral immediately after the sale thereof;
(b) waives all benefit or advantage of any such laws;
(c) consents and agrees that the Indenture Collateral may be
sold by the Collateral Agent as an entirety or in parts; and
(d) waives and releases all rights to have the Indenture
Collateral marshalled upon any foreclosure, sale or other enforcement of
this Indenture.
Section 8.14 Remedies Cumulative; Delay or Omission Not a Waiver. Each
and every right, power and remedy herein specifically given to the Trustee shall
be cumulative and shall be in addition to every other right, power and remedy
herein specifically given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether specifically herein
given or otherwise existing may be exercised from time to time and as often and
in such order as may be deemed expedient by the 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, and no delay or omission by the Trustee in the exercise
of any right, power or remedy 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 Funding Corp. or to be an acquiescence therein.
Section 8.15 The Collateral Agency Agreement. Simultaneously with the
execution and delivery of this Indenture, the Trustee shall enter into the
Collateral Agency Agreement. Notwithstanding any other provision of this
Indenture (other than the provisions of Sections 8.10 and 11.2) to the contrary,
all rights and remedies available to the Holders of any of the Outstanding
Notes, and all future Holders of any of the Notes, or the Trustee with respect
to the Indenture Collateral, or otherwise pursuant to the Security Documents,
shall be subject to the Collateral Agency Agreement including, in all cases, the
ability to enforce any remedy.
ARTICLE IX
THE TRUSTEE
Section 9.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the
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same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee will be determined solely
by the express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
will examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
grossly negligent action, its own grossly negligent failure to act, or
its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 9.1;
(ii) the Trustee will not be liable for any error of
judgment made in good faith by a Responsible Officer of the Trustee, unless it
is proved that the Trustee was grossly negligent in ascertaining the pertinent
facts; and
(iii) the Trustee will not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 8.6 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b), and (c) of this Section 9.1.
(e) No provision of this Indenture will require the Trustee to
expend or risk its own funds or incur any liability. The Trustee will be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder has offered
to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee will not be liable for interest on any money
received by it except as the Trustee may agree in writing with Funding
Corp. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
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(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protections to the Trustee shall
be subject to the provisions of this Section 9.1 and the TIA.
Section 9.2 Rights of Trustee.
(a) The Trustee may conclusively rely upon and shall be
protected in acting or refraining to act in reliance upon any document
reasonably believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel or both. The
Trustee will not be liable for any action it takes or omits to take in
good faith in reliance on such Officer's Certificate or Opinion of
Counsel. The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel will be full and complete
authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and
will not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee will not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from Funding Corp. will be
sufficient if signed by an Authorized Officer of Funding Corp.
(f) The Trustee will be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request
or direction.
(g) The Trustee shall not be charged with knowledge of any Event
of Default unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of such Event of Default or (ii) written notice of
such Event of Default shall have been given to the Trustee by Funding
Corp., the Company, Leaseco or any Holder.
Section 9.3 Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with Funding Corp. with the same rights it would have if it were not
Trustee. However, in the
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event that the Trustee acquires any conflicting interest within the meaning of
the TIA it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Paying Agent may do the same
with like rights and duties. However, the Trustee must comply with Sections 9.9
and 9.10 hereof.
Section 9.4 Trustee's Disclaimer. The Trustee will not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Notes, except as contained in the Trustee's certificate of
authentication. The Trustee shall not be accountable for Funding Corp.'s use of
the proceeds from the Notes or any money paid to Funding Corp. or upon Funding
Corp.'s direction under any provision of this Indenture. The Trustee will not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it will not be responsible for any statement or
recital herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
Section 9.5 Notice of Defaults. If an Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee will mail to Holders
of Notes a notice of the Event of Default within 90 days after it occurs. Except
in the case of an Event of Default in payment of principal of or interest on any
Note, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
Section 9.6 Compensation and Indemnity.
(a) Funding Corp. will pay to the Trustee and any Authorized
Agent from time to time reasonable compensation for its acceptance of
this Indenture and services hereunder. The Trustee's compensation will
not be limited by any law on compensation of a trustee of an express
trust. Funding Corp. will reimburse the Trustee promptly upon request
for all reasonable disbursements, advances and expenses incurred or made
by it in addition to the compensation for its services. Such expenses
will include the reasonable compensation, disbursements, and expenses of
the Trustee's agents and counsel.
(b) Funding Corp. will indemnify the Trustee against any and all
losses, liabilities or expenses (including reasonable attorneys fees)
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs
and expenses of enforcing this Indenture against Funding Corp.
(including this Section 9.6) and defending itself against any claim
(whether asserted by Funding Corp. or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss,
liability or expense may be attributable to its negligence or bad faith.
The Trustee will notify Funding Corp. promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify Funding Corp.
will not relieve Funding Corp. of its obligations hereunder.
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(c) The obligations of Funding Corp. under this Section 9.6 will
survive the satisfaction and discharge of this Indenture.
(d) To secure Funding Corp.'s payment obligations in this
Section 9.6, the Trustee will have a Lien prior to the Notes on all
money or property held or collected by the Trustee in its capacity as
Trustee under this Indenture, except that held in trust to pay principal
and interest on particular Notes. Such Lien will survive the
satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.1(f) or 6.1(g) of the Common
Agreement occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended
to constitute expenses of administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 9.7 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 9.7.
(b) The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying Funding Corp.
The Holders of a majority in principal amount of the then Outstanding
Notes may remove the Trustee by so notifying the Trustee and Funding
Corp. in writing. Funding Corp. may remove the Trustee if:
(i) the Trustee fails to comply with Section 9.9 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(iii) a custodian or public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, Funding Corp. will promptly
appoint a successor Trustee. Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of the then
Outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by Funding Corp.
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(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee,
Funding Corp., or the Holders of at least 10% in principal amount of the
then Outstanding Notes may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 9.7,
such Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to Funding Corp. Thereupon, the
resignation or removal of the retiring Trustee will become effective,
and the successor Trustee will have all the rights, powers, and duties
of the Trustee under this Indenture. The successor Trustee will mail a
notice of its succession to Holders. The retiring Trustee will promptly
transfer all property held by it as Trustee to the successor Trustee,
provided all sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 9.6 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 9.7, Funding Corp.'s
obligations under Section 9.6 hereof will continue for the benefit of
the retiring Trustee.
(g) In the case of an appointment hereunder of a separate or
successor Trustee with respect to the Notes, Funding Corp., any retiring
Trustee and each successor or separate Trustee with respect to the Notes
shall execute and deliver a supplemental indenture hereto (i) which
shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of any
retiring Trustee with respect to the Notes as to which any such retiring
Trustee is not retiring shall continue to be vested in such retiring
Trustee, and (ii) that shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture
shall constitute such Trustee co-trustees of the same trust and that
each such separate, retiring or successor Trustee shall be Trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any such other Trustee.
Section 9.8 Successor Trustee by Merger, etc. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act will be the successor Trustee.
Section 9.9 Eligibility; Disqualification. There shall at all times be a
Trustee hereunder that is a corporation organized and doing business under the
laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to
supervision or examination by federal or state
47
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition. This
Indenture will always have a Trustee who satisfies the requirements of TIA
Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b).
Section 9.10 Preferential Collection of Claims Against Funding Corp. The
Trustee is subject to TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed shall
be subject to TIA Section 311(a) to the extent indicated therein.
Section 9.11 Maintenance of Offices and Agencies. (a) There shall at all
times be maintained, as shall be specified for the Notes, an office or agency
where Notes may be presented or surrendered for registration of transfer or
exchange and for payment of principal and interest, and where notices and
demands to or upon the Trustee in respect of the Notes or this Indenture may be
served. Such office or agency shall be initially at the Corporate Trust Office.
Written notice of the location of each of such other office or agency and of any
change of location thereof shall be given by Funding Corp. to the Trustee and by
the Trustee to the Holders in the manner specified in Section 15.3. In the event
that no such office or agency shall be maintained or no such notice of location
or of change of location shall be given, presentations, surrenders, and demands
may be made and notices may be served at the Corporate Trust Office.
(b) There, shall at all times be a Note Registrar and a Paying
Agent hereunder. The Note Registrar and Paying Agent initially shall be
the Trustee, and the Trustee shall continue to hold such offices until a
successor Note Registrar or Paying Agent, as the case may be, is
appointed by the Trustee and written notice of such appointment is given
to Funding Corp. and to Holders of Notes in the manner specified in
Section 15.3. In addition, at any time when any Notes remain
Outstanding, the Trustee may appoint an Authenticating Agent or Agents
with respect to the Notes which shall be authorized to act on behalf of
the Trustee to authenticate Notes issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or
pursuant to Section 2.11, and Notes so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder (it being
understood that wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent). If an appointment of
an Authenticating Agent with respect to the Notes shall be made pursuant
to this subsection 9.11(b), the Notes may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This Note is one of the Notes referred to in the within-mentioned
Indenture.
--------------------------------------------------------------------------------
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For and on behalf of Trustee
By_______________________
Authenticating Agent
By_______________________
Authorized Signatory
Any Authorized Agent shall be a bank or trust company, shall be a corporation
organized and doing business under the laws of the United States or any State
thereof, having a combined capital and surplus of at least $50,000,000, and
shall be authorized under such laws to exercise corporate trust powers, subject
to supervision by Federal or State authorities. If such Authorized Agent
publishes reports of its condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 9.11, the combined capital and surplus of such
Authorized Agent shall be deemed to be its combined capital and surplus as set
forth in its, most recent report of condition so published. If at any time an
Authorized Agent shall cease to be eligible in accordance with the provisions of
this Section 9.11, such Authorized Agent shall resign immediately in the manner
and with the effect specified in this Section 9.11. The Trustee at its office
specified in the first paragraph of this Indenture, is hereby appointed as
Paying Agent and Note Registrar hereunder.
(c) Any Paying Agent (other than the Trustee) from time to time
appointed hereunder shall execute and deliver to the Trustee an
instrument in which said Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 9.11, that such Paying Agent
will:
(i) hold all sums held by it for the payment of principal
of and interest on the Notes in trust for the benefit of the
Persons entitled thereto or the Trustee until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee within 5 days thereafter notice of
any default by any obligor upon the Notes in the making of any
such payment of principal or interest; and
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
Notwithstanding any other provision of this Indenture, any payment required to
be made to or received or held by the Trustee may, to the extent authorized by
written instructions of the Trustee, be made to or received or held by a Paying
Agent in the Borough of Manhattan, the City of New York, for the account of the
Trustee.
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(d) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or conversion to
which any Authorized Agent shall be a party, or any corporation
succeeding to the corporate trust business of any Authorized Agent,
shall be the successor of such Authorized Agent hereunder, if such
successor corporation is otherwise eligible under this Section 9.11,
without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(e) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee and Funding Corp. Funding
Corp. may, and at the request of the Trustee shall, at any time,
terminate the agency of any Authorized Agent by giving written notice of
termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time
any such Authorized Agent shall cease to be eligible under this Section
9.11 (when, in either case, no other Authorized Agent performing the
functions of such Authorized Agent shall have been appointed), Funding
Corp. shall promptly appoint one or more qualified successor Authorized
Agents approved by the Trustee to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated
or who shall have ceased to be eligible under this Section 9.11. Funding
Corp. shall give written notice of any such appointment to all Holders
as their names and addresses appear on the Note Register.
Section 9.12 Taxes. Any United States withholding taxes imposed with
respect to payments made to a Holder of a Note shall be the sole responsibility
of such Holder and therefore no Holder shall have the right to have any payment
to it "grossed-up" for, or paid free of, any such withholding taxes.
Section 9.13 Funds May Be Held by Trustee or Paying Agent; Investments.
(a) Subject to subsection (b) of this Section 9.13, any monies held by the
Trustee or the Paying Agent hereunder as part of the Indenture Collateral may,
until paid out by the Trustee or the Paying Agent as herein provided, be carried
by the Trustee or the Paying Agent on deposit with itself, and neither the
Trustee nor the Paying Agent shall have any liability for interest upon any such
monies.
(b) At any time and from time to time prior to the application
by the Trustee of any monies to the redemption of Notes pursuant to
Section 2.3 or Article VI, if at the time no Event of Default has
occurred and is continuing, the Trustee (i) shall, on its receipt of a
Funding Corp. Request, invest and reinvest monies at the time on deposit
with the Trustee as part of the Indenture Collateral, together with any
income and gains from the investment and reinvestment thereof, in
Permitted Investments as specified in such Funding Corp. Request, and
(ii) shall, in the absence of a Funding Corp. Request, invest and
reinvest any such monies in Permitted Investments which are set forth on
Schedule 4.5 hereto (which schedule may be updated from time to time
upon written instructions
50
delivered by Funding Corp. to the Trustee). Such Permitted Investments
shall be held by the Trustee until so sold in trust as part of the
Indenture Collateral. In the case of clause (i) above, the Trustee shall
sell any Permitted Investment at such prices, including accrued
interest, as are set forth in such Funding Corp. Request, as the case
may be, and, in the case of clause (ii) above, the Trustee may (but
shall not be required to) sell any Permitted Investments at such prices,
including accrued interest, as the Trustee shall in its sole discretion
determine. The Trustee shall, on receipt of a Funding Corp. Request,
sell such Permitted Investments as may be specified therein, and the
Trustee shall, without receipt of a Funding Corp. Request, in the event
monies are required for payment of any amounts to be paid by the Trustee
pursuant to Section 2.3 or Article VI in respect of the Notes and for
any payment of the principal of or interest on the Notes, sell such
Permitted Investments as are required to restore to cash as part of the
Indenture Collateral such amounts as are needed for any such payments.
The Trustee shall not be responsible for any losses on any investments
or sales of Permitted Investments made pursuant to the procedure
specified in this subsection 9.13(b).
ARTICLE X
HOLDERS' LISTS AND REPORTS
Section 10.1 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each April 30 commencing with the year
2006, and for so long as Notes remain outstanding, the Trustee will mail
to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA Section 313(a) (but if no event described in
TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also will
comply with TIA Section 313(b)(2). The Trustee will also transmit by
mail all reports as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the
Holders of Notes will be mailed by the Trustee to Funding Corp. and
filed by the Trustee with the SEC and each stock exchange on which the
Notes are listed in accordance with TIA Section 313(d). Funding Corp.
will promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 10.2 Holder Lists. The Trustee will preserve in as
current a form as is reasonably practicable the most recent list
available to it of the names and addresses of all Holders and shall
otherwise comply with TIA Section 312(a). If the Trustee is not the Note
Registrar, Funding Corp. will furnish or cause to be furnished to the
Trustee semiannually, between April 1 and April 15 and between October 1
and October 15, in each year, and at such other times as the Trustee may
request in writing, within 30 days after receipt by Funding Corp. of any
such request, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Notes and Funding
Corp. shall otherwise comply with TIA Section 312(a).
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ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1 Supplements and Amendments to Financing Documents Without
Consent of Holders. Without the consent of the Holders of any Notes, Funding
Corp., in each case when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into or consent to amendments or
supplements to the Financing Documents (including this Indenture) for any of the
following purposes:
(a) to evidence the succession of another entity to Funding
Corp. and the assumption by any such successor of the covenants of
Funding Corp. herein and in the Notes contained to the extent permitted
by the covenants incorporated by reference in this Indenture; or
(b) to evidence the succession of a new Trustee hereunder or a
co-trustee or separate trustee pursuant to Article IX of this Indenture;
or
(c) to add to the covenants of Funding Corp. for the benefit of
the Holders, or to surrender any right or power herein conferred upon
Funding Corp.; or
(d) to convey, transfer and assign to the Trustee, and to
subject to the Lien of this Indenture, additional properties or assets,
and to correct or amplify the description of any property at any time
subject to the Lien of this Indenture or to assure, convey and confirm
unto the Trustee any property subject or required to be subject to the
Lien of this Indenture; or
(e) to permit or facilitate the issuance of Notes in
uncertificated form; or
(f) to change or eliminate any provision of this Indenture;
provided, however, that if such change or elimination shall adversely
affect the interests of the Holders of Notes, such change or elimination
shall become effective only when no Note remains Outstanding; or
(g) to comply with changes in Applicable Law, including, without
limitation, complying with SEC requirements in order to effect or
maintain the qualification of this Indenture under the TIA; provided,
however, that no such amendment or supplement shall result in a Material
Adverse Effect or otherwise adversely affect the interests of the
Holders of any Notes in any material respect; or
(h) to make any changes required by Standard & Poor's or Fitch
or any other nationally recognized securities rating agency as a
condition to the issuance or maintenance of the then current rating on
the Notes, provided that any such change shall not result in a Material
Adverse Effect or otherwise adversely affect the interests of the
Holders of any Notes in any material respect; or
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(i) to cure any ambiguity, to correct or supplement any
provision in any Financing Document (including this Indenture) that may
be defective or inconsistent with any other provision in such Financing
Document (including this Indenture), or to make any other provisions
with respect to matters or questions arising in any Financing Document
(including this Indenture), provided such action shall not adversely
affect the interests of the Holders of Notes in any material respect.
Section 11.2 Supplemental Indenture with Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate principal amount
of the Notes then Outstanding by Act of said Holders delivered to Funding Corp.
and the Trustee, Funding Corp., when authorized by a Board Resolution, may, and
the Trustee, subject to Section 11.3 and 11.4, shall, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of, this Indenture;
provided, however, that no such supplemental indenture, and no amendment or
supplement to any Financing Document as provided in Section 11.1, shall, without
the consent of the Holder of each outstanding Note directly affected thereby,
(a) change the Stated Maturity of any Note (or, if the principal
thereof is payable in installments, the Stated Maturity of any such
installment), or of any payment of interest thereon, or the dates or
circumstances of payment of any Note, or change the principal amount
thereof or the interest thereon upon the redemption thereof, or change
the place of payment where, or the coin or currency in which, any Note
or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment of principal or interest on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date) or change the dates or the amounts of
payments to be made through the operation of the installment payments or
Sections 2.3(b) or 6.3 of this Indenture in respect of such Notes; or
(b) release or terminate the Liens securing this Indenture on
all or substantially all Indenture Collateral or permit the creation of
any Lien (except for Permitted Liens) prior to or pari passu with the
Liens of this Indenture on the Indenture Accounts or release or
terminate the Liens of this Indenture on the Indenture Accounts; or
(c) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 13.4 for quorum or
voting; or
(d) modify any of the provisions of Section 8.2 or Section 8.7
(except to increase the percentage of the principal amount of the
Outstanding Notes required to waive past defaults) or of this Section
11.2 (except to provide that certain other
53
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Note affected thereby).
Upon receipt by the Trustee of Board Resolutions of Funding Corp. and
such other documentation as the Trustee may reasonably require and upon the
filing with the Trustee of evidence of the Act of said Holders, the Trustee
shall join in the execution of such supplemental indenture or other instrument,
as the case may be, subject to the provisions of Sections 11.3 and 11.4.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 11.3 Documents Affecting Immunity or Indemnity. If in the
opinion of Funding Corp. or the Trustee any document required to be executed by
it pursuant to the terms of Section 11.2 affects any interest, right, duty,
immunity or indemnity in favor of Funding Corp. or the Trustee under this
Indenture, Funding Corp. or the Trustee, as the case may be, may in its
discretion decline to execute such document.
Section 11.4 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article XI or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
9.1) shall be fully protected in relying upon, an Officer's Certificate and an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture.
Section 11.5 Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article XI, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 11.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article XI may, and shall if required by Funding Corp., bear a
notation in form approved by Funding Corp. and the Trustee as to any matter
provided for in such supplemental indenture; and, in such case, suitable
notation may be made upon Outstanding Notes after proper presentation and
demand. If Funding Corp. shall so determine, new Notes so modified as to
conform, in the opinion of Funding Corp. and the Trustee, to any such
supplemental indenture may be prepared and executed by Funding Corp. and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
Section 11.7 Compliance with Trust Indenture Act. Every amendment or
supplement to this Indenture or the Notes shall be set forth in an amended or
supplemental indenture that complies with the TIA as then in effect.
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ARTICLE XII
SATISFACTION AND DISCHARGE
Section 12.1 Satisfaction and Discharge of Notes. Except as otherwise
provided with respect to the Notes, the Notes shall, prior to the Stated
Maturity thereof (or, if principal is payable in installments, the Stated
Maturity of the final installment of principal thereof), be deemed to have been
paid for all purposes of this Indenture, and the entire indebtedness of Funding
Corp. in respect thereof shall be deemed to have been satisfied and discharged,
upon satisfaction of the following conditions:
(a) Funding Corp. shall have irrevocably deposited with the
Trustee, in trust, money or Permitted Investments in an amount which
shall be sufficient to pay, without requiring reinvestment by the
Trustee, when due the principal of and interest due and to become due on
the Notes on and prior to the Stated Maturity of principal thereof (or,
if principal is payable in installments, the Stated Maturity of the
final installment of principal thereof) or upon redemption or
prepayment;
(b) if any such deposit of money or Permitted Investments shall
have been made prior to the Stated Maturity (or, if principal is payable
in installments, the Stated Maturity of the final installment of
principal) or Redemption Date or Prepayment Date of the Notes, Funding
Corp. shall have delivered to the Trustee a Funding Corp. Order stating
that such money shall be held by the Trustee, in trust, as provided in
Section 12.3;
(c) in the case of redemption or prepayment of Notes, the notice
requisite to the validity of such redemption or prepayment shall have
been given, or irrevocable authority shall have been given by Funding
Corp. to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and
(d) there shall have been delivered to the Trustee an Opinion of
Counsel to the effect that as a result of a change in Law after the date
of this Indenture such satisfaction and discharge of the indebtedness of
Funding Corp. with respect to the Notes shall not be deemed to be, or
result in, a taxable event with respect to the Holders of Notes for
purposes of United States Federal income taxation unless the Trustee
shall have received documentary evidence that each Holder of Notes
either is not subject to, or is exempt from United States Federal income
taxation.
Upon satisfaction of the aforesaid conditions with respect to the Notes,
the Trustee shall, upon receipt of a Funding Corp. Request, acknowledge in
writing that the Notes are deemed to have been paid for all purposes of this
Indenture and that the entire indebtedness of Funding Corp. in respect thereof
is deemed to have been satisfied and discharged.
In the event that Notes which shall be deemed to have been paid as
provided in this Section 12.1 do not mature and are not to be redeemed within
the 60 day period commencing on the date of the deposit with the Trustee of
monies, Funding Corp. shall,
55
as promptly as practicable, give a notice, in the same manner as a notice of
redemption with respect to such Notes, to the Holders of such Notes to the
effect that such Notes are deemed to have been paid and the circumstances
thereof.
Notwithstanding the satisfaction and discharge of any Notes as
aforesaid, the obligations of Funding Corp. and the Trustee in respect of such
Notes under Sections 2.9, 2.10, 2.11, 9.2(f) and 9.6 and Article XI and this
Article XII shall survive.
Anything herein to the contrary notwithstanding, (a) if, at any time
after a Note would be deemed to have been paid for purposes of this Indenture,
and, if such is the case, Funding Corp.'s indebtedness, as the case may be, in
respect thereof would be deemed to have been satisfied or discharged, pursuant
to this Section (without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be required to return the
money deposited with it as aforesaid to Funding Corp. or its representative, as
the case may be, under any applicable Federal or State bankruptcy, insolvency or
other similar law, such Note shall thereupon be deemed retroactively not to have
been paid and any satisfaction and discharge of Funding Corp.'s indebtedness in
respect thereof shall retroactively be deemed not to have been effected, and
such Note shall be deemed to remain Outstanding, and (b) any satisfaction and
discharge of Funding Corp.'s indebtedness in respect of any Note shall be
subject to the provisions of Section 4.6.
Section 12.2 Satisfaction and Discharge of Indenture. This Indenture
shall upon Funding Corp. Request, cease to be of further effect (except as
hereinafter expressly provided), and the Trustee, at the expense of Funding
Corp., shall execute proper instruments prepared by Funding Corp. acknowledging
satisfaction and discharge of this Indenture, when:
(a) either
(i) all Notes theretofore authenticated and delivered
(other than (A) Notes which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.11,
and (B) Notes deemed to have been paid in accordance with Section
12.1) have been delivered to the Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the Trustee
for cancellation shall be deemed to have been paid in accordance
with Section 12.1;
(b) all other sums due and payable hereunder have been paid; and
(c) Funding Corp. shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
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Upon satisfaction of the aforesaid conditions, the Trustee shall, upon
receipt of a Funding Corp. Request, acknowledge in writing the satisfaction and
discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of Funding Corp. and the Trustee under Sections 2.9,
2.10, 2.11, 9.2(f) and 9.6 and Article XI and this Article XII shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section 12.2, the Trustee shall assign, transfer and turn over to or upon the
order of Funding Corp. any and all money, securities, and other property then
held by the Trustee for the benefit of the Holders other than money deposited
with the Trustee pursuant to Section 12.1(a) and interest and other amounts
earned or received thereon.
Section 12.3 Application of Trust Money. The money deposited with the Trustee
pursuant to Section 12.1 shall not be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the principal of and
interest on the Notes or portions of principal amount thereof in respect of
which such deposit was made, all subject, however, to the requirement that
Funding Corp. shall duly and punctually pay the principal of and interest on,
and all other amounts payable in respect of, the Notes in accordance with their
terms and the terms of this Indenture.
ARTICLE XIII
MEETINGS OF HOLDERS OF NOTES
ACTION WITHOUT MEETING
Section 13.1 Purposes for Which Meetings May Be Called. A meeting of
Holders of Notes, may be called at any time and from time to time pursuant to
this Article XIII to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be made, given or taken by Holders of the Notes.
Section 13.2 Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Notes for any purposes specified in
Section 13.1, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or at such other place, as the Trustee shall
determine. Notice of every such meeting, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 15.3, not less than
14 nor more than 60 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting
of the Holders of Notes by Funding Corp. or by the Holders of 10% in
aggregate principal amount of the Outstanding Notes, by written request
setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first mailing of
the notice of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to
57
be held as provided herein, then Funding Corp. or such Holders, as the
case may be, may determine the time and the place in the Borough of
Manhattan, the City of New York, or in such other place as Funding Corp.
or such Holders, as the case may be, shall determine, for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section 13.2.
(c) Any meeting of Holders of Notes shall be valid without
notice if the Holders of all Outstanding Notes are present in person or
by proxy and the Trustee is present, or if notice is waived in writing
before or after the meeting by the Holders of all Outstanding Notes, or
by such of them as are not present at the meeting in person or by proxy.
Section 13.3 Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Notes, a Person shall be (a) a Holder of one
or more Outstanding Notes, or (b) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Notes by such Holder
or Holders. The only Persons who shall be entitled to attend any meeting shall
be the Holders described above and any proxies of such Holders and their
respective counsel, any representatives of the Trustee and its counsel and any
representatives of Funding Corp. and their respective counsels.
Section 13.4 Quorum; Action. The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Notes with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Notes; provided,
however, that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified percentage that is
less than a majority in principal amount of the Outstanding Notes, considered as
one class, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Notes, considered as one class, shall constitute a
quorum. In the absence of a quorum, the meeting may be adjourned for a period of
not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided in Section 13.5(e),
notice of the reconvening of any adjourned meeting shall be given as provided in
Section 13.2(a), except that such notice need be given only once not less than 5
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding Notes
which shall constitute a quorum.
Except as limited by Section 11.2, any resolution presented to a meeting
or adjourned meeting duly reconvened at which a quorum is present as aforesaid
may be adopted by the affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Notes with respect to which such meeting
shall have been called, considered as one class; provided, however, that, except
as so limited, any
58
resolution with respect to any action that this Indenture expressly provides may
be taken by the Holders of a specified percentage that is less than a majority
in principal amount of the Outstanding Notes, considered as one class, may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Notes, considered as
one class.
Any resolution passed or decision taken at any meeting of Holders of
Notes duly held in accordance with this Section 13.4 shall be binding on all the
Holders of Notes with respect to which such meeting shall have been held,
whether or not present or represented at the meeting.
Section 13.5 Attendance at Meetings; Determination of Voting Rights;
Conduct of Adjournment of Meetings. (a) Attendance at meetings of Holders of
Notes may be in person or by proxy, and, to the extent permitted by law, any
such proxy shall remain in effect and be binding upon any future Holder of the
Notes with respect to which it was given, unless and until specifically revoked
by the Holder or future Holder of such Notes before being voted.
(b) Notwithstanding any other provision of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Notes in regard to proof of the holding of
such Notes and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Notes shall be proved in the manner
specified in Section 15.7 and the appointment of any proxy shall be
proved in the manner specified in Section 15.7. Such regulations may
provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in
Section 15.7 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by Funding Corp. or by Holders of Notes as provided in Section
13.2(b), in which case Funding Corp. or the Holders of Notes of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Notes represented at the meeting, considered as one class.
(d) At any meeting each Holder of an Outstanding Note or his
proxy shall be entitled to one vote for each $1,000 original principal
amount of Notes held or represented by him, and each Holder of any such
Note or his proxy shall be entitled to divide the votes carried by such
Note, casting some for and some against a particular action, as lie sees
fit; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Note challenged as not
59
Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Note or proxy.
(e) Any meeting duly called pursuant to Section 13.2 at which a
quorum is present may be adjourned from time to time by Persons entitled
to vote a majority in aggregate principal amount of the Outstanding
Notes represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
Section 13.6 Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Notes shall be by
written ballots on which shall be subscribed the signatures of the Holders of
Outstanding Notes or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Notes, with respect to which the meeting
shall have been called, held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in quadruplicate of
all votes cast at the meeting. A record, at least in quadruplicate, of the
proceedings of each meeting of Holders of Notes shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting, forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 13.2 and, if applicable, Section 13.4. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to Funding Corp. and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
Section 13.7 Action Without Meeting. In lieu of the vote of Holders of
Notes at a meeting as hereinbefore contemplated in this Article XIII, any
request, demand, authorization, direction, notice, consent, waiver or other
action may be made, given or taken by Holders of Notes by written instruments as
provided in Section 15.7.
ARTICLE XIV
NONRECOURSE LIABILITY OF FUNDING CORP.
Section 14.1 No Recourse. (a) Notwithstanding any provisions to the
contrary in the Transaction Documents, there shall be no recourse against any
Affiliates, stockholders, officers, directors, representatives or employees of
Funding Corp., the Company or Leaseco other than Funding Corp., the Company and
Leaseco (each, a "Non-Recourse Party") for any payment due hereunder or under
any other Financing Document from Funding Corp. or for the performance of any
obligation of or breach of any representation or warranty made by Funding Corp.
hereunder.
60
(b) The sole recourse of the Trustee and any Holder against
Funding Corp. for satisfaction of the obligations of Funding Corp.
hereunder or for the performance of any obligation of Funding Corp.
hereunder, or the breach of any representation or warranty made by
Funding Corp. hereunder (collectively, the "Funding Corp. Obligations"),
shall be against Funding Corp. and its respective assets, it being
expressly understood by the Trustee and Holders that such obligations of
Funding Corp. are obligations solely of such entity and that no such
personal liability shall attach to, or be incurred by, any Non-Recourse
Party.
(c) The sole recourse of the Trustee and any Holder hereunder
against the Company and Leaseco for any Funding Corp. Obligations shall
be against the Company and Leaseco and their respective assets and shall
be limited to the Financing Documents and no personal liability shall
attach to, or be incurred by, any Non-Recourse Party of such Person.
(d) Notwithstanding the foregoing, nothing contained in this
Section 14.1 shall (i) impair in respect of Funding Corp., the Company
or Leaseco, as the case may be, the validity of any Notes or the Leaseco
Guarantee, prevent the taking of any action permitted by law against
Funding Corp., the Company, Leaseco or their respective Affiliates, or
in any way affect or impair the rights of the Trustee and the Holders to
take any action permitted by law, in either case to realize upon the
Indenture Collateral, (ii) be deemed to release Funding Corp., the
Company, Leaseco or any respective Affiliate thereof, or any past,
present or future shareholder, partner, officer, employee, director or
agent of any thereof, from liability for its fraudulent actions,
fraudulent misrepresentations, gross negligence or willful misconduct,
or (iii) limit or affect the obligations and liabilities of any
Non-Recourse Party in accordance with the terms of any other Transaction
Document creating such obligations and liabilities to which such
Non-Recourse Party is a party.
ARTICLE XV
MISCELLANEOUS
Section 15.1 Appointment of Luxembourg Agent. Kredietbank S.A.
Luxembourgeoise is hereby appointed Luxembourg Agent (the "Luxembourg Agent").
The address of the Luxembourg Agent is Kredietbank S.A. Luxembourgeoise, 00
Xxxxxxxxx Xxxxx, X-0000, Xxxxxxxxxx.
Section 15.2 Trust Indenture Act Controls. This Indenture is hereby made
subject to the provisions of the TIA. If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required or deemed to be
included in this Indenture, or is otherwise governed by, any of the provisions
of the TIA, the provisions of the TIA shall control. If any provision hereof
otherwise conflicts with the TIA, the TIA shall control.
Section 15.3 Notices. Any notice or communication by Funding Corp. or
the Trustee to the other is duly given if in writing and delivered in person or
mailed by first
61
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to Funding Corp.:
TermoEmcali Funding Corp.
c/o Oak Power Services LLC
000 Xxxxx Xxxxxx, Xxxxx 0-000
Xxxxxx, Xxxxxxxxxxxxx 00000
If to the Trustee:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
00xx Xxxxx
XX: NYC 60-2710
Xxx Xxxx, Xxx Xxxx 00000
Funding Corp. and the Trustee may designate, by notice to the other, additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed
to have been duly given: at the time delivered by hand, if personally delivered;
5 business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and
the next business day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Note Registrar. Any notice or communication will also be so mailed to any person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect
its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.
If Funding Corp. mails a notice or communication to Holders, it will mail a copy
to the Trustee and each Authorized Agent at the same time.
Section 15.4 Communication by Holders of Notes with Other Holders of
Notes. Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. Funding Corp.,
the Trustee, the Note Registrar and anyone else shall have the protection of TIA
Section 312(c).
62
Section 15.5 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by Funding Corp. to the Trustee to take any action
under this Indenture, Funding Corp. shall furnish to the Trustee:
(a) an Officer's Certificate (upon which the Trustee may
conclusively rely) in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 15.6
hereof) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating
to the proposed action have been satisfied; and
(b) an Opinion of Counsel (upon which the Trustee may
conclusively rely) in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 15.6
hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 15.6 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA Section e 314(a)(4)) must comply with the provisions of TIA Section 314(e)
and must include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 15.7 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents. The Trustee may conclusively presume that
all matters required to take action have been covered by such certificates and
opinions delivered at one time.
Any certificate or opinion by an Authorized Officer of Funding Corp.,
insofar as it relates to legal matters, may be based upon a certificate or
opinion of, or
63
representations by, counsel, unless such Authorized Officer knows or has reason
to believe that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Authorized Officer or Authorized Officers of Funding Corp. stating that the
information with respect to such factual matters is in the possession of Funding
Corp., unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 15.8 Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Note Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 15.9 No Personal Liability. No past, present or future director,
officer, employee, incorporator, partner, member or stockholder of Funding
Corp., as such, will have any liability for any obligations of Funding Corp.
under the Notes, this Indenture, any other Financing Agreement, or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
The waiver may not be effective to waive liabilities under the federal
securities laws.
Section 15.10 Governing Law. THIS INDENTURE AND THE NOTES ISSUED
HEREUNDER SHALL, PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO THE CONFLICT OF LAW PROVISIONS THEREOF (OTHER THAN
SUCH SECTION 5-1401), EXCEPT THAT SUCH LAWS SHALL NOT APPLY WITH RESPECT TO ANY
INDENTURE COLLATERAL WHERE, AND TO THE EXTENT THAT, IT IS NECESSARY TO APPLY THE
LAWS OF ANOTHER JURISDICTION TO PERFECT LIENS IN SUCH INDENTURE COLLATERAL
RELATING TO THE NOTES.
Section 15.11 Table of Contents, Headings, etc. The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and will in no way modify or restrict any of
the terms or provisions hereof.
Section 15.12 Successors and Assigns. All covenants, agreements,
representations and warranties in this Indenture by the Trustee and Funding
Corp. shall
64
bind and, to the extent permitted hereby, shall inure to the benefit of and be
enforceable by their respective successors and assigns, whether so expressed or
not.
Section 15.13 Severability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 15.14 Benefits of Indenture. Nothing in this Indenture or in the
Notes, expressed or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders of Notes, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 15.15 Execution in Counterparts. This instrument may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
Section 15.16 U.S. Patriot Act. The parties hereto acknowledge that, in
order to comply with its obligations under the United States Patriot Act,
Deutsche Bank Trust Company Americas, like all financial institutions, is
required to obtain, verify, and record certain information and documentation
from the other parties hereto. Each of the parties hereby agree that they will
provide Deutsche Bank Trust Company Americas with such information as it may
reasonably request in order for it to satisfy the requirements of the United
States Patriot Act.
[End of Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
TERMOEMCALI FUNDING CORP.
By:___________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By: __________________________________
Name:
Title:
(TRUST INDENTURE)
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Exhibit A
---------
Form of Restricted Global Note
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO OR FOR THE
ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
PARAGRAPH AND IN ANY EVENT MAY BE SOLD OR OTHERWISE TRANSFERRED ONLY IN
ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT
THE CORPORATE TRUST OFFICE OF THE TRUSTEE IN NEW YORK CITY.
EACH HOLDER OF THIS NOTE REPRESENTS TO TERMOEMCALI FUNDING CORP.
("FUNDING CORP.") THAT (A) SUCH HOLDER WILL NOT SELL, PLEDGE OR OTHERWISE
TRANSFER THIS NOTE (WITHOUT THE CONSENT OF FUNDING CORP.) OTHER THAN (I) TO A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A UNDER
THE SECURITIES ACT, (II) IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (III) IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, (IV) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (V)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT; PROVIDED THAT ANY TRANSFER
PURSUANT TO CLAUSES (III) AND (IV) ABOVE ARE SUBJECT TO THE RECEIPT BY FUNDING
CORP. OF AN OPINION OF COUNSEL OR SUCH OTHER EVIDENCE ACCEPTABLE TO FUNDING
CORP. THAT SUCH RESALE, PLEDGE, OR TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN
AND DELIVER TO THE TRANSFEREE
67
(OTHER THAN A QUALIFIED INSTITUTIONAL BUYER) PRIOR TO THE SALE A COPY OF A
NOTICE TO INVESTORS (COPIES OF WHICH MAY BE OBTAINED FROM THE TRUSTEE).
68
TERMOEMCALI FUNDING CORP.
SENIOR SECURED NOTE
DUE 2019
[$___________] No. 1 CUSIP No. [_______]
TERMOEMCALI FUNDING CORP., a Delaware corporation ("Funding
Corp."), for value received, hereby promises to pay to CEDE & CO. or registered
assigns, the principal sum of [___________] ($[_______]) in consecutive monthly
installments of principal and interest on the 15th calendar day of each calendar
month of each year set forth on Schedule 1 hereto (each such date being a
"Payment Date"), beginning on the first such date following the Closing Date, in
an amount equal to its pro rata share of the monthly installment amount for the
aggregate principal amount of all Notes issued under the Indenture specified on
Schedule 1 hereto opposite each such year until the outstanding principal hereof
is repaid in full, in any coin or currency of the United States of America which
at the time of payment is legal tender for public and private debts, and to pay
as a component of each such installment, at said offices or agencies to the
registered owner hereof, in like coin or currency, interest on the outstanding
principal hereof from the first day of the month in which the Closing Date
occurs at the rate per annum set forth opposite the applicable period described
in the table below:
-------------------------------------------------------------
Interest Accrual Interest Rate Per Annum
Period
-------------------------------------------------------------
First day of month in
which Closing Date 6%
occurs -
June 30, 2006
-------------------------------------------------------------
July 1, 2006 -
Jun. 30, 2007 7%
-------------------------------------------------------------
July 1, 2007 -
June 30, 2008 8%
-------------------------------------------------------------
July 1, 2008 -
Jun. 30, 2009 9%
-------------------------------------------------------------
July 1, 2009 and
thereafter 10.125%
-------------------------------------------------------------
69
provided that during the continuance of a Default or an Event of Default the
principal hereof and interest accrued hereon (including overdue principal and
(to the extent permitted by applicable law) interest on the Notes) shall, until
such Default or Event of Default has been cured or remedied or such Default or
Event of Default has been waived in accordance with the terms of the Indenture,
bear interest at a rate per annum equal to two percent (2%) per annum above the
rate of interest otherwise applicable thereto.
The final maturity hereof shall be December 31, 2019. All
payments of principal of and interest on this Note shall be made at the
Corporate Trust Office of the Trustee in the City of New York, New York.
The provisions of this Note are continued on the reverse hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Authentication Certificate hereon shall have been signed by or on
behalf of the Trustee.
IN WITNESS WHEREOF, Funding Corp. has caused this Note to be
signed in its name by its Authorized Officer.
Dated as of [____________]
TERMOEMCALI FUNDING CORP.
By:
-------------------------------------
Title: Authorized Officer
70
TRUSTEE'S AUTHENTICATION CERTIFICATE
This note is one of the Notes referred to in the within-mentioned
Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee,
By:_________________________________________
Authorized Officer
71
Reverse of Restricted Global Note
TERMOEMCALI FUNDING CORP.
SENIOR SECURED NOTE
DUE 2019
This note is one of an issue of securities of Funding Corp., and
is known as its Senior Secured Notes Due 2019 (this note and the other notes
issued under the Indenture referred to below being herein referred to,
respectively, as "this Note" and the "Notes"), all issued and to be issued under
and equally secured by a Trust Indenture, dated as of October ____, 2005,
executed and delivered between Funding Corp. and Deutsche Bank Trust Company
Americas, as Trustee (the "Indenture"), reference is made for a description of
the rights of Holders of the Notes in respect thereof and the terms and
conditions upon which the Notes are issued. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned thereto in the
Indenture.
THE NOTES ARE SUBJECT TO OPTIONAL AND MANDATORY REDEMPTION AND
PREPAYMENT AS PROVIDED IN THE INDENTURE.
As more fully described in the Indenture, Funding Corp. has the
right, without any consent or other action by Holders of the Notes, to amend the
Indenture in certain respects as more fully set forth in the Indenture. With the
consent of Holders of not less than a majority in aggregate principal amount of
the Notes then outstanding, Funding Corp. may amend the Indenture in any other
respect; provided, however, that no amendment shall, (1) extend the time, or
reduce the amount, of any payment on any Note, without the consent of the holder
of each Note so affected, (2) release or terminate the Liens securing this
Indenture on all or substantially all Indenture Collateral or permit the
creation of any Lien (except for Permitted Liens) prior to or pari passu with
the Liens of the Indenture on the Indenture Accounts or release or terminate the
Liens of the Indenture on the Indenture Accounts, without the consent of the
Holders of all Notes then outstanding, (3) reduce the percentage of the
principal amount of Notes the Holders of which are required to approve any such
amendment without the consent of the Holders of all Notes then outstanding, or
(4) reduce the percentage of the principal amount of Notes the Holders of which
are required to waive past defaults.
The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Indenture, upon the
occurrence and during the continuance of an Event of Default as in the Indenture
provided.
Recourse under this Note is limited in accordance with Section
14.1 of the Indenture and the provisions of such Section 14.1 are hereby
incorporated by reference as set forth in full herein.
The Notes are issuable only as registered notes without coupons.
This Note is transferable as prescribed in the Indenture by the registered owner
hereof, in
72
person or by attorney duly authorized, at the Corporate Trust Office of the
Trustee, in The City of New York, New York, upon surrender and cancellation of
this Note, and thereupon a new registered Note or Notes for a like principal
amount in authorized denominations will be issued to the transferee in exchange
therefor, as provided in the Indenture, and upon payment, if Funding Corp. shall
require it, of the transfer charges therein prescribed. Funding Corp. and the
Trustee shall deem and treat the person in whose name this Note is registered as
the absolute owner for the purpose of receiving payment of or on account of the
principal and interest due hereon and for all other purposes. Registered Notes
shall be exchangeable at said office of the Trustee for registered Notes of
other authorized denominations having the same aggregate principal amount, in
the manner and upon the conditions prescribed in the Indenture. Notwithstanding
any provision of the Indenture, (a) neither Funding Corp. nor the Trustee shall
be required to make transfers or exchanges of Notes during the period between
any interest payment date for such Notes and the Regular Record Date next
preceding such interest payment date, and (b) no charge shall be made upon any
transfer or exchange of Notes other than for any tax or taxes or other
government charges required to be paid by Funding Corp.
73
Schedule 1
----------
MONTHLY INSTALLMENT AMOUNT
PAYABLE
(Commencing as of [________], 2005)
----------------------------------------------------------
Year Amount of Each Monthly
(Commencing January Installment
1 of each Year)
----------------------------------------------------------
2005 USD 1,099,912
----------------------------------------------------------
2006 USD 1,118,207
----------------------------------------------------------
2007 USD 1,179,325
----------------------------------------------------------
2008 USD 1,470,901
----------------------------------------------------------
2009 USD 1,490,514
----------------------------------------------------------
2010 USD 1,510,387
----------------------------------------------------------
2011 USD 1,530,525
----------------------------------------------------------
2012 USD 1,550,932
----------------------------------------------------------
2013 USD 1,571,612
----------------------------------------------------------
2014 USD 1,592,566
----------------------------------------------------------
2015 USD 1,613,800
----------------------------------------------------------
2016 USD 1,635,318
----------------------------------------------------------
2017 USD 1,657,122
----------------------------------------------------------
2018 USD 1,679,217
----------------------------------------------------------
2019 USD 1,701,607
----------------------------------------------------------
74
Exhibit B
---------
Form of Regulation S Global Note
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO OR FOR THE
ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
PARAGRAPH AND IN ANY EVENT MAY BE SOLD OR OTHERWISE TRANSFERRED ONLY IN
ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT
THE CORPORATE TRUST OFFICE OF THE TRUSTEE IN NEW YORK CITY.
EACH HOLDER OF THIS NOTE REPRESENTS TO TERMOEMCALI FUNDING CORP.
("FUNDING CORP.") THAT (A) SUCH HOLDER WILL NOT SELL, PLEDGE OR OTHERWISE
TRANSFER THIS NOTE (WITHOUT THE CONSENT OF FUNDING CORP.) OTHER THAN (I) TO A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A UNDER
THE SECURITIES ACT, (II) IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (III) IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, (IV) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (V)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT; PROVIDED THAT ANY TRANSFER
PURSUANT TO CLAUSES (III) AND (IV) ABOVE ARE SUBJECT TO THE RECEIPT BY FUNDING
CORP. OF AN OPINION OF COUNSEL OR SUCH OTHER EVIDENCE ACCEPTABLE TO FUNDING
CORP. THAT SUCH RESALE, PLEDGE, OR TRANSFER IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN
AND DELIVER TO THE TRANSFEREE
75
(OTHER THAN A QUALIFIED INSTITUTIONAL BUYER) PRIOR TO THE SALE A COPY OF A
NOTICE TO INVESTORS (COPIES OF WHICH MAY BE OBTAINED FROM THE TRUSTEE).
76
TERMOEMCALI FUNDING CORP.
SENIOR SECURED NOTE
DUE 2019
[$___________] No. 1 CUSIP No. [_______]
TERMOEMCALI FUNDING CORP., a Delaware corporation ("Funding
Corp."), for value received, hereby promises to pay to CEDE & CO. or registered
assigns, the principal sum of [___________] ($[_______]) in consecutive monthly
installments of principal and interest on the 15th calendar day of each calendar
month of each year set forth on Schedule 1 hereto (each such date being a
"Payment Date"), beginning on the first such date following the Closing Date, in
an amount equal to its pro rata share of the monthly installment amount for the
aggregate principal amount of all Notes issued under the Indenture specified on
Schedule 1 hereto opposite each such year until the outstanding principal hereof
is repaid in full, in any coin or currency of the United States of America which
at the time of payment is legal tender for public and private debts, and to pay
as a component of each such installment, at said offices or agencies to the
registered owner hereof, in like coin or currency, interest on the outstanding
principal hereof from the first day of the month in which the Closing Date
occurs at the rate per annum set forth opposite the applicable period described
in the table below:
-------------------------------------------------------------
Interest Accrual Interest Rate Per Annum
Period
-------------------------------------------------------------
First day of month in
which Closing Date 6%
occurs -
June 30, 2006
-------------------------------------------------------------
July 1, 2006 -
Jun. 30, 2007 7%
-------------------------------------------------------------
July 1, 2007 -
June 30, 2008 8%
-------------------------------------------------------------
July 1, 2008 -
Jun. 30, 2009 9%
-------------------------------------------------------------
July 1, 2009 and
thereafter 10.125%
-------------------------------------------------------------
77
provided that during the continuance of a Default or an Event of Default the
principal hereof and interest accrued hereon (including overdue principal and
(to the extent permitted by applicable law) interest on the Notes) shall, until
such Default or Event of Default has been cured or remedied or such Default or
Event of Default has been waived in accordance with the terms of the Indenture,
bear interest at a rate per annum equal to two percent (2%) per annum above the
rate of interest otherwise applicable thereto.
The final maturity hereof shall be December 31, 2019. All
payments of principal of and interest on this Note shall be made at the office
of the Luxembourg Agent in Luxembourg.
The provisions of this Note are continued on the reverse hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Authentication Certificate hereon shall have been signed by or on
behalf of the Trustee.
IN WITNESS WHEREOF, Funding Corp. has caused this Note to be
signed in its name by its Authorized Officer.
Dated as of [_______________]
TERMOEMCALI FUNDING CORP.
By:
---------------------------------------
Title: Authorized Officer
78
TRUSTEE'S AUTHENTICATION CERTIFICATE
This note is one of the Notes referred to in the within-mentioned
Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By:__________________________________
Authorized Officer
79
Reverse of Regulation S Global Note
TERMOEMCALI FUNDING CORP.
SENIOR SECURED NOTE
DUE 2019
This note is one of an issue of securities of Funding Corp., and
is known as its Senior Secured Notes Due 2019 (this note and the other notes
issued under the Indenture referred to below being herein referred to,
respectively, as "this Note" and the "Notes"), all issued and to be issued under
and equally secured by a Trust Indenture, dated as of October ____, 2005,
executed and delivered between Funding Corp. and Deutsche Bank Trust Company
Americas, as Trustee (the "Indenture"), reference is made for a description of
the rights of Holders of the Notes in respect thereof and the terms and
conditions upon which the Notes are issued. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned thereto in the
Indenture.
THE NOTES ARE SUBJECT TO OPTIONAL AND MANDATORY REDEMPTION AND
PREPAYMENT AS PROVIDED IN THE INDENTURE.
As more fully described in the Indenture, Funding Corp. has the
right, without any consent or other action by Holders of the Notes, to amend the
Indenture in certain respects as more fully set forth in the Indenture. With the
consent of Holders of not less than a majority in aggregate principal amount of
the Notes of all series then outstanding, Funding Corp. may amend the Indenture
in any other respect; provided, however, that no amendment shall, (1) extend the
time, or reduce the amount, of any payment on any Note, (2) release or terminate
the Liens securing this Indenture on all or substantially all Indenture
Collateral or permit the creation of any Lien (except for Permitted Liens) prior
to or pari passu with the Liens of the Indenture on the Indenture Accounts or
release or terminate the Liens of the Indenture on the Indenture Accounts,
without the consent of the Holders of all Notes then outstanding, (3) reduce the
percentage of the principal amount of Notes the Holders of which are required to
approve any such amendment. without the consent of the Holders of all Notes then
outstanding, or (4) reduce the percentage of the principal amount of Notes the
Holders of which are required to waive past defaults.
The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Indenture, upon the
occurrence and during the continuance of an Event of Default as in the Indenture
provided.
Recourse under this Note is limited in accordance with Section
14.1 of the Indenture and the provisions of such Section 14.1 are hereby
incorporated by reference as if set forth in full herein.
The Notes are issuable only as registered notes without coupons.
This Note is transferable as prescribed in the Indenture by the registered owner
hereof, in person or by attorney duly authorized, at an office or agency of the
Luxembourg Agent in
80
Luxembourg, upon surrender and cancellation of this Note, and thereupon a new
registered Note or Notes for a like principal amount in authorized denominations
will be issued to the transferee in exchange therefor, as provided in the
Indenture, and upon payment, if Funding Corp. shall require it, of the transfer
charges therein prescribed. Funding Corp. and the Trustee shall deem and treat
the person in whose name this Note is registered as the absolute owner for the
purpose of receiving payment of or on account of the principal and interest due
hereon and for all other purposes. Registered Notes shall be exchangeable at
said offices or agencies of the Luxembourg Agent for registered Notes of other
authorized denominations having the same aggregate principal amount, in the
manner and upon the conditions prescribed in the Indenture. Notwithstanding any
provision of the Indenture, (a) neither Funding Corp. nor the Trustee shall be
required to make transfers or exchanges of Notes during the period between any
interest payment date for such Notes and the Regular Record Date next preceding
such interest payment date, and (b) no charge shall be made upon any transfer or
exchange of Notes other than for any tax or taxes or other government charges
required to be paid by Funding Corp.
81
Schedule 1
----------
MONTHLY INSTALLMENT AMOUNT
PAYABLE FOR AGGREGATE AMOUNT OF NOTES
ISSUED UNDER THE INDENTURE
(Commencing as of [_____], 2005)
----------------------------------------------------------
Year Amount of Each Monthly Installment
(Commencing January For Aggregate Amount of Notes
1 of each Year) Issued Under Indenture
----------------------------------------------------------
2005 USD 1,099,912
----------------------------------------------------------
2006 USD 1,118,207
----------------------------------------------------------
2007 USD 1,179,325
----------------------------------------------------------
2008 USD 1,470,901
----------------------------------------------------------
2009 USD 1,490,514
----------------------------------------------------------
2010 USD 1,510,387
----------------------------------------------------------
2011 USD 1,530,525
----------------------------------------------------------
2012 USD 1,550,932
----------------------------------------------------------
2013 USD 1,571,612
----------------------------------------------------------
2014 USD 1,592,566
----------------------------------------------------------
2015 USD 1,613,800
----------------------------------------------------------
2016 USD 1,635,318
----------------------------------------------------------
2017 USD 1,657,122
----------------------------------------------------------
2018 USD 1,679,217
----------------------------------------------------------
2019 USD 1,701,607
----------------------------------------------------------
82
Exhibit C
---------
FORM OF TRANSFER CERTIFICATE
REGULATION S GLOBAL NOTE TO
RESTRICTED GLOBAL NOTE
(Transfers pursuant to Section 2.1(b)(ii)
of the Indenture)
Deutsche Bank Trust Company Americas,
as Trustee
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group
Re: TermoEmcali Funding Corp.
Senior Secured Notes Due 2019 (the "Notes")
-------------------------------------------
Reference is hereby made to the Indenture, dated as of October
____, 2005 (the "Indenture"), between TermoEmcali Funding Corp., as Issuer, and
Deutsche Bank Trust Company Americas, as Trustee. Terms used but not defined
herein and defined in Regulation S or in the Indenture shall have the meanings
given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to U.S. $_______________, principal
amount of Notes, which are represented by the following Global Note, and held
through The Depository Trust Company or an Agent Member in the name of the
Undersigned (as defined below), as or on behalf of the Owner (as defined below)
(the "Specified Notes"):
CUSIP No. [___________]
CERTIFICATE No. I
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Notes or (ii) it is acting on behalf of all the beneficial
owners of the Specified Notes and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
The Owner has requested that the Specified Notes be transferred
to a person (the "Transferee") who will take delivery in the form of an interest
in the Restricted Global Note. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
144A under the Securities Act and all applicable securities laws of the states
of the United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as:
83
(1) the Specified Notes are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a "qualified
institutional buyer" within the meaning of Rule 144A, acquiring for its own
account or for the account of a qualified institutional buyer; and
(2) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may be
relying on Rule 144A in connection with the transfer.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company, and the Purchasers under the
Purchase Agreement.
Dated:
--------------------------------------------
(Print the name of the Undersigned,
as such term is defined in the second
paragraph of this certificate.)
By:
-----------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
84
Schedule 4.5
------------
Permitted Investments
---------------------
Xxxxxxx Xxxxx Offshore Liquid Reserve Fund # 51
85
