Exhibit 4(i)
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INDENTURE
DATED AS OF DECEMBER 31, 2001
BETWEEN
PRIVATE EQUITY PARTNERSHIP STRUCTURES I, LLC,
AS ISSUER,
AND
THE BANK OF NEW YORK,
AS TRUSTEE, CUSTODIAN, CALCULATION AGENT, NOTE REGISTRAR, TRANSFER AGENT
AND PAYING AGENT
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INTERPRETATION 3
SECTION 1.01 Definitions 3
SECTION 1.02 Rules of Construction 20
ARTICLE II THE NOTES 21
SECTION 2.01 Forms Generally 21
SECTION 2.02 Authorized Amount; Interest Rate; Stated
Maturity; Denominations; Ranking 22
SECTION 2.03 Execution, Authentication, Delivery and
Dating 25
SECTION 2.04 Registration, Transfer and Exchange of
Notes 26
SECTION 2.05 Mutilated, Defaced, Destroyed, Lost or
Stolen Notes 34
SECTION 2.06 Payment of Principal and Interest; Rights
Preserved 35
SECTION 2.07 Persons Deemed Owners 37
SECTION 2.08 Cancellation 37
SECTION 2.09 Section 3(c)(7) Procedures 38
SECTION 2.10 Forced Sale 38
ARTICLE III CONDITIONS PRECEDENT 39
SECTION 3.01 General Provisions 39
SECTION 3.02 Security for Notes 41
SECTION 3.03 Custodianship; Transfer of Collateral
Interests 42
SECTION 3.04 Limited Recourse 44
ARTICLE IV SATISFACTION AND DISCHARGE 44
SECTION 4.01 Satisfaction and Discharge of Indenture 44
SECTION 4.02 Application of Trust Money 45
SECTION 4.03 Repayment of Monies Held by Paying Agent 45
ARTICLE V EVENTS OF DEFAULT; REMEDIES 45
SECTION 5.01 Events of Default 45
SECTION 5.02 Acceleration of Maturity; Rescission and
Annulment 47
SECTION 5.03 Collection of Indebtedness and Suits for
Enforcement by Trustee 48
SECTION 5.04 Remedies 50
SECTION 5.05 Preservation of Collateral 52
SECTION 5.06 Trustee May Enforce Claims Without
Possession of Notes 53
SECTION 5.07 Application of Money Collected 54
SECTION 5.08 Limitation on Suits 54
SECTION 5.09 Unconditional Rights of Noteholders to
Receive Principal and Interest 54
SECTION 5.10 Restoration of Rights and Remedies 55
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SECTION 5.11 Rights and Remedies Cumulative 55
SECTION 5.12 Delay or Omission Not Waiver 55
SECTION 5.13 Control by Controlling Class and the
Liquidity Facility Provider 55
SECTION 5.14 Waiver of Past Defaults 55
SECTION 5.15 Undertaking for Costs 55
SECTION 5.16 Waiver of Stay or Extension Laws 55
SECTION 5.17 Sale of Collateral 55
SECTION 5.18 Action on the Notes 55
ARTICLE VI THE TRUSTEE 55
SECTION 6.01 Certain Duties and Responsibilities 55
SECTION 6.02 Notice of Default 55
SECTION 6.03 Certain Rights of Trustee 55
SECTION 6.04 Authenticating Agents 55
SECTION 6.05 Trustee Not Responsible for Recitals or
Issuance of Notes 55
SECTION 6.06 Trustee May Hold Notes 55
SECTION 6.07 Money Held in Trust 55
SECTION 6.08 Compensation and Reimbursement 55
SECTION 6.09 Corporate Trustee Required; Eligibility 55
SECTION 6.10 Resignation and Removal; Appointment of
Successor 55
SECTION 6.11 Acceptance of Appointment by Successor 55
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee 55
SECTION 6.13 Co-Trustees 55
SECTION 6.14 Certain Duties Related to Delayed Payment
of Proceeds 55
SECTION 6.15 Representations and Warranties of the Trustee 55
SECTION 6.16 Exchange Offers 55
ARTICLE VII COVENANTS 55
SECTION 7.01 Payment of Principal and Interest 55
SECTION 7.02 Maintenance of Office or Agency 55
SECTION 7.03 Money for Note Payments to be Held in Trust 55
SECTION 7.04 Existence of the Issuer 55
SECTION 7.05 Protection of Collateral 55
SECTION 7.06 Performance of Obligations 55
SECTION 7.07 Negative Covenants 55
SECTION 7.08 Statement as to Compliance 55
SECTION 7.09 Issuer May Consolidate Only on Certain Terms 55
SECTION 7.10 No Other Business 55
SECTION 7.11 Reaffirmation of Rating; Annual Rating Review 55
SECTION 7.12 Reporting 55
SECTION 7.13 Calculation Agent 55
SECTION 7.14 Amendment of Certain Documents 55
SECTION 7.15 Capital Calls 55
SECTION 7.16 Diversity Reports and Other Information 55
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ARTICLE VIII SUPPLEMENTAL INDENTURES 55
SECTION 8.01 Supplemental Indentures Without Consent of
Noteholders or Preferred Unitholders 55
SECTION 8.02 Supplemental Indentures with Consent of
Noteholders and Preferred Unitholders 55
SECTION 8.03 Execution of Supplemental Indentures 55
SECTION 8.04 Effect of Supplemental Indentures 55
SECTION 8.05 Reference in Notes to Supplemental Indentures 55
ARTICLE IX REDEMPTION OF NOTES 55
SECTION 9.01 Redemption of Notes 55
SECTION 9.02 Notice of Maturity by the Issuer 55
ARTICLE X ACCOUNTS, ACCOUNTINGS AND RELEASES 55
SECTION 10.01 Collection of Money 55
SECTION 10.02 Collection Account; Cash Reserve Account;
Note Reserve Account; Custodial Account 55
SECTION 10.03 Reports by Trustee 55
SECTION 10.04 Accountings 55
SECTION 10.05 Release of Collateral 55
SECTION 10.06 Reports by Independent Accountants 55
SECTION 10.07 Reports to Rating Agencies, Etc 55
SECTION 10.08 Tax Matters 55
ARTICLE XI APPLICATION OF MONIES 55
SECTION 11.01 Disbursements of Monies from the
Collection Account 55
SECTION 11.02 Liquidity Facility 55
ARTICLE XII SECURED PARTIES' RELATIONS 55
SECTION 12.01 Subordination 55
SECTION 12.02 Standard of Conduct 55
SECTION 12.03 Non-Petition 55
ARTICLE XIII MISCELLANEOUS 55
SECTION 13.01 Form of Documents Delivered to Trustee 55
SECTION 13.02 Acts of Noteholders 55
SECTION 13.03 Notices 55
SECTION 13.04 Effect of Headings and Table of Contents 55
SECTION 13.05 Successors and Assigns 55
SECTION 13.06 Severability 55
SECTION 13.07 Benefits of Indenture 55
SECTION 13.08 Legal Holidays 55
SECTION 13.09 Governing Law 55
SECTION 13.10 Submission to Jurisdiction 55
SECTION 13.11 Counterparts 55
SECTION 13.12 Confidential Treatment of Documents 55
SECTION 13.13 Waiver of Trial by Jury 55
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SCHEDULES, APPENDICES AND EXHIBITS
Schedule I Limited Partnerships
Appendix A LIBOR Formula
Exhibit A Form of Regulation S Global Note
Exhibit B Form of Restricted Global Note
Exhibit C Form of Certificated Note
Exhibit D Form of Rule 144A Transfer Certificate
Exhibit E Form of Regulation S Transfer Certificate
Exhibit F Form of Request for Documents
Exhibit G Form of Opinion of Counsel to the Issuer
Exhibit H Form of Tax Opinion of Counsel to the Issuer
Exhibit I Form of Opinion of Delaware Counsel to the Issuer
Exhibit J Diversification Report
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This INDENTURE, dated as of December 31, 2001, is between
PRIVATE EQUITY PARTNERSHIP STRUCTURES I, LLC, a limited liability company
organized and existing under the laws of Delaware (the "Issuer"), and THE BANK
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OF NEW YORK, a New York banking corporation, as indenture trustee (herein,
together with its permitted successors in the trusts created hereunder, called
the "Trustee"), custodian, calculation agent, note registrar, transfer agent and
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paying agent.
PRELIMINARY STATEMENT
The Issuer is duly authorized to execute and deliver this
Indenture to provide for the issuance of the Notes as provided in this
Indenture. All covenants and agreements made by the Issuer herein are for the
benefit and security of the Secured Parties. The Issuer is entering into this
Indenture, and the Trustee is accepting the trusts created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
All things necessary to make this Indenture a legal, valid and
binding agreement of the Issuer in accordance with its terms have been done.
GRANTING CLAUSES
The Issuer hereby Grants to the Trustee, for the benefit and
security of the Secured Parties, all of its right, title and interest in, to and
under, in each case, whether now owned or existing, or hereafter acquired or
arising, all accounts, general intangibles, chattel paper, instruments,
securities, investment property, money, goods, documents, deposit accounts,
letters of credit, letter of credit rights and any and all other property of any
type or nature owned by it, including (a) the Collateral Interests, all
distributions, whether payable in cash or property, and other payments
receivable or distributable in respect of or in exchange for any of the
Collateral Interests, and all distributions, cash, instruments, securities,
whether certificated or uncertificated, security entitlements, securities
accounts, investment property and other property from time to time receivable or
otherwise distributable in respect thereof; (b) the Accounts established
hereunder and all Eligible Investments purchased with funds on deposit in said
accounts and all income from the investment of funds therein; (c) the Servicing
Agreement; (d) all Cash and Money delivered to the Trustee; (e) all amounts
received under the Rate Cap Agreement; (f) all rights of the Issuer under the
CICA SPE Transfer Agreement; (g) all rights of the Issuer under the VSC SPE
Transfer Agreement; (h) all rights of the Issuer, as assignee of CICA SPE, LLC,
under the CICA Asset Sale Agreement; (i) all rights of the Issuer, as assignee
of VSC SPE, LLC, under the VSC Asset Sale Agreement; and (j) all proceeds,
accessions, profits, income benefits, substitutions and replacements, whether
voluntary or involuntary, of and to any of the property of the Issuer described
in the preceding clauses (a) - (i) (all such Money, instruments, rights and
other property listed above, collectively being the "Collateral"). Such Grants
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are made, however, in trust, to secure the Notes equally and ratably without
prejudice, priority or distinction between any Note and any other Note by reason
of difference in time of issuance or otherwise, except as expressly provided in
this Indenture, and to secure (i) the payment of all amounts due on the Notes
and under the Liquidity Facility in accordance with
their terms, (ii) the payment of all other sums payable under this Indenture and
(iii) compliance with the provisions of this Indenture and the Liquidity
Facility, all as provided in this Indenture.
Except to the extent otherwise provided in this Indenture, the
Issuer does hereby constitute and irrevocably appoint the Trustee the true and
lawful attorney of the Issuer, with full power (in the name of the Issuer or
otherwise), to exercise all rights of the Issuer with respect to the Collateral
held for the benefit and security of the Secured Parties and to ask, require,
demand, receive, settle, compromise, compound and give acquittance for any and
all monies and claims for monies due and to become due under or arising out of
any of the Collateral held for the benefit and security of the Secured Parties,
to endorse any checks or other instruments or orders in connection therewith and
to file any claims or take any action or institute any Proceedings which the
Trustee may deem to be necessary or advisable in the premises. The power of
attorney granted pursuant to this Indenture and all authority hereby conferred
are granted and conferred solely to protect the Trustee's interest in the
Collateral held for the benefit and security of the Secured Parties and shall
not impose any duty upon the Trustee to exercise any power. This power of
attorney shall be irrevocable as one coupled with an interest prior to the
payment in full of all the obligations secured hereby.
This Indenture shall constitute a security agreement under the
law of the State of New York applicable to agreements made and to be performed
therein. Upon the occurrence of any Event of Default with respect to the Notes,
and in addition to any other rights available under this Indenture or any other
instruments included in the Collateral held for the benefit and security of the
Secured Parties or otherwise available at law or in equity, the Trustee shall
have all rights and remedies of a secured party on default under the law of the
State of New York and other applicable law to enforce the assignments and
security interests contained herein and, in addition, shall have the right,
subject to compliance with any mandatory requirements of applicable law, to sell
or apply any rights and other interests assigned or pledged hereby in accordance
with the terms hereof at public or private sale.
It is expressly agreed that anything therein contained to the
contrary notwithstanding, the Issuer shall remain liable under any instruments
included in the Collateral to perform all the obligations assumed by it
thereunder, all in accordance with and pursuant to the terms and provisions
thereof, and except as otherwise expressly provided herein, the Trustee shall
not have any obligations or liabilities under such instruments by reason of or
arising out of this Indenture, nor shall the Trustee be required or obligated in
any manner to perform or fulfill any obligations of the Issuer under or pursuant
to such instruments or to make any payment, to make any inquiry as to the nature
or sufficiency of any payment received by it, to present or file any claim, or
to take any action to collect or enforce the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time or times.
The designation of the Trustee in any transfer document or
record is intended and shall be deemed, first, to refer to the Trustee, as a
purchaser of Collateral, as custodian on behalf of the Issuer, and second, to
refer to the Trustee, as secured party on behalf of the Secured Parties;
provided, that the Grant made by the Issuer to the Trustee pursuant to the
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Granting Clauses hereof shall apply to any Collateral bearing such designation.
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The Trustee acknowledges such Grants, accepts the trusts
hereunder in accordance with the provisions hereof, and agrees to perform the
duties as set forth herein.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01 Definitions. Except as otherwise specified herein
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or as the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Indenture.
"Account" means any of the Collection Account, the Cash
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Reserve Account, the Note Reserve Account and the Custodial Account, each of
which may include any number of sub-accounts deemed necessary by the Trustee for
its convenience in administering the relevant account.
"Accountants' Report" means a report of a firm of Independent
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certified public accountants of recognized national reputation appointed by the
Issuer pursuant to Section 10.06(a), which may be the firm of Independent
accountants that reviews or performs procedures with respect to the financial
reports prepared by the Issuer.
"Additional Closing Date" means each date on which Class B2
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Notes are delivered and paid for in accordance with Section 2.02(b) and Section
3.01(b).
"Administrative Expenses" means amounts due or accrued with
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respect to any Quarterly Distribution Date and payable by the Issuer to (i) the
Trustee pursuant to Section 6.08 or any co-trustee appointed pursuant to Section
6.13 or any Note Registrar pursuant to Section 2.04(a), (ii) the Servicing Fee
due and payable on such Quarterly Distribution Date less the Senior Servicing
Fee paid on such date, (iii) the Independent accountants, agents and counsel of
the Issuer for fees and expenses, (iv) the Rating Agency for fees and expenses
in connection with any rating of the Notes (including, without limitation, any
surveillance fees), including fees and expenses due or accrued in connection
with any rating of the Collateral Interests (including, without limitation, any
surveillance fees), (v) any other Person in respect of any governmental fee,
charge or tax in relation to the Issuer and (vi) any other Person in respect of
any other fees or expenses (including indemnities) permitted under this
Indenture and the documents delivered pursuant to or in connection with this
Indenture and the Notes and the Transaction Documents; provided, that
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Administrative Expenses shall not include (a) any amounts due or accrued with
respect to the actions taken on or in connection with the Closing Date or an
Additional Closing Date, as the case may be, (b) amounts payable in respect of
the Notes or (c) amounts payable under the Liquidity Facility.
"Affiliate" or "Affiliated" means with respect to a Person,
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(i) any other Person who, directly or indirectly, is in Control of, or
Controlled by, or is under Common Control with, such Person or (ii) any other
Person who is a director, Officer, employee, managing member or general partner
of (a) such Person or (b) any such other Person described in clause (i) above.
For the purposes of this definition, Control of a Person shall mean the power,
direct or indirect, (x) to vote more than 50% of the securities having ordinary
voting power for the election of directors
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of such Person or (y) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Aggregate Outstanding Amount" means, when used with respect
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to any of the Notes at any time, the aggregate principal amount of such Notes
Outstanding at such time.
"Aggregate Liquidity Commitment" has the meaning set forth in
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the Liquidity Facility Agreement.
"Approved Evaluator" means an independent valuation agent
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selected from a list of Standard & Poor's approved pricing services, including
Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx Xxxxxx & Xxxxx, and Xxxxxx Partners, furnished by
the Rating Agency.
"Asset Sale Agreements" means, collectively, the CICA Asset
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Sale Agreement and the VSC Asset Sale Agreement.
"Authenticating Agent" means with respect to the Notes or any
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Class of the Notes, the Person designated by the Trustee, if any, to
authenticate such Notes on behalf of the Trustee pursuant to Section 6.04.
"Authorized Officer" means (i) with respect to the Issuer, any
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Officer who is authorized to act for the Issuer, as applicable, in matters
relating to, and binding upon, the Issuer, and (ii) with respect to the Trustee
or any other bank or trust company acting as trustee of an express trust or as
Custodian, a Trust Officer. Each party may receive and accept a certification of
the authority of any other party as conclusive evidence of the authority of any
person to act, and such certification may be considered as in full force and
effect until receipt by such other party of written notice to the contrary.
"Balance" means at any time, with respect to Cash or Eligible
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Investments in any Account at such time, the aggregate of (i) the current
balance of Cash, demand deposits, time deposits, certificates of deposit and
federal funds, (ii) the principal amount of interest-bearing corporate and
government securities, money market accounts and repurchase obligations and
(iii) the purchase price (but not greater than the face amount) of
non-interest-bearing government and corporate securities and commercial paper.
"Bankruptcy Code" means the United States Bankruptcy Code,
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Title 11 of the United States Code, as amended.
"Base Rate" has the meaning set forth in Appendix A hereto.
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"Base Rate Reference Bank" has the meaning set forth in
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Appendix A hereto.
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"Bearer Form" means, when used with respect to a Certificated
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Security, a form in which the Security is payable to the bearer of the Security
Certificate according to its terms, but not by reason of an Indorsement.
"Beneficial Owner" means any Person owning an interest in a
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Global Note as reflected on the books of the Depository or on the books of a
Depository Participant or on the
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books of an indirect participant for which a Depository Participant of the
Depository acts as agent.
"Business Day" means a day on which commercial banks and
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foreign exchange markets settle payments in New York, New York and any other
city in which the Corporate Trust Office is located and, in the case of the
final payment of principal of any Note, the place of presentation of such Note.
"Calculation Agent" has the meaning specified in Section 7.13.
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"Capital Call" means, in respect of each of the Collateral
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Interests, a request for additional capital contributions (including, without
limitation, any request for a management fee or other amounts provided for under
the related Limited Partnership Agreement) received by the Issuer from the
General Partner of the Limited Partnership to which such Collateral Interest
relates pursuant to the Limited Partnership Agreement of such Limited
Partnership.
"Cash" means such funds denominated in the coin or currency of
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the United States as at the time shall be legal tender for payment of all public
and private debts, including funds credited to a deposit account or a Securities
Account.
"Cash Reserve Account" means the Securities Account designated
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the "Cash Reserve Account" and established in the name of the Trustee pursuant
to Section 10.02(b).
"Certificated Note" has the meaning specified in Section
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2.01(c).
"Certificated Security" means a Security that is represented
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by a certificate. "Certificate of Authentication" has the meaning specified in
Section 2.03(f).
"CICA Asset Sale Agreement" means the Asset Sale Agreement
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dated as of December 31, 2001 between Combined Insurance Company of America
("CICA"), as seller, and CICA SPE, LLC, as buyer.
"CICA SPE Transfer Agreement" means the Transfer, Assignment
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and Assumption Agreement dated as of December 31, 2001 between CICA SPE, LLC, as
seller, and the Issuer, as buyer.
"Class" means each of the Class A1 Notes, the Class A2 Notes,
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the Class B1 Notes and the Class B2 Notes.
"Class A Interest Distribution Amount" means, with respect to
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any Quarterly Distribution Date, the sum of (i) the aggregate amount of interest
accrued at the Class A Note Interest Rate, during the Interest Period ending on
such Quarterly Distribution Date, on the Aggregate Outstanding Amount of the
Class A Notes on the first day of such Interest Period (after giving effect to
any Redemption of the Class A Notes or other payment of principal of the Class A
Notes on any preceding Quarterly Distribution Date) plus (ii) any Defaulted
Interest in respect of the Class A Notes and accrued interest thereon.
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"Class A Notes" means, collectively, the Class A1 Senior
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Floating Rate Notes due December 31, 2011 and the Class A2 Senior Floating Rate
Notes due December 31, 2011.
"Class A1 Note Interest Rate" means, with respect to any Class
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A1 Note, the per annum variable rate equal to LIBOR plus, initially, 1.25% which
rate shall be increased to up to a rate equal to LIBOR plus 1.90% upon an Issuer
Order made at the request of the Placement Agent in its sole discretion and such
increased rate shall be effective retroactively as of the Closing Date.
"Class A2 Note Interest Rate" means, with respect to any Class
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A2 Note, the per annum variable rate equal to LIBOR plus 2.50% (not to exceed
11.50% per annum).
"Class B1 Interest Distribution Amount" means, with respect to
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any Quarterly Distribution Date, the sum of (i) the aggregate amount of interest
accrued at the Class B1 Note Interest Rate, during the Interest Period ending on
such Quarterly Distribution Date, on the Aggregate Outstanding Amount of the
Class B1 Notes on the first day of such Interest Period (after giving effect to
any Redemption of the Class B1 Notes or other payment of principal of the Class
B1 Notes on any preceding Quarterly Distribution Date) plus (ii) any Defaulted
Interest in respect of the Class B1 Notes and accrued interest thereon.
"Class B Notes" means, collectively, the Class B1 Subordinated
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Floating Rate Notes due December 31, 2013 and the Class B2 Subordinated Floating
Rate Notes due December 31, 2013. Each Class B Note is a PIK security, which
permits the payment of interest thereon to be capitalized as additions to the
principal amount thereof in lieu of payment of interest in Cash.
"Class B1 Note Interest Rate" means, with respect to any Class
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B1 Note, the per annum rate equal to the 3 month LIBOR rate plus 3.75%, which
interest rate shall not exceed 12.75% per annum.
"Class B2 Note Interest Rate" means, with respect to any Class
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B2 Note, the per annum rate equal to the 3 month LIBOR rate plus 4.50%, which
interest rate shall not exceed 13.50% per annum.
"Class B1 Notes" means the Class B1 Subordinated Floating Rate
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Notes due December 31, 2013.
"Class B2 Notes" means the Class B2 Subordinated Floating Rate
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Notes due December 31, 2013.
"Class P1 Preferred Units" means the preferred membership
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interests of the Issuer designated Class P1 Preferred Units.
"Class P2 Preferred Units" means the preferred membership
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interests of the Issuer designated Class P2 Preferred Units.
"Clearing Agency" means an organization registered as a
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"clearing agency" pursuant to Section 17A of the Exchange Act.
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"Clearing Corporation" has the meaning specified in Section
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8-102(a)(5) of the UCC.
"Clearstream" means Clearstream Banking, societe anonyme, a
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corporation organized under the laws of the Grand Duchy of Luxembourg.
"Closing Date" means December 31, 2001.
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"Code" means the U.S. Internal Revenue Code of 1986, as
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amended.
"Collateral" has the meaning specified in the Granting
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Clauses.
"Collateral Interest" means a limited partnership interest
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held in the name of the Issuer in one of the Limited Partnerships listed in
Schedule I hereto.
"Collection Account" means the Securities Account designated
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the "Collection Account" and established in the name of the Trustee pursuant to
Section 10.02(a).
"Common Units" means the common membership interests in the
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Issuer, issued pursuant to the Operating Agreement.
"Control" of any Person means ownership of a majority of the
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voting power of such Person, or the power to direct or cause the direction of
the management or policies of such Person.
"Controlling Class" means the Class A1 Notes, so long as any
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Class A1 Notes are Outstanding, then (after the Class A1 Notes have been paid in
full) the Class A2 Notes, so long as any Class A2 Notes are Outstanding, then
(after the Class A2 Notes have been paid in full) the Class B1 Notes, so long as
any Class B1 Notes are Outstanding then (after the Class B1 Notes have been paid
in full) the Class B2 Notes, so long as any Class B2 Notes are Outstanding.
"Corporate Trust Office" means (a) the principal office of the
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Trustee, at which at any time its corporate trust business shall be
administered, which office at the date hereof is located at 0 Xxxx Xxxxx, Xxx
Xxxx, XX 00000 attention: Corporate Trust Department, Dealing and Trading Unit,
or such other address as the Trustee may designate from time to time or the
principal corporate trust office of any successor Trustee.
"Custodial Account" means the Securities Account designated
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the "Custodial Account" and established in the name of the Trustee pursuant to
Section 10.02(g).
"Custodian" has the meaning specified in Section 3.03(a).
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"Default" means any Event of Default or any occurrence that,
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with notice or the lapse of time or both, would become an Event of Default.
"Defaulted Interest" means any interest due and payable in
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respect of any Note which is not paid or duly provided for on the applicable
Quarterly Distribution Date or at Stated
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Maturity and which remains unpaid, it being understood that any interest
provided for by the Issuer's issuance of PIK Class B Notes shall not be deemed
"Defaulted Interest".
"Depository" means, with respect to the Notes issued in the
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form of one or more Global Notes, the Person designated as Depository pursuant
to Section 2.02(i) or any successor thereto pursuant to the applicable
provisions of this Indenture.
"Depository Participant" means a broker, dealer, bank or other
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financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of notes deposited with the Depository.
"Designated Maturity" has the meaning set forth in Appendix A
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hereto.
"Determination Date" means the last day of a Due Period.
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"Distribution Compliance Period" means, with respect to the
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Notes, the period beginning upon completion of the distribution of the Notes (as
certified by the Issuer to the Trustee) and ending on (and including) the 40th
day thereafter.
"Dollar" or "U.S.$" means a dollar or other equivalent unit in
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such coin or currency of the United States as at the time shall be legal tender
for all debts, public and private.
"DTC" means The Depository Trust Company, a New York
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corporation.
"Due Date" means each date on which any distribution is due on
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a Collateral Interest.
"Due Period" means, with respect to any Quarterly Distribution
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Date, the period commencing immediately following the third Business Day prior
to the preceding Quarterly Distribution Date (or on the Closing Date, in the
case of the Due Period relating to the first Quarterly Distribution Date) and
ending on the third Business Day prior to such Quarterly Distribution Date (or,
in the case of a Due Period that is applicable to the Quarterly Distribution
Date relating to the Stated Maturity of any Note, or the Maturity of all
Outstanding Notes, ending on the day preceding such Quarterly Distribution
Date).
"Eligible Investments" means any book-entry securities,
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negotiable instruments or securities represented by Instruments in Bearer Form
or Registered Form having original or remaining maturities of 30 days or less,
but in no event occurring later than the Quarterly Distribution Date next
succeeding the Trustee's acquisition thereof, which evidence:
(i) direct obligations of, and obligations fully guaranteed
by, the United States;
(ii) commercial paper having, at the time of investment or
contractual commitment to invest therein, a rating of "A-1+" from
the Rating Agency or otherwise approved in writing thereby;
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(iii) investments in money market funds (including without
limitation the AON Money Market Fund) having a rating from the
Rating Agency of at least AAAm;
(iv) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States
or any agency or instrumentality thereof, the obligations of which
are backed by the full faith and credit of the United States, in
either case entered into with (A) a depository institution or trust
company (acting as principal) having a credit rating of at least
"A-1" from Standard & Poor's or (B) a depository institution or
trust company the deposits of which are insured by the Federal
Deposit Insurance Corporation or any successor entity thereto; and
(v) any other investment as may be permitted by Standard &
Poor's without reducing or withdrawing the rating of any Class.
"ERISA" means the United States Employee Retirement Income
-----
Security Act of 1974, as amended.
"Euroclear" means Euroclear Bank s.a./n.v., as operator of the
---------
Euroclear system.
"Event of Default" has the meaning specified in Section 5.01.
----------------
"Exchange Act" means the United States Securities Exchange Act
------------
of 1934, as amended.
"Financial Asset" means, except as otherwise provided in
---------------- --------
Section 8-103 of the UCC: (a) a Security, or (b) an obligation of a Person or a
share, participation or other interest in a Person or in property or an
enterprise of a Person, which is, or is of a type, dealt in or traded on
financial markets, or which is recognized in any area in which it is issued or
dealt in as a medium for investment.
"Financing Statements" means UCC financing statements relating
--------------------
to the Collateral naming the Issuer as debtor and the Trustee, on behalf of the
Secured Parties, as secured party.
"General Partners" means the respective general partners of
-----------------
each of the Limited Partnerships.
"Global Notes" means Restricted Global Notes and Regulation S
------------
Global Notes.
"Grant" means to bargain, sell, warrant, alienate, remise,
-----
demise, release, convey, assign, transfer, mortgage, pledge, create and grant a
security interest in and right of set-off against, deposit, set over and
confirm. A Grant of the Collateral Interests, or of any other instrument, shall
include all rights, powers and options (but none of the obligations) of the
granting party thereunder, including the immediate continuing right to claim
for, collect, receive and receipt for principal, interest and fee payments in
respect of the Collateral Interests or such other instruments, and all other
Monies payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the granting party or otherwise, and generally
to do and receive
- 9 -
anything that the granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Holder" or "Noteholder" means, with respect to any Note, the
------ ----------
Person in whose name such Note is registered in the Note Register.
"Indenture" means this instrument as originally executed and,
---------
if from time to time supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
as so supplemented or amended.
"Independent" means, as to any Person, any other Person
-----------
(including, in the case of an accountant, or lawyer, a firm of accountants or
lawyers and any member thereof) who (i) does not have and is not committed to
acquire any material direct or any material indirect financial interest in such
Person or in any Affiliate of such Person, and (ii) is not connected with such
Person as an Officer, employee, promoter, underwriter, voting trustee, partner,
director or Person performing similar functions. "Independent" when used with
respect to any accountant may include an accountant who audits the books of such
Person if in addition to satisfying the criteria set forth above the accountant
is Independent with respect to such Person within the meaning of Rule 101 of the
Code of Ethics of the American Institute of Certified Public Accountants.
Whenever any Independent Person's opinion or certificate is to
be furnished to the Trustee, such opinion or certificate shall state that the
signer has read this definition and that the signer is independent within the
meaning hereof.
"Indorsement" has the meaning specified in Section
-----------
8-102(a)(11) of the UCC.
"Institutional Accredited Investor" means an "accredited
------------------------------------
investor" as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act.
"Instruction" has the meaning specified in Section
-----------
8-102(a)(12) of the UCC.
"Instrument" has the meaning specified in Section 9-102(a)(47)
----------
of the UCC.
"Interest Distribution Amount" means, with respect to any
------------------------------
Quarterly Distribution Date, the sum of the Class A1 Interest Distribution
Amount, the Class A2 Interest Distribution Amount, the Class B1 Interest
Distribution Amount and the Class B2 Interest Distribution Amount.
"Interest Period" means, with respect to any Class of Notes,
----------------
subject to Section 13.08 hereof (i) in the case of the initial Interest Period,
the period from, and including, the Closing Date to, but excluding, the first
Quarterly Distribution Date, and (ii) thereafter, the period from, and
including, the Quarterly Distribution Date immediately following the last day of
the immediately preceding Interest Period to, but excluding, the next succeeding
Quarterly Distribution Date.
"Interest Rate" means the Class A1 Note Interest Rate, the
--------------
Class A2 Note Interest Rate, the Class B1 Note Interest Rate or the Class B2
Note Interest Rate, as applicable.
- 10 -
"Investment Company Act" means the U.S. Investment Company Act
----------------------
of 1940, as amended, and the rules thereunder.
"Issuer" means Private Equity Partnership Structures I, LLC, a
------
limited liability company organized and existing under the laws of the State of
Delaware, unless a successor Person shall have become the Issuer pursuant to the
applicable provisions of this Indenture, and thereafter Issuer shall mean such
successor Person.
"Issuer Order" and "Issuer Request" mean, respectively, a
------------- ---------------
written order or a written request, in each case dated and signed in the name of
the Issuer by an Authorized Officer of the Issuer.
"LIBOR" has the meaning set forth in Appendix A hereto.
-----
"LIBOR Business Day" has the meaning set forth in Appendix A
--------------------
hereto.
"LIBOR Determination Date" has the meaning set forth in
--------------------------
Appendix A hereto.
"Limited Partnerships" means the limited partnerships listed
---------------------
in Schedule I hereto.
"Limited Partnership Agreement" means, with respect to a
-------------------------------
Limited Partnership, the limited partnership agreement, as amended and
supplemented from time to time, that governs such Limited Partnership.
"Liquidity Facility" means that certain liquidity facility
-------------------
provided to the Issuer by the Liquidity Facility Provider under the Liquidity
Facility Agreement.
"Liquidity Commitment Termination Date" means the earliest to
--------------------------------------
occur of (a) the close of business on the Scheduled Liquidity Commitment
Termination Date (as defined in the Liquidity Facility Agreement), or (b) the
close of business on the earlier of (1) date on which all of the Class P1
Preferred Shares (as defined in the Liquidity Facility Agreement) are redeemed
and (2) the date of the termination in whole of the Aggregate Liquidity
Commitment pursuant to Section 6.02 of the Liquidity Facility Agreement.
"Liquidity Facility Agreement" means that certain liquidity
------------------------------
facility agreement dated December 31, 2001, between the Issuer and the Liquidity
Facility Provider and Canadian Imperial Bank of Commerce, as Liquidity Agent.
"Liquidity Facility Provider" means Canadian Imperial Bank of
----------------------------
Commerce and the other liquidity banks (if any) named in the Liquidity Facility
Agreement.
"Liquidity Facility Provider Event" means the failure by the
-----------------------------------
Liquidity Facility Provider to make an advance in accordance with the terms of
the Liquidity Facility Agreement.
"Majority" means, with respect to any Class or Classes of
--------
Notes, the Holders of more than 50% of the Aggregate Outstanding Amount of the
Notes of such Class or Classes of Notes, as the case may be.
- 11 -
"Manager" means Aon Capital Managers, LLC, a Delaware limited
-------
liability company.
"Mandatory Expenses" means those Administrative Expenses that
------------------
constitute any of the following, in the order of priority set forth below:
(A)(i) Trustee's fees and expenses that must be paid in order to ensure that the
Issuer and the Trustee can discharge their respective obligations hereunder
under Section 6.08 and as otherwise set forth in the Indenture; (ii) the
surveillance and other fees of the Rating Agency; (iii) the fees of the Trustee,
as Paying Agent, Note Registrar, Custodian and Transfer Agent hereunder and,
following the payment of the Mandatory Expenses specified in clauses (A)(i)
through (iii); (B)(i) the Senior Servicing Fee, and (ii) if there is a
replacement Servicer not affiliated with Aon Capital Managers, LLC, the
Servicing Fee.
"Margin Stock" means "margin stock" as defined under
--------------
Regulation U issued by the Board of Governors of the Federal Reserve System.
"Maturity" means, with respect to any Note, the date on which
--------
all Outstanding unpaid principal of such Note becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for Redemption or otherwise.
"Maximum Tax Distribution Amount" for each Member for each
----------------------------------
Interest Period of each fiscal year of the Issuer means an amount equal to the
excess of (i) the lesser of (x) the sum of the Federal state and local income
tax liability (less the effect of the deduction of state and local income taxes
in computing the Federal income tax liability) of a Member (or if the Member is
a partnership or limited liability company its members or partners), not to
exceed a combined Federal, state and local effective income tax rate of forty
percent (40%), with respect to the net taxable income of the Issuer allocated to
(or reasonably estimated to be allocable to) such Member from the beginning of
the fiscal year through the end of such Interest Period attributable to the
items allocated to such Member under Article 5 of the Operating Agreement or (y)
forty percent (40%) of the Net GAAP Cash Flows allocated to (or reasonably
estimated to be allocated to) the Member from the beginning of the fiscal year
through the end of such Interest Period over (ii) the aggregate Maximum Tax
Distribution Amounts and the aggregate amount of Net Cash distributed to such
Member pursuant to Section 6.1 or Section 6.2 of the Operating Agreement for all
prior Interest Periods in such fiscal year.
"Measurement Date" means (a) the Closing Date, (b) each
-----------------
Determination Date occurring after the first anniversary of the Closing Date and
(c) with at least five (5) Business Days' prior written notice to each of the
parties hereto, any other Business Day that any Rating Agency or the Holders of
at least 66-2/3% of the Aggregate Outstanding Amount of any Class of Notes
requests be a "Measurement Date"; provided, that, if any such date would
--------
otherwise fall on a day that is not a Business Day, the relevant Measurement
Date will be the next succeeding Business Day.
"Member" means a member of the Issuer under the Operating
------
Agreement.
"Money" has the meaning specified in Section 1-201(24) of the
-----
UCC.
- 12 -
"Net Asset Value" means, on any Measurement Date, with respect
---------------
to the Issuer, the aggregate value of the portfolio investments held by the
Limited Partnerships, as most recently reported by the General Partners to the
Issuer as a limited partner therein on or prior to such Measurement Date.
"Net Cash" means the gross cash derived by the Issuer from the
--------
Collateral Interests and other investments or assets held by the Issuer subject
to the Priority of Payments set forth in Article XI hereof, including, without
limitation, operating income, fees, interest and other income attributable to
the Issuer's business, less the portion thereof used to pay principal and
interest on the Notes, amounts owed to the Liquidity Facility Provider,
Administrative Expenses and all other expenses of the Issuer, or established
cash reserves for all Issuer expenses, payments, capital commitments,
replacements and contingencies, all as determined by the Manager in accordance
with the Indenture and the Operating Agreement. Net Cash shall be increased to
the extent any previously established reserve is reduced.
"Net GAAP Cash Flows" means, with respect to the Issuer, for
-------------------
any Interest Period or any fiscal year or portion thereof the sum of (i) "Net
Cash flows from Operating Activities" of the Issuer plus (ii) "Cash flows from
Investing Activities" of the Issuer, each as defined for purposes of preparing
statements of cash flows in accordance with generally accepted accounting
principles in excess of amounts deemed the return of invested capital, both as
included in the Issuer's quarterly statement of cash flows prepared in
accordance with generally accepted accounting principles, less accrued but
unpaid interest on the Notes and accrued but unpaid Administrative Expenses for
the same period.
"Noteholder" has the meaning set forth under "Holder" above.
----------
"Note Register" and "Note Registrar" have the respective
-------------- ---------------
meanings specified in Section 2.04(a).
"Note Reserve Account" means the Securities Account designated
--------------------
the "Note Reserve Account" and established in the name of the Trustee pursuant
to Section 10.02.
"Note Reserve Account Maximum Balance" has the meaning
-----------------------------------------
specified in Section 9.01(b).
"Notes" means the Class A1 Notes, the Class A2 Notes, the
-----
Class B1 Notes and the Class B2 Notes, authorized by, and authenticated and
delivered under, this Indenture.
"Quarterly Report" has the meaning specified in Section
-----------------
10.04(a).
"Offer" means, with respect to any Security, (a) any offer by
-----
the issuer of such Security or by any other Person made to all of the holders of
such Security to purchase or otherwise acquire such Security (other than
pursuant to any redemption in accordance with the terms of the related Limited
Partnership Agreements) or to convert or exchange such Security into or for
Cash, securities or any other type of consideration or (b) any solicitation by
the issuer of such Security or any other Person to amend, modify or waive any
provision of such Security or any related Limited Partnership Agreement.
- 13 -
"Officer" means (a) with respect to the Issuer, any manager
-------
thereof or any Person to whom the rights and powers of management thereof are
delegated in accordance with the Operating Agreement of the Issuer; (b) with
respect to any corporation, the chairman of the board of directors (or any
director, with respect to the Issuer), the president, any vice president, the
secretary, an assistant secretary, the treasurer or an assistant treasurer of
such entity; (c) with respect to any partnership, any general partner thereof;
(d) with respect to any limited liability company, any managing member or
third-party manager thereof or any Person to whom the rights and powers of
management thereof are delegated in accordance with the limited liability
company agreement of such limited liability company; and (e) with respect to any
bank or trust company acting as trustee of an express trust or as Custodian, any
Trust Officer.
"Operating Agreement" means the limited liability company
--------------------
operating agreement, dated as of December 31, 2001, of the Issuer, as amended
and restated as of December 31, 2001.
"Opinion of Counsel" means a written opinion addressed to the
------------------
Trustee and each Rating Agency (each, a "Recipient"), in form and substance
---------
reasonably satisfactory to each Recipient, of an attorney at law admitted to
practice before the highest court of any state of the United States or the
District of Columbia, which attorney may, except as otherwise expressly provided
in this Indenture, be counsel for the Issuer and which attorney shall be
reasonably satisfactory to the Trustee. Whenever an Opinion of Counsel is
required hereunder, such Opinion of Counsel may rely on opinions of other
counsel who are so admitted and so satisfactory which opinions of other counsel
shall accompany such opinion of Counsel and shall either be addressed to each
Recipient or shall state that each Recipient shall be entitled to rely thereon.
"Outstanding" means, with respect to the Notes or a particular
-----------
Class of the Notes, as of any date of determination, all of (a) the Notes or (b)
the Notes of such Class, as the case may be, theretofore authenticated and
delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof for whose payment or Redemption
funds in the necessary amount have been theretofore irrevocably
deposited with the Trustee or any Paying Agent in trust for the
Holders of such Notes; provided, that, if such Notes or portions
thereof are to be redeemed, notice of such Redemption has been duly
given pursuant to this Indenture or provision therefore satisfactory
to the Trustee has been made;
(iii) Notes in exchange for, or in lieu of, other Notes which
have been authenticated and delivered pursuant to this Indenture,
unless proof satisfactory to the Trustee is presented that any such
Notes are held by a Holder in due course; and
(iv) Notes alleged to have been mutilated, defaced, destroyed,
lost or stolen for which replacement Notes have been issued as
provided in Section 2.05;
provided, that in determining whether the Holders of the requisite Aggregate
--------
Outstanding Amount have given any request, demand, authorization, direction,
notice, consent or waiver
- 14 -
hereunder, Notes beneficially owned by the Issuer or
any other obligor upon the Notes or any Affiliate of any of them shall be
disregarded and deemed not to be Outstanding and except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a Trust
Officer actually knows to be beneficially owned in the manner indicated above
shall be so disregarded. Notes owned in the manner indicated above that have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not the Issuer or any other
obligor upon the Notes or any Affiliate of the Issuer or such other obligor.
"Overcollateralization Ratio" means, as of any Measurement
----------------------------
Date, the ratio (expressed as a percentage) obtained by dividing:
(a) the Risk Weighted Total Asset Value on such Measurement
Date less, for such purpose, any amounts required to satisfy current
obligations of the Issuer as specified in clauses (A) through (H) of
Section 11.01(a)(i) on the next succeeding Quarterly Distribution Date;
by
(b) the Aggregate Outstanding Amount on such Measurement Date
of the Class A1 Notes, Class A2 Notes and Class B1 Notes less, for such
purpose, the application of funds by the Trustee pursuant to Sections
11.01(a)(ii)(B) through (E) but before any application of funds by the
Trustee pursuant to Sections 11.01(a)(ii)(F) through (G) plus the
outstanding principal amounts under the Liquidity Facility.
"Overcollateralization Test" means the test that measures the
---------------------------
Overcollateralization Ratio for purposes of determining the application of funds
in the Collection Account in accordance with Section 11.01(a)(ii).
"Paying Agent" means any Person authorized by the Issuer to
-------------
pay the principal of or interest on any Notes and any amounts due with respect
to the Preferred Units on behalf of the Issuer as specified in Section 7.02.
"Person" means an individual, corporation (including a
------
business trust), partnership, limited liability company, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated association or government or any agency or political subdivision
thereof.
"PIK" means pay-in-kind and refers to the right of the Issuer
---
to pay interest on the Class B1 Notes and Class B2 Notes in securities identical
to such Class B1 Notes or Class B2 Notes, as the case may be, in lieu of cash,
on any Quarterly Distribution Date.
"PIK Class B Notes" means Class B1 Notes or Class B2 Notes
-------------------
which are issued in lieu of payments of interest on Class B Notes and which have
the same terms and conditions as the Class B1 Notes or Class B2 Notes, as the
case may be, issued on the Closing Date.
"Placement Agency Agreement" means the Placement Agency
-----------------------------
Agreement, dated on or about the Closing Date, between the Issuer and CIBC World
Markets Corp. relating to the placement of the Class A Notes.
- 15 -
"Preferred Unitholders" means the Persons identified as the
----------------------
holders of the Preferred Units in the Issuer's Operating Agreement.
"Preferred Units" means, collectively, the Class P1 Preferred
---------------
Units and the Class P2 Preferred Units, each of which units constitutes a
non-voting preferred membership interest in the Issuer, with a stated value of
$100,000 per interest, issued on the Closing Date pursuant to the Operating
Agreement.
"Priority of Payments" has the meaning specified in Section
---------------------
11.01(a).
"Proceeding" means any suit in equity, action at law or other
----------
judicial or administrative proceeding.
"Qualified Institutional Buyer" has the meaning given in Rule
------------------------------
144A under the Securities Act.
"Qualified Purchaser" means (i) a "qualified purchaser" within
-------------------
the meaning of Section 3(c)(7) of the Investment Company Act, (ii) a
"knowledgeable employee" with respect to the Issuer within the meaning of Rule
3c-5 of the Investment Company Act or (iii) a company beneficially owned
exclusively by one or more "qualified purchasers" and/or "knowledgeable
employees" with respect to the Issuer within the meaning of Rule 3c-5 of the
Investment Company Act.
"Quarterly Distribution Date" means March 31, June 30,
------------------------------
September 30 and December 31 of each year; provided, that (i) the first
--------
Quarterly Distribution Date shall be Xxxxx 00, 0000, (xx) the final Quarterly
Distribution Date will be December 31, 2011, with respect to Class A Notes and
December 31, 2013, with respect to Class B Notes and (iii) if any such date is
not a Business Day, the related Quarterly Distribution Date will be the
immediately following Business Day.
"Rate Cap Agreement" means the rate cap agreement dated as of
------------------
the Closing Date between the Issuer and the Rate Cap Provider, as amended from
time to time, having a notional amount equal to the original principal amount of
the Class A1 Notes and providing for payments to the Trustee in the event that
LIBOR exceeds 9%.
"Rate Cap Provider" means Canadian Imperial Bank of Commerce,
-----------------
and its successors and assigns; provided, however, that any Rate Cap Provider
-------- -------
shall be at all times a Secured Party.
"Rating Agency" means Standard & Poor's, for so long as any
--------------
Outstanding Notes are rated by Standard & Poor's. In the event that at any time
Standard & Poor's ceases to be a Rating Agency, references to rating categories
of Standard & Poor's in this Indenture shall be deemed instead to be references
to the equivalent categories of such other rating agency as of the most recent
date on which such other rating agency and Standard & Poor's published ratings
for the type of Security in respect of which such alternative rating agency is
used.
"Rating Confirmation" means, with respect to any action taken
--------------------
or to be taken under the Indenture, a written confirmation from each Rating
Agency delivered to the Issuer and
- 16 -
the Trustee that such action will not result in the withdrawal, reduction or
other adverse action with respect to any then-current rating of any Class of
Notes rated by such Rating Agency.
"Rating Confirmation Test" means a test satisfied when the
--------------------------
Issuer receives a Rating Confirmation.
"Record Date" means the date on which the Holders of Notes
------------
entitled to receive a payment in respect of principal or interest on the
succeeding Quarterly Distribution Date or Redemption Date are determined, such
date as to any Quarterly Distribution Date or Redemption Date being the 15th day
(whether or not a Business Day) prior to such Quarterly Distribution Date or
Redemption Date.
"Redemption" has the meaning specified in Section 9.01(a).
----------
"Redemption Price" means (a) with respect to any Class A1
-----------------
Note, Class A2 Note, Class B1 Note or Class B2 Note to be redeemed pursuant to
Section 9.01, an amount (determined without duplication) equal to (i) the
Aggregate Outstanding Amount of such Note being redeemed plus (ii) accrued
interest thereon (including Defaulted Interest and interest on Defaulted
Interest, if any).
"Redemption Threshold" has the meaning specified in Section
---------------------
9.01(b).
"Registered" means, with respect to any debt obligation, a
----------
debt obligation (a) issued after July 18, 1984 and (b) in registered form for
purposes of the Code.
"Registered Form" means, when used with respect to a
-----------------
Certificated Security, a form in which (a) the Security Certificate specifies a
Person entitled to the Security and (b) a transfer of the Security may be
registered upon books maintained for that purpose by or on behalf of the issuer
of such Security, or the Security Certificate so states.
"Regulated Investor" means (i) any employee benefit plan
-------------------
(within the meaning of Section 3(3) of ERISA) that is subject to Title I of
ERISA, (ii) any plan (within the meaning of Section 4975(e)(1) of the Code) that
is subject to Section 4975 of the Code, (iii) any governmental plan (within the
meaning of Section 3(32) of ERISA) or church plan (within the meaning of Section
3(33) of ERISA) that is subject to any Similar Law or (iv) any Person acting on
behalf of or investing the assets of a plan described in (i)-(iii).
"Regulation D" means Regulation D under the Securities Act.
------------
"Regulation S" means Regulation S under the Securities Act.
------------
"Regulation S Global Note" has the meaning set forth in
---------------------------
Section 2.01(a).
"Regulation U" means Regulation U of the Board of Governors of
------------
the Federal Reserve System, 12 C.F.R. ss. 221, or any successor regulation.
"Relevant Jurisdiction" means, as to any issuer of any
----------------------
Collateral Interest, any jurisdiction (a) in which the issuer is incorporated,
organized, managed and controlled or
- 17 -
considered to have its seat, (b) where an office through which the issuer is
acting for purposes of the relevant Collateral Interest is located, (c) in which
the issuer executes Limited Partnership Agreements or (d) in relation to any
payment, from or through which such payment is made.
"Relevant Persons" has the meaning specified in Section 2.07.
----------------
"Restricted Global Note" has the meaning specified in Section
-----------------------
2.01(b).
"Risk Weighted Total Asset Value" means with respect to the
----------------------------------
Issuer, as of a Measurement Date, the sum of (i) 50% of Net Asset Value; plus
----
(ii) any amounts held by the Trustee in the Accounts, including the principal
balance of any Eligible Investments.
"Rule 144A" means Rule 144A under the Securities Act.
---------
"Rule 144A Information" means such information as is specified
---------------------
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto).
"Rule 144A Transfer Certificate" means the certificates
----------------------------------
substantially in the form of Exhibit D hereto.
---------
"Sale" has the meaning specified in Section 5.17.
----
"Scheduled Liquidity Commitment Termination Date" means
-----------------------------------------------------
December 31, 2013, as set forth in the Liquidity Facility Agreement, or such
other date as may be specified in such agreement.
"Secured Parties" means the Noteholders, the Liquidity
-----------------
Facility Provider, and the Rate Cap Provider.
"Securities Account" means an account to which a Financial
-------------------
Asset is or may be credited in accordance with an agreement under which the
Person maintaining the account undertakes to treat the Person for whom the
account is maintained as entitled to exercise the rights that comprise the
Financial Asset.
"Securities Act" means the United States Securities Act of
---------------
1933, as amended.
"Security" means, except as otherwise provided in Section
--------
8-103 of the UCC, means an obligation of an issuer or a share, participation or
other interest in an issuer or in property or an enterprise of an issuer (a)
which is represented by a Security Certificate in Bearer Form or Registered
Form, or the transfer of which may be registered upon books maintained for that
purpose by or on behalf of the issuer, (b) which is one of a class or series or
by its terms is divisible into a class or series of shares, participations,
interests or obligations and (c) which either (i) is, or is of a type, dealt in
or traded on securities exchanges or securities markets or (ii) is a medium for
investment and by its terms expressly provides that it is a security governed by
Article 8 of the UCC.
"Security Certificate" means a certificate representing a
---------------------
Security.
- 18 -
"Security Entitlement" has the meaning ascribed to it in the
---------------------
UCC.
"Senior Servicing Fee" shall mean as of any Quarterly
-----------------------
Distribution Date one-half of the Servicing Fee then due and payable.
"Servicer" means Aon Capital Managers LLC or any successor
--------
thereof named in accordance with the Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement, dated as
-------------------
of December 31, 2001, by and between the Issuer and the Servicer relating to
certain functions to be performed by the Servicer for the Issuer with respect to
this Indenture and the Collateral, as amended from time to time.
"Servicing Fee" shall have the meaning set forth in the
--------------
Servicing Agreement.
"Similar Law" means any federal, state or local law that is,
------------
to a material extent, similar to Title I of ERISA or Section 4975 of the Code.
"Special Majority" means, with respect to any Class or Classes
----------------
of Notes, the Holders of 66-2/3% of the Aggregate Outstanding Amount of the
Notes of such Class or Classes of Notes, as the case may be.
"Specified Person" has the meaning specified in Section
-----------------
2.05(a).
"Standard & Poor's" means Standard & Poor's Ratings Services,
-----------------
a division of The XxXxxx-Xxxx Companies, Inc., and any successor or successors
thereto.
"Stated Maturity" means, with respect to (a) any Security
----------------
(other than a Note), the date specified in such Security as the fixed date on
which the final payment of principal of such Security is due and payable, (b)
any repurchase obligation, the repurchase date thereunder on which the final
repurchase obligation thereunder is due and payable, and (c) any Class A Note,
December 31, 2011 and any Class B Note, December 31, 2013, or, in each case, if
such date is not a Business Day, the next following Business Day.
"Subordinate Interests" has the meaning specified in Section
----------------------
12.01(a) or (b), as applicable.
"Transaction Documents" means this Indenture, the Asset Sale
----------------------
Agreements, the Transfer, Assignment and Assumption Agreements, the Servicing
Agreement, the Limited Partnership Agreements, the Liquidity Facility Agreement,
the Operating Agreement, the Rate Cap Agreement, and the Placement Agency
Agreement.
"Transfer Agent" means the Person or Persons, which may be the
--------------
Issuer, authorized by the Issuer to exchange or register the transfer of Notes,
as set forth in Section 2.04(a)(i).
"Transfer, Assignment and Assumption Agreements" means,
----------------------------------------------------
collectively, the CICA SPE Transfer Agreement and the VSC SPE Transfer
Agreement.
- 19 -
"Trustee" means The Bank of New York, a New York banking
-------
corporation, solely in its capacity as trustee hereunder, unless a successor
Person shall have become the Trustee pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such successor Person.
"Trust Officer" means, when used with respect to the Trustee,
-------------
any Officer within the Corporate Trust Office (or any successor group of the
Trustee) authorized to act for and on behalf of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer or
any other Officer of the Trustee who customarily performs functions similar to
those performed by the persons who at the time shall be such Officers,
respectively, or to whom any corporate trust matter is referred at the Corporate
Trust Office because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"UCC" means the Uniform Commercial Code as in effect in the
---
State of New York.
"Uncertificated Security" means a Security that is not
-------------------------
represented by a certificate.
"Unfunded Commitments" means, as of any date of determination
---------------------
in respect of a Collateral Interest, the aggregate amount of committed capital
of the Issuer up to an aggregate amount of $169,000,000 not yet called by the
General Partners of the relevant Limited Partnership pursuant to the terms of
its Limited Partnership Agreement, which Unfunded Commitment as of the Closing
Date, subject to increase up to $169,000,000 after the Closing Date, is
indicated on Schedule I to each of the Asset Sale Agreements. Such amounts shall
be reduced by funded Capital Calls and increased by distributions of capital by
Limited Partnerships subject to recall.
"United States" and "U.S." means the United States of America,
------------- ----
including the states thereof and the District of Columbia.
"Unregistered Securities" has the meaning specified in Section
-----------------------
5.17(c).
"U.S. Person" has the meaning given in Regulation S under the
------------
Securities Act.
"U.S. Resident" means a "U.S. resident" within the meaning of
--------------
the Investment Company Act.
"VSC Asset Sale Agreement" means the Asset Sale Agreement
--------------------------
dated as of December 31, 2001 between Virginia Surety Company ("VSC"), as
seller, and VSC SPE, LLC, as buyer.
"VSC SPE Transfer Agreement" means the Transfer, Assignment
---------------------------
and Assumption Agreement dated as of December 31, 2001 between VSC SPE, LLC, as
seller, and the Issuer, as buyer.
SECTION 1.02 Rules of Construction. Unless the context
-----------------------
otherwise clearly requires:
- 20 -
(a) the definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same
meaning and effect as the word "shall";
(e) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein);
(f) any reference herein to any Person, or to any Person in a
specified capacity, shall be construed to include such Person's successors and
assigns or such Person's successors in such capacity, as the case may be; and
(g) all references in this instrument to designated
"Articles", "Sections", "clauses" and other subdivisions are to the designated
Articles, Sections, clauses and other subdivisions of this instrument as
originally executed, and the words "herein", "hereof", "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section, clause or other subdivision.
ARTICLE II
THE NOTES
SECTION 2.01 Forms Generally . (a) The Class A1 Notes offered
----------------
and sold to Persons that are neither U.S. Persons nor U.S. Residents in offshore
transactions in reliance on Regulation S shall be issued initially in the form
of one or more permanent global notes in definitive, fully Registered Form
without interest coupons, substantially in the form of the note attached as
Exhibit A (each, a "Regulation S Global Note"), with such appropriate
---------- ---------------------------
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and such legends as may be applicable thereto, which
shall be deposited with the Trustee at its Corporate Trust Office, as custodian
for the Depository and registered in the name of a nominee of the Depository for
credit to the applicable purchaser at Clearstream or Euroclear, duly executed by
the Issuer and authenticated by the Trustee or the Authenticating Agent as
hereinafter provided. The aggregate principal amount of each Regulation S Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository or its nominee, as the
case may be.
(b) The Class A1 Notes offered and sold in the United States
or to U.S. Persons or U.S. Residents pursuant to an exemption from the
registration requirements of the Securities Act shall be issued initially only
in definitive, fully Registered Form without interest
- 21 -
coupons, substantially in the form of the note attached as Exhibit C (each, a
"Certificated Note") and, subject to the delivery to the Trustee and the Issuer
------------------
by the holder thereof of a Rule 144A Transfer Certificate, may subsequently be
exchanged for one or more permanent global notes in definitive, fully Registered
Form without interest coupons, substantially in the form of the note attached as
Exhibit B (each, a "Restricted Global Note"), with such appropriate insertions,
--------- ----------------------
omissions, substitutions and other variations as are required or permitted by
this Indenture and such legends as may be applicable thereto, which shall be
deposited with the Trustee at its Corporate Trust Office, as custodian for the
Depository and registered in the name of a nominee of the Depository, duly
executed by the Issuer and authenticated by the Trustee or the Authenticating
Agent as hereinafter provided. The aggregate principal amount of each Restricted
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depository or its nominee,
as the case may be.
(c) The Class A2 Notes and Class B Notes shall be issuable
only in the form of Certificated Notes, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as the Issuer may
deem appropriate and as are not contrary to the provisions of this Indenture, or
as may be required to comply with any law or with any rules made pursuant
thereto or with any rules of any securities exchange or of any automated
quotation system, or to conform to usage, all as determined by the officers
executing such Certificated Notes, as conclusively evidenced by their execution
of the Certificated Notes.
The definitive Notes shall be prepared by the Issuer and shall
be printed, lithographed or engraved on steel-engraved borders, or may be
produced in any other manner, all as determined by the officers executing such
Notes, as conclusively evidenced by their execution of such Notes, subject to
the rules of any securities exchange or automated quotation system on which such
Notes are listed or quoted and to the rules of the Trustee.
The Certificated Notes shall, upon issuance pursuant to
Sections 2.03 and 2.04, be duly executed and delivered by the Issuer to the
Trustee or the Authenticating Agent for authentication and redelivery as
hereinafter provided.
(d) The Issuer, in issuing the Notes, may use "CUSIP" or
"private placement" numbers (if then generally in use), and, if so, the Trustee
will indicate the "CUSIP" or "private placement" numbers of the Notes in notices
of Redemption and related materials as a convenience to Holders; provided, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Notes or as contained in any notice of
Redemption and related materials, and that reliance may be placed only on the
other identification numbers printed on the Notes, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer shall
promptly notify the Trustee of any change in the "CUSIP" numbers.
SECTION 2.02 Authorized Amount; Interest Rate; Stated
-----------------------------------------------
Maturity; Denominations; Ranking. (a) The aggregate principal amount of the
---------------------------------
Class A1 Notes, the Class A2 Notes and the Class B1 Notes which may be issued
under this Indenture may not exceed
- 22 -
U.S.$285,000,000, excluding Notes issued upon registration of, transfer of, or
in exchange for, or in lieu of, other Notes pursuant to Section 2.04, 2.05 or
8.05.
Such Notes shall bear interest at the Class A1 Note Interest
Rate, Class A2 Note Interest Rate and Class B1 Note Interest Rate, respectively,
which shall be payable on each Quarterly Distribution Date in accordance with
the Priority of Payments. Such Notes shall be divided into Classes having the
following designations, interest rates, original principal amounts and Stated
Maturities:
Designation Original Principal Amount Interest Rate Stated Maturity
---------------------- ---------------------------- - ------------------------- -----------------
Class A1 Notes US $170,000,000 LIBOR + 1.25%, which spread December 31, 2011
shall increase to up to 1.90%
Class A2 Notes US $65,000,000 LIBOR + 2.50% (not to exceed December 31, 2011
11.50% per annum)
Class B1 Notes US $50,000,000 LIBOR + 3.75 (not to December 31, 2013
exceed 12.75% per annum)
(b) The Issuer may issue Class B2 Notes under this Indenture
from time to time; provided that at the time of any such issuance the aggregate
principal amount outstanding, excluding any PIK Class B2 Notes, does not exceed
$169,000,000. The Class B2 Notes shall have a stated maturity of December 31,
2013 and bear interest at the Class B2 Note Interest Rate. The Issuer shall
issue Class B2 Notes from time to time to VSC SPE and CICA SPE under the CICA
SPE Transfer Agreement and the VSC SPE Transfer Agreement in principal amounts
equal to the amounts required to satisfy any Capital Calls by the General
Partners, as provided in the relevant Limited Partnership Agreement.
The Notes shall be issuable in minimum denominations of
US$100,000 and integral multiples of US$1,000 in excess thereof. After issuance,
any Note may fail to be in such required minimum denominations due to the
repayment of principal thereof in accordance with the Priority of Payments.
The purchase price for such Class B2 Notes shall be paid
directly by VSC SPE and CICA SPE to the relevant Limited Partnership as directed
by the Servicer. The Issuer shall provide via facsimile, with confirmation via
overnight courier, written notice to the Rating Agency upon receipt of a Capital
Call for which Class B2 Notes are intended to be issued, but not later than one
Business Day after receipt of such Capital Call, and shall further provide
updated information to the Rating Agency in respect of the Issuer's statistical
model showing the impact of such Class B2 Notes. Prior to the issuance of any
Class B2 Notes pursuant to this Section 2.02(b), the Issuer will solicit a
Rating Confirmation with respect to the outstanding Class A and Class B Notes.
In addition, no later than the fifth Business Day after the
date of termination of a Limited Partnership in respect of a Collateral
Interest, the Servicer shall provide notice thereof to
- 23 -
the Trustee and to VSC SPE, CICA SPE, VSC and CICA, and if any of the Class A
Notes remain outstanding, no later than the fifth Business Day following receipt
of such notice the Issuer shall issue to VSC SPE and CICA SPE, in accordance
with the CICA SPE Transfer Agreement and the VSC SPE Transfer Agreement, Class
B2 Notes in an aggregate principal amount equal to the remaining Unfunded
Commitment relating to such Collateral Interest as of the date of such notice.
All proceeds received by the Issuer from the issuance of such Class B2 Notes
shall be immediately deposited in the Collection Account and thereupon become
Collateral for purposes of the Indenture. Such amounts shall be applied by the
Trustee in accordance with the Priority of Payments.
Notwithstanding the foregoing, any funds received by the
Issuer from the General Partners in respect of the Collateral Interests from and
after the date hereof that result from either (i) the failure of such General
Partners to invest or otherwise utilize amounts paid by the Issuer in response
to Capital Calls funded using the proceeds of Class B2 Notes or (ii) the return
by such General Partners to the Issuer of the proceeds of any investment made or
supported from a Capital Call funded using the proceeds of Class B2 Notes shall
be immediately deposited in the Collection Account and shall thereupon become
Collateral for purposes of this Indenture. Such amounts shall be applied by the
Trustee in accordance with the Priority of Payments.
(c) The Class A1 Notes shall rank senior in right of payment
of interest and principal to the Class A2 Notes, the Class B1 Notes and the
Class B2 Notes. All Class A1 Notes issued under this Indenture shall be in all
respects equally and ratably entitled to the benefits hereof without preference,
priority or distinction on account of the actual time or times of authentication
and delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class A1 Notes shall be made pro rata
among all Outstanding Class A1 Notes, without preference or priority of any
kind.
(d) The Class A2 Notes shall rank senior in right of payment
of interest and principal to the Class B1 Notes and the Class B2 Notes and shall
be subordinated to the Class A1 Notes. All Class A2 Notes issued under this
Indenture shall be in all respects equally and ratably entitled to the benefits
hereof without preference, priority or distinction on account of the actual time
or times of authentication and delivery, all in accordance with the terms and
provisions of this Indenture. Payments of principal and interest on the Class A2
Notes shall be made pro rata among all Outstanding Class A2 Notes, without
preference or priority of any kind.
(e) The Class B1 Notes shall rank senior in right of payment
of interest and principal to the Class B2 Notes and shall be subordinated to the
Class A Notes to the extent set forth herein. All Class B1 Notes issued under
this Indenture shall be in all respects equally and ratably entitled to the
benefits hereof without preference, priority or distinction on account of the
actual time or times of authentication and delivery, all in accordance with the
terms and provisions of this Indenture. Payments of principal and interest on
the Class B1 Notes shall be made pro rata among all Outstanding Class B1 Notes,
without preference or priority of any kind.
(f) The Class B2 Notes shall be subordinated to the Class A1
Notes, the Class A2 Notes and the Class B1 Notes to the extent set forth herein.
All Class B2 Notes issued under this Indenture shall be in all respects equally
and ratably entitled to the benefits hereof without preference, priority or
distinction on account of the actual time or times of authentication and
- 24 -
delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class B2 Notes shall be made pro rata
among all Outstanding Class B2 Notes, without preference or priority of any
kind.
(g) Interest shall accrue on the Aggregate Outstanding Amount
of each Class of Notes (determined as of the first day of each Interest Period
and after giving effect to any payment of principal occurring on such day) from
the Closing Date or the Additional Closing Date, as applicable, and will be
payable in arrears on each Quarterly Distribution Date in accordance with the
Priority of Payments; provided that with respect to the Class B Notes, to the
extent interest accrued for any Due Period is not paid on the next succeeding
Quarterly Distribution Date, such unpaid interest shall be paid by the issuance
of PIK Class B Notes having the same class designation as the Notes for which
interest is owed. The Issuer shall promptly cause to be executed and
authenticated PIK Class B Notes and deliver such notes to the person entitled
thereto (or to the Trustee or the authentication agent in custody for such
Person). Interest accruing for any Interest Period shall accrue for the period
from and including the first day of such Interest Period to and including the
last day of such Interest Period. Interest on the Notes and interest on
Defaulted Interest in respect thereof will be computed on the basis of a 360-day
year and the actual number of days elapsed.
(h) The Notes shall be mandatorily redeemable as provided in
Article IX.
(i) The Depository for the Global Notes shall initially be
DTC.
(j) The Notes of each Class shall be numbered, lettered or
otherwise distinguished in such manner as may be consistent herewith, determined
by the Authorized Officers of the Issuer executing such Notes as evidenced by
their execution of such Notes.
SECTION 2.03 Execution, Authentication, Delivery and Dating.
------------------------------------------------
(a) The Notes shall be executed on behalf of the Issuer by an Authorized Officer
of the Issuer. The signatures of such Authorized Officers on the Notes may be
manual or facsimile (including in counterparts).
(b) Notes bearing the manual or facsimile signatures of an
individual who was at any time the Authorized Officer of the Issuer shall bind
the Issuer, notwithstanding the fact that such individual has ceased to hold
such office prior to the authentication and delivery of such Notes or did not
hold such office at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes, executed by the Issuer
to the Trustee or the Authenticating Agent for authentication, and the Trustee
or the Authenticating Agent, upon Issuer Order, shall authenticate and make
available for delivery to or upon the written order of the Issuer such Notes as
provided in this Indenture and not otherwise.
(d) Each Note authenticated and made available for delivery to
or upon the written order of the Issuer by the Trustee or the Authenticating
Agent to or upon Issuer Order on the Closing Date or the Additional Closing
Date, as the case may be shall be dated as of the Closing Date or the Additional
Closing Date, as applicable. All other Notes that are
- 25 -
authenticated after the Closing Date or the Additional Closing Date, as the case
may be, for any other purpose under this Indenture shall be dated the date of
their authentication.
(e) Notes issued upon transfer, exchange or replacement of
other Notes shall be issued in authorized denominations reflecting the original
aggregate principal amount of the Notes so transferred, exchanged or replaced,
but shall represent only the current Aggregate Outstanding Amount of the Notes
so transferred, exchanged or replaced. In the event that any Note is divided
into more than one Note in accordance with this Article II, the original
principal amount of such Note shall be proportionately divided among the Notes
delivered in exchange therefor and shall be deemed to be the original aggregate
principal amount of such subsequently issued Notes.
(f) No Note shall be 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 (the "Certificate of Authentication"),
-----------------------------
substantially in the form provided for herein, executed by the Trustee or by the
Authenticating Agent by the manual signature of one of their Authorized
Officers, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder.
SECTION 2.04 Registration, Transfer and Exchange of Notes.
--------------------------------------------
(a) Registration.
------------
(i) The Trustee is hereby appointed as the registrar with
respect to the Notes (the "Note Registrar"). The Trustee is hereby
appointed as a Transfer Agent with respect to the Notes. The Note
Registrar shall keep a register (the "Note Register") at the Corporate
Trust Office in which, subject to such reasonable regulations as it may
prescribe, the Note Registrar shall provide for the registration of
Notes and the registration of transfers of Notes. Such Note Register
shall be in written form or in any other form capable of being
converted into written form within a reasonable time. Upon any
resignation or removal of the Note Registrar, the Issuer shall promptly
appoint a successor or, in the absence of such appointment, assign the
duties of the Note Registrar to the Servicer.
(ii) Subject to this Section 2.04, upon surrender for
registration of transfer of any Notes at the office or agency of the
Issuer to be maintained as provided in Section 7.02, the Issuer 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 any authorized denomination and of a like
aggregate principal amount.
(iii) At the option of the Holder, Notes may be exchanged for
Notes of like terms, in any authorized denominations and of like
aggregate principal amount, upon surrender of the Notes to be exchanged
at such office or agency. Whenever any Note is surrendered for
exchange, the Issuer shall execute and the Trustee shall authenticate
and deliver the Notes that the Noteholder making the exchange is
entitled to receive.
(iv) All Notes issued and authenticated upon any registration
of transfer or exchange of Notes shall be the valid obligations of the
Issuer, evidencing
- 26 -
the same debt, and entitled to the same benefits under this Indenture,
as the Notes surrendered upon such registration of transfer or
exchange.
(v) Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Issuer and
the Note Registrar duly executed, by the Holder thereof or his attorney
duly authorized in writing.
(vi) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Trustee may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
(vii) No Note may be sold or transferred (including, without
limitation, by pledge or hypothecation) unless such sale or transfer is
exempt from the registration requirements of the Securities Act and is
exempt under applicable securities laws of any state thereof of any
other jurisdiction.
(viii) No Note may be offered, sold or delivered except (a) to
Persons that are either Institutional Accredited Investors or Qualified
Institutional Buyers and, in either case, are Qualified Purchasers,
purchasing for their own account or for the accounts of one or more
Institutional Accredited Investors or Qualified Institutional Buyers
that, in either case, are Qualified Purchasers, (b) in accordance with
the provisions of this Article II, and (c) in a transaction exempt from
the registration requirements of the Securities Act, and any resale of
a Note may only be made in a transaction exempt from the registration
requirements of the Securities Act to Persons that are either
Institutional Accredited Investors or Qualified Institutional Buyers
and who are also Qualified Purchasers, in each case purchasing for
their own account or for the accounts of one or more Institutional
Accredited Investors or Qualified Institutional Buyers that are also
Qualified Purchasers. The Notes may also be sold or resold, as the case
may be, in offshore transactions to Persons that are neither U.S.
Persons nor U.S. Residents and that are also Qualified Purchasers in
reliance on Regulation S. Interest in any Regulation S Global Note may
not be transferred to a U.S. Person or a U.S. Resident at any time.
(b) Transfers of Notes.
------------------
(i) Subject to the provisions of this Section 2.04, so long as
a Restricted Global Note remains Outstanding and is held by or on
behalf of the Depository, exchanges or transfers of beneficial
interests in such Restricted Global Note may be made only in accordance
with the rules and regulations of the Depository and the transfer
restrictions contained in the legend on such Restricted Global Note and
exchanges or transfers of interests in a Restricted Global Note may be
made only in accordance with the following additional requirements:
(A) Subject to clauses (B) through (D) of this Section
2.04(b)(i), transfers of a Restricted Global Note
shall be limited to transfers of such Restricted
Global Note in whole, but not in part, to nominees
- 27 -
of the Depository or to a successor of the Depository
or such successor's nominee.
(B) The Trustee shall cause the exchange or transfer of
any beneficial interest in a Restricted Global Note
for a beneficial interest in a Regulation S Global
Note upon delivery to the Trustee and the Issuer of a
Regulation S Transfer Certificate executed by the
transferor and the transferee and stating, among
other things, that the transfer is being made to a
Person that is neither a U.S. Person nor a U.S.
Resident, and that is also a Qualified Purchaser, in
an offshore transaction within the meaning of
Regulation S.
(C) An owner of a beneficial interest in a Restricted
Global Note may transfer such interest in the form of
a beneficial interest in such Restricted Global Note
to a transferee who is both a Qualified Institutional
Buyer and a Qualified Purchaser upon written
certification as to compliance with the transfer
restrictions.
(D) Interests in the Restricted Global Note may also be
exchanged for Certificated Notes in certain limited
circumstances as described in Section 2.04(b)(iv).
(ii) Subject to the provisions of this Section 2.04, so long
as a Regulation S Global Note remains Outstanding and is held by or on
behalf of the Depository, exchanges or transfers of beneficial
interests in such Regulation S Global Note may be made only in
accordance with the rules and regulations of the Depository and the
transfer restrictions contained in the legend on such Regulation S
Global Note and exchanges or transfers of interests in a Regulation S
Global Note may be made only in accordance with the following
additional requirements:
(A) Subject to clauses (B) through (D) of this Section
2.04(b)(ii), transfers of a Regulation S Global Note
shall be limited to transfers of such Regulation S
Global Note in whole, but not in part, to nominees of
the Depository or to a successor of the Depository or
such successor's nominee.
(B) The Trustee shall cause the exchange or transfer of
any beneficial interest in a Regulation S Global Note
for a beneficial interest in a Restricted Global Note
upon delivery to the Trustee and the Issuer of a Rule
144A Transfer Certificate, executed by the transferor
and the transferee and stating, among other things,
that the transferee is both a Qualified Institutional
Buyer and a Qualified Purchaser.
(C) An owner of a beneficial interest in a Regulation S
Global Note may transfer such interest in the form of
a beneficial interest in such Regulation S Global
Note. Each transferee of a beneficial interest in a
Regulation S Global Note will be deemed to have
- 28 -
represented that it is not a U.S. Person, that it is
a Qualified Purchaser, and has acquired such
beneficial interest in an offshore transaction within
the meaning of Regulation S without the provision of
written certification; provided, that the transferred
interest must be held through Euroclear or
Clearstream until the end of the Distribution
Compliance Period.
(D) Interests in the Restricted Global Note may be
exchanged for Certificated Notes in certain limited
circumstances as described in Section 2.04(b)(iv).
(iii) Upon acceptance for exchange or transfer of a beneficial
interest in a Global Note, or upon partial Redemption, each as provided
herein, the Trustee shall instruct the Depository to adjust the
principal amount of such Global Note on its records to evidence the
date of such exchange, transfer or Redemption and the change in the
principal amount of such Global Note. Notwithstanding anything to the
contrary contained herein, transfers and exchanges of interests in a
Global Note shall be recorded only in the book-entry system of the
Depository, and any increase or decrease of the principal amount of
such Global Note shall be recorded by an appropriate adjustment in the
records of the Note Registrar and the Depository in accordance with the
rules and regulations of the Depository.
(iv) Interests in a Global Note deposited with or on behalf of
the Depository pursuant to Section 2.01 hereunder shall be transferred
to the owners of such interests in the form of Certificated Notes only
if such transfer otherwise complies with this Section 2.04 (including
clauses (b)(i), (b)(ii) and (b)(iii)) and (1) the Depository notifies
the Issuer that it is unwilling or unable to continue as Depository for
the Notes, (2) the Depository ceases to be a "clearing agency"
registered under the Exchange Act and a successor Depository is not
appointed by the Issuer within 90 days of such notice, (3) the
transferee of an interest in a Global Note is required by law to take
physical delivery of securities in definitive form or (4) the
transferee is otherwise unable to pledge its interest in a Global Note.
(v) Subject to the provisions of this Section 2.04 and to any
additional restrictions on transfer or exchange specified in the
Certificated Notes, the Noteholder of any Certificated Note may
transfer or exchange the same in whole or in part (in a principal
amount equal to the minimum authorized denomination or any authorized
greater amount) by surrendering such Certificated Note at the Corporate
Trust Office or at the office of any Transfer Agent, together with (A)
in the case of any transfer, an executed instrument of assignment, (B)
in the case of any exchange, a written request for exchange, (C) a duly
executed Rule 144A Transfer Certificate or Regulation S Transfer
Certificate, as applicable, in the form of Exhibit D or Exhibit E,
executed by the transferee and (D) a certification from the transferee
to the effect that such transferee either (x) is not a Regulated
Investor or (y) is a Regulated Investor and its acquisition and
continued holding of the Certificated Note will be covered by a
prohibited transaction Class exemption issued by the U.S. Department of
Labor (or, if the transferee is a governmental plan or church plan,
will not result in a violation of any Similar Law);
- 29 -
provided, however, that any Certificated Note may also be transferred
to a transferee who is an Institutional Accredited Investor in
accordance with Regulation D under the Securities Act.
(vi) Following a proper request for transfer or exchange of
Certificated Notes as set forth in clause (b)(v) above, the Trustee
shall (provided, that it has available in its possession an inventory
of Certificated Notes), within five (5) Business Days of such request
if made at such Corporate Trust Office, or within ten (10) Business
Days if made at the office of a Transfer Agent (other than the
Trustee), authenticate and make available at such Corporate Trust
Office or at the office of such Transfer Agent, as the case may be, to
the transferee (in the case of transfer) or Noteholder (in the case of
exchange) or send by first class mail (at the risk of the transferee in
the case of transfer or Noteholder in the case of exchange) to such
address as the transferee or Noteholder, as applicable, may request, a
Certificated Note or Notes, as the case may require, for a like
aggregate principal amount and in such authorized denomination or
denominations as may be requested. The presentation for transfer or
exchange of any Certificated Note shall not be valid unless made at the
Corporate Trust Office or at the office of a Transfer Agent by the
registered Noteholder in person, or by a duly authorized
attorney-in-fact.
(vii) If interests in any Global Note are to be transferred to
the Beneficial Owners thereof in the form of Certificated Notes
pursuant to Section 2.04(b)(iv), such Global Note shall be surrendered
by the Depository, or its custodian on its behalf, to the Corporate
Trust Office or to the Transfer Agent located in the Borough of
Manhattan, the City of New York, and the Trustee shall authenticate and
deliver without charge, upon such transfer of interests in such Global
Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations. The Certificated Notes transferred pursuant
to this Section 2.04 shall be executed, authenticated and delivered
only in the denominations specified in Section 2.02(b), and registered
in such names as the Depository shall direct in writing.
(viii) For so long as one or more Global Notes are
Outstanding:
(A) the Trustee and its directors, officers, employees
and agents may deal with the Depository for all
purposes (including the making of distributions on,
and the giving of notices with respect to, the Global
Notes);
(B) unless otherwise provided herein, the rights of
Beneficial Owners shall be exercised only through the
Depository and shall be limited to those established
by law and agreements between such Beneficial Owners
and the Depository;
(C) for purposes of determining the identity of and
principal amount of Notes beneficially owned by a
Beneficial Owner, the records of the Depository shall
be conclusive evidence of such identity and principal
amount and the Trustee may conclusively rely on such
records when acting hereunder;
- 30 -
(D) the Depository will make book-entry transfers among
the Depository Participants of the Depository and
will receive and transmit distributions of principal
of and interest on the Global Notes to such
Depository Participants; and
(E) the Depository Participants of the Depository shall
have no rights under this Indenture under or with
respect to any of the Global Notes held on their
behalf by the Depository, and the Depository may be
treated by the Trustee and its agents, employees,
Officers and directors as the absolute owner of the
Global Notes for all purposes whatsoever.
(ix) Each Note issued upon registration of transfer or
exchange of Notes pursuant to this Section shall be the valid
obligation of the Issuer, evidencing the same indebtedness and entitled
to the same benefits under this Indenture as the Note or Notes
surrendered upon registration of such transfer or exchange.
(c) Deemed Representations. Each Holder of a Certificated Note shall
-----------------------
represent, and each owner of a beneficial interest in a Global Note will be
deemed to have represented and agreed as follows (terms used in this paragraph
that are defined in Rule 144A or Regulation S shall have the meanings assigned
therein):
(i) Such Noteholder or owner of a beneficial interest in a
Global Note is either:
------
(A) an Institutional Accredited Investor or a "qualified
institutional buyer" within the meaning of Rule 144A,
is aware that the sale of the beneficial interest in
Notes to it is being made in reliance on Regulation D
under the Securities Act or Rule 144A and it is
acquiring such beneficial interest for its own
account; and
(1) it is a "qualified purchaser" within the
meaning of Section 3(c)(7) of the Investment
Company Act and is acquiring such Notes for
its own account, and
(2) it is not a broker-dealer which owns and
invests on a discretionary basis less than
U.S.$25 million in securities of
unaffiliated issuers;
(3) it is not a participant-directed employee
plan, such as a 401(k) plan; and
(4) it will provide notice of the transfer
restrictions described in this Section 2.04
to any subsequent transferees; or
(B) not a U.S. Person and is acquiring such Notes for its
own account and is a "qualified purchaser" within the
meaning of Section 3(c)(7) of the Investment Company
Act.
- 31 -
(ii) Such Noteholder or owner of a beneficial interest in a
Global Note understands that the Notes have not been registered under
the Securities Act and that it may not offer, sell, pledge or otherwise
transfer any Notes except (a) to a Person who the transferor reasonably
believes is a "qualified institution buyer" in a transaction meeting
the requirements of Rule 144A and who is also a "qualified purchaser"
for purposes of Section 3(c)(7) of the Investment Company Act; or (b)
to a Person who is not a U.S. Person and who is also a "qualified
purchaser" for purposes of Section 3(c)(7) of the Investment Company
Act in an offshore transaction complying with Rule 903 or Rule 904 of
Regulation S; or (c) pursuant to another exemption from registration
under the Securities Act (if available), and in each case in accordance
with all applicable securities laws of the States of the United States.
Such Holder or owner acknowledges that no representation is made by the
Issuer as to the availability of any exemption under the Securities Act
for the resale of the Notes.
(iii) Such Noteholder or owner of a beneficial interest in a
Global Note understands that the Notes will bear legends to the effect
provided for in Exhibit C, unless the Issuer provides to the Trustee an
Opinion of Counsel that states that such legends may be removed without
violating any applicable law.
(iv) If any such Noteholder or owner of a beneficial interest
in a Global Note who is required to be a Qualified Institutional Buyer
and a Qualified Purchaser, is at any time not such a Qualified
Institutional Buyer and a Qualified Purchaser, the Issuer may require
such Noteholder or owner of a beneficial interest in a Global Note to
sell its Notes in accordance with Section 2.10.
(v) Such Noteholder or owner of a beneficial interest in a
Global Note either (a) is not a Regulated Investor or (b) is a
Regulated Investor and its acquisition and continued holding of such
Note or beneficial interest is covered by a prohibited transaction
class exemption issued by the U.S. Department of Labor (or, in the case
of a Regulated Investor that is a governmental plan or church plan,
will not result in a violation of any Similar Law).
(vi) The Noteholder or owner of a beneficial interest in a
Global Note understands that the Notes have not been approved or
disapproved by the SEC or any other governmental authority or agency of
any jurisdiction, nor has the SEC or any other governmental authority
or agency passed upon the accuracy or adequacy of any offering
materials with respect to the Notes. Any representation to the contrary
is a criminal offence.
(vii) The Noteholder or owner of a beneficial interest in a
Global Note agrees that no Note (or any interest therein) may be sold,
pledged or otherwise transferred in a denomination of less than the
required minimum denomination set forth in Section 2.02, nor may such
Noteholder or owner of a beneficial interest in a Global Note hold less
than the required minimum denomination after giving effect to such
transfer.
(viii) The Noteholder or owner of a beneficial interest in a
Global Note understands that there is no market for the Notes and that
no assurance can be given as to
- 32 -
the liquidity of any trading market for the Notes and that it is
unlikely that a trading market for the Notes will develop. Accordingly,
the purchaser must be prepared to hold the Notes for an indefinite
period of time or until their Stated Maturity.
(ix) The Noteholder or owner of a beneficial interest in a
Global Note agrees that (a) any sale, pledge or other transfer of a
Note (or any interest therein) made in violation of the transfer
restrictions contained in Section 2.04, or made based upon any false or
inaccurate representation made by the purchaser or a transferee to the
Issuer, will be void and of no force or effect and (b) none of the
Issuer, the Trustee or the Note Registrar has any obligation to
recognize any sale, pledge or other transfer of a Note (or any interest
therein) made in violation of any such transfer restriction or made
based upon any such false or inaccurate representation.
(x) The Noteholder or owner of a beneficial interest in a
Global Note acknowledges that the Issuer, the Trustee and others will
rely upon the truth and accuracy of the foregoing acknowledgements,
representations and agreements and agrees that, if any of the
acknowledgements, representations or warranties made or deemed to have
been made by it in connection with its purchase of the Notes are no
longer accurate, the purchaser will promptly notify the Issuer.
(d) No Person may hold a beneficial interest in any Note
except in a denomination authorized for the Notes of such Class under Section
2.02(b). Any purported transfer that is not in compliance with this Section 2.04
will be void.
(e) Any Note issued upon the transfer, exchange or replacement
of Notes shall bear such applicable legend set forth in the relevant Exhibit
hereto unless there is delivered to the Trustee, the Note Registrar, and the
Issuer an Opinion of Counsel to the effect that neither such applicable legend
nor the restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of Rule 144A and to ensure that
neither of the Issuer nor the pool of Collateral becomes an investment company
required to be registered under the Investment Company Act. Upon provision of
such Opinion of Counsel, the Trustee and the Issuer, shall authenticate and
deliver Notes that do not bear such applicable legend.
(f) Transfer, registration and exchange shall be permitted as
provided in this Section 2.04 without any charge to the Noteholder except for
the expenses of delivery (if any) not made by regular mail. Registration of the
transfer of a Note by the Trustee shall be deemed to be the acknowledgement of
such transfer on behalf of the Issuer. Notwithstanding the foregoing, the Issuer
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.05 not involving
any transfer.
(g) Upon final payment due on the Maturity of a Note, the
Holder thereof shall present and surrender such Note at the Corporate Trust
Office of the Trustee or at the office of any Paying Agent.
(h) The Issuer will not purchase, redeem, prepay or otherwise
acquire, directly or indirectly, any of the Outstanding Notes except upon the
Redemption of the Notes in
- 33 -
accordance with the terms of this Indenture and the Notes. The Issuer will
promptly cancel all Notes acquired by them pursuant to any payment, purchase,
Redemption, prepayment or other acquisition of Notes pursuant to any provision
of this Indenture and no Notes may be issued in substitution or exchange for any
such Notes.
(i) Notwithstanding anything contained herein to the contrary,
neither the Trustee nor the Note Registrar shall be responsible for ascertaining
whether any transfer complies with the registration provisions of or exemptions
from the Securities Act, applicable state or federal securities laws, the rules
of any Depository, ERISA, the Code or the Investment Company Act; provided, that
if a certificate is specifically required by the express terms of this Section
2.04 to be delivered to the Trustee or the Note Registrar by a purchaser or
transferee of a Note, then the Trustee or the Note Registrar, as the case may
be, shall be under a duty to receive and examine the same to determine whether
such certificate conforms with the express terms of this Indenture and shall
promptly notify the party delivering the same and the Issuer if such certificate
does not conform with such terms.
(j) Promptly after completion of distribution of the Notes,
the Issuer shall deliver to the Trustee a certificate identifying such date and
specifying the date on which the Distribution Compliance Period will expire.
Absent receipt of such certificate, the Trustee and the Note Registrar shall be
entitled to assume that the Distribution Compliance Period has not expired.
Notwithstanding the foregoing, the Distribution Compliance Period shall not
terminate until the Trustee and the Note Registrar have received a written
certificate from the Depository, together with copies of certificates from
Euroclear and Clearstream, certifying that they have received certification of
non-U.S. beneficial ownership of 100% of the aggregate principal amount of each
Regulation S Global Note (except to the extent of any Beneficial Owners thereof
who acquired an interest therein during the Distribution Compliance Period
pursuant to another exemption from registration under the Securities Act).
(k) The Issuer will promptly make available to the Trustee
without charge a reasonable supply of Certificated Notes in definitive, fully
Registered Form, without interest coupons.
(l) Notwithstanding any other provision in this Indenture to
the contrary, no Person who is not a U.S. Person may hold a beneficial interest
in the Class B Notes.
SECTION 2.05 Mutilated, Defaced, Destroyed, Lost or Stolen
------------------------------------------------
Notes. If (a) any mutilated or defaced Note is surrendered to a Transfer Agent,
-----
or if there shall be delivered to the Issuer, the Trustee and the Transfer Agent
(each, a "Specified Person") evidence to their reasonable satisfaction of the
destruction, loss or theft of any Note, and (b) there is delivered to the
Specified Persons such security or indemnity as may reasonably be required by
them to save each of them harmless then, in the absence of notice to the
Specified Persons that such Note has been acquired by a bona fide purchaser, the
Issuer shall execute and shall direct the Trustee to authenticate, and upon
Issuer Request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, defaced, destroyed, lost or stolen Note, a new Note of the same Class
as such mutilated, defaced, destroyed, lost or stolen 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, bearing interest from the
date to which interest has been paid on the mutilated,
- 34 -
defaced, destroyed, lost or stolen Note and bearing a number not
contemporaneously Outstanding.
If, after delivery of such new Note, a bona fide purchaser of
the predecessor Note presents for payment, transfer or exchange such predecessor
Note, the Specified Persons shall be entitled to recover such new Note from the
Person to whom it was delivered or any Person taking therefrom, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Specified Persons in
connection therewith.
In case any such mutilated, defaced, destroyed, lost or stolen
Note has become due and payable, the Issuer in its discretion may, instead of
issuing a new Note, pay such Note without requiring surrender thereof except
that any mutilated Note shall be surrendered.
Upon the issuance of any new Note under this Section 2.05, the
Issuer, the Trustee or any Transfer Agent may require the payment by the
registered holder thereof of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 2.05 in lieu of
any mutilated, defaced, destroyed, lost or stolen Note, shall constitute an
original additional contractual obligation of the Issuer and such new Note shall
be entitled, subject to the second paragraph of this Section 2.05, to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
The provisions of this Section 2.05 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, defaced, destroyed, lost or stolen
Notes.
SECTION 2.06 Payment of Principal and Interest; Rights
-----------------------------------------------
Preserved. (a) Each Class of Notes shall accrue interest during each Due Period
---------
applicable to such Class at the applicable Interest Rate. Interest on each Class
of Notes shall be due and payable on each Quarterly Distribution Date; provided,
that (i) payment of interest on the Class A2 Notes shall be subordinated to the
payment on each Quarterly Distribution Date of the interest due and payable on
the Class A1 Notes (together with Defaulted Interest thereon and interest on
Defaulted Interest, if any), (ii) payment of interest on the Class B1 Notes
shall be subordinated to the payment on each Quarterly Distribution Date of the
interest due and payable on the Class A1 Notes and Class A2 Notes (together with
Defaulted Interest thereon and interest on such Defaulted Interest, if any),
(iii) payment of interest on the Class B2 Notes shall be subordinated to the
payment on each Quarterly Distribution Date of the interest due and payable on
the Class A1 Notes and Class A2 Notes (together with Defaulted Interest thereon
and interest on such Defaulted Interest, if any), and (iv) payments of interest
on all Notes are subordinated to the payment on each Quarterly Distribution Date
of other amounts in accordance with the Priority of Payments. Except as provided
in Section 5.05, no payment shall be made by the Issuer hereunder other than on
a Quarterly Distribution Date.
- 35 -
Interest will cease to accrue on each Note, or in the case of
a partial repayment of principal, on such portion of the principal that has been
repaid, from the date of repayment or Stated Maturity unless payment of
principal is improperly withheld or unless Default is otherwise made with
respect to such payments. To the extent lawful and enforceable, interest shall
accrue on any Defaulted Interest on the Notes at the applicable Interest Rate
until paid as provided herein.
(b) The principal of each Note shall be payable no later than
the Stated Maturity thereof unless the unpaid principal of such Note becomes due
and payable at an earlier date by declaration of acceleration, call for
Redemption or otherwise; provided, that, so long as any Class A Notes are
Outstanding, except as provided in Article IX and the Priority of Payments, the
payment of principal of the Class B Notes (x) may only occur after principal of
the Class A Notes has been paid in full and (y) shall be subordinated to the
payment on each Quarterly Distribution Date of the principal and interest due
and payable on the Class A Notes and other amounts payable in accordance with
the Priority of Payments.
(c) Principal will not be payable on any Class of Notes prior
to their Maturity except upon the occurrence of a Redemption and in accordance
with Article XI.
(d) As a condition to the payment of any principal of or
interest on any Note without the imposition of withholding tax, any Paying Agent
shall require certification acceptable to it to enable the Issuer, the Trustee
and any Paying Agent to determine their duties and liabilities with respect to
any taxes or other charges that they may be required to pay, deduct or withhold
in respect of such Note or the Holder of such Note under any present or future
law or regulation of the United States or any present or future law or
regulation of any political subdivision thereof or taxing authority therein or
to comply with any reporting or other requirements under any such law or
regulation.
(e) Payments in respect of principal of and interest on the
Notes shall be payable by wire transfer in immediately available funds to a
Dollar account maintained by the Noteholders in accordance with wire transfer
instructions received by any Paying Agent on or before the Record Date or, if no
wire transfer instructions are received by a Paying Agent, by a Dollar check
drawn on a bank in the United States mailed to the address of such Noteholder as
it appears on the Note Register at the close of business on the Record Date for
such payment.
(f) The principal of and interest on any Note which is payable
on a Redemption Date or in accordance with the Priority of Payments on a
Quarterly Distribution Date and is punctually paid or duly provided for on such
Redemption Date or Quarterly Distribution Date 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 Record Date for such payment. All such payments that
are mailed or wired and returned to the relevant Paying Agent shall be held for
payment as herein provided at the office or agency of the Issuer to be
maintained as provided in Section 7.02.
Payments to Holders of the Notes of each Class shall be made
in the proportion that the Aggregate Outstanding Amount of the Notes of such
Class registered in the name of
- 36 -
each such Holder on the Record Date for such payment bears to the Aggregate
Outstanding Amount of all Notes of such Class on such Record Date.
(g) Payment of any Defaulted Interest may be made in any other
lawful manner in accordance with the Priority of Payments if notice of such
payment is given by the Trustee to the Issuer and the Noteholders, and such
manner of payment shall be deemed practicable by the Trustee.
(h) All reductions in the principal amount of a Note (or one
or more predecessor Notes) effected by payments of installments of principal
made on any Quarterly Distribution Date or Redemption Date shall be binding upon
all future Holders of such Note and of any Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, whether or not such
payment is noted on such Note.
(i) Notwithstanding anything contained herein to the contrary,
the obligations of the Issuer under the Notes and this Indenture are
limited-recourse obligations of the Issuer, payable solely from the Collateral
and following realization on the Collateral, any claims of the Noteholders shall
be extinguished and shall not thereafter be revived. No recourse shall be had
against any Officer, member, manager, employee, securityholder or administrator
of the Issuer or their respective successors or assigns for the payment of any
amounts payable under the Notes or this Indenture. It is understood that the
foregoing provisions of this Section 2.06(i) shall not (i) prevent recourse to
the Collateral for the sums due or to become due under any Security, instrument
or agreement which is part of the Collateral or (ii) constitute a waiver,
release or discharge of any indebtedness or obligation evidenced by the Notes or
secured by this Indenture until such Collateral has been realized, whereupon any
outstanding indebtedness or obligation shall be extinguished and shall not
thereafter be revived. It is further understood that the foregoing provisions of
this Section 2.06(i) shall not limit the right of any Person to name the Issuer
as a party defendant in any action or suit or in the exercise of any other
remedy under the Notes or this Indenture, so long as no judgment in the nature
of a deficiency judgment or seeking personal liability shall be asked for or (if
obtained) enforced against any such Person or entity.
(j) Subject to the foregoing provisions of this Section 2.06
and the provisions of Sections 2.04 and 2.05, each Note delivered under this
Indenture and upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights of unpaid interest and principal that were
carried by such other Note.
SECTION 2.07 Persons Deemed Owners. The Issuer, the Trustee
----------------------
and any agent of any of them (collectively, the "Relevant Persons") may treat
-----------------
the Person in whose name any Note on the Note Register is registered as the
owner of such Note on the applicable Record Date for the purpose of receiving
payments of principal of and interest on such Note and on any other date for all
other purposes whatsoever (whether or not such Note is overdue), and no Relevant
Person shall be affected by notice to the contrary.
SECTION 2.08 Cancellation. All Notes surrendered for payment,
------------
registration of transfer, exchange or redemption, or deemed lost or stolen,
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, shall promptly be cancelled by it and may not be reissued or resold. No
Notes shall be authenticated in lieu of or in exchange for
- 37 -
any Notes cancelled as provided in this Section 2.08, except as expressly
permitted by this Indenture. All cancelled Notes held by the Trustee shall be
destroyed or held by the Trustee in accordance with its standard retention
policy unless the Issuer shall direct by an Issuer Order that they be returned
to it. Any Notes purchased by the Issuer shall be immediately delivered to the
Trustee for cancellation.
SECTION 2.09 Section 3(c)(7) Procedures. (a) The Issuer will
---------------------------
direct DTC to take the following steps in connection with the Restricted Global
Notes sold to Qualified Institutional Buyers or Qualified Purchasers:
(i) the Issuer will direct DTC to include the "3c7" marker in
the DTC 20-character security descriptor and the 48-character
additional descriptor for the Restricted Global Notes in order to
indicate that sales are limited to Qualified Institutional Buyers or
Qualified Purchasers;
(ii) The Issuer will from time to time (upon the request of
the Trustee or the Note Registrar) request DTC to deliver to the Issuer
a list of all DTC Participants holding an interest in the Global Notes.
(b) The Issuer shall from time to time request all third-party
vendors to include on screens contained by such vendors appropriate legends
regarding Rule 144A and Section 3(c)(7) restrictions on the Restricted Global
Notes. Without limiting the foregoing, the Issuer will request Bloomberg, L.P.
to include, in the "Description" page on each Bloomberg screen containing
information about the Restricted Global Notes, a comment in the "Comments" box
that the Restricted Global Notes "are being offered in reliance on an exemption
from registration under Regulation D or Rule 144A of the Securities Act to
persons that are either (1)(a) Institutional Accredited Investors or (b)
Qualified Institutional Buyers and, in either case, who are also (2) Qualified
Purchasers."
(c) The Issuer shall cause each CUSIP number obtained for a
Restricted Global Note to have an attached "fixed field" that contains
"3(c)(7)", "Regulation D" and "144A" indicators.
(d) Prior to the issuance of any Regulation S Global Note, the
Issuer shall establish procedures similar to the foregoing with Euroclear and
Clearstream.
SECTION 2.10 Forced Sale. Notwithstanding the restrictions on
-----------
transfer of Notes contained in this Indenture, if the Issuer determines that any
Noteholder or any Beneficial Owner of a Global Note (or any interest therein) is
not, in the case of a Restricted Global Note, a Qualified Institutional Buyer
(or, if a purchaser representation letter was prepared, an Institutional
Accredited Investor) or in any case a Qualified Purchaser, then the Issuer may
require, by notice to such Holder (or any Beneficial Owner, as the case may be),
that such Holder or Beneficial Owner sell all of its right, title and interest
in such Global Note to a Person that is either (i) a Person taking delivery in
the form of an interest in a Restricted Global Note or a Certificated Note, is
both a Qualified Institutional Buyer (or, if a purchaser representation letter
was prepared, an Institutional Accredited Investor) and a Qualified Purchaser in
a transaction meeting the requirements of Rule 144A or (ii) a Person taking
delivery in the form of an interest
- 38 -
in a Regulation S Global Note, is a Qualified Purchaser and is neither a U.S.
Person nor a U.S. Resident in an offshore transaction meeting the requirements
of Regulation S, with such sale to be effected within 30 days after notice of
such sale requirement is given. If such Noteholder or Beneficial Owner fails to
effect the transfer required within such 30-day period, upon direction from the
Issuer, the Trustee, on behalf of and at the expense of the Issuer, shall cause
such Noteholder's or Beneficial Owner's interest in such Note to be transferred
in a commercially reasonable sale (conducted by the Trustee in accordance with
Section 9-610 of the Uniform Commercial Code as in effect in the State of New
York as applied to securities that are sold on a recognized market or that may
decline speedily in value) to a person that certifies to the Trustee the Issuer
in connection with such transfer, that (x) if such Person is taking delivery of
a Note in the form of an interest in a Restricted Global Note, that such Person
is both a Qualified Institutional Buyer (or, if a purchaser representation
letter was prepared, an Institutional Accredited Investor) and a Qualified
Purchaser or (y) if such Person is taking delivery of a Note in the form of an
interest in a Regulation S Global Note, that such Person is neither a U.S.
Person nor a U.S. Resident and is a Qualified Purchaser, together with the other
acknowledgements, representations and agreements deemed to be made by a
transferee of an interest in a Regulation S Global Note set forth in Section
2.04. Pending such transfer, no further payments will be made in respect of such
Note held by such Noteholder or Beneficial Owner. Each Holder of an interest in
a Note, by its acceptance thereof, shall be deemed to acknowledge and agree to
the Issuer entitlement to require any sale in connection with the circumstances
described in this Section 2.10.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01 General Provisions. (a) The Notes may be executed
------------------
by the Issuer and delivered to the Trustee for authentication and thereupon the
same shall be authenticated by the Trustee (or an Authenticating Agent on its
behalf) upon Issuer Request and delivered by the Issuer, following receipt by
the Trustee of the following:
(i) an Officer's certificate of the Issuer (A) evidencing the
authorization by the Manager of the execution and delivery of, and the
performance of the Issuer's obligations under, this Indenture, and the
execution, authentication and delivery of the Notes and specifying the
Stated Maturity, the principal amount and the Interest Rate with
respect to each Class of Notes to be authenticated and delivered, and
(B) certifying that (1) the attached copy of the Issuer's resolutions
is a true and complete copy thereof, (2) such resolutions have not been
rescinded and are in full force and effect on and as of the Closing
Date and (3) the Officers authorized to execute and deliver such
documents hold the offices and have the signatures indicated thereon;
(ii) either (A) a certificate of the Issuer or other official
document evidencing the due authorization, approval or consent of any
governmental body or bodies, at the time having jurisdiction in the
premises, together with an Opinion of Counsel of the Issuer that the
Trustee is entitled to rely thereon to the effect that no other
authorization, approval or consent of any governmental body is required
for the valid issuance of the Notes or (B) an Opinion of Counsel of the
Issuer to the effect that no such
- 39 -
authorization, approval or consent of any governmental body is required
for the valid issuance of the Notes except as may have been given;
(iii) opinions of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.,
special counsel to the Issuer, dated the Closing Date, substantially in
the form of Exhibit G;
(iv) an opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.,
special tax counsel to the Issuer, dated the Closing Date,
substantially in the form of Exhibit H;
(v) an opinion of Potter Xxxxxxxx & Xxxxxxx, LLP, special
Delaware counsel to the Issuer, dated the Closing Date, substantially
in the form of Exhibit I.
(vi) an Officer's certificate of the Issuer stating that (A)
the Issuer is not in Default under this Indenture and that the issuance
of the Notes and the Preferred Units will not result in a breach of any
of the terms, conditions or provisions of, or constitute a Default
under, any indenture or other agreement or instrument to which the
Issuer is a party or by which it is bound, or any order of any court or
administrative agency entered in any Proceeding to which the Issuer is
a party or by which it may be bound or to which it may be subject; (B)
no Event of Default shall have occurred and be continuing; (C) all of
the representations and warranties contained herein are true and
correct as of the Closing Date; (D) all conditions precedent provided
in this Indenture relating to the authentication and delivery of the
Notes applied for (including in Section 3.02) have been complied with;
and (E) all expenses due or accrued with respect to the issuance of the
Notes or relating to actions taken on or in connection with the Closing
Date have been paid;
(vii) Financing Statements duly authorized or executed by the
Issuer, to be filed in the following filing offices: The Secretary of
State of Delaware;
(viii) an Issuer Order from the Issuer directing the Trustee
to authenticate the Class A1 Notes, Class A2 Notes and or the Class B1
Notes, as the case may be, in the amounts set forth therein, registered
in the name(s) set forth therein, with the CUSIP numbers set forth
therein, and to make delivery thereof to the Issuer, or as otherwise
directed therein; and
(ix) copies of written consents of each of the General
Partners to the transfer to the Issuer of the respective Collateral
Interests and the pledge thereof to the Trustee pursuant to this
Indenture.
(b) On or prior to any Additional Closing Date, the Class B2
Notes may be executed by the Issuer and delivered to the Trustee for
authentication and thereupon the same shall be authenticated and delivered by
the Trustee (or an Authenticating Agent on its behalf) upon Issuer Request, upon
receipt by the Trustee of the following:
(i) an Officer's certificate of the Issuer, dated as of the
relevant Additional Closing Date, confirming that the certificates
delivered on the Closing Date pursuant to Sections 3.01(a)(i) and (v)
hereof remain true and correct as of such Additional Closing Date; and
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(ii) an Issuer Order from the Issuer directing the Trustee to
authenticate the Class B2 Notes in the amounts set forth therein,
registered in the name(s) set forth therein, with the CUSIP numbers set
forth therein, and to make delivery thereof to the Issuer, or as
otherwise directed therein.
SECTION 3.02 Security for Notes. Prior to the issuance of the
------------------
Notes on the Closing Date, the Issuer shall cause the following conditions to be
satisfied:
(a) Grant of Security Interest; Delivery of Collateral. The
----------------------------------------------------
Issuer shall have Granted to the Trustee pursuant to the Granting Clauses of
this Indenture, all of the Issuer's right, title and interest in and to the
Collateral on the Closing Date.
(b) Certificate of the Issuer. The Issuer shall have delivered
-------------------------
to the Trustee a certificate of an Authorized Officer of the Issuer, dated as of
the Closing Date, containing representations to the effect that, on the Closing
Date and immediately prior to the delivery thereof on the Closing Date:
(i) this Agreement creates a valid and continuing security
interest (as defined in the applicable Uniform Commercial Code) in the
Collateral in favor of the Trustee, which security interest is prior to
all other liens, claims or other encumbrances, and is enforceable as
such as against creditors of and purchasers from the Issuer;
(ii) the Collateral is comprised of "general intangibles" and
"accounts" within the meaning of the applicable Uniform Commercial
Code;
(iii) the Issuer is the owner of the Collateral free and clear
of any liens, claims or encumbrances except for those granted pursuant
to this Indenture;
(iv) other than the security interest granted pursuant to this
Indenture, the Issuer has not pledged, assigned, sold granted a
security interest in or otherwise conveyed any of the Collateral (or,
if any such interest has been assigned, pledged or otherwise
encumbered, it has been released) ;
(v) the Issuer has caused or will have caused, within ten days
of the Closing Date, the filing of all appropriate financing statements
in the proper filing offices in the appropriate jurisdictions under
applicable law in order to perfect the security interest in the
Collateral granted to the Trustee hereunder;
(vi) the Issuer has not authorized the filing of and is not
aware of any financing statements against the Issuer that include a
description of collateral covering the Collateral other than any
financing statement relating to the security interest granted to the
Trustee hereunder or that has been terminated; the Issuer is not aware
of any judgment, Pension Benefit Guaranty Corporation or tax lien
filings against the Issuer;
(vii) the Issuer has full right to grant a security interest
in and to assign and pledge all of its right, title and interest in the
Collateral to the Trustee; and
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(viii) the Issuer has received all consents and approvals
required by the terms of the Limited Partnership Agreements and the
Transaction Documents for the sale of the Collateral Interests to the
Issuer and to the grant of the security interest in the Collateral
pursuant to this Indenture.
The requirement that the Issuer deliver such certificate may
not be waived by the Trustee or the Secured Parties. The representations
contained in such certificate shall survive the Closing for so long as any Notes
remain outstanding.
(c) Ratings Letters. The Issuer shall have delivered to the
----------------
Trustee an Officer's certificate of the Servicer to the effect that (A) attached
thereto is a true and correct copy of a letter signed by Standard & Poor's
confirming that the Class A1 Notes have been rated at least "AA-", the Class A2
Notes have been rated at least "A-", the Class B1 Notes have been rated at least
"BBB-" and the Class B2 Notes have been rated at least "BB-" by Standard &
Poor's and (B) such rating is in full force and effect on the Closing Date.
(d) Accounts. The Trustee has delivered evidence of the
--------
establishment of the Cash Reserve Account, the Collection Account, the Note
Reserve Account, and the Custodial Account.
(e) Grant of Collateral Interests. The Issuer has Granted to
------------------------------
the Trustee on or prior to the Closing Date, Collateral Interests to be held by
the Trustee.
SECTION 3.03 Custodianship; Transfer of Collateral Interests.
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(a) The Trustee shall hold all Certificated Securities and Instruments in
physical form at the office of a custodian appointed by it in the Borough of
Manhattan, City of New York (the "Custodian"). Initially, such Custodian shall
be the Trustee. Any successor custodian shall be a state or national bank or
trust company which is not an Affiliate of the Issuer and has a combined capital
and surplus of at least U.S. $200,000,000.
(b) Each time that the Issuer shall direct or cause the
acquisition of any Collateral Interest or Eligible Investment, the Issuer shall,
if such Collateral Interest or Eligible Investment has not already been
transferred to the Custodial Account, cause the transfer of such Collateral
Interest or Eligible Investment to the Custodian to be held in the Custodial
Account for the benefit of the Trustee in accordance with the terms of this
Indenture. The security interest of the Trustee in the funds or other property
utilized in connection with such acquisition shall, immediately and without
further action on the part of the Trustee, be released. The security interest of
the Trustee shall nevertheless come into existence and continue in the
Collateral Interest or Eligible Investment so acquired, including all rights of
the Issuer in and to any contracts related to and proceeds of such Collateral
Interest or Eligible Investment. The Issuer shall cause all Collateral Interests
and Eligible Investments acquired by or on behalf of the Issuer to be
transferred to the Custodian for the benefit of the Trustee by one of the
following means (and shall take any and all other actions necessary to create in
favor of the Trustee a valid, perfected, first-priority security interest in
each Collateral Interest and Eligible Investment Granted to the Trustee under
laws and regulations (including Articles 8 and 9 of the UCC) in effect at the
time of such Grant):
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(i) in the case of an Instrument or a Certificated Security
represented by a Security Certificate in Bearer Form or Registered Form
by (A) delivering such Instrument or Security Certificate to the
Custodian in the State of New York, in Bearer Form or registered form
and, if in registered form, duly indorsed to the Trustee or indorsed in
blank, in each case by an effective Indorsement, or registered in the
name of the Trustee and (B) causing the Custodian to maintain (on
behalf of the Trustee) continuous possession of such Instrument or
Security Certificate in the State of New York;
(ii) in the case of an Uncertificated Security (other than an
Uncertificated Security covered by clause (iii) below), by (A) causing
the Trustee to become the registered owner of such Uncertificated
Security and (B) causing such registration to remain effective;
(iii) in the case of an Uncertificated Security registered in
the name of the Issuer, by (A) causing the issuer of such
Uncertificated Security to agree that it will comply with Instructions
originated by the Trustee without further consent by the Issuer and (B)
causing such registration and agreement to remain in effect;
(iv) in the case of general intangibles (including payment
intangibles and any participation interest in which neither the
participation interest nor the underlying debt are represented by
Instruments) by (A) notifying the obligor (and, in the case of
participation interests, both the institution which has sold the
participation interest and the obligor of the debt underlying the
participation interest) thereunder of the transfer and (B) causing a
financing statement on Form UCC-1 naming the Issuer as debtor and the
Trustee as secured party to be filed with the Secretary of State of the
State of Delaware; and
(v) in the case of participation interests in which the
underlying debt is represented by an Instrument or Instruments by (A)
causing the delivery of each such Instrument to the Trustee or (B)
notifying the institution which sold the participation interest that it
holds such Instruments for the account of the Trustee.
(c) It is the intent of the Trustee and the Issuer that each
Account shall be a Securities Account of the Trustee and not an account of the
Issuer. Each Custodian shall agree, and the Trustee as initial Custodian hereby
agrees, with the Trustee that (i) the Accounts shall be Securities Accounts of
the Trustee, (ii) all property credited to the Accounts shall be treated as a
Financial Asset, (iii) the Custodian shall treat the Trustee as entitled to
exercise the rights that comprise each Financial Asset credited to the Accounts,
(iv) the Custodian shall comply with entitlement orders originated by the
Trustee without the further consent of any other Person or entity, (v) the
Custodian shall not agree with any Person or entity other than the Trustee to
comply with entitlement orders originated by such other Person or entity, and
(vi) the Accounts and all property credited to the Accounts shall not be subject
to any lien, security interest, right of set-off, or encumbrance in favor of the
Custodian or any Person claiming through the Custodian (other than the Trustee).
Each term used in this Section 3.03(c) and defined in the UCC shall have the
meaning set forth in the UCC.
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(d) Such of the Collateral as constitutes a Security
Entitlement shall be credited to the appropriate Account. The Trustee shall hold
in the State of New York such of the Collateral as constitutes Money,
Instruments, or Certificated Securities, separate and apart from all other
property held by the Trustee. Notwithstanding any other provision of this
Indenture, the Trustee shall not hold any part of the Collateral through an
agent except as expressly permitted by this Section 3.03.
(e) The Issuer shall take all steps necessary or advisable
under the laws of Delaware to protect the security interest of the Trustee.
SECTION 3.04 Limited Recourse. The obligations of the Issuer
-----------------
under this Indenture and the Notes are limited to the Collateral. To the extent
the Collateral is not sufficient to meet the obligations of the Issuer in full,
after application of the Collateral in accordance with the provisions of the
Indenture, the Issuer shall have no further obligations hereunder or under the
Notes and any outstanding obligations should be deemed extinguished.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture. This
-----------------------------------------
Indenture shall be discharged and shall cease to be of further effect with
respect to the Collateral securing the Notes and the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive
payments of principal thereof and interest thereon as provided herein (including
as provided in the Priority of Payments and Article XIII), (iv) the rights
(including compensation and indemnity), obligations and immunities of the
Trustee hereunder, and (v) the rights of the Secured Parties as beneficiaries
hereof with respect to the property deposited with the Trustee and payable to
all or any of them; and the Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(a) either:
(i) all Notes theretofore authenticated and delivered (other
than (A) Notes which have been mutilated, defaced, destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.05
and (B) Notes for whose payment Money has theretofore irrevocably been
deposited in trust and thereafter repaid to the Issuer or discharged
from such trust, as provided in Section 7.03) have been delivered to
the Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the Trustee for
cancellation (A) have become due and payable, or (B) will become due
and payable at their Stated Maturity within one year, or (C) are to be
called for Redemption pursuant to Section 9.01 under an arrangement
satisfactory to the Trustee for the giving of notice of redemption by
the Issuer pursuant to Section 9.02 and the Issuer has irrevocably
deposited or caused to be deposited with the Trustee, in trust for such
purpose, Cash or noncallable direct
- 44 -
obligations of the United States in an amount sufficient, as verified
by a firm of nationally recognized Independent certified public
accountants, to pay and discharge the entire indebtedness on all Notes
not theretofore delivered to the Trustee for cancellation, including
all principal and interest (including Defaulted Interest and interest
on Defaulted Interest, if any) accrued to the date of such deposit (in
the case of Notes which have become due and payable) or to the Stated
Maturity or the Redemption Date, as the case may be; provided, that (x)
such obligations are entitled to the full faith and credit of the
United States and (y) this subclause (ii) shall not apply if an
election to act in accordance with the provisions of Section 5.05(a)
shall have been made and not rescinded;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder and no other amounts will become due and payable by the
Issuer; and
(c) the Issuer has delivered to the Trustee Officer's
certificates 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.
Notwithstanding the satisfaction and discharge of this
Indenture, the rights and obligations of the Issuer, the Trustee, the Servicer
and, if applicable, the Noteholders, as the case may be, under Sections 2.06,
4.02, 5.09, 5.18, 6.07, 6.08, 7.01 and 7.03 shall survive the satisfaction and
discharge of the Indenture and resignation or removal of the Trustee.
SECTION 4.02 Application of Trust Money. All Monies deposited
--------------------------
with the Trustee pursuant to Section 4.01 for the payment of principal of and
interest on the Notes and amounts received pursuant to the Liquidity Facility
shall be held in trust and applied by it in accordance with the provisions of
the Notes and this Indenture.
SECTION 4.03 Repayment of Monies Held by Paying Agent. In
------------------------------------------
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all Monies then held by any Paying Agent other than the Trustee under
the provisions of this Indenture shall, upon demand of the Issuer, be paid to
the Trustee to be held and applied pursuant to Section 7.03 and in accordance
with the Priority of Payments and thereupon such Paying Agent shall be released
from all further liability with respect to such Monies.
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.01 Events of Default. "Event of Default", wherever
----------------- ----------------
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Note, when
the same becomes due and payable in accordance with Section 2.02(g), in each
case which default shall continue for a period of three (3) Business Days (or,
in the case of a payment default resulting
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solely from an administrative error or omission by the Trustee, a Paying Agent
or the Note Registrar, five (5) Business Days);
(b) default in the payment of principal of any Note when the
same becomes due and payable at its Stated Maturity or any Redemption Date, as
applicable (or, in the case of a payment default resulting solely from an
administrative error or omission by the Trustee, a Paying Agent or the Note
Registrar, five (5) Business Days);
(c) failure on any Quarterly Distribution Date to disburse
amounts available in the Collection Account in accordance with the Priority of
Payments (other than a default in payment described in clause (a) or (b) above),
which failure continues for a period of two (2) Business Days (or, in the case
of a payment default resulting solely from an administrative error or omission
by the Trustee, a Paying Agent or the Note Registrar, five (5) Business Days);
(d) (i) failure by the Issuer to have issued to CICA SPE
and/or VSC SPE, (ii) failure by CICA SPE and/or VSC SPE to have purchased, in
accordance with the terms of the applicable Transfer, Assignment and Assumption
Agreement, by the due date specified in any Capital Call, for immediate resale
to CICA or VSC, respectively, (iii) failure by CICA and/or VSC to have purchased
from CICA SPE and/or VSC SPE, as appropriate, or the failure by Aon Corporation
to have purchased from CICA SPE and/or VSC SPE, as the case may be, Class B2
Notes in an aggregate principal amount sufficient to enable CICA SPE or VSC SPE
to satisfy on the Issuer's behalf any related Capital Calls pursuant to the
relevant Transfer, Assignment and Assumption Agreement and Asset Sale Agreement
or (iv) the failure to pay to the General Partners the proceeds of the issuance
of the Class B2 Notes in accordance with the terms of the relevant Transfer,
Assignment and Assumption Agreement or the Asset Sale Agreement;
(e) the Issuer or the pool of Collateral becomes an investment
company required to be registered under the Investment Company Act;
(f) default in the performance, or breach, of any other
covenant or other agreement (other than a covenant or other agreement a default
in the performance or breach of which is specifically dealt with elsewhere in
this Section 5.01 or in Article VII of the Issuer in this Indenture, or the
failure of any representation or warranty of the Issuer made in this Indenture
or in any certificate or other writing delivered pursuant hereto or in
connection herewith to be correct in any material respect when the same shall
have been made, and the continuation of such default, breach or failure for a
period of 30 days (or, if such default, breach or failure has an adverse effect
on the validity, perfection or priority of the security interest granted under
this Indenture, fifteen (15) days) after the Issuer has actual knowledge thereof
or after notice thereof shall have been given to the Issuer by the Trustee or to
the Issuer and the Trustee by the Holders of at least 25% of the Aggregate
Outstanding Amount of the Notes of the Controlling Class, specifying such
default, breach or failure and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(g) an involuntary Proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) winding up, liquidation,
reorganization or other relief in respect of the Issuer or its debts, or of a
substantial part of its assets, under any bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the appointment of a receiver,
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trustee, custodian, sequestrator, conservator or similar official for the Issuer
or for a substantial part of its assets, and, in any such case, such Proceeding
or petition shall continue undismissed for 60 days; or an order or decree
approving or ordering any of the foregoing shall be entered;
(h) the Issuer shall (i) voluntarily commence any Proceeding
or file any petition seeking winding up, liquidation, reorganization or other
relief under any bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any Proceeding or petition described in Section
5.01(g), (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Issuer or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such Proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(i) the rendering of one or more final judgments against the
Issuer which exceed, in the aggregate, U.S.$5,000,000 (or such lesser amount as
any Rating Agency may specify) and which remain unstayed, undischarged and
unsatisfied for 90 days after such judgment(s) becomes nonappealable, unless
adequate funds have been reserved or set aside for the payment thereof and
unless (except as otherwise specified in writing by each Rating Agency) the
Rating Confirmation Test shall have been satisfied with respect thereto; or
(j) the occurrence of (i) an "Event of Default" under the
Liquidity Facility Agreement or (ii) a Liquidity Facility Provider Event.
If the Issuer shall obtain knowledge, or shall have reason to
believe, that an Event of Default shall have occurred and be continuing, the
Issuer shall promptly notify the Trustee, the Noteholders, the Liquidity
Facility Provider, the Preferred Unitholders and each Rating Agency in writing.
SECTION 5.02 Acceleration of Maturity; Rescission and
----------------------------------------------
Annulment. (a) If an Event of Default occurs and is continuing, not having been
---------
remedied within the applicable time period to address such Event of Default, if
any, set forth in Section 5.1(f) hereof, the Trustee shall promptly notify the
Noteholders that all unpaid principal of all of the Notes, together with all
accrued and unpaid interest thereon, and other amounts payable hereunder shall
become, and shall be deemed to have become, immediately due and payable without
any declaration or notice or any other action, unless such automatic
acceleration is rescinded by a Majority of the Controlling Class within sixty
(60) days of the occurrence of such Event of Default (except in the case of an
Event of Default specified in Section 5.01(g) or (h), in which case no
rescission may be made). A Majority of the Controlling Class may, by written
notice to the Trustee, rescind an Event of Default and may rescind acceleration
and its consequences. Unless the automatic acceleration has been rescinded by a
Majority of the Controlling Class within sixty (60) days of the occurrence of
such Event of Default, all unpaid principal of all of the Notes, together with
all accrued and unpaid interest thereon, and other amounts payable hereunder
shall automatically become, and shall be deemed to have become, immediately due
and payable. Any decision by a Majority of the Controlling Class to rescind an
automatic acceleration shall not prevent a Majority of the Controlling Class
from causing, at a later date, an acceleration of all unpaid principal of all of
the Notes, together with all accrued and unpaid
- 47 -
interest thereon, and other amounts payable hereunder if the relevant Event of
Default is continuing; provided, however, that no decision to cause an
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acceleration following a rescission of an automatic acceleration may be made
without the consent of the Liquidity Facility Provider. No such rescission of an
Event of Default shall affect the rights of the Noteholders with respect to any
subsequent Event of Default which may occur under the Indenture.
(b) At any time after such a declaration of acceleration of Maturity has been
made and before a judgment or decree for payment of the Money due has been
obtained by the Trustee as hereinafter provided in this Article V, a Majority of
the Controlling Class and the Liquidity Facility Provider, by written notice to
the Issuer and the Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of principal of and interest
on the Notes,
(B) to the extent that payment of such interest is
lawful, interest upon Defaulted Interest at the
applicable Interest Rate,
(C) any accrued and unpaid amounts payable by the Issuer
to the Liquidity Facility Provider pursuant to the
Liquidity Facility, and
(D) all unpaid taxes and Administrative Expenses and
other sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(ii) the Trustee has determined that all Events of Default,
other than the nonpayment of the principal of or interest on the Notes
that have become due solely by such acceleration, have been cured and a
Majority of the Controlling Class by written notice to the Trustee have
agreed with such determination or waived as provided in Section 5.14.
At any such time as the Trustee shall rescind and annul such
declaration and its consequences, the Trustee shall preserve the Collateral in
accordance with the provisions of Section 5.05; provided, that, if such
--------
preservation of the Collateral is rescinded pursuant to Section 5.05, the Notes
may be accelerated pursuant to Section 5.02(a), notwithstanding any previous
rescission and annulment of a declaration of acceleration pursuant to this
Section 5.02(b).
No such rescission and annulment shall affect any subsequent
Default or impair any right consequent thereon.
SECTION 5.03 Collection of Indebtedness and Suits for
-----------------------------------------------
Enforcement by Trustee. The Issuer covenants that if a Default shall occur in
-----------------------
respect of the payment of any principal of or interest on any Class A1 Note or
Class A2 Note or the payment of principal of or interest on any Class B1 Note or
Class B2 Note (but with respect to interest, only after the Class
- 48 -
A Notes and all interest accrued thereon have been paid in full), the Issuer
will, upon demand of the Trustee or any affected Noteholder, pay to the Trustee,
for the benefit of the Holder of such Note, the whole amount, if any, then due
and payable on such Note for principal, interest, with interest upon the overdue
principal and, to the extent that payments of such interest shall be legally
enforceable, upon overdue installments of interest, at the applicable Interest
Rate and, in addition thereto, 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 and such
Noteholder and their respective agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a Proceeding for the collection of the sums so due and unpaid, and
may, and shall, upon the direction by a Majority of the Controlling Class,
prosecute such Proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon the Notes and collect the Monies
adjudged or decreed to be payable in the manner provided by law out of the
Collateral.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Secured Parties by such appropriate Proceedings as the Trustee shall deem
necessary (if no direction by a Majority of the Controlling Class is received by
the Trustee) or as the Trustee may be directed by a Majority of the Controlling
Class, to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy or
legal or equitable right vested in the Trustee by this Indenture or by law.
In case there shall be pending Proceedings relative to the
Issuer or any other obligor upon the Notes under the Bankruptcy Code or any
other applicable bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer, or their respective property or such other obligor or
its property, or in case of any other comparable Proceedings relative to the
Issuer, or other obligor upon the Notes, or the creditors or property of the
Issuer, or such other obligor, the Trustee, regardless of whether the principal
of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and regardless of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 5.03, shall be entitled
and empowered, by intervention in such Proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal, interest owing and unpaid in respect of the Notes upon direction
by a Majority of each Class, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee) and of the Noteholders allowed in
any Proceedings relative to the Issuer, or other obligor upon the Notes or to
the creditors or property of the Issuer, or such other obligor;
- 49 -
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Notes, upon the direction of such Holders,
in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency Proceedings or
Person performing similar functions in comparable Proceedings; and
(c) to collect and receive any Monies or other property
payable to or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Noteholders and of the Trustee on
behalf of the Noteholders and the Trustee; and any trustee, receiver or
liquidator, custodian or other similar official is hereby authorized by each of
the Noteholders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments directly to the Noteholders, to
pay to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other reasonable expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder, any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Noteholder in any
such Proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar Person.
All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any action or Proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the reasonable expenses,
disbursements and compensation of the Trustee, each predecessor trustee and
their respective agents and attorneys and counsel, shall be for the ratable
benefit of the Secured Parties and payable to the Secured Parties in accordance
with the Priority of Payments.
In any Proceedings brought by the Trustee on behalf of the
Holders, the Trustee shall be held to represent all the Holders of the Notes.
Notwithstanding anything in this Section 5.03 to the contrary,
the Trustee may not sell or liquidate the Collateral or institute Proceedings in
furtherance thereof pursuant to this Section 5.03 except in accordance with
Section 5.05(a).
Nothing in this Section 5.03 shall require the Trustee to
institute a Proceeding unless such is directed by a Majority of the Controlling
Class and the Trustee is given adequate and reasonable indemnity.
SECTION 5.04 Remedies. (a) If an Event of Default shall have
--------
occurred and be continuing, and the Notes have been declared due and payable and
such declaration and its consequences have not been rescinded and annulled, the
Issuer agrees that the Trustee may after notice to the Secured Parties, and
shall, upon direction by a Majority of the Controlling
- 50 -
Class or the Liquidity Facility Provider, to the extent permitted by applicable
law, exercise one or more of the following rights, privileges and remedies:
(i) institute Proceedings for the collection of all amounts
then payable on the Notes or otherwise payable under this Indenture,
whether by declaration or otherwise, enforce any judgment obtained, and
collect from the Collateral any Monies adjudged due;
(ii) sell all or a portion of the Collateral or rights of
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law and in accordance with Section
5.17, it being understood, however, that the rights of the Trustee to
sell Collateral Interests shall be subject to any restrictions on
transfer set forth in the relevant Limited Partnership Agreements;
(iii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the
Collateral;
(iv) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights
and remedies of the Secured Parties hereunder including, without
limitation, to enforce any rights under the Asset Sale Agreements; and
(v) exercise any other rights and remedies that may be
available at law or in equity;
provided, that the Trustee may not sell or liquidate the Collateral or institute
--------
Proceedings in furtherance thereof pursuant to this Section 5.04 except in
accordance with Section 5.05(a).
The Trustee shall be provided with an opinion of an
Independent investment banking firm of national reputation as to the feasibility
of any action proposed to be taken in accordance with this Section 5.04 and as
to the sufficiency of the proceeds and other amounts receivable with respect to
the Collateral to make the required payments of principal of and interest on the
Notes, which opinion shall be conclusive evidence as to such feasibility or
sufficiency.
(b) If an Event of Default as described in Section 5.01(e)
shall have occurred and be continuing, the Trustee may, and at the request of
the Holders of not less than 25% of the Aggregate Outstanding Amount of the
Controlling Class or the Liquidity Facility Provider shall, institute a
Proceeding solely to compel performance of the covenant or agreement or to cure
the representation or warranty, the breach of which gave rise to the Event of
Default under such Section, and enforce any equitable decree or order arising
from such Proceeding.
(c) Upon any sale, whether made under the power of sale hereby
given or by virtue of judicial Proceedings, any Noteholder or Noteholders may
bid for and purchase the Collateral or any part thereof and, upon compliance
with the terms of sale, may hold, retain, possess or dispose of such property in
its or their own absolute right without accountability.
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Upon any sale, whether made under the power of sale hereby
given or by virtue of judicial Proceedings, the receipt of the Trustee, or of
the Officer making a sale under judicial Proceedings, shall be a sufficient
discharge to the purchaser or purchasers at any sale for its or their purchase
Money, and such purchaser or purchasers shall not be obliged to see to the
application thereof.
Any such sale, whether under any power of sale hereby given or
by virtue of judicial Proceedings, shall bind the Issuer, the Trustee and the
Noteholders, shall operate to divest all right, title and interest whatsoever,
either at law or in equity, of each of them in and to the property sold, and
shall be a perpetual bar, both at law and in equity, against each of them and
their successors and assigns, and against any and all Persons claiming through
or under them.
(d) Notwithstanding any other provision of this Indenture, the
Trustee may not, prior to the date which is one year and one day, or, if longer,
the applicable preference period then in effect, after the payment in full of
all Notes, institute against, or join any other Person in instituting against,
the Issuer any bankruptcy, reorganization, arrangement, insolvency, moratorium
or liquidation Proceedings, or other Proceedings under Federal or state
bankruptcy or similar laws. Nothing in this Section 5.04 shall preclude, or be
deemed to stop, the Trustee (i) from taking any action prior to the expiration
of the aforementioned one year and one day period, or if longer the applicable
preference period then in effect, in (A) any case or Proceeding voluntarily
filed or commenced by the Issuer or (B) any involuntary insolvency Proceeding
filed or commenced by a Person other than the Trustee, or (ii) from commencing
against the Issuer or any of its properties any legal action which is not a
bankruptcy, reorganization, arrangement, insolvency, moratorium, liquidation or
similar Proceeding.
SECTION 5.05 Preservation of Collateral. (a) If an Event of
---------------------------
Default shall have occurred and be continuing when any of the Notes is
Outstanding, the Trustee shall retain the Collateral securing the Notes intact,
collect and cause the collection of the proceeds thereof and make and apply all
payments and deposits and maintain all Accounts in respect of the Collateral and
the Notes in accordance with the Priority of Payments and the provisions of
Articles X and XII unless either:
(i) the Trustee (or an Independent investment banking firm of
national standing selected by the Trustee) determines that the
anticipated proceeds of a Sale or liquidation of the Collateral (after
deducting the reasonable expenses of such Sale or liquidation) would be
sufficient to discharge in full the amounts then due and unpaid on the
Notes for principal, interest (including Defaulted Interest and
interest on Defaulted Interest, if any), and due and unpaid Mandatory
Expenses as limited by subclause (A) of Section 11.01(a)(i), and a
Majority of the Controlling Class agrees with such determination; or
(ii) the Holders of a Special Majority of the Aggregate
Outstanding Amount of each Class of Notes or the Liquidity Facility
Provider, voting as separate Classes, direct the Sale and liquidation
of the Collateral.
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The Trustee shall give written notice of the retention of the
Collateral to the Issuer. So long as such Event of Default is continuing, any
such retention pursuant to this Section 5.05(a) may be rescinded at any time
when the conditions specified in clause (i) or (ii) exist.
(b) Nothing contained in Section 5.05(a) shall be construed to
require the Trustee to preserve the Collateral securing the Notes if prohibited
by applicable law.
(c) In determining whether the condition specified in Section
5.05(a)(i) exists, the Trustee shall obtain bid prices with respect to each
Security contained in the Collateral from two (2) Independent nationally
recognized dealers, as specified by the Servicer in writing, which are
Independent from each other and the Servicer, at the time making a market in
such securities and shall compute the anticipated proceeds of sale or
liquidation on the basis of the lower of such bid prices for each such Security.
In addition, for the purposes of determining issues relating to the execution of
a sale or liquidation of the Collateral Interests and the execution of a Sale or
other liquidation thereof in connection with a determination whether the
condition specified in Section 5.05(a)(i) exists, the Trustee shall be provided
with an opinion of an Independent investment banking firm of national
reputation.
The Trustee shall deliver to the Noteholders, the Liquidity
Facility Provider and the Issuer a report stating the results of any
determination required pursuant to Section 5.05(a)(i) no later than ten (10)
days after making such determination but in any case after such Sale. The
Trustee shall make the determinations required by Section 5.05(a)(i) within 30
days after an Event of Default and at the request of a Majority of the
Controlling Class or the Liquidity Facility Provider at any time during which
the Trustee retains the Collateral pursuant to Section 5.05(a)(i). In the case
of each calculation made by the Trustee pursuant to Section 5.05(a)(i), the
Trustee shall obtain a letter of an Independent certified public accountant
confirming the accuracy of the computations of the Trustee and certifying their
conformity to the requirements of this Indenture. In determining whether the
Holders of the requisite Aggregate Outstanding Amount of any Class of Notes have
given any direction or notice or have agreed pursuant to Section 5.05(a), any
Holder of a Class of Notes who is also a Holder of another Class of Notes or any
Affiliate of any such Holder shall be counted as a Holder of each such Note for
all purposes.
(d) If an Event of Default shall have occurred and be
continuing at a time when no Notes are Outstanding, the Trustee shall retain the
Collateral securing the Notes intact, collect and cause the collection of the
proceeds thereof and make and apply all payments and deposits and maintain all
Accounts in respect of the Collateral and the Notes in accordance with the
Priority of Payments and the provisions of Article X unless a Majority of
Preferred Units direct the Sale and liquidation of the Collateral.
SECTION 5.06 Trustee May Enforce Claims Without Possession of
-------------------------------------------------
Notes. All rights of action and claims under this Indenture or the Notes may be
-----
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any Proceeding relating thereto, and any such
Proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall be applied as set forth
in Section 5.07.
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SECTION 5.07 Application of Money Collected. Any Money
---------------------------------
collected by the Trustee with respect to the Notes pursuant to this Article V
and any Money that may then be held or thereafter received by the Trustee with
respect to the Notes hereunder shall be applied, subject to Section 12.01 and in
accordance with the provisions of Section 11.01, at the date or dates fixed by
the Trustee.
SECTION 5.08 Limitation on Suits. No Holder of any Note shall
-------------------
have any right to institute any Proceedings, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written
notice of an Event of Default;
(b) except as otherwise provided in Section 5.09, the Holders
of at least 25% of then Aggregate Outstanding Amount of the Notes of the
Controlling Class shall have made written request to the Trustee to institute
Proceedings in respect of such Event of Default in its own name as Trustee
hereunder and such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(c) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such Proceeding; and
(d) no direction inconsistent with such written request has
been given to the Trustee during such 30-day period by a Majority of the
Controlling Class;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders of the Notes or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all the Holders of Notes of the same Class subject to and in accordance with
Section 12.01 and the Priority of Payments.
In the event the Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of the
Controlling Class or the Liquidity Facility Provider, each representing less
than a Majority of the Controlling Class and the Liquidity Facility Provider,
the Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
SECTION 5.09 Unconditional Rights of Noteholders to Receive
------------------------------------------------
Principal and Interest. (a) Notwithstanding any other provision in this
------------------------
Indenture (other than Section 2.06(i)), the Holder of any Class A Note shall
have the right, which is absolute and unconditional, to receive payment of the
principal of and interest on such Class A Note as such principal and interest
become due and payable in accordance with Section 12.01 and the Priority of
Payments and, subject to the provisions of Section 5.08, to institute
Proceedings for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder.
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(b) Notwithstanding any other provision in this Indenture
(other than Section 2.06(i)), the Holder of any Class B Note shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and interest on such Class B Note as such principal and interest become due
and payable in accordance with Section 12.01 and the Priority of Payments.
Holders of Class B Notes shall have no right to institute Proceedings for the
enforcement of any such payment until such time as no Class A Note remains
Outstanding, which right shall be subject to the provisions of Section 5.08, and
shall not be impaired without the consent of any such Holder.
(c) For so long as any of the Notes are Outstanding, the
Holders of the Preferred Units shall not be entitled to any payment on a claim
against the Issuer unless there are sufficient funds to pay amounts in
accordance with the Priority of Payments for payment of distributions to the
Holders of the Preferred Units pursuant to the Issuer's Operating Agreement.
SECTION 5.10 Restoration of Rights and Remedies. If the
--------------------------------------
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any, reason, or has been determined adversely to the Trustee or to
such Noteholder, then and in every such case the Issuer, the Trustee and the
Noteholder shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Secured Parties shall continue as
though no such Proceeding had been instituted.
SECTION 5.11 Rights and Remedies Cumulative. No right or
---------------------------------
remedy herein conferred upon or reserved to the Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing by law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.12 Delay or Omission Not Waiver. No delay or
--------------------------------
omission of the Trustee or of any Noteholder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to the Trustee or to
the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Noteholders, as the case may be.
SECTION 5.13 Control by Controlling Class and the Liquidity
-------------------------------------------------
Facility Provider. Notwithstanding any other provision of this Indenture (but
------------------
subject to the proviso in the definition of "Outstanding" in Section 1.01), a
-----------
Majority of the Controlling Class and the Liquidity Facility Provider shall have
the right to cause the institution of and direct the time, method and place of
conducting any Proceeding for any remedy available to the Trustee for exercising
any trust, right, remedy or power conferred on the Trustee; provided, that:
(a) such direction shall not conflict with any rule of law or
with this Indenture;
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(b) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction; provided, that, subject to
Section 6.01, the Trustee need not take any action that it determines might
involve it in liability (unless the Trustee has received satisfactory indemnity
against such liability as set forth below);
(c) the Trustee shall have been provided with indemnity
satisfactory to it; and
(d) any direction to the Trustee to undertake a Sale of the
Collateral shall be made only pursuant to, and in accordance with, Sections 5.04
and 5.05.
SECTION 5.14 Waiver of Past Defaults. Prior to the time a
-------------------------
judgment or decree for payment of the Money due has been obtained by the
Trustee, as provided in this Article V, a Majority of the Controlling Class and
the Liquidity Facility Provider may, on behalf of the Holders of all the Notes
waive any past Default and its consequences, except a Default:
(a) in the payment of the principal of (if any) any Note or in
the payment of interest (including Defaulted Interest and interest on Defaulted
Interest, if any) on the Class A1 Notes or, after the Class A1 Notes have been
paid in full, on the Class A2 Notes or, after the Class A2 Notes have been paid
in full, on the Class B1 Notes or, after the Class B1 Notes have been paid in
full, on the Class B2 Notes (including Defaulted Interest and interest on
Defaulted Interest, if any); or
(b) in respect of a covenant or provision hereof that under
Section 8.02 cannot be modified or amended without the waiver or consent of the
Holder of each Outstanding Note affected thereby; or
(c) arising under Section 5.01(g) or (h).
In the case of any such waiver, the Issuer, the Trustee and
the Holders of the Notes shall be restored to their former positions and rights
hereunder, respectively, but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
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 thereto and the
Trustee shall promptly give written notice of any such waiver to each Holder of
Notes. The Rating Agencies shall be notified by the Issuer of any such waiver.
SECTION 5.15 Undertaking for Costs. All parties to this
-----------------------
Indenture agree, and each Holder of any Note by its acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.15
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Noteholder, or group of Noteholders, holding in the aggregate more than 10%
in Aggregate Outstanding
- 56 -
Amount of the Controlling Class, or to any suit instituted by any Noteholder for
the enforcement of the payment of the principal of or interest on any Note on or
after the Stated Maturity expressed in such Note (or, in the case of Redemption,
on or after the applicable Redemption Date).
SECTION 5.16 Waiver of Stay or Extension Laws. The Issuer
----------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force (including by the voluntary commencement of a
Proceeding or the filing of a petition seeking winding up, liquidation,
reorganization or other relief under any bankruptcy, insolvency, receivership or
similar law now or hereafter in effect), which may affect the covenants, the
performance of or any remedies under this Indenture; and the Issuer (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenant that they will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.17 Sale of Collateral. (a) The power to effect any
-------------------
sale (a "Sale") of any portion of the Collateral pursuant to Sections 5.04 and
----
5.05 shall not be exhausted by any one or more Sales as to any portion of such
Collateral remaining unsold, but shall continue unimpaired until the entire
Collateral shall have been sold or all amounts secured by the Collateral shall
have been paid. The Trustee may upon notice to the Noteholders, the Preferred
Unitholders and shall, upon direction of a Majority of the Controlling Class and
the Liquidity Facility Provider from time to time postpone any Sale by
announcement made at the time and place of such Sale; provided, that, if the
Sale is rescheduled for a date more than five (5) Business Days after the date
of the determination by the Trustee (or an Independent investment banking firm
of national standing selected by the Trustee) pursuant to Section 5.05, such
Sale shall not occur unless and until the Trustee has again made the
determination required by Section 5.05. The Trustee hereby expressly waives its
rights to any amount fixed by law as compensation for any Sale; provided, that
--------
the Trustee shall be authorized to deduct the reasonable costs, charges and
expenses incurred by it in connection with such Sale from the proceeds thereof
notwithstanding the provisions of Section 6.07.
(b) The Trustee may bid for and acquire any portion of the
Collateral in connection with a public Sale thereof, by crediting all or part of
the net proceeds of such Sale after deducting the reasonable costs, charges and
expenses incurred by the Trustee in connection with such Sale notwithstanding
the provisions of Section 6.07. The Notes need not be produced in order to
complete any such Sale, or in order for the net proceeds of such Sale to be
credited against amounts owing on the Notes. The Trustee may hold, lease,
operate, manage or otherwise deal with any property so acquired in any manner
permitted by law in accordance with this Indenture.
(c) If any portion of the Collateral consists of securities
not registered under the Securities Act ("Unregistered Securities"), the Trustee
-----------------------
may seek an Opinion of Counsel, or, if no such Opinion of Counsel can be
obtained and with the consent of a Majority of the Controlling Class, then the
Trustee, at the written direction of a Majority of the Controlling Class, and at
their expense, may seek a no-action position from the United States Securities
and
- 57 -
Exchange Commission or any other relevant Federal or state regulatory
authorities, regarding the legality of a public or private sale of such
Unregistered Securities.
(d) The Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion of the
Collateral in connection with a Sale thereof. In addition, the Trustee is hereby
irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer
and convey its interest in any portion of the Collateral in connection with a
Sale thereof, and to take all action necessary to effect such Sale. No purchaser
or transferee at such a Sale shall be bound to ascertain the Trustee's
authority, to inquire into the satisfaction of any conditions precedent or see
to the application of any Monies.
SECTION 5.18 Action on the Notes. The Trustee's right to seek
-------------------
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking or obtaining of or application for any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Trustee or the Secured Parties shall be impaired by the recovery
of any judgment by the Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any of
the assets of the Issuer.
ARTICLE VI
THE TRUSTEE
SECTION 6.01 Certain Duties and Responsibilities. (a) Except
------------------------------------
during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically and expressly set forth in this
Indenture, 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; provided, that, in the case of any such certificates or
--------
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they substantially conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein)
and shall promptly, but in any event within three (3) Business Days in
the case of an Officer's certificate furnished by the Issuer, notify
the party delivering the same if such certificate or opinion does not
conform. If a corrected form shall not have been delivered to the
Trustee within 15 days after such notice from the Trustee, the Trustee
shall so notify the Noteholders.
(b) In case an Event of Default known to the Trustee has
occurred and is continuing, the Trustee shall, prior to the receipt of
directions, if any, from a Majority of the Controlling Class, exercise such of
the rights and powers vested in it by this Indenture, and use
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the 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.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this subclause (c) shall not be construed to limit the
effect of subclause (a) of this Section 6.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it shall be proven that
the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Issuer or the Servicer in accordance with
this Indenture and/or a Majority (or such other percentage as may be
required by the terms hereof) of the Controlling Class (or other Class
if required or permitted by the terms hereof) relating to the time,
method and place of conducting any Proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers contemplated hereunder, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it (if the amount of such funds or risk or
liability does not exceed the amount payable to the Trustee pursuant to
Section 11.01(a)(i)(A) net of the amounts specified in Section
6.08(a)(i), the Trustee shall be deemed to be reasonably assured of
such repayment) unless such risk or liability relates to performance of
its ordinary services, including under Article V, under this Indenture.
(d) For all purposes under this Indenture, the Trustee shall
not be deemed to have notice or knowledge of any Event of Default described in
Section 5.01(e), 5.01(g), or 5.01(h) or any Default described in Section 5.01(f)
or 5.01(i) unless a Trust Officer assigned to and working in the Corporate Trust
Office has actual knowledge thereof or unless written notice of any event which
is in fact such an Event of Default or such a Default, as the case may be, is
received by a Trust Officer at the Corporate Trust Office. For purposes of
determining the Trustee's responsibility and liability hereunder, whenever
reference is made in this Indenture to such an Event of Default or such a
Default, as the case may be, such reference shall be construed to refer only to
such an Event of Default or such a Default, as the case may be, of which the
Trustee is deemed to have notice as described in this Section 6.01(d).
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Article VI.
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(f) The Trustee shall, upon reasonable (but no less than two
(2) Business Days') prior written notice to the Trustee, permit any
representative of a Holder of a Note, during the Trustee's normal business
hours, to examine all books of account, records, reports and other papers of the
Trustee relating to the Notes, to make copies and extracts therefrom (the
reasonable out-of-pocket expenses incurred in making any such copies or extracts
to be reimbursed to the Trustee by such Holder) and to discuss the Trustee's
actions, as such actions relate to the Trustee's duties with respect to the
Notes, with the Trustee's officers and employees responsible for carrying out
the Trustee's duties with respect to the Notes.
SECTION 6.02 Notice of Default. Promptly (and in no event
------------------
later than two (2) Business Days) after the occurrence of any Default known to
the Trustee or after any declaration of acceleration has been made or delivered
to the Trustee pursuant to Section 5.02, the Trustee shall mail to each Rating
Agency (for so long as any Class of Notes is Outstanding) and to all Holders of
Notes, as their names and addresses appear on the Note Register, and the
Preferred Unitholders notice of all Defaults hereunder known to the Trustee,
unless such Default shall have been cured or waived.
SECTION 6.03 Certain Rights of Trustee. Except as otherwise
--------------------------
provided in Sections 6.01, 8.01 and 8.02:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, note or other paper or document (whether in its original or facsimile
form) reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer Request or Issuer Order, as the
case may be;
(c) whenever in the administration of this Indenture the
Trustee shall (i) deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officer's certificate or (ii) be required to
determine the value of any Collateral or funds hereunder or the cashflows
projected to be received therefrom, the Trustee may, in the absence of bad faith
on its part, conclusively rely on reports of nationally recognized accountants,
investment bankers or other Persons qualified to provide the information
required to make such determination, including nationally recognized dealers in
securities of the type being valued and securities quotation services;
(d) as a condition to the taking or omitting of any action by
it hereunder, the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise or to
honor any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Trustee
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reasonable security or indemnity against the costs, expenses and liabilities
which might reasonably be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, note or
other paper documents, but the Trustee, in its discretion, may and, upon the
written direction of a Majority of any Class or of any Rating Agency shall make
such further inquiry or investigation into such facts or matters as it may see
fit or as it shall be directed, and, the Trustee shall be entitled, on
reasonable prior notice to and at the expense of the Issuer, to examine the
books and records of the Issuer relating to the Notes and the Collateral,
personally or by agent or attorney at a time acceptable to the Issuer in its
reasonable judgment during normal business hours; provided, that it is at the
--------
sole cost of the Issuer, the Trustee shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation, and the
Trustee shall, and shall cause its agents, to hold in confidence all such
information, except (i) to the extent disclosure may be required by law by any
regulatory authority and (ii) to the extent that the Trustee, in its sole
judgment, may determine that such disclosure is consistent with its obligations
hereunder;
(g) in no event shall the Trustee be liable for consequential,
punitive or special damages;
(h) in no event shall the Trustee be liable for any losses
beyond its reasonable control, including without limitation, strikes, work
stoppages, acts of war or terrorism, insurrections, revolution, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services;
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including without limitation, its right to be
indemnified, are extended to, and shall be enforceable by the Trustee in each of
its capacities hereunder;
(j) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, that the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent (other than any Affiliate of
the Trustee) appointed, or attorney appointed, with due care by it hereunder;
(k) in the event Aon Capital Managers, LLC is no longer the
Servicer or is unable to perform its functions under the Servicing Agreement,
the Trustee, the holders of a Majority of the Notes, the Liquidity Facility
Provider and the Issuer shall have the right to appoint a Servicer at a
Servicing Fee higher than the Servicing Fee rate set forth in the Servicing
Agreement;
(l) the Trustee shall not be responsible for, or liable for,
the negligence or misconduct of the Servicer. The Trustee shall not have a duty
to monitor or supervise the Servicer and the Trustee shall be fully protected in
relying on any instructions given hereunder by the Servicer; and
(m) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it reasonably and, after the occurrence and
during the continuance of an Event of
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Default (subject to Section 6.01(b)), prudently believes to be authorized or
within its rights or powers hereunder.
SECTION 6.04 Authenticating Agents. Upon the request of the
----------------------
Issuer, the Trustee shall, and if the Trustee so chooses the Trustee may,
appoint one or more Authenticating Agents with power to act on its behalf and
subject to its direction in the authentication of Notes in connection with
issuance, transfers and exchanges under Sections 2.04, 2.05 and 8.05, as fully
to all intents and purposes as though each such Authenticating Agent had been
expressly authorized by those Sections to authenticate such Notes. For all
purposes of this Indenture, the authentication of Notes by an Authenticating
Agent pursuant to this Section 6.04 shall be deemed to be the authentication of
Notes "by the Trustee".
Any corporation into which any Authenticating 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
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, without the execution or filing of any
further act on the part of the parties hereto or such Authenticating Agent or
such successor corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and the Issuer. The Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and the Issuer. Upon
receiving such notice of resignation or upon such a termination, the Trustee
shall promptly appoint a successor Authenticating Agent and shall give written
notice of such appointment to the Issuer.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services, and reimbursement for its
reasonable expenses relating thereto and the Trustee shall be entitled to be
reimbursed for such payments, subject to Section 6.08. The provisions of
Sections 6.05 and 6.06 shall be applicable to any Authenticating Agent.
SECTION 6.05 Trustee Not Responsible for Recitals or Issuance
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of Notes. The recitals contained herein and in the Notes, other than the
--------
Certificate of Authentication thereon, shall be taken as the statements of the
Issuer, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture (except as may be made with respect to the validity of the Trustee's
obligations hereunder), of the Collateral or of the Notes. The Trustee shall not
be accountable for the use or application by the Issuer of the Notes or the
proceeds thereof or any Money paid to the Issuer pursuant to the provisions
hereof.
SECTION 6.06 Trustee May Hold Notes. The Trustee, any Paying
----------------------
Agent, the Note Registrar or any other agent of the Issuer, in its individual or
any other capacity, may become the owner or pledgee of Notes and, may otherwise
deal with the Issuer or any of its Affiliates, with the same rights it would
have if it were not Trustee, Paying Agent, Note Registrar or such other agent.
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SECTION 6.07 Money Held in Trust. Money held by the Trustee
-------------------
hereunder shall be held in trust to the extent required herein. The Trustee
shall be under no liability for interest on any Money received by it hereunder
except as otherwise agreed upon with the Issuer and except to the extent of
income or other gain on investments which are deposits in or certificates of
deposit of the Trustee in its commercial capacity and income or other gain
actually received by the Trustee on Eligible Investments.
SECTION 6.08 Compensation and Reimbursement. (a) The Issuer
-------------------------------
agrees:
(i) to pay the Trustee on each Quarterly Distribution Date
reasonable compensation for all services, including custodial services,
rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust), as set forth in a letter agreement, dated as of the
Closing Date, between the Issuer and the Trustee;
(ii) except as otherwise expressly provided herein, to
reimburse the Trustee (subject to any written agreement between the
Issuer and the Trustee) in a timely manner upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including
without limitation (A) securities transaction charges, (B) all
reasonable compensation, expenses and disbursements (including those of
its agents and legal counsel), and (C) reasonable compensation,
expenses and disbursements of any accounting firm or investment banking
firm employed by the Trustee pursuant to Section 5.04, 5.05, 5.17,
10.04 or 10.06, except any such expense, disbursement or advance as
shall be determined by a court of competent jurisdiction to have been
caused by its own negligence, willful misconduct or bad faith) but only
to the extent any such securities transaction charges have not been
waived during a Due Period due to the Trustee's receipt of a payment
from a financial institution with respect to certain Eligible
Investments, as specified by the Servicer;
(iii) to fully indemnify the Trustee and its Officers,
directors, employees, nominees and agents for, and to hold them
harmless against, any and all loss, claim, damage, liability or expense
incurred without negligence, willful misconduct or bad faith on their
part, arising out of or in connection with the acceptance or
administration of this Indenture and any of the other various
capacities for which the Trustee may act hereunder or any act under any
other agreement in any other capacity that is related hereto, including
the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of
their powers or duties hereunder;
(iv) to pay the Trustee reasonable additional compensation
together with its expenses (including reasonable counsel fees) for any
collection action taken pursuant to Section 6.14;
(v) in the event the Trustee incurs expenses or renders
services after the occurrence of an Event of Default described in
Section 5.01(g) or (h), the expenses
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and the compensation for the services shall constitute expenses of
administration under the Bankruptcy Code.
(b) The Issuer may remit payment for such fees and expenses to
the Trustee or, in the absence thereof, the Trustee may from time to time deduct
payment of its fees and expenses hereunder from Monies on deposit in the
Collection Account for the Notes pursuant to Section 11.01.
(c) The Trustee hereby agrees not to cause the filing of a
petition in bankruptcy against the Issuer for the non-payment to the Trustee of
any amounts provided by this Section 6.08 until at least one year and one day,
or if longer the applicable preference period then in effect, after the payment
in full of all Notes issued under this Indenture.
(d) The amounts payable to the Trustee pursuant to Sections
6.08(a)(i) and (ii) (other than amounts received by the Trustee from financial
institutions under clause (a)(ii) above) shall not, except as provided by
Section 11.01(a)(i)(A), exceed on any Quarterly Distribution Date the Dollar
limitation described in Section 11.01(a)(i)(A) for such Quarterly Distribution
Date and the Trustee shall have a lien ranking senior to that of the Noteholders
upon all property and funds held or collected as part of the Collateral to
secure payment of amounts payable to the Trustee under this Section 6.08 not to
exceed such amount with respect to any Quarterly Distribution Date (it being
understood that if there is an Event of Default, then the Trustee's lien granted
herein shall be senior as to any existing lien of, or any lien created
thereafter for the benefit of, the Liquidity Facility Provider under Section
12.01); provided, that (A) the Trustee shall not institute any Proceeding for
enforcement of such lien except in connection with an action pursuant to Section
5.03 or 5.04 for the enforcement of the lien of this Indenture for the benefit
of the Noteholders and (B) the Trustee may only enforce such a lien in
conjunction with the enforcement of the rights of Noteholders in the manner set
forth in Section 5.04.
The Trustee shall, subject to the Priority of Payments,
receive amounts pursuant to this Section 6.08 and Sections 11.01(a)(i) and (ii)
only to the extent that the payment thereof will not result in an Event of
Default and the failure to pay such amounts to the Trustee will not, by itself,
constitute an Event of Default. Subject to Section 6.10, the Trustee shall
continue to serve as Trustee under this Indenture notwithstanding the fact that
the Trustee shall not have received amounts due it hereunder and hereby agrees
not to cause the filing of a petition in bankruptcy against the Issuer for the
nonpayment to the Trustee of any amounts provided by this Section 6.08 until at
least one year and one day, or if longer, the applicable preference period then
in effect, after the payment in full of all Notes issued under this Indenture.
No direction by a Majority of the Controlling Class shall affect the right of
the Trustee to collect amounts owed to it under this Indenture.
SECTION 6.09 Corporate Trustee Required; Eligibility. There
-----------------------------------------
shall at all times be a Trustee hereunder which shall be a corporation or trust
company organized and doing business under the laws of the United States or of
any state thereof, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least U.S.$200,000,000,
subject to supervision or examination by Federal or state authority, having a
rating of at least "BBB+" by Standard & Poor's and having an office within the
United States. If
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such corporation publishes reports of 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 6.09, the combined capital and surplus of
such corporation 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 the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 6.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VI.
SECTION 6.10 Resignation and Removal; Appointment of
----------------------------------------------
Successor. (a) No resignation or removal of the Trustee and no appointment of a
---------
successor Trustee pursuant to this Article VI shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving 30 days'
prior written notice thereof to the Issuer, the Noteholders, the Preferred
Unitholders and each Rating Agency. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees by written
instrument, in duplicate, executed by an Authorized Officer of the Issuer, one
copy of which shall be delivered to the Trustee so resigning and one copy to the
successor trustee or trustees, together with a copy to each Noteholder;
provided, that such successor Trustee shall be appointed only upon the written
consent of a Majority of each Class or, at any time when an Event of Default
shall have occurred and be continuing, by a Majority of the Controlling Class.
If no successor trustee shall have been appointed and an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 60 days after the giving of such notice of resignation, the resigning
Trustee, any Holder of a Note, on behalf of itself and all others similarly
situated, may petition, at the expense of the Issuer, any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of a
Majority of any Class or at any time when an Event of Default shall have
occurred and be continuing or when a successor Trustee has been appointed
pursuant to Section 6.11, by Act of a Majority of the Controlling Class,
delivered to the Trustee and to the Issuer.
(d) If at any time:
(i) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Issuer
or by any Holder; or
(ii) the Trustee shall become incapable of acting or shall be
adjudged as bankrupt or insolvent or a receiver or liquidator of the
Trustee or of its property shall be appointed or any public officer
shall take charge or Control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case (subject to Section 6.10(a)), (A) the Issuer, by
Issuer Order, may remove the Trustee, or (B) subject to Section 5.15,
any Holder may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
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(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Trustee
for any reason, the Issuer, by Issuer Order, shall promptly appoint a successor
Trustee. If the Issuer shall fail to appoint a successor Trustee within 60 days
after such resignation, removal or incapability or the occurrence of such
vacancy, a successor Trustee may be appointed by Act of a Majority of the
Controlling Class delivered to the Issuer and the retiring Trustee. The
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede any successor Trustee
proposed by the Issuer. If no successor Trustee shall have been so appointed by
the Issuer or such Holders and shall have accepted appointment in the manner
hereinafter provided, subject to Section 5.15, any Holder may, on behalf of
itself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Issuer shall give prompt notice of each resignation
and each removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first class mail, postage prepaid, to
each Rating Agency and to the Holders as their names and addresses appear in the
Note Register. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office. If the Issuer fail to mail such
notice within ten days after acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be given at the expense of the
Issuer.
SECTION 6.11 Acceptance of Appointment by Successor. Every
----------------------------------------
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Issuer and the retiring Trustee an instrument accepting such appointment.
Upon delivery of the required instruments, the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
other act, deed or conveyance, shall become vested with all the rights, powers,
trusts, duties and obligations of the retiring Trustee; but, on request of the
Issuer or a Majority of any Class or the successor Trustee, such retiring
Trustee shall, upon payment of its charges then unpaid, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and Money held by such retiring Trustee
hereunder, subject nevertheless to its lien, if any, provided for in Section
6.08(d). Upon request of any such successor Trustee, the Issuer shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless (a)
at the time of such acceptance such successor shall (i) have long term debt
rated at least "BBB+" by Standard & Poor's and (ii) be qualified and eligible
under this Article VI and (b) the Rating Confirmation shall have been satisfied
with respect to such appointment. No appointment of a successor Trustee shall
become effective if a Majority of the Controlling Class objects to such
appointment; and no appointment of a successor shall become effective until the
date ten days after notice of such appointment has been given to each
Noteholder.
SECTION 6.12 Merger, Conversion, Consolidation or Succession
-------------------------------------------------
to Business of Trustee. Any Person into which the Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Person succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the
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Trustee hereunder; provided, that such Person shall be otherwise qualified and
--------
eligible under this Article VI, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any of the
Notes have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Notes so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Notes.
SECTION 6.13 Co-Trustees. At any time or times, for the
-----------
purpose of meeting the legal requirements of any jurisdiction in which any part
of the Collateral may at the time be located, the Issuer and the Trustee shall
have power to appoint one or more Persons to act as co-trustee, jointly with the
Trustee of all or any part of the Collateral, with the power to file such proofs
of claim and take such other actions pursuant to Section 5.06 and to make such
claims and enforce such rights of action on behalf of the Holders of the Notes
subject to the other provisions of this Section 6.13.
The Issuer shall join with the Trustee in the execution,
delivery and performance of all instruments and agreements necessary or proper
to appoint a co-trustee. If the Issuer do not join in such appointment within 15
days after the receipt by them of a request to do so, the Trustee shall have
power to make such appointment.
Should any written instrument from the Issuer be required by
any co-trustee so appointed for more fully confirming to such co-trustee such
property, title, right or power, any and all such instruments shall, on request,
be executed, acknowledged and delivered by the Issuer. The Issuer agrees to pay
(subject to the Priority of Payments) for any reasonable fees and expenses in
connection with such appointment.
Every co-trustee shall, to the extent permitted by law, but to
such extent only, be appointed subject to the following terms:
(a) the Notes shall be authenticated and delivered and all
rights, powers, duties and obligations hereunder in respect of the custody of
securities, Cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised solely by
the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property covered by the
appointment of a co-trustee shall be conferred or imposed upon and exercised or
performed by the Trustee or by the Trustee and such co-trustee jointly, as shall
be provided in the instrument appointing such co-trustee, except to the extent
that under any law of any jurisdiction in which any particular act is to be
performed, the Trustee shall be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and obligations shall be exercised
and performed by a co-trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Issuer evidenced by an Issuer Order,
may accept the resignation of or remove any co-trustee appointed under this
Section 6.13, and in case an Event of Default has occurred and is continuing,
the Trustee shall have the power to accept the resignation of, or
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remove, any such co-trustee without the concurrence of the Issuer. A successor
to any co-trustee so resigned or removed may be appointed in the manner provided
in this Section 6.13;
(d) no co-trustee hereunder shall be personally liable by
reason of any act or omission of the Trustee or any other co-trustee hereunder;
(e) the Trustee shall not be liable by reason of any act or
omission of a co-trustee; and
(f) any Act of Noteholders delivered to the Trustee shall be
deemed to have been delivered to each co-trustee.
SECTION 6.14 Certain Duties Related to Delayed Payment of
-----------------------------------------------
Proceeds. In the event that the Trustee shall not have received a payment with
--------
respect to any Collateral Interest on its Due Date (a) the Trustee shall
promptly notify the Issuer in writing and (b) unless within three (3) Business
Days (or the end of the applicable grace period for such payment, if longer)
after such notice (i) such payment shall have been received by the Trustee, or
(ii) the Issuer, in its absolute discretion (but only to the extent permitted by
Section 10.02(c)), shall have made provision for such payment satisfactory to
the Trustee in accordance with Section 10.02(c), the Trustee shall request the
issuer of such Collateral Interest, the trustee under the related Limited
Partnership Agreement or paying agent designated by either of them, as the case
may be, to make such payment as soon as practicable after such request but in no
event later than three (3) Business Days after the date of such request. In the
event that such payment is not made within such time period, the Trustee,
subject to the provisions of Section 6.01(c)(iv), shall take such action as the
Issuer shall direct in writing. Any such action shall be without prejudice to
any right to claim a Default under this Indenture. In the event that the Issuer
requests a release of a Collateral Interest and/or delivers a new Collateral
Interest in connection with any such action, such release and/or delivery shall
be subject to Section 10.05, as the case may be. Notwithstanding any other
provision hereof, the Trustee shall deliver to the Issuer or its designee any
payment with respect to any Collateral Interest received after the Due Date
thereof to the extent the Issuer previously made provisions for such payment
satisfactory to the Trustee in accordance with Section 10.02(c) and this Section
6.14 and such payment shall not be deemed part of the Collateral.
SECTION 6.15 Representations and Warranties of the Trustee.
---------------------------------------------
(a) Organization. The Trustee is a duly organized and validly
------------
existing banking corporation under the laws of the State of New York and has the
power to conduct its business and affairs as a trustee.
(b) Authorization; Binding Obligations. The Trustee has the
------------------------------------
corporate power and authority to perform the duties and obligations of Trustee,
Note Registrar and Transfer Agent under this Indenture. The Trustee has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Indenture, and all of the documents required to be executed
by the Trustee pursuant hereto. This Indenture has been duly executed and
delivered by the Trustee. Upon execution and delivery by the Issuer, this
Indenture will constitute the legal, valid and binding obligation of the Trustee
enforceable in accordance with its terms.
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(c) Eligibility. The Trustee is eligible under Section 6.09 to
-----------
serve as Trustee hereunder and satisfies the trustee eligibility requirements
set forth in Rule 3a-7(a)(4)(i) under the Investment Company Act.
(d) No Conflict. Neither the execution, delivery and
------------
performance of this Indenture, nor the consummation of the transactions
contemplated by this Indenture, (i) is prohibited by, or requires the Trustee to
obtain any consent, authorization, approval or registration under, any law,
statute, rule, regulation, judgment, order, writ, injunction or decree that is
binding upon the Trustee or any of its properties or assets, or (ii) will
violate any provision of, result in any default or acceleration of any
obligations under, result in the creation or imposition of any lien pursuant to,
or require any consent under, any agreement to which the Trustee is a party or
by which it or any of its property is bound.
(e) No Proceedings. There are no Proceedings pending, or to
--------------
the best knowledge of the Trustee, threatened against the Trustee before any
Federal, state or other governmental agency, authority, administrator or
regulatory body, arbitrator, court or other tribunal, foreign or domestic, that
could have a material adverse effect on the Collateral or any action taken or to
be taken by the Trustee under this Indenture.
SECTION 6.16 Exchange Offers. The Issuer may instruct the
----------------
Trustee pursuant to an Issuer Order to, and the Trustee shall, take any of the
following actions with respect to a Collateral Interest as to which an exchange
offer has been made: (i) exchange such instrument for other securities or a
mixture of securities and other consideration pursuant to such exchange offer;
and (ii) give consent, grant waiver, vote or exercise any or all other rights or
remedies with respect to any such Collateral Interest.
ARTICLE VII
COVENANTS
SECTION 7.01 Payment of Principal and Interest. The Issuer
-----------------------------------
will duly and punctually pay all principal and interest (including Defaulted
Interest and interest thereon, if any) in accordance with the terms of the Notes
and this Indenture. Amounts properly withheld under the Code or other applicable
law by any Person from a payment to any Noteholder of principal and/or interest
shall be considered as having been paid by the Issuer to such Noteholder for all
purposes of this Indenture.
The Trustee hereby provides notice to each Noteholder that the
failure of such Noteholder to provide the Trustee with appropriate tax
certifications may result in amounts being withheld from payments to such
Noteholder under this Indenture (provided, that amounts withheld pursuant to
applicable tax laws shall be considered as having been paid by the Issuer as
provided above with respect to the Class B Notes).
SECTION 7.02 Maintenance of Office or Agency. The Issuer
---------------------------------
hereby appoints the Trustee as Paying Agent for the payment of principal of and
interest on the Notes and the payment of any distributions due with respect to
the Preferred Units. The Issuer hereby appoints the Trustee as the Issuer's
agent where notices and demands to or upon the Issuer in
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respect of the Notes or this Indenture may be served and where such Notes may be
surrendered for registration of transfer or exchange.
The Issuer may at any time and from time to time vary or
terminate the appointment of any such agent or appoint any additional agents for
any or all of such purposes; provided, that (A) the Issuer will maintain in the
--------
Borough of Manhattan, The City of New York, an office or agency where notices
and demands to or upon the Issuer in respect of the Notes and this Indenture may
be served and (B) no Paying Agent shall be appointed in a jurisdiction which
subjects payments on the Notes to withholding tax. The Issuer shall give prompt
written notice to the Trustee, each Rating Agency and the Noteholders of the
appointment or termination of any such agent and of the location and any change
in the location of any such office or agency.
If at any time the Issuer shall fail to maintain any such
required office or agency in the Borough of Manhattan, The City of New York or
shall fail to furnish the Trustee with the address thereof, presentations and
surrenders may be made at and notices and demands may be served on the Issuer,
and Notes may be presented and surrendered for payment to the Paying Agent at
its office (and the Issuer hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands).
SECTION 7.03 Money for Note Payments to be Held in Trust. All
-------------------------------------------
payments of amounts due and payable with respect to any Notes that are to be
made from amounts withdrawn from the Collection Account shall be made on behalf
of the Issuer by the Trustee or a Paying Agent with respect to payments on the
Notes.
When the Issuer shall have a Paying Agent that is not also the
Note Registrar, they shall furnish, or cause the Note Registrar to furnish, no
later than the fifth calendar day after each Record Date a list, if necessary,
in such form as such Paying Agent may reasonably request, of the names and
addresses of the Holders and of the certificate numbers of individual Notes held
by each such Holder.
Whenever the Issuer shall have a Paying Agent other than the
Trustee, it shall, on or before the Business Day next preceding each Quarterly
Distribution Date, as the case may be, direct the Trustee to deposit on such
Quarterly Distribution Date, with such Paying Agent, if necessary, an aggregate
sum sufficient to pay the amounts then becoming due (to the extent funds are
then available for such purpose in the Collection Account, as the case may be),
such sum to be held in trust for the benefit of the Persons entitled thereto and
(unless such Paying Agent is the Trustee) the Issuer shall promptly notify the
Trustee of its action or failure so to act. Any Monies deposited with a Paying
Agent (other than the Trustee) in excess of an amount sufficient to pay the
amounts then becoming due on the Notes with respect to which such deposit was
made shall be paid over by such Paying Agent to the Trustee for application in
accordance with Article X.
The initial Paying Agent shall be as set forth in Section
7.02. Any additional or successor Paying Agents shall be appointed by Issuer
Order with written notice thereof to the Trustee; provided, that so long as any
--------
Class of Notes is rated by the Rating Agencies and with respect to any
additional or successor Paying Agent for the Notes, either (i) such Paying Agent
for the Notes has a rating of a rating of not less than "AA-" and not less than
"A-1+" by Standard
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& Poor's or (ii) the Rating Confirmation Test is satisfied with respect to such
appointment. In the event that such successor Paying Agent ceases to have a
rating of a rating of at least "AA-" and of "A-1+" by Standard & Poor's and the
ratings on the Notes have not been confirmed, the Issuer shall promptly remove
such Paying Agent and appoint a successor Paying Agent. The Issuer shall not
appoint any Paying Agent (other than an initial Paying Agent) that is not, at
the time of such appointment, a depository institution or trust company subject
to supervision and examination by Federal and/or state and/or national banking
authorities. The Issuer shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee (and if the Trustee acts as Paying Agent, it hereby
so agrees), subject to the provisions of this Section 7.03, that such Paying
Agent will:
(a) allocate all sums received for payment to the Holders of
Notes for which it acts as Paying Agent on each Quarterly Distribution Date
among such Holders in the proportion specified in the instructions set forth in
the applicable Quarterly Report or as otherwise provided herein, in each case to
the extent permitted by applicable law;
(b) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided and pay such sums to such Persons as herein provided;
(c) if such Paying Agent is not the Trustee, immediately
resign as a Paying Agent and forthwith pay to the Trustee all sums held by it in
trust for the payment of Notes if at any time it ceases to meet the standards
set forth above required to be met by a Paying Agent at the time of its
appointment;
(d) if such Paying Agent is not the Trustee, immediately give
the Trustee notice of any Default by the Issuer (or any other obligor upon the
Notes) in the making of any payment required to be made; and
(e) if such Paying Agent is not the Trustee 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.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such Money.
Except as otherwise required by applicable law, any Money
deposited with the Trustee or any Paying Agent in trust for the payment of the
principal of or interest on any Note and remaining unclaimed for two (2) years
after such principal or interest has become due and payable shall be paid to the
Issuer on Issuer Request; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment of such amounts
and all liability of the Trustee or such Paying Agent with respect to such trust
Money (but only to
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the extent of the amounts so paid to the Issuer) shall thereupon cease. The
Trustee or such Paying Agent, before being required to make any such release of
payment, may, but shall not be required to, adopt and employ, at the expense of
the Issuer, any reasonable means of notification of such release of payment,
including mailing notice of such release to Holders whose Notes have been called
but have not been surrendered for Redemption or whose right to or interest in
Monies due and payable but not claimed is determinable from the records of any
Paying Agent, at the last address of record of each such Holder.
SECTION 7.04 Existence of the Issuer. The Issuer shall
--------------------------
maintain in full force and effect its existence and rights as a limited
liability company organized under the laws of the State of Delaware and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes or any other Collateral.
The Issuer shall ensure that all limited liability company or
other formalities regarding its existence (including the holding of regular
meetings of its members, or other similar, meetings) are followed. The Issuer
shall not take any action, or conduct its affairs in a manner, that is likely to
result in its separate existence being ignored or in its assets and liabilities
being substantively consolidated with those of any other Person in a bankruptcy,
reorganization or other insolvency Proceeding. Without limiting the foregoing,
(a) the Issuer shall not have any subsidiaries and (b) the Issuer shall not (i)
have any employees, (ii) engage in any transaction with any member that would
constitute a conflict of interest, (iii) commingle its Cash with that of any
other Person, (iv) conduct its business in any name other than its own, or (v)
pay distributions other than in accordance with the terms of this Indenture and
the Operating Agreement; provided, that the foregoing shall not prohibit the
Issuer from entering into the transactions contemplated by the Servicing
Agreement with the Servicer.
SECTION 7.05 Protection of Collateral. (a) The Issuer shall
-------------------------
from time to time execute and deliver all such supplements and amendments hereto
and all such instruments of further assurance and other instruments, and shall
take such other action as may be necessary or advisable or desirable to secure
the rights and remedies of the Secured Parties hereunder and to:
(i) Grant more effectively all or any portion of the
Collateral;
(ii) maintain, preserve and perfect the lien (and the first
priority nature thereof) of this Indenture or to carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture (including any and all
actions necessary or desirable as a result of changes in law or
regulations);
(iv) enforce any of the Collateral Interests or other
instruments or property included in the Collateral;
(v) preserve and defend title to the Collateral and the rights
therein of the Trustee, the Holders of the Notes against the claims of
all Persons and parties; or
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(vi) pay or cause to be paid any and all taxes levied or
assessed upon all or any part of the Collateral.
Notwithstanding the foregoing, the Issuer shall designate the
Servicer in the Servicing Agreement as its agent and attorney-in-fact to execute
and deliver all such Financing Statements and continuation statements or other
instruments as may be necessary or advisable to secure the rights and remedies
of the Secured Parties hereunder with respect to the Collateral. The Issuer
agrees that a carbon, photographic, photostatic or other reproduction of this
Indenture or of a Financing Statement is sufficient as a Financing Statement.
(b) The Trustee shall not (i) except in accordance with
Section 10.05(a), (b) or (c), as applicable, remove any portion of the
Collateral that consists of Cash or is evidenced by an instrument, certificate
or other writing (A) from the jurisdiction in which it was held as described in
the Opinion of Counsel delivered at the Closing Date pursuant to Section
3.01(a)(iii), or (B) from the possession of the Person who held it on such date
or (ii) cause or permit ownership or the pledge of any portion of the Collateral
that consists of book-entry securities to be recorded on the books of a Person
(A) located in a different jurisdiction from the jurisdiction in which such
ownership or pledge was recorded at such date or (B) other than the Person on
whose books such ownership or pledge was recorded at such date, unless the
Trustee shall have first received an Opinion of Counsel to the effect that the
lien and security interest created by this Indenture with respect to such
property will continue to be maintained after giving effect to such action or
actions.
(c) The Issuer shall pay or cause to be paid taxes, if any,
levied on account of the beneficial ownership by the Issuer of any Collateral
Interests that secure the Notes.
(d) The Issuer shall enforce all of its material rights and
remedies under each of the Operating Agreement and the Servicing Agreement. The
Issuer will not enter into any agreement amending, modifying or terminating, the
Operating Agreement or the Servicing Agreement without (i) ten (10) days' prior
notice to each Rating Agency, (ii) ten (10) days' prior notice thereof to the
Trustee, which notice shall specify the action proposed to be taken by the
Issuer (and the Trustee shall promptly deliver a copy of such notice to each
Noteholder), and (iii) satisfaction of the Rating Confirmation Test with respect
thereto.
(e) Without at least 30 days' prior written notice to the
Trustee, the Issuer shall not change its name, or the name under which it does
business, from the name shown on the signature pages hereto.
(f) The Issuer agrees to deliver to the Trustee and the Rating
Agency a certificate of an Authorized Officer to the effect set forth in Section
3.02(b)(i) promptly after the distribution to the Issuer of any non-Cash
property by a Limited Partnership in respect of a Collateral Interest if such
property does not constitute "general intangibles" or "accounts" under the
applicable Uniform Commercial Code.
SECTION 7.06 Performance of Obligations. (a) The Issuer may
---------------------------
not enter into any amendment or waiver of or supplement to any Limited
Partnership Agreement included in the Collateral without the prior consent of a
Majority of the Controlling Class; provided, that,
--------
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notwithstanding anything in this Section 7.06(a) to the contrary, the Issuer may
enter into any amendment or waiver of or supplement to any such Limited
Partnership Agreement:
(i) if such amendment, supplement or waiver is required by the
provisions of any Limited Partnership Agreement or by applicable law
(other than pursuant to an Limited Partnership Agreement),
(ii) if such amendment, supplement or waiver is necessary to
cure any ambiguity, inconsistency or formal defect or omission in such
Limited Partnership Agreement,
(iii) to the extent expressly permitted or authorized by any
amendment of or supplement to this Indenture entered into in accordance
with Section 8.01 or 8.02 (but subject to the conditions therein
specified),
(iv) to make any other change deemed necessary by the Issuer
(but only if, as of the date of any such proposed amendment, the
Overcollateralization Test is satisfied); or
(v) to make any other change deemed necessary by the Issuer
(but only if such change does not materially adversely affect the
interests of the Noteholders in the Collateral as determined by the
Issuer in good faith).
(b) The Issuer may, with the prior written consent of a
Majority of each Class, contract with other Persons, including the Trustee, for
the performance of actions and obligations to be performed by the Issuer
hereunder by such Persons and the performance of the actions and other
obligations with respect to the Collateral of the nature set forth in the
Servicing Agreement by the Servicer. Notwithstanding any such arrangement, the
Issuer shall remain liable for all such actions and obligations.
In the event of such contract, the performance of such actions
and obligations by such Persons shall be deemed to be performance of such
actions and obligations by the Issuer; and the Issuer will punctually perform,
and use their best efforts to cause such other Person to perform, all of their
obligations and agreements contained in the Servicing Agreement or such other
agreement.
SECTION 7.07 Negative Covenants. (a) The Issuer will not:
------------------
(i) sell, assign, participate, transfer, exchange or otherwise
dispose of, or pledge, mortgage, hypothecate or otherwise encumber (or
permit such to occur or suffer such to exist), any part of the
Collateral, except as expressly permitted by this Indenture;
(ii) claim any credit on, make any deduction from, or dispute
the enforceability of, the payment of the principal, interest or
distributions (or any other amount) payable in respect of the Notes and
Preferred Units (other than amounts required to be paid, deducted or
withheld in accordance with any applicable law or regulation of any
governmental authority) or assert any claim against any present or
future Noteholder
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or Preferred Unitholder, by reason of the payment of any taxes levied
or assessed upon any part of the Collateral;
(iii) (A) incur or assume or guarantee any indebtedness, other
than the Notes and pursuant to this Indenture; (B) issue any additional
class of securities; or (C) issue any additional membership interests,
other than the Preferred Units and the Common Units;
(iv) (A) permit the validity or effectiveness of this
Indenture or any Grant hereunder to be impaired, or permit the lien of
this Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations with respect to this Indenture or the Notes, except as may
be expressly permitted hereby, (B) permit any lien, charge, adverse
claim, security interest, mortgage or other encumbrance (other than the
lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Collateral or any part thereof, any interest
therein or the proceeds thereof, or (C) take any action that would
permit the lien of this Indenture not to constitute a valid first
priority security interest in the Collateral;
(v) use any of the proceeds of the Notes issued hereunder (A)
to extend "purpose credit" within the meaning given to such term in
Regulation U or (B) to purchase or otherwise acquire any Margin Stock;
(vi) permit the aggregate book value of all Margin Stock held
by the Issuer on any date to exceed the net worth of the Issuer on such
date (excluding any unrealized gains and losses) on such date; or
(vii) dissolve or liquidate in whole or in part, except as
permitted hereunder.
(b) Neither the Issuer nor the Trustee shall sell, transfer,
exchange or otherwise dispose of Collateral, or enter into or engage in any
business with respect to any part of the Collateral except as expressly
permitted by this Indenture.
SECTION 7.08 Statement as to Compliance. On or before December
--------------------------
31 in each calendar year commencing in 2002, or immediately if there has been a
Default in the fulfillment of an obligation under this Indenture, the Issuer
shall deliver to the Trustee, each Noteholder making a written request therefor,
the Paying Agent and each Rating Agency an Officer's certificate stating, as to
each signer thereof, that:
(a) a review of the activities of the Issuer and of the
Issuer's performance under this Indenture during the twelve-month period ending
on December 1 of such year (or from the Closing Date until December 1, 2002, in
the case of the first such Officer's certificate) has been made under such
Officer's supervision; and
(b) to the best of such Officer's knowledge, based on such
review, the Issuer has fulfilled all of its obligations under this Indenture
throughout the period, or, if there has been
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a Default in the fulfillment of any such obligation, specifying each such
Default known to such Officer and the nature and status thereof, including
actions undertaken to remedy the same.
SECTION 7.09 Issuer May Consolidate Only on Certain Terms. (a)
--------------------------------------------
The Issuer shall not consolidate or merge with or into any other Person or
transfer or convey all or substantially all of its assets to any Person, unless
permitted by Delaware law and unless:
(i) the Issuer shall be the surviving entity, or the Person
(if other than the Issuer) formed by such consolidation or into which
the Issuer is merged or to which all or substantially all of the assets
of the Issuer are transferred or conveyed shall be a limited liability
company organized under the laws of Delaware or such other jurisdiction
outside the United States as may be approved by a Majority of each
Class; provided, that no such approval shall be required in connection
--------
with any such transaction undertaken solely to effect a change in the
jurisdiction of organization pursuant to Section 7.04, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee and each Noteholder, the due and punctual
payment of the principal of and interest on all Notes and the
performance of every covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided herein;
(ii) each Rating Agency shall have received written
notification of such consolidation, merger, transfer or conveyance and
the Rating Confirmation Test shall have been satisfied with respect
thereto.
(iii) if the Issuer is not the surviving entity, the Person
formed by such consolidation or into which the Issuer is merged or to
which all or substantially all of the assets of the Issuer are
transferred or conveyed shall have agreed with the Trustee (A) to
observe the same legal requirements for the recognition of such formed
or surviving entity as a legal entity separate and apart from any of
its Affiliates as are applicable to the Issuer with respect to its
Affiliates and (B) not to consolidate or merge with or into any other
Person or transfer or convey the Collateral or all or substantially all
of its assets to any other Person except in accordance with the
provisions of this Section 7.09;
(iv) if the Issuer is not the surviving entity, the Person
formed by such consolidation or into which the Issuer is merged or to
which all or substantially all of the assets of the Issuer are
transferred or conveyed shall have delivered to the Trustee and each
Rating Agency an Officer's certificate and an Opinion of Counsel each
stating that such Person shall be duly organized, validly existing and
(if applicable) in good standing in the jurisdiction in which such
Person is organized; that such Person has sufficient power and
authority to assume the obligations set forth in subclause (a)(i) above
and to execute and deliver an indenture supplemental hereto for the
purpose of assuming such obligations; that such Person has duly
authorized the execution, delivery and performance of an indenture
supplemental hereto for the purpose of assuming such obligations and
that such supplemental indenture is a valid, legal and binding
obligation of such Person, enforceable in accordance with its terms,
subject only to bankruptcy, reorganization, insolvency, moratorium and
other laws affecting the enforcement of creditors' rights generally and
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
that, immediately following the event
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which causes such Person to become the successor to the Issuer, (A)
such Person has good and marketable title, free and clear of any lien,
security interest or charge, other than the lien and security interest
of this Indenture, to the Collateral and (B) the Trustee continues to
have a valid perfected first priority security interest in the
Collateral securing all of the Notes; and such other matters as the
Trustee or any Noteholder may reasonably require.
(v) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
(vi) the Issuer shall have delivered to the Trustee and each
Noteholder and Preferred Unitholder an Officer's certificate and an
Opinion of Counsel each stating that such consolidation, merger,
transfer or conveyance and such supplemental indenture comply with this
Article VII, that all conditions precedent in this Article VII provided
for relating to such transaction have been complied with and that no
adverse tax consequences will result therefrom to any Noteholder or
Preferred Unitholder;
(vii) the Issuer shall have delivered to the Trustee an
Opinion of Counsel stating that after giving effect to such
transaction, the Issuer will not be required to register as an
investment company under the Investment Company Act; and
(viii) the Liquidity Facility Provider shall have consented to
such action.
SECTION 7.10 No Other Business. The Issuer shall not engage in
-----------------
any business or activity other than issuing and selling the Notes pursuant to
this Indenture, issuing and selling the Preferred Units and the Common Units and
acquiring, owning, holding and pledging Collateral Interests and other
Collateral described in clauses (a) through (i) of the first sentence of the
Granting Clauses in connection therewith. The Issuer will not amend its
organizational documents if such amendment would result in the rating of any
Class of Notes being reduced or withdrawn.
SECTION 7.11 Reaffirmation of ating; Annual Rating Review (a)
---------------------------------------------
So long as any of the Notes remain Outstanding, on or before December 31 in each
year commencing in 2002, the Issuer shall obtain and pay for surveillance of the
rating of the Class A1 Notes, the Class A2 Notes, the Class B1 Notes, the Class
B2 Notes and the Preferred Units from Standard & Poor's.
(b) The Issuer shall promptly notify the Trustee in writing
(which shall promptly notify the Noteholders) if at any time the rating of any
Class of Notes has been, or is known will be, changed or withdrawn.
SECTION 7.12 Reporting. At any time when the Issuer is not
---------
subject to Sections 13 or 15(d) of the Exchange Act and is not exempt from
reporting pursuant to Rule 12g3-2(b) under the Exchange Act, upon the request of
a Holder or Beneficial Owner, the Issuer shall promptly furnish or cause to be
furnished Rule 144A Information to such Holder or Beneficial Owner, to a
prospective purchaser of such Note designated by such Holder or Beneficial Owner
or to the Trustee for delivery to such Holder or Beneficial Owner or a
prospective purchaser designated by such Holder or Beneficial Owner, as the case
may be, in
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order to permit compliance by such Holder or Beneficial Owner with Rule 144A
under the Securities Act in connection with the resale of such Note by such
Holder or Beneficial Owner.
SECTION 7.13 Calculation Agent. (a) The Issuer hereby agree
------------------
that for so long as any of the Notes remain Outstanding the Issuer will at all
times maintain an agent appointed to calculate LIBOR in respect of each Interest
Period in accordance with the terms of Appendix B (the "Calculation Agent"),
---------- ------------------
which shall be a financial institution, subject to supervision or examination by
Federal or state authority, having a rating of at least "BBB+" by Standard &
Poor's and having an office within the United States. The Issuer has initially
appointed the Trustee as Calculation Agent for purposes of determining LIBOR for
each Interest Period. The Calculation Agent may be removed by the Issuer at any
time. If the Calculation Agent is unable or unwilling to act as such or is
removed by the Issuer, the Issuer will promptly appoint a replacement
Calculation Agent. The Calculation Agent may not resign its duties without a
successor having been duly appointed.
(b) The Calculation Agent shall, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date, but in no event later
than 11:00 a.m. (London time) on the Business Day immediately following each
LIBOR Determination Date, calculate the Interest Rate for each Class of Notes
for the related Interest Period and the amount of interest for the related
Interest Period payable in respect of each U.S.$1,000 in principal amount of
each Class of Notes (in each case rounded to the nearest cent, with half a cent
being rounded upward) on the related Quarterly Distribution Date and will
communicate such rates and amounts and the related Quarterly Distribution Date
to the Issuer, the Trustee, each Paying Agent, the Depository and the Custodian.
The Calculation Agent will also specify, to the Issuer the quotations upon which
the Interest Rate for each Class of Notes is based, and in any event the
Calculation Agent shall notify the Issuer before 5:00 p.m. (London time) on each
LIBOR Determination Date that either: (i) it has determined or is in the process
of determining the Interest Rate for each Class of Notes or (ii) it has not
determined and is not in the process of determining such Interest Rates,
together with its reasons therefor.
The determination of the Interest Rate for each Class of Notes
shall (in the absence of manifest error) be final and binding upon the parties
hereto and the Noteholders.
SECTION 7.14 Amendment of Certain Documents. Prior to entering
------------------------------
into any amendment or other modification of, or consenting to or directing any
assignment or termination of the Servicing Agreement, the Rating Confirmation
Test with respect thereto must be satisfied.
SECTION 7.15 Capital Calls. The Issuer hereby represents and
-------------
warrants that it has no payment obligations in respect of the Collateral
Interests other than in respect of Capital Calls as provided in the applicable
Limited Partnership Agreements for the purposes stated therein.
SECTION 7.16 Diversity Reports and Other Information. The
-----------------------------------------
Issuer shall provide to the Rating Agency and to the Liquidity Facility
Provider, at least quarterly, a report on the portfolio of investments
underlying the Collateral Interests, showing the three largest industry sector
concentrations, the three largest Limited Partnership concentrations and the
three
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largest concentrations of General Partners (and their affiliates) in respect of
the Limited Partnerships. Minimum diversity requires that each category of
concentration not exceed specific levels of aggregate Net Asset Value as
reflected in the most recent report from the General Partners. The Rating Agency
requires that the Servicer provide notification in the form of the
Diversification Report set forth in Exhibit J attached hereto within 10 Business
Days after receiving indication that any concentration measure exceeds the
minimum diversification requirements. In addition, upon reasonable request by
the Rating Agency or the Liquidity Facility Provider, no more frequently than
monthly, the Issuer shall provide current information, including statistical
information, similar in scope and types to that provided to the Rating Agency
and to the Liquidity Facility Provider prior to the Closing Date in respect of
the Collateral Interests. Standard & Poor's may request from time to time, for
so long as it is rating any Class of the Notes, that the Issuer shall obtain a
valuation of the Collateral prepared by an Approved Evaluator, the expense of
which shall be treated as an Administrative Expense hereunder.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.01 Supplemental Indentures Without Consent of
-----------------------------------------------
Noteholders or Preferred Unitholders. Without the consent of the Holders of any
------------------------------------
Notes or the Preferred Unitholders, the Issuer, when authorized by Board
Resolutions, and the Trustee, at any time and from time to time subject to the
requirement provided below in this Section 8.01 with respect to the ratings of
the Notes and subject to Section 8.03, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to add to the covenants of the Issuer or the Trustee for
the benefit of the Holders of all of the Notes or to surrender any right or
power herein conferred upon the Issuer;
(b) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee;
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee, Calculation Agent, Custodian, Note Registrar,
Paying Agent and/or any other Person, and the compensation thereof, and to add
to or change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Sections 6.10, 6.12 and 6.13;
(d) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or to better assure, convey and
confirm unto the Trustee any property subject or required to be subjected to the
lien of this Indenture (including any and all actions necessary or desirable as
a result of changes in law or regulations) or to subject to the lien of this
Indenture any additional property;
(e) to modify the restrictions on and procedures for resale
and other transfer of the Notes in accordance with any change in any applicable
law or regulation (or the interpretation thereof) or to enable the Issuer to
rely upon any less restrictive exemption from
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registration under the Securities Act or the Investment Company Act or to remove
restrictions on resale and transfer to the extent not required thereunder;
(f) to correct any inconsistency, defect or ambiguity in this
Indenture; or
(g) to accommodate the issuance of any Class of Notes in
book-entry form through the facilities of DTC or otherwise.
The Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties, liabilities or indemnities under this Indenture or
otherwise, except to the extent required by law.
The Trustee shall not enter into any such supplemental
indenture if, as a result of such supplemental indenture, the interests of any
Holder of Notes or any Preferred Unitholder would be materially and adversely
affected thereby. Unless notified by a Majority of any Class of Notes that such
Class will be materially and adversely affected, the Trustee shall be entitled
to rely upon an Opinion of Counsel as to whether the interests of any Holder of
Notes would be materially and adversely affected by any such supplemental
indenture (after giving notice of such change to the Holders). At the cost of
the Issuer, the Trustee shall provide to the Noteholders, and the Preferred
Unitholders a copy of any proposed supplemental indenture at least ten (10) days
prior to the execution thereof by the Trustee and a copy of the executed
supplemental indenture after its execution. At the cost of the Issuer, the
Trustee shall provide to each Rating Agency a copy of any proposed supplemental
indenture at least ten (10) days prior to the execution thereof by the Trustee,
and, for so long as any Notes are Outstanding, request a Rating Confirmation
from each Rating Agency and, as soon as practicable after the execution by the
Trustee and the Issuer of any such supplemental Indenture, provide to each
Rating Agency a copy of the executed supplemental Indenture. The Trustee shall
not enter into any such supplemental Indenture if, as a result of such
supplemental Indenture, the then-current rating, if any, of any Outstanding
Class of Notes would be reduced or withdrawn by any Rating Agency, as evidenced
by a written instrument or instruments signed by each Rating Agency; provided,
that the Trustee may, with the consent of the Holders of 100% of the Aggregate
Outstanding Amount of Notes of each Class, enter into any such supplemental
Indenture notwithstanding any such reduction or withdrawal of the ratings of any
Outstanding Class of Notes.
Promptly after the execution by the Issuer and the Trustee of
any supplemental Indenture pursuant to this Section 8.01, the Trustee, at the
expense of the Issuer, shall mail to the Holders of the Notes, the Preferred
Unitholders and each Rating Agency a copy thereof. Any failure of the Trustee to
publish or mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental Indenture.
SECTION 8.02 Supplemental Indentures with Consent of
---------------------------------------------
Noteholders and Preferred Unitholders. With the consent of the Holders of not
---------------------------------------
less than a Majority of the Aggregate Outstanding Amount of each Class adversely
affected thereby (by Act of said Holders delivered to the Trustee and the
Issuer) and the consent of the Liquidity Facility Provider if materially and
adversely affected thereby (delivered by Liquidity Facility Provider to the
Trustee
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and the Issuer), the Trustee and Issuer may, subject to Section 8.03, enter into
one or more indentures supplemental hereto to add any provisions to, or change
in any manner or eliminate any of the provisions of, this Indenture or modify in
any manner the rights of the Holders of the Notes of such Class, as the case may
be, under this Indenture; provided that the Issuer shall not enter into any
supplemental Indenture that materially and adversely affects the Preferred
Unitholders without the consent of a Special Majority of Preferred Unitholders;
provided, that notwithstanding anything in this Indenture to the contrary, no
such supplemental Indenture shall, without the consent of each Holder of each
Outstanding Note of each Class adversely affected thereby:
(a) change the Stated Maturity of the principal of or the due
date of any installment of interest on any Note, reduce the principal amount
thereof or the Interest Rate thereon, or the Redemption Price with respect
thereto, or change the earliest date on which the Issuer may redeem any Note,
change the provisions of this Indenture relating to the application of proceeds
of any Collateral to the payment of principal of or interest on Notes or change
any place where, or the coin or currency in which, any Note or the principal
thereof or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of Redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount
of Holders of Notes of each Class whose consent is required for the
authorization of any such supplemental Indenture or for any waiver of compliance
with certain provisions of this Indenture or certain Defaults hereunder or their
consequences provided for in this Indenture;
(c) impair or adversely affect the Collateral except as
otherwise expressly permitted in this Indenture;
(d) except as expressly permitted in this Indenture, permit
the creation of any lien ranking prior to or on a parity with the lien of this
Indenture with respect to any part of the Collateral or terminate such lien on
any property at any time subject hereto (other than in connection with the Sale
thereof in accordance with this Indenture) or deprive the Holder of any Note of
the security afforded by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount
of Holders of Notes of each Class whose consent is required to request the
Trustee to preserve the Collateral or rescind the Trustee's election to preserve
the Collateral pursuant to Section 5.05 or to sell or liquidate the Collateral
pursuant to Section 5.04 or 5.05;
(f) modify any of the provisions of this Section 8.02, except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Note affected thereby;
(g) modify the definition of the term "Outstanding", Section
11.01 or Section 12.01;
(h) increase the permitted minimum denominations of any Class
of Notes; or
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(i) modify any of the provisions of this Indenture in such a
manner as to affect the calculation of the amount of any payment interest on or
principal of any Note on any Quarterly Distribution Date or the rights of the
Holders of Notes to the benefit of any provisions for the Redemption of such
Notes contained herein.
Not later than fifteen (15) Business Days prior to the
execution of any proposed supplemental indenture pursuant to this Section 8.02,
the Trustee, at the expense of the Issuer shall mail to the Noteholders, the
Preferred Unitholders and each Rating Agency a copy of such supplemental
indenture (or a description of the substance thereof) and shall request each
Rating Agency, to determine and certify in writing to the Trustee and the Issuer
whether, as a result of such supplemental indenture, such Rating Agency would
cause its then current rating, if any, of any Class of Notes to be reduced or
withdrawn. If any Class of Notes is then rated by any Rating Agency, the Trustee
shall not enter into any such supplemental indenture if, as a result of such
supplemental indenture, the then-current rating, if any, of any Class of Notes
would be reduced or withdrawn, as evidenced by a written instrument or
instruments signed by each Rating Agency, unless each Holder of Notes of each
Class whose rating will be reduced or withdrawn has, after notice that the
proposed supplemental Indenture would result in such reduction or withdrawal of
the rating of the Class of Notes held by such Holder, consented to such
supplemental indenture. Unless notified by a Majority of any Class of Notes that
such Class will be materially and adversely affected, or by a
Majority-in-Interest of Preferred Unitholders that the Preferred Units will be
materially and adversely affected, the Trustee may, consistent with the written
advice of counsel, determine whether or not such Class of Notes would be
adversely affected by such change (after giving notice of such change to the
Holders of the Notes and the Preferred Unitholders). Such determination shall be
conclusive and binding on all present and future Holders of the Notes and the
Preferred Unitholders. The Trustee shall not be liable for any such
determination made in good faith and in reliance in good faith upon an Opinion
of Counsel delivered to the Trustee as described in Section 8.03.
It shall not be necessary for any Act of Noteholders or the Preferred
Unitholders under this Section 8.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to this Section 8.02, the Trustee, at the
expense of the Issuer, shall mail to the Holders of the Notes, the Preferred
Unitholders and each Rating Agency a copy thereof. Any failure of the Trustee to
publish or mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 8.03 Execution of Supplemental Indentures. In
-----------------------------------------
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article VIII or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Sections 6.01 and 6.03) shall be fully protected in relying in good
faith upon an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that all conditions
precedent thereto have been complied with. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or indemnities under this Indenture or otherwise.
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SECTION 8.04 Effect of Supplemental Indentures. Upon the
------------------------------------
execution of any supplemental indenture under this Article VIII, 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 and thereafter authenticated and delivered hereunder and every
Preferred Unitholder shall be bound thereby.
SECTION 8.05 Reference in Notes to Supplemental Indentures.
------------------------------------------------
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article VIII may, and if required by the Trustee
shall, bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Issuer shall so determine, new Notes,
so modified as to conform in the opinion of the Trustee and the Issuer to any
such supplemental indenture, may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE IX
REDEMPTION OF NOTES
SECTION 9.01 Redemption of Notes. (a) The Notes shall be
--------------------
mandatory redeemable, commencing on the first anniversary of the Closing Date,
in the amounts calculated pursuant to Section 9.01(b) hereof. Any such
redemption (a "Redemption") may be effected only on a Quarterly Distribution
----------
Date and only in accordance with the Priority of Payments.
(b) The Class A1 Notes shall be redeemed from available funds
in accordance with the Priority of Payments until the Aggregate Outstanding
Amount of the Class A1 Notes is equal to $47,000,000 (the "Redemption
----------
Threshold"). Thereafter, any Monies that would otherwise be available for the
---------
Redemption of Class A1 Notes in accordance with the Priority of Payments shall
be deposited into the Note Reserve Account until the total amount of Monies
available in the Note Reserve Account is equal to $51,500,000 (the "Note Reserve
------------
Account Maximum Balance") and thereafter in accordance with the Priority of
-------------------------
Payments.
After achievement of the Redemption Threshold, the Class A1
Notes shall be redeemed from the Note Reserve Account and other available funds
in accordance with the Priority of Payments on the earlier of (i) the next
Quarterly Distribution Date following three consecutive Due Periods in which the
Net Asset Value (plus the amount of Unfunded Commitments) of the Issuer, as
measured two Business Days prior to the Quarterly Distribution Date, is less
than $80,000,000 and (ii) December 31, 2011. After such Redemption of Class A1
Notes any amounts remaining in the Note Reserve Account shall be retained in the
Note Reserve Account until the Liquidity Commitment Termination Date and, on the
Liquidity Commitment Termination Date, shall be applied to repay amounts due
under the Liquidity Facility Agreement, if any, and then the remainder shall be
deposited in the Collection Account for application in accordance with the
Priority of Payments.
Once the Note Reserve Account Maximum Balance has been
deposited in the Note Reserve Account, the Issuer shall, consistent with the
Priority of Payments as described in Section 11.01(a), redeem the Class A2 Notes
from available funds until they have been repaid in full. Immediately
thereafter, consistent with the Priority of Payments as described in Section
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11.01(a), the Class B1 Notes shall be redeemed in full from available funds and,
thereafter, the Class B2 Notes shall be redeemed in full from available funds.
SECTION 9.02 Notice of Maturity by the Issuer. Notice of the
--------------------------------
Maturity of any Class of Notes shall be given by the Trustee by first class
mail, postage prepaid, mailed not less than ten (10) Business Days prior to the
applicable Maturity Date to each Holder of Notes to mature, at such Holder's
address in the Note Register and to the Paying Agent and each Rating Agency.
All such notices of maturity shall state:
(a) the applicable Maturity Date;
(b) the applicable Record Date;
(c) the principal amount of each Class of Notes to mature and
that interest on such principal amount of Notes shall cease to accrue on the
date specified in the notice; and
(d) the place or places where such Notes are to be surrendered
for payment upon Maturity, which shall be the office or agency of the Issuer to
be maintained as provided in Section 7.02.
Any notice required to be furnished pursuant to this Section
9.02 shall be given by the Issuer or, at the Issuer' request, by the Trustee in
the name and at the expense of the Issuer. Failure to give notice of redemption,
or any defect therein, to any Holder of any Note selected for Redemption shall
not impair or affect the validity of the Redemption of any other Notes.
ARTICLE X
ACCOUNTS, ACCOUNTINGS AND RELEASES
SECTION 10.01 Collection of Money. (a) Except as otherwise
--------------------
expressly provided herein, the Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all Money and other property payable to
or receivable by the Trustee pursuant to this Indenture, including all payments
due on the Collateral Interests in accordance with the terms and conditions of
such Collateral Interests. The Trustee shall segregate and hold all such Money
and property received by it in trust for the Secured Parties and shall apply it
as provided in this Indenture.
(b) Each of the parties hereto hereby agrees to cause the
Custodian to agree with the parties hereto that (x) each Account is a Securities
Account, and (y) the Securities and property, other than Cash, credited to any
Account is to be treated as a Financial Asset under Article 8 of the UCC. In no
event may any Financial Asset held in any Account be registered in the name of,
payable to the order of, or specially Indorsed to, the Issuer unless such
Financial Asset has also been Indorsed in blank or to the Custodian. Each
Account shall be held and maintained at an office located in the United States.
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SECTION 10.02 Collection Account; Cash Reserve Account; Note
------------------------------------------------
Reserve Account; Custodial Account. The Trustee shall, prior to the Closing
-------------------------------------
Date, cause to be established a Securities Account which shall be designated as
the "Collection Account", which shall be held in the name of the Trustee in
trust for the benefit of the Secured Parties, into which the Trustee shall from
time to time deposit, in addition to the deposits required pursuant to Section
10.05(c), (i) all distributions and other payments, if any, received by the
Issuer with respect to the Collateral Interests, (ii) all amounts, if any,
received by the Issuer pursuant to the Rate Cap Agreement, (iii) all proceeds
received from the disposition of Collateral, if any, including without
limitation any portion of any termination payments received by the Issuer in
connection with the termination of any portion of the notional amount under the
Rate Cap Agreement, and (iv) all amounts of excess tax distributions, if any,
returned to the Trustee by a holder of Preferred Units or Common Units pursuant
to Section 6.2(b) of the Operating Agreement.
(b) (i) (i) The Trustee shall maintain a subaccount of the
Collection Account, which subaccount shall be designated as the "Recall
Account," into which the Trustee, upon notice from the Servicer to do the same,
shall from time to time deposit all distributions in respect of Collateral
Interests of cash that, pursuant to the applicable Limited Partnership
Agreement, would result in a commensurate increase to the Unfunded Commitment in
respect of such Collateral Interest. The Servicer shall provide the Trustee with
notice of any such distribution that results in such an increase to the related
Unfunded Commitment. On each Quarterly Distribution Date, notwithstanding the
provisions of Section 11.01, all Monies in the Recall Account shall be applied
to the early redemption of principal of the Class B2 Notes up to their Aggregate
Outstanding Amount.
(ii) The Trustee shall maintain a subaccount of the Collection
Account, which subaccount shall be designated as the "Class B2 Reserve
Account," into which the Trustee shall deposit all proceeds of the
issuance of the Class B2 Notes issued in connection with a ratings
downgrade of any Seller as provided in Section 2.6(c) of each of the
Asset Sale Agreements. The Trustee shall apply the amounts on deposit
in the Class B2 Reserve Account, as directed by the Servicer, solely to
meet the obligation of the Issuer to pay, from time to time, Unfunded
Commitments in respect of Capital Calls made by the General Partners of
the relevant Limited Partnerships; provided, however, that, upon the
-------- -------
termination of any Limited Partnership, an amount equal to the total
remaining amount of the Unfunded Commitment, if any, related to such
Limited Partnership may be deposited into the Collection Account and
applied in accordance with the Priority of Payments.
(c) The Trustee shall, prior to the Closing Date, cause to be
established (i) a Securities Account which shall be designated as the "Cash
----
Reserve Account", which shall be held in the name of the Trustee in trust for
----------------
the benefit of the Secured Parties, into which the Trustee shall from time to
time deposit, amounts from the Collection Account with in accordance with the
Priority of Payments and (ii) a Securities Account which shall be designated as
the "Note Reserve Account", which shall be held in the name of the Trustee in
trust for the benefit of the Secured Parties, into which the Trustee shall from
time to time deposit the Monies available for Redemption of Class A Notes in
accordance with Section 9.01(b).
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(d) The Issuer may, but under no circumstances shall be
required to, deposit or cause to be deposited from time to time such Monies in
the Collection Account as it deems, in its sole discretion, to be advisable. All
Monies deposited from time to time in the Collection Account, the Cash Reserve
Account and the Note Reserve Account pursuant to this Indenture shall be held by
the Trustee as part of the Collateral and shall be applied to the purposes
herein provided.
(e) All distributions and other payments, if any, in respect
of Collateral Interests, any deposit required pursuant to Section 10.02(d) and
any net proceeds from the Sale or disposition of a Collateral Interest received
by the Trustee shall be immediately deposited into the Collection Account. To
the extent any amounts constituting such distributions, payments or proceeds are
received by the Issuer, the Issuer shall promptly deliver such amounts to the
Trustee. Subject to Sections 10.02(f) and 11.02, all amounts deposited in the
Collection Account together with any securities in which funds included in such
property are or will be invested or reinvested during the term of this
Indenture, and any income or other gain realized from such investments, shall be
held by the Trustee in the Collection Account as part of the Collateral subject
to disbursement and withdrawal as provided in this Section 10.02. By Issuer
Order executed by an Authorized Officer of the Issuer (which may be in the form
of standing instructions), the Issuer shall at all times direct the Trustee to,
and, upon receipt of such Issuer Order, the Trustee shall, invest all funds
received into the Collection Account during a Due Period, and amounts received
in prior Due Periods and retained in the Collection Account, as so directed in
Eligible Investments.
(f) The Trustee shall apply amounts on deposit in the
Collection Account, the Cash Reserve Account and the Note Reserve Account in
accordance with any Redemption Date Statement delivered to the Trustee in
connection with the redemption of Notes pursuant to Section 9.01.
(g) The Trustee shall, prior to the Closing Date, cause the
Custodian to establish a Securities Account which shall be designated as the
"Custodial Account," which shall be held in the name of the Trustee in trust for
-----------------
the benefit of the Secured Parties and into which the Trustee shall from time to
time deposit non-Cash Collateral or any distributions in kind received from the
Limited Partnerships. To the extent any such distributions from the Limited
Partnerships are received by the Issuer, the Issuer shall promptly deliver such
distributions to the Trustee. All non-Cash Collateral from time to time
deposited in, or otherwise standing to the credit of, the Custodial Account
pursuant to this Indenture shall be held by the Trustee as part of the
Collateral and shall be applied to the purposes herein provided. The Trustee
agrees to give the Issuer immediate notice if the Custodial Account or any funds
on deposit therein, or otherwise standing to the credit of the Custodial
Account, shall become subject to any writ, order judgment, warrant of
attachment, execution or similar process. The Issuer shall not have any legal,
equitable or beneficial interest in the Custodial Account other than in
accordance with the Priority of Payments. The Trustee, within two (2) Business
Days after receipt of any non-Cash distribution or other proceeds which are not
Cash, shall so notify the Servicer. The Servicer shall, within five (5) Business
Days of receipt of such notice from the Trustee, sell such property in any
established trading market in accordance with all applicable laws and, in the
event there is no established trading market for such property, the Servicer
shall invite each Holder of the Class A1 Notes, the Class A2 Notes, the Class B1
Notes, the Class B2 Notes and the Preferred
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Unitholders whose holdings represent at least 10% of the Issuer's total
capitalization, and at least three other Persons which are not Affiliates of the
Issuer, to make bids to purchase such property and the Servicer shall sell such
non-Cash distribution or other proceeds for Cash in an arm's-length transaction
to the highest bidder and deposit the proceeds thereof in the Collection
Account; provided, that the Issuer need not sell such non-Cash distributions or
--------
other proceeds if it delivers an Officer's certificate to the Trustee certifying
that such distributions or other proceeds constitute Collateral Interests or
Eligible Investments.
(h) Funds on deposit in the Accounts shall at all times be
invested by the Trustee in Eligible Investments at the direction of the
Servicer. The Trustee shall maintain possession of any certificated negotiable
instrument or security (other than certificated securities held by a clearing
corporation), evidencing the Eligible Investments made with funds in the
Accounts from the time of purchase thereof until the time of maturity. All
interest and earnings (net of losses and investment expenses) on funds on
deposit in the Accounts shall be deposited by the Trustee into the Collection
Account at maturity and applied in accordance with the Priority of Payments set
forth in Section 11.01(a).
(i) On the Business Day immediately preceding any Quarterly
Distribution Date on which any Redemption or other payment shall be required to
be made pursuant to Articles IX or XI respectively, all interest and other
investment income on funds on deposit in the Accounts shall be deposited into
the Collection Account.
(j) Any Cash received by the Trustee, whether held in one of
the Accounts or held by the Trustee prior to deposit in any of such Accounts or
prior to the investment thereof in Eligible Investments, shall be held in trust
by the Trustee for the benefit of the Secured Parties.
SECTION 10.03 Reports by Trustee. The Trustee shall supply in
------------------
a timely fashion to the Issuer any information regularly maintained by the
Trustee that the Issuer may from time to time request with respect to the
Collateral Interests, the Collection Account, the Cash Reserve Account or the
Note Reserve Account reasonably needed to complete the Quarterly Report or to
provide any other information reasonably available to the Trustee by reason of
its acting as Trustee hereunder and required to be provided by Section 10.04.
The Trustee shall forward to the Issuer, the Servicer and to any Holder of a
Note shown on the Note Register copies of notices and other writings received by
it from the Limited Partnerships or other issuer of any Collateral Interest or
security constituting Collateral with respect to any such Collateral Interest or
security advising the Issuer or any other holders of such Collateral Interest or
other security of any rights that such holders might have with respect thereto
(including notices of calls and redemptions of securities) as well as all
periodic financial reports received from such Limited Partnership or other
issuer with respect to such Limited Partnership or other issuer.
SECTION 10.04 Accountings.
-----------
(a) Quarterly Distribution Date Accounting. The Servicer shall
--------------------------------------
render an accounting (a "Quarterly Report"), determined as of each Determination
----------------
Date, and deliver the Quarterly Report to each Rating Agency, the Trustee, each
Transfer Agent, each Paying Agent, and, upon written request therefor, any
Holder of a Note shown on the Note Register and any
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Preferred Unitholder, not later than the Business Day preceding the related
Quarterly Distribution Date. The Quarterly Report shall contain the following
information (determined, unless otherwise specified below, as of the related
Determination Date):
(i) the Aggregate Outstanding Amount of the Notes of each
Class and as a percentage of the original Aggregate Outstanding Amount
of the Notes of such Class on the first day of the immediately
preceding Due Period, the amount of principal payments to be made on
the Notes of each Class on the next Quarterly Distribution Date, and
the Aggregate Outstanding Amount of the Notes of each Class and as a
percentage of the original Aggregate Outstanding Amount of the Notes of
such Class after giving effect to the principal payments, if any, on
the next Quarterly Distribution Date;
(ii) the Interest Distribution Amount payable to the Holders
of the Notes for the related Quarterly Distribution Date (in the
aggregate and by Class);
(iii) the Class A1 Note Interest Rate and the Class A2 Note
Interest Rate for the Due Period preceding the next Quarterly
Distribution Date;
(iv) the Class B1 Note Interest Rate and the Class B2 Note
Interest Rate on the Due Period preceding the next Quarterly
Distribution Date;
(v) the Administrative Expenses payable on the next Quarterly
Distribution Date on an itemized basis, setting forth, separately, the
Mandatory Expenses;
(vi) (A) the Balance on deposit in the Collection Account at
the end of the related Due Period; (B) the amounts payable from the
Collection Account pursuant to Section 11.01(a)(i) on the next
Quarterly Distribution Date; (C) the amounts, if any, required to be
drawn under the Liquidity Facility and (D) the Balance remaining in the
Collection Account immediately after all payments and deposits to be
made on such Quarterly Distribution Date;
(vii) (A) the Balance on deposit in the Cash Reserve Account
at the end of the related Due Period; (B) the amounts payable from the
Cash Reserve Account pursuant to Section 11.01(a)(ii) on the next
Quarterly Distribution Date; and (C) the Balance remaining in the Cash
Reserve Account immediately after all payments and deposits to be made
on such Quarterly Distribution Date;
(viii) (A) the Balance on deposit in the Note Reserve Account
at the end of the related Due Period; (B) the amounts payable from the
Note Reserve Account pursuant to Section 11.01(a)(ii) on the next
Quarterly Distribution Date; and (C) the Balance remaining in the Note
Reserve Account immediately after all payments and deposits to be made
on such Quarterly Distribution Date;
(ix) the amounts, if any, expected to be paid to the Issuer on
such Quarterly Distribution Date and released from the lien of this
Indenture;
(x) a calculation of each of the items set forth in this
Section 10.04(a) above for such Quarterly Distribution Date; and
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(xi) calculation as of the Determination Date of the
Overcollateralization Ratio and Risk Weighted Total Asset Value.
Each Quarterly Report shall contain instructions to the
Trustee to withdraw on the related Quarterly Distribution Date from the
Collection Account and pay or transfer amounts set forth in such report in the
manner specified, and in accordance with the priorities established in, Section
11.01(a).
In addition to the foregoing information, each Quarterly
Report shall include a statement to the following effect:
"The Investment Company Act of 1940, as amended (the "Investment
----------
Company Act"), requires that all holders of the outstanding securities
-----------
of the Issuer be "qualified purchasers" ("Qualified Purchasers") as
---------------------
defined in Section 2(a)(51)(A) of the Investment Company Act and
related rules. Under the rules, each of the Issuer or an agent acting
on its behalf must have a "reasonable belief" that all holders of its
outstanding securities, including transferees, are Qualified
Purchasers. Consequently, all resales of the Notes in the United States
or to U.S. Persons must be made pursuant to Regulation D or Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"),
---------------
solely to purchasers that are either institutional "accredited
investors" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act ("Institutional Accredited Investors") or "qualified
------------------------------------
institutional buyers" ("Qualified Institutional Buyers") within the
--------------------------------
meaning of Rule 144A and all resales of the Notes not to U.S. Persons
or in the United States, must be made only to Qualified Purchasers.
Each purchaser of a Restricted Global Note (other than the initial
purchaser of such Restricted Global Note) will be deemed to represent
at the time of purchase that: (i) the purchaser is an Institutional
Accredited Investor or a Qualified Institutional Buyer and also a
Qualified Purchaser; (ii) the purchaser is not a dealer described in
paragraph (a)(1)(ii) of Rule 144A unless such purchaser owns and
invests on a discretionary basis at least U.S.$25,000,000 in securities
of issuers that are not Affiliates of the dealer; (iii) the purchaser
is not a plan referred to in paragraph (a)(1)(i)(D) or (a)(1)(i)(E) of
Rule 144A, or a trust fund referred to in paragraph (a)(1)(i)(F) of
Rule 144A that holds the assets of such a plan, unless investment
decisions with respect to the plan are made solely by the fiduciary,
trustee or sponsor of such plan; (iv) the purchaser and each account
for which it is purchasing, is required to hold and transfer at least
the minimum denominations of the Notes specified in the Indenture and
(v) the purchaser will provide written notice of the foregoing, and of
any applicable restrictions on transfer, to any transferee.
The Issuer directs that the recipient of this notice, and any recipient
of a copy of this notice, provide a copy to any Person having an
interest in this Note as indicated on the books of DTC or on the books
of a participant in DTC or on the books of an indirect participant for
which such participant acts as agent.
The Indenture provides that if, notwithstanding the restrictions on
transfer contained therein, the Issuer determines that any Beneficial
Owner of a Global Note (or any interest therein) was not (A) in the
case of a Restricted Global Note, an Institutional Accredited Investor
or a Qualified Institutional Buyer at the time it acquired such
Restricted Global
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Note (or interest therein) or (B) in any case a Qualified Purchaser at
the time it acquired such Global Note (or any interest therein), then
the Issuer may require, by notice to such Holder, that such Holder sell
all of its right, title and interest in such Global Note to a Person
that (x) either is a U.S. Person or a U.S. Resident who is a Qualified
Purchaser and either an Institutional Accredited Investor or a
Qualified Institutional Buyer or (y) is not a U.S. Person or a U.S.
Resident (within the meaning of the Investment Company Act) and is a
Qualified Purchaser, with such sale to be effected within 30 days after
notice of such sale requirement is given. If such Beneficial Owner
fails to effect the transfer required within such 30-day period, (AA)
upon direction from the Issuer, the Trustee shall, and is hereby
irrevocably authorized by such Beneficial Owner, to cause its interest
in such Note to be transferred in a commercially reasonable sale
(conducted by the Trustee, pursuant to the Issuer's instructions, and
such instructions shall be in accordance with Section 9-504(3) of the
Uniform Commercial Code as in effect in the State of New York as
applied to securities that are sold on a recognized market or that may
decline speedily in value) to a Person that certifies to the Trustee
and the Issuer, in connection with such transfer, that such Person (xx)
either is a U.S. Person or a U.S. Resident who is a Qualified Purchaser
and either an Institutional Accredited Investor or a Qualified
Institutional Buyer or (yy) is not a U.S. Person or a U.S. Resident
(within the meaning of the Investment Company Act) and is a Qualified
Purchaser and (BB) pending such transfer, no further payments will be
made in respect of such Note (or interest therein) held by such
Beneficial Owner. As used in this paragraph, the term "U.S. Person" has
the meaning given such term in Regulation S under the Securities Act
and the term U.S. Resident has the meaning given to such term under the
Investment Company Act."
In addition to the Quarterly Report, upon the written request
of any Holder of a Note shown on the Note Register or any Rating Agency, the
Issuer shall deliver to such Holder or Rating Agency, as the case may be, a
report containing the number and identity of each Collateral Interest held by
the Issuer on the last day of the Due Period most recently ended. The Quarterly
Report shall also contain the information set forth in Exhibit I hereto.
(b) If the Trustee shall not have received any accounting
provided for in this Section 10.04 on the first Business Day after the date on
which such accounting is due to the Trustee, the Trustee shall use reasonable
efforts to cause such accounting to be made by the applicable Quarterly
Distribution Date. To the extent the Trustee is required to provide any
information or reports pursuant to this Section 10.04 as a result of the failure
of the Issuer to provide such information or reports, the Trustee shall be
entitled to retain an Independent certified public accountant in connection
therewith and the reasonable costs incurred by the Trustee for such Independent
certified public accountant shall be reimbursed pursuant to Section 6.08.
SECTION 10.05 Release of Collateral. (a) If no Event of
-----------------------
Default has occurred and is continuing and subject to Article XII, the Issuer
may, by Issuer Order executed by an Authorized Officer of the Servicer and
delivered to the Trustee at least two (2) Business Days prior to the settlement
date or sale date for any sale of a Collateral Interest or of any security,
instrument or other property constituting part of the Collateral certifying that
the conditions set forth in Section 12.01 are satisfied, direct the Trustee to
release such Collateral
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Interest, security, instrument or other property from the lien of this Indenture
against receipt of payment therefor.
(b) The Issuer may, by Issuer Order executed by an Authorized
Officer of the Servicer and delivered to the Trustee at least two (2) Business
Days prior to the date set for Redemption or payment in full of a Collateral
Interest or any security constituting part of the Collateral, certifying that
such Collateral Interest or security is being redeemed or paid in full, direct
the Trustee or, at the Trustee's instructions, the Custodian, to deliver any
required documents evidencing the Trustee's interest therein or such security,
if in physical form, duly endorsed, or, if such security is a Clearing
Corporation Security, to cause it to be presented, to the appropriate paying
agent therefor on or before the date set for redemption or payment, in each case
against receipt of the Redemption Price or payment in full thereof.
(c) If no Event of Default has occurred and is continuing and
subject to Article XII, the Issuer may, by Issuer Order executed by an
Authorized Officer of the Manager and delivered to the Trustee at least two (2)
Business Days prior to the date set for an exchange, tender or sale, certifying
that a Collateral Interest or any security constituting part of the Collateral
is subject to an Offer and setting forth in reasonable detail the procedure for
response to such Offer, direct the Trustee or, at the Trustee's instructions,
the Custodian, to deliver any required documents evidencing the Trustee's
interest therein or such security, as the case may be, with any such security,
if in physical form, duly endorsed, or, if such security is a Clearing
Corporation Security, to cause it to be delivered, in accordance with such
Issuer Order, in each case against receipt of payment therefor.
(d) The Trustee shall deposit any proceeds received by it from
the disposition of a Collateral Interest, any security constituting part of the
Collateral or any other item of Collateral in the Collection Account unless
simultaneously applied to the purchase of Eligible Investments as permitted
under and in accordance with requirements of this Article X.
(e) The Trustee shall, upon receipt of an Issuer Order at such
time as there are no Notes Outstanding and all obligations of the Issuer
hereunder have been satisfied, release the Collateral from the lien of this
Indenture.
(f) The Issuer may retain agents to assist the Issuer in
preparing any notice or other report required under this Section 10.05.
SECTION 10.06 Reports by Independent Accountants (a) At the
------------------------------------
Closing Date the Issuer shall appoint a firm of Independent certified public
accountants of recognized national reputation for purposes of preparing and
delivering the reports or certificates of such accountants required by this
Indenture. Upon any resignation by such firm, the Issuer shall promptly appoint
by Issuer Order delivered to the Trustee and each Rating Agency a successor
thereto that shall also be a firm of Independent certified public accountants of
recognized international reputation. If the Issuer shall fail to appoint a
successor to a firm of Independent certified public accountants which has
resigned within 30 days after such resignation, the Issuer shall promptly notify
the Trustee of such failure in writing. If the Issuer shall not have appointed a
successor within ten days thereafter, the Trustee shall promptly appoint a
successor firm of Independent certified public accountants of recognized
national reputation.
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The fees of such Independent certified public accountants and its successor
shall be payable by the Issuer or by the Trustee as provided in Section 11.01.
(b) On or before December 31 of each year (commencing December
2002), the Issuer shall cause to be delivered to the Trustee and each Rating
Agency an Accountants' Report specifying the procedures applied and their
associated findings with respect to (i) the Quarterly Reports and (ii) the
Redemption Date Statements. At least 60 days prior to the Quarterly Distribution
Date in December 2002 (and, if at any time a successor firm of Independent
certified public accountants is appointed, to the Quarterly Distribution Date
next following the date of such appointment), the Issuer shall deliver to the
Trustee an Accountants' Report specifying in advance the procedures that such
firm will apply in making the aforementioned findings throughout the term of its
service as accountants to the Issuer. The Trustee shall promptly forward a copy
of such Accountants' Report to each Holder of Notes of the Controlling Class, at
the address shown on the Note Register. The Issuer shall not approve the
institution of such procedures if a Majority of the Controlling Class, by notice
to the Issuer and the Trustee within 30 days after the date of the related
notice to the Trustee, object thereto.
(c) Any statement delivered to the Trustee pursuant to clause
(b) above shall be delivered by the Trustee to any Holder of a Note shown on the
Note Register upon written request therefor.
SECTION 10.07 Reports to Rating Agencies, Etc. In addition to
--------------------------------
the information and reports specifically required to be provided to the Rating
Agencies pursuant to the terms of this Indenture, the Issuer shall provide or
procure to provide the Rating Agencies with (a) all information or reports
delivered to the Trustee hereunder, (b) such additional information as the
Rating Agencies may from time to time reasonably request and the Issuer
determines in its reasonable discretion may be obtained and provided without
unreasonable burden or expense, (c) prompt notice of any decision of the
Servicer, on behalf of the Issuer, to agree to any consent, waiver or amendment
to any Limited Partnership Agreement that modifies the cashflows of any
Collateral Interest and (d) notice of any waiver given pursuant to Section 5.14.
The Servicer, on behalf of the Issuer, shall promptly notify the Trustee if the
rating of any Class of Notes has been, or it is known by the Issuer that such
rating will be, changed or withdrawn.
SECTION 10.08 Tax Matters. Each Holder of Notes agrees to
------------
treat such Notes as indebtedness of the Issuer for U.S. Federal income tax
purposes and further agrees not to take any action inconsistent with such
treatment.
ARTICLE XI
APPLICATION OF MONIES
SECTION 11.01 Disbursements of Monies from the Collection
----------------------------------------------
Account. (a) Notwithstanding any other provision in this Indenture, but subject
-------
to the other clauses of this Article XI, Section 12.01 and Section 10.02(b), on
each Quarterly Distribution Date, the Trustee shall disburse amounts deposited
into the Collection Account (to the extent available) pursuant to
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Section 10.02(a) as follows and for application by the Trustee in accordance
with the following priorities (the "Priority of Payments"):
--------------------
(i) On each Quarterly Distribution Date occurring after the
date hereof until December 31, 2002, monies from the Collection Account
shall be applied as follows:
(A) First, to the payment of the Mandatory Expenses of
the Issuer, not to exceed $625,000 for any Due Period
to which such Quarterly Distribution Date applies;
provided that if, as of the related Determination
--------
Date, the Balance in the Collection Account is
insufficient to pay the Mandatory Expenses pursuant
to this clause (A), the Trustee shall apply any
Monies from the Cash Reserve Account to pay such
amount; and provided, further, that if as of the
------------------
related Determination Date the Balance in the Cash
Reserve Account is insufficient to pay in full such
Mandatory Expenses, the Trustee shall draw on the
Liquidity Facility to the extent required to make
such payment in accordance with Section 11.02 to the
extent such payment does not exceed the $625,000
limit per Due Period described above;
(B) Second, to the payment to the Liquidity Facility
Provider for any amounts owing under the Liquidity
Facility in accordance with the terms of the
Liquidity Facility Agreement; provided that if as of
--------
the related Determination Date the Balance in the
Collection Account is insufficient to pay such
amounts to the Liquidity Facility Provider, the
Trustee shall apply any Monies from the Cash Reserve
Account to pay such amount; and provided, further,
------------------
that, if as of the related Determination Date the
Balance in the Cash Reserve Account is insufficient
to pay such amounts to the Liquidity Provider, the
Trustee shall draw on the Liquidity Facility to the
extent required to make such payment in accordance
with Section 11.02;
(C) Third, to the payment of the Class A1 Interest
Distribution Amount; provided, that in the event the
--------
Balance in the Collection Account will be
insufficient to pay the Class A1 Interest
Distribution Amount in full, the Trustee shall apply
any Monies from the Cash Reserve Account to pay such
amount; and provided, further, that if, as of the
-------- -------
related Determination Date, the Balance in the Cash
Reserve Account is insufficient to pay in full the
Class A1 Interest Distribution Amount, the Trustee
shall draw on the Liquidity Facility to the extent
required to make such payment, in accordance with
Section 11.02;
(D) Fourth, to the payment of the Class A2 Interest
Distribution Amount; provided, that if, as of the
--------
related Determination Date, the
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Balance in the Collection Account is insufficient to
pay the Class A2 Interest Distribution Amount in
full, the Trustee shall apply any Monies from the
Cash Reserve Account to pay such amount; and
provided, further, that if, as of the related
-------- -------
Determination Date, the Balance in the Cash Reserve
Account is insufficient to pay in full the Class A2
Interest Distribution Amount, the Trustee shall draw
on the Liquidity Facility to the extent required to
make such payment, in accordance with Section 11.02;
(E) Fifth, to the payment of the Class B1 Interest
Distribution Amount; provided, that if, as of the
--------
related Determination Date, the Balance in the
Collection Account will be insufficient to pay the
Class B1 Interest Distribution Amount in full, the
Trustee shall apply any Monies from the Cash Reserve
Account to pay such amount;
(F) Sixth, to the payment to holders of the Preferred
Units and Common Units in amounts sufficient to
permit them to pay the federal, state and local
income taxes attributable to their interests in the
Issuer; provided, that such amount shall not exceed
--------
the Maximum Tax Distribution Amount, as reflected in
the certificate furnished by the Servicer to the
Trustee pursuant to Section 2.8(3)(ii) of the
Servicing Agreement;
(G) Seventh, to the payment of Administrative Expenses of
the Issuer other than Mandatory Expenses; provided
--------
that such payment shall not exceed $500,000 for the
relevant Due Period; and provided further that (i) if
-------- -------
as of the related Determination Date the Balance in
the Collection Account is insufficient to pay such
Administrative Expenses pursuant to this clause (G),
the Trustee shall apply any Monies from the Cash
Reserve Account to pay such amount, and (ii) if
thereafter such Administrative Expenses remain
unpaid, the Trustee shall draw on the Liquidity
Facility to the extent required to make such payment
in accordance with Section 11.02; and
(H) Eighth, for deposit into the Cash Reserve Account for
application on future Quarterly Distribution Dates as
provided above.
(ii) On each Quarterly Distribution Date commencing on
December 31, 2002, Monies from the Collection Account shall be applied
as follows:
(A) to the payment of the amounts referred to in clauses
(A) through (G) of Section 11.01(a)(i) in the same
order of priority as is specified therein;
(B) subject to the Overcollateralization Ratio being
greater than 160%, to the payment to the holders of
the Class B2 Notes of accrued
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interest for the Interest Period ending on such
Quarterly Distribution Date;
(C) to Redemption of Class A1 Notes in accordance with
Section 9.01;
(D) for deposit into the Note Reserve Account up to an
amount such that the balance in the Note Reserve
Account does not exceed $51,500,000;
(E) to Redemption of the Class A2 Notes up to the
Aggregate Outstanding Amount of the Class A2 Notes;
(F) to Redemption of the Class B1 Notes up to the
Aggregate Outstanding Amount of, plus, to the extent
not previously paid in full, any current interest due
on, the Class B1 Notes;
(G) to Redemption of the Class B2 Notes up to the
Aggregate Outstanding Amount of, plus, to the extent
not previously paid in full, any current interest due
on, the Class B2 Notes; and
(H) following redemption of all the Class B2 Notes, to
the Issuer, and free of the lien of this Indenture.
(b) On the Quarterly Distribution Date falling on December 31,
2002, the Balance in the Cash Reserve Account shall be applied to the redemption
of the Class A1 Notes after application of Monies in the Collection Account
pursuant to Section 11.01(a)(ii), and any remaining balance thereafter shall be
deposited into the Collection Account and applied in accordance with Priority of
Payments.
(c) Provided that all of the Notes have been redeemed, the
Issuer shall terminate no earlier than 30 days following the final liquidation
of all of the Limited Partnerships, subject to the terms of the Operating
Agreement. Upon such termination, all Cash available after the payment (in the
order of priorities set forth above) of (i) all fees, (ii) all expenses, (iii)
interest (including any Defaulted Interest and interest on Defaulted Interest)
on and principal of the Notes, and (iv) distributions to the holders of the
Preferred Units, to the extent of the stated value thereof (including accrued
and unpaid distributions thereon), shall be distributed to the holders of the
Common Units.
(d) If, on any Quarterly Distribution Date, the amount
available in the Collection Account from amounts received in the related Due
Period is insufficient to make the full amount of the disbursements required by
the statements furnished by the Issuer pursuant to Section 10.04(b), the Trustee
shall make the disbursements called for in the order and according to the
priority set forth under Section 11.01(a), subject to Section 12.01 and Section
6.08, to the extent funds are available therefor.
(e) Except as otherwise expressly provided in this Section
11.01, if on any Quarterly Distribution Date the amount available in the
Collection Account from amounts received in the related Due Period is
insufficient to make the full amount of the disbursements
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required by any lettered subclause of Section 11.01(a)(i) or Section
11.01(a)(ii) to be made to different Persons, the Trustee shall make the
disbursements called for by such subclause ratably, but only after full payment
has been made to the Trustee for its costs and expenses under Section 6.08,
among such Persons in accordance with the respective amounts of such
disbursements then due and payable to the extent funds are available therefor.
(f) The Paying Agent shall initiate a wire transfer by 12:00
noon each Quarterly Distribution Date on request of all distributions to the
Noteholders and/or holders of Preferred Units of record in the immediately
preceding Record Date. Such distributions shall be made to the Noteholders
and/or holders of Preferred Units by wire transfer of immediately available
funds upon receipt by the Paying Agent from such Persons of satisfactory wire
transfer instructions on or before the related Record Date.
SECTION 11.02 Liquidity Facility. (a) The Issuer and the
-------------------
Liquidity Facility Provider shall enter into a Liquidity Facility Agreement
dated as of the Closing Date (the "Liquidity Facility Agreement") pursuant to
------------------------------
which the Liquidity Facility Provider shall agree to make advances, on behalf of
the Issuer, for the benefit of the Secured Parties, which Liquidity Facility
Agreement shall clearly indicate that amounts available thereunder are for the
benefit of the Secured Parties. The only Person authorized to make drawings
under the Liquidity Facility Agreement shall be the Trustee and such agreement
shall be under the sole dominion and control of the Trustee for the benefit of
the Secured Parties. The Trustee shall provide a copy of the Liquidity Facility
Agreement to the Holders of the Class A Notes upon request.
(b) Drawing on the Liquidity Facility. The Trustee shall
-----------------------------------
present a notice for payment to the Liquidity Facility Provider pursuant to the
terms of the Liquidity Facility Agreement prior to 12:00 p.m., New York City
time, on the Business Day preceding a Quarterly Distribution Date for amounts
necessary to ensure timely payment in full on such Quarterly Distribution Date
of (i) the Class A Interest Distribution Amount, (ii) Mandatory Expenses
(subject to Section 11.01(a)(i)(A)) due and owing on such date, (iii)
Administrative Expenses (subject to Section 11.01(a)(i)(G)) due and owing on
such date and (iv) to repay amounts owing under the Liquidity Facility Agreement
(subject Section 11.01(a)(i)(B)), and in the event that the aggregate amounts in
the Collection Account as of such Business Day next preceding such Quarterly
Distribution Date are insufficient to pay the amounts in (i), (ii), (iii) and
(iv) above; provided, that any above-referenced drawings under the Liquidity
Facility Agreement shall be subject to the satisfaction of the conditions
precedent to such drawings as set forth in the Liquidity Facility Agreement,
including, without limitation, the conditions to the use of the proceeds of such
drawings. Any amounts received by the Trustee from a draw under the Liquidity
Facility shall be promptly deposited into the Collection Account.
(c) Other Provisions. The Trustee and the Issuer agree that
-----------------
upon the occurrence of a Liquidity Facility Provider Event of which an
Authorized Officer of the Trustee shall have actual knowledge or the Trustee
shall have received written notice, no further amounts shall be paid to the
Liquidity Facility Provider other than amounts required to reimburse the
Liquidity Facility Provider for any amounts drawn under the Liquidity Facility
and other amounts due and owing to the Liquidity Facility Provider prior to the
occurrence of such Liquidity Facility Provider Event. The Trustee and the Issuer
further agree that the Liquidity Facility Provider's interest in the Collateral
shall be limited to such amounts as may be due and
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owing the Liquidity Facility Provider as set forth in the previous sentence, if
any, and upon the occurrence and during the continuation of a Liquidity Facility
Provider Event, the power of the Liquidity Facility Provider to exercise rights
and privileges under this Indenture shall be suspended and shall be reinstated
upon the cure of such Liquidity Facility Provider Event in accordance with the
terms and conditions of the Liquidity Facility Agreement.
ARTICLE XII
SECURED PARTIES' RELATIONS
SECTION 12.01 Subordination. (a) Anything in this Indenture or
-------------
the Notes to the contrary notwithstanding, the Issuer and the Holders of the
Class B Notes agree for the benefit of the Liquidity Facility Provider and the
Holders of the Class A1 Notes and Class A2 Notes that the Class B1 Notes and
Class B2 Notes, in that order, and the Issuer's rights in and to the Collateral
(collectively, the "Subordinate Interests") shall be subordinate and junior to
----------------------
the rights of the Liquidity Facility Provider with respect to payments to be
made to the Liquidity Facility Provider pursuant to the Liquidity Facility, and
to the Holders of the Class A1 Notes and Class A2 Notes, in that order, to the
extent and in the manner set forth in this Indenture including as set forth in
Section 11.01(a) and as hereinafter provided. If any Event of Default has not
been cured or waived and acceleration occurs in accordance with Article V,
including as a result of an Event of Default specified in Section 5.01(h) or
(g), the Class A1 Notes and Class A2 Notes shall be paid in full in Cash or, to
the extent a Majority of the Holders of the Class A Notes consent, other than in
Cash, before any further payment or distribution is made on account of the
Subordinate Interests.
(b) In the event that notwithstanding the provisions of this
Indenture, any holder of any Subordinate Interests shall have received any
payment or distribution in respect of such Subordinate Interests contrary to the
provisions of this Indenture, then, unless and until all amounts payable to the
Liquidity Facility Provider or the Holders of the Class A1 Notes and Class A2
Notes pursuant to Section 11.01(a)(i)(C) and (D), as the case may be, shall have
been paid in full in Cash or, to the extent the Liquidity Facility Provider with
respect to a payment to be made to it or a Majority of the Holders of the Class
A1 Notes and Class A2 Notes, as the case may be, consent, other than in Cash in
accordance with this Indenture, such payment or distribution shall be received
and held in trust for the benefit of, and shall forthwith be paid over and
delivered to, the Trustee, which shall pay and deliver the same to the Liquidity
Facility Provider or the Holders of the Class A1 Notes and Class A2 Notes, as
--------
the case may be, in accordance with this Indenture; provided, that, if any such
payment or distribution is made other than in Cash, it shall be held by the
Trustee as part of the Collateral and subject in all respects to the provisions
of this Indenture, including this Section 12.01.
SECTION 12.02 Standard of Conduct. In exercising any of its or
-------------------
their voting rights, rights to direct and consent or any other rights as a
Secured Party under this Indenture, subject to the terms and conditions of this
Indenture, including Section 5.09, a Secured Party or Secured Parties shall not
have any obligation or duty to any Person or to consider or take into account
the interests of any Person and shall not be liable to any Person for any action
taken by it or them or at its or their direction or any failure by it or them to
act or to
- 97 -
direct that an action be taken, without regard to whether such action or
inaction benefits or adversely affects any Secured Party, the Issuer, or any
other Person.
SECTION 12.03 Non-Petition. The Holders of the Notes, by their
------------
acceptance of such Notes, agree not to cause the filing of a petition in
bankruptcy against the Issuer until at least one year and one day have elapsed
since the final payments, or the extinguishment of the obligations of the
Issuer, to the Holders of the Notes or, if longer, the applicable preference
period then in effect.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01 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.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such Authorized Officer
knows, or in the exercise of reasonable care should know, 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 of an
Authorized Officer of the Issuer 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 of the Issuer, the Issuer any other
Person, stating that the information with respect to such factual matters is in
the possession of the Issuer or such other Person, unless such Authorized
Officer of the Issuer or such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. Any Opinion of
Counsel may also be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an Authorized Officer of the
Issuer, stating that the information with respect to such matters is in the
possession of the Issuer, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.
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.
Whenever in this Indenture it is provided that the absence of
the occurrence and continuation of a Default is a condition precedent to the
taking of any action by the Trustee at the request or direction of the Issuer,
then notwithstanding that the satisfaction of such condition is a condition
precedent to the Issuer' rights to make such request or direction, the Trustee
shall be protected in acting in accordance with such request or direction if
Trust Officer does not have knowledge of the occurrence and continuation of such
Default as provided in Section 6.01(d).
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SECTION 13.02 Acts of Noteholders. (a) Any request, demand,
--------------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by an agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, to the Issuer. Such instrument or instruments (and
the action or actions embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act of the Noteholders" signing such instrument or
----------------------
instruments. 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 conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section 13.02.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The principal amount and registered numbers of Notes held
by any Person, and the date of his holding the same, shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the Holder
(and any transferee thereof) of such Note and of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 13.03 Notices. Any request, demand, authorization,
-------
direction, notice, consent, waiver or Act of Noteholders or other documents
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with any party shall be sufficient for every purpose hereunder if made,
given, furnished or filed to such party in writing to and mailed, by certified
mail, return receipt requested, hand delivered, sent by recognized overnight
courier service guaranteeing next day delivery or by telecopy in legible form
(with receipt confirmed) to such party at the address set forth below:
(a) If to the Issuer:
Private Equity Partnership Structures I, LLC
c/o Aon Capital Managers, LLC, as Manager
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(b) If to the Trustee:
The Bank of New York
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000/7296
Attention: Corporate Trust Department, Dealing and
Trading Unit
(c) If to the Liquidity Facility Provider:
Canadian Imperial Bank of Commerce
2 Paces West, Suite 1200
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx Xxxx, Associate
(d) If to Standard & Poor's:
notice shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed by registered
mail, first class postage prepaid, hand delivered or sent by overnight courier
service guaranteeing next day delivery (or second day delivery if sent from
outside the United States), to Standard & Poor's addressed to it at:
Standard & Poor's
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
telecopy No. (000) 000-0000
(with confirmation of receipt thereof)
Attention: Structured Finance Ratings - Market Value Group
or at any other address previously furnished in writing to the
Trustee by Standard & Poor's
Any party may alter the address or facsimile number to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this Section 13.03 for the giving
of notice.
Notices to the Noteholders shall be given by first-class mail,
postage prepaid, to the registered Holders of the Notes at their addresses
appearing in the Note Register.
In the event that, by reason of the suspension of the regular
mail service as a result of a strike, work stoppage or similar activity, it
shall be impractical to mail notice of any event to Noteholders when such notice
is required to be given pursuant to any provision of this
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Indenture, then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 13.04 Effect of Headings and Table of Contents. The
-----------------------------------------
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 13.05 Successors and Assigns. All covenants and
------------------------
agreements in this Indenture by the Issuer shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 13.06 Severability. 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 13.07 Benefits of Indenture. The Liquidity Facility
---------------------
Provider shall be a third party beneficiary of each agreement or obligation in
this Indenture relating to payments to be made by the Issuer under the Liquidity
Facility, the rights and obligations of the Secured Parties with respect to the
Collateral and the priorities of payments established in Section 11.01 and
Article XII, the right of the Liquidity Facility Provider to consent to
supplemental indentures and the rights of the Liquidity Facility Provider to
receive reports and notices hereunder. 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, the Noteholders and the Liquidity
Facility Provider, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 13.08 Legal Holidays. In the event that the date of
---------------
any Quarterly Distribution Date or Redemption Date shall not be a Business Day,
then notwithstanding any other provision of the Notes or this Indenture, payment
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 nominal date of any such
Quarterly Distribution Date or Redemption Date, as the case may be, and interest
shall accrue on such payment for the period from and after any such nominal
date, to but excluding, the Quarterly Distribution Date.
SECTION 13.09 Governing Law. THIS INDENTURE AND EACH NOTE
--------------
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 13.10 Submission to Jurisdiction. The Issuer hereby
---------------------------
irrevocably submits to the non-exclusive jurisdiction of any New York State or
Federal court sitting in the Borough of Manhattan in The City of New York in any
action or Proceeding arising out of or relating to the Notes or this Indenture,
and the Issuer hereby irrevocably agrees that all claims in respect of such
action or Proceeding may be heard and determined in such New York State or
Federal court. The Issuer hereby irrevocably waives, to the fullest extent that
it may legally do so, the defense of an inconvenient forum to the maintenance of
such action or Proceeding. The Issuer irrevocably consents to the service of any
and all process in any action or Proceeding by
- 101 -
the mailing or delivery of copies of such process to it at the office of the
Issuer's agent in New York set forth in Section 7.02. The Issuer agrees that a
final judgment in any such action or Proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
SECTION 13.11 Counterparts. This instrument may be executed in
------------
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 13.12 Confidential Treatment of Documents. Except as
------------------------------------
otherwise provided in this Indenture or as required by law, this Indenture and
all agreements, reports or other documents related to the transaction executed
or delivered in connection with this Indenture shall be treated by the Trustee
as confidential. The Trustee shall provide a copy of this Indenture to any
Holder of a beneficial interest in any Note upon written request therefor in the
form satisfactory to the Trustee certifying that it is such a Holder.
SECTION 13.13 Waiver of Trial by Jury. The Issuer hereby
------------------------
irrevocably waives any and all rights to a trial by jury in any legal
proceedings arising out or in relation of this Indenture.
- 102 -
IN WITNESS WHEREOF, we have hereunto set our hands as of the
date first above written.
PRIVATE EQUITY PARTNERSHIP
STRUCTURES I, LLC,
as Issuer
By: Aon Capital Managers, LLC,
as Manager
By:____________________________________
Name: Xxxx X. Xxxxx
Title: President
THE BANK OF NEW YORK,
as Trustee, Note Registrar, Transfer
Agent, Calculation Agent, Custodian
and Paying Agent
By:____________________________________
Name:
Title:
[Sogmatire Page to Indenture]
SCHEDULE I
LIMITED PARTNERSHIPS
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Date of Jurisdiction of Issuer's Unfunded
Name Formation Formation LP Interest Commitment
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Apollo Investment Fund III, February 7, 1995 Delaware $25,000,000 $0.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Apollo Investment Fund IV, April 21, 1998 Delaware $40,000,000 $3,515,838.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Apollo Real Estate Investment May 31, 1995 Delaware $25,000,000 $0.00
Fund II, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Apollo Real Estate Investment May 22, 1997 Delaware $25,000,000 $331,508.12
Fund III, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Apollo Real Estate Investment November 10, 1998 Delaware $25,000,000 $6,870,538.00
Fund IV, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Aqua International Partners, May 30, 1997 Delaware $5,000,000 $3,009,020.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Ark Direct Capital Fund, L.P. September 5, 1996 Delaware $3,000,000 $193,775.29
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Atlantic Equity Partners III, September 28, 1999 Delaware $10,000,000 $6,857,282.80
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
The Beacon Group Energy October 23, 1998 Delaware $5,000,000 $0.00
Investment Fund II, L.P. (Date of Amended
and Restated LP
Agreement)
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Blackstone Real Estate October 8, 1998 Delaware $15,000,000 $7,662,496.00
Partners III L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Capital Z Financial Services July 31, 1998 Bermuda $35,000,000 $12,027,800.00
Fund II, L.P.*
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Carlyle Realty Partners, L.P. June 20, 1997 Delaware $5,000,000 $0.00
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Xxxxxx Xxxxxx Partners III, February 12, 1997 Delaware $10,000,000 $2,182,681.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Centre Capital Investors II, December 6, 1995 Delaware $10,000,000 $306,228.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Centre Capital Investors III, June 1, 1999 Delaware $15,000,000 $6,642,243.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Century Capital Partners, LP April 15, 1995 Delaware $5,000,000 $0.00
(Date of Amended
and Restated LP
Agreement)
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Xxxxxxx, Dubilier & Rice Fund March 21, 1996 Delaware $20,000,000 $1,905,279.00
V, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Xxxxxxx, Dubilier & Rice Fund August 20, 1998 Cayman Islands $20,000,000 $13,008,663.00
VI, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Code Xxxxxxxx & Xxxxxxx IV, September 8, 1999 Delaware $10,000,000 $7,152,734.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Frontenac VI Limited June 3, 1993 Delaware $3,000,000 $0.00
Partnership
------------------------------- --------------------- ---------------------- -------------------- ----------------------
* THis is the same entity as Insurance Partners II, L.P.
S-1
Green Equity Investors II, June 16, 1994 Delaware $5,000,000 $0.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Green Equity Investors III, December 8, 1997 Delaware $10,000,000 $2,715,582.88
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Greenwich Street Capital July 2, 1998 Delaware $10,000,000 $155,078.95
Partners II, LP
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Halifax Capital Partners, L.P. June 30, 1999 Delaware $10,000,000 $7,691,754.00
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Harbour Group Investments December 22, 1993 Delaware $12,000,000 $62,573.00
III, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Harbour Group Investments IV, February 1, 1999 Delaware $8,000,000 $7,196,667.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Hicks, Muse, Xxxx & Xxxxx September 9, 1993 Delaware $25,000,000 $0.00
Equity Fund II, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Hicks, Muse, Xxxx & Xxxxx May 31, 1996 Delaware $25,000,000 $0.00
Equity Fund III, L.P
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Hicks, Muse, Xxxx & Xxxxx July 31, 1998 Delaware $25,000,000 $410,191.00
Equity Fund IV, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Hicks, Muse, Xxxx & Xxxxx Xxxxx 30, 1999 Delaware $10,000,000 $2,920,441.44
Europe Fund, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Hicks, Muse, Xxxx & Xxxxx July 28, 1997 Delaware $10,000,000 $492,872.00
Latin America Fund, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Xxxx Communications Partners, April 19, 1996 Delaware $1,000,000 $184,331.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Insurance Partners L.P. August 5, 1993 Delaware $25,000,000 $0.00
------------------------------- --------------------- ---------------------- -------------------- ----------------------
JK&B Capital III, L.P. February 16, 1999 Delaware $10,000,000 $4,000,000.00
------------------------------- --------------------- ---------------------- -------------------- ----------------------
JW Childs Equity Partners I, October 16, 1995 Delaware $5,000,000 $744,515.52
LP
------------------------------- --------------------- ---------------------- -------------------- ----------------------
JW Childs Equity Partners II, June 25, 1998 Delaware $7,000,000 $2,508,346.30
LP
------------------------------- --------------------- ---------------------- -------------------- ----------------------
The Lafayette Investment May 12, 1998 Delaware $10,000,000 $7,297,456.35
Fund, LLP
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Xxxxxx Brothers Merchant 1997 Delaware $10,000,000 $3,066,338.14
Banking Partners II, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Lincolnshire Equity Fund II, September 1998 Delaware $5,000,000 $3,568,504.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Long Point Capital Fund, L.P. December 3, 1997 Delaware $5,000,000 $2,315,426.46
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Madison Dearborn Capital June 28, 1996 Delaware $20,000,000 $1,009,810.00
Partners II, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Madison Dearborn Capital January 26, 1997 Delaware $20,000,000 $5,073,033.00
Partners III, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Monitor Clipper Equity August 25, 1997 Delaware $5,000,000 $1,216,050.40
Partners, LP
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Oak Hill Capital Partners July 14, 2000 Bermuda $20,000,000 $6,406,729.74
(Bermuda), L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Olympus Real Estate Fund II, December 23, 1997 Delaware $5,000,000 $301,683.00
L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Rhone Partners LP March 14, 1997 Delaware $10,000,000 $2,686,216.00
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Ripplewood Partners, L.P. August 14, 1996 Delaware $5,000,000 $987,458.00
------------------------------- --------------------- ---------------------- -------------------- ----------------------
S-2
Xxxxxx X. Xxx Equity Fund August 17, 1995 Delaware $20,000,000 $4,543,932.00
III, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Xxxxxx X. Xxx Equity Fund IV, December 18, 1997 Delaware $20,000,000 $4,007,295.00
L.P. (Date of 1st
Amended and
Restated LP
Agreement)
------------------------------- --------------------- ---------------------- -------------------- ----------------------
TPG Investors III, L.P. December 15, 1999 Delaware $15,000,000 $10,910,125.00
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Xxxxxxx Xxxxx Capital June 16, 1995 Delaware $10,000,000 $300,000.00
Partners V, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Xxxxxxx Xxxxx Capital July 17, 1998 Delaware $5,000,000 $468,337.69
Partners VI, L.P.
------------------------------- --------------------- ---------------------- -------------------- ----------------------
Xxxxxxx Xxxxx Mezzanine March 3, 1993 Illinois $5,000,000 $0.00
Capital Fund, LP
------------------------------- --------------------- ---------------------- -------------------- ----------------------
S-3
APPENDIX A
LIBOR FORMULA
With respect to each Interest Period, "LIBOR" for purposes of
calculating the Interest Rate for each Class of Notes for such Interest Period
will be determined by the Calculation Agent in accordance with the following
provisions:
(i) LIBOR for any Interest Period shall equal the offered rate, as
determined by the Calculation Agent, for Dollar deposits of three
months that appears on Telerate Page 3750 (or such other page as may
replace such Telerate Page 3750 for the purpose of displaying
comparable rates), as reported by Bloomberg Financial Markets
Commodities News, as of 11:00 a.m. (London time) on the applicable
LIBOR Determination Date. "LIBOR Determination Date" means, with
--------------------------
respect to any Interest Period, the second London Banking Day prior to
the first day of such Interest Period.
(ii) If, on any LIBOR Determination Date, such rate does not appear on
Telerate Page 3750 (or such other page as may replace such Telerate
Page 3750 for the purpose of displaying comparable rates), as reported
by Bloomberg Financial Markets Commodities News, the Calculation Agent
shall determine the arithmetic mean of the offered quotations of the
Reference Banks to prime banks in the London interbank market for
Dollar deposits of three months (except that in the case where such
Interest Period shall commence on a day that is not a LIBOR Business
Day, for a term of three months commencing on the next following LIBOR
Business Day), by reference to requests for quotations as of
approximately 11:00 a.m. (London time) on such LIBOR Determination Date
made by the Calculation Agent to the Reference Banks. If, on any LIBOR
Determination Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal such arithmetic mean. If, on any LIBOR
Determination Date, fewer than two Reference Banks provide such
quotations, LIBOR shall be deemed to be the arithmetic mean of the
offered quotations that leading banks in New York City selected by the
Calculation Agent (after consultation with the Issuer) are quoting on
the relevant LIBOR Determination Date for Dollar deposits for the term
of such Interest Period (except that in the case where such Interest
Period shall commence on a day that is not a LIBOR Business Day, for a
term of three months commencing on the next following LIBOR Business
Day), to the principal London offices of leading banks in the London
interbank market.
(iii) In respect of any Interest Period having a Designated Maturity other
than three months, LIBOR shall be determined through the use of
straight-line interpolation by reference to two rates calculated in
accordance with clauses (i) and (ii) above, one of which shall be
determined as if the maturity of the Dollar deposits referred to
therein were the period of time for which rates are available next
shorter than the Interest Period and the other of which shall be
determined as if such maturity were the period of time for which rates
are available next longer than the Interest Period; provided that, if
--------
an Interest Period is less than or equal to seven days, then LIBOR
shall be determined by reference to a rate
A-1
calculated in accordance with clauses (i) and (ii) above as if the
maturity of the Dollar deposits referred to therein were a period of
time equal to seven days.
(iv) If the Calculation Agent is required but is unable to determine a rate
in accordance with either of the procedures described in clauses (i) or
(ii) above, LIBOR with respect to such Interest Period shall be the
arithmetic mean of the offered quotations of the Reference Dealers as
of 10:00 a.m. (New York time) on the first day of such Interest Period
for negotiable U.S. Dollar certificates of deposit of major U.S. money
market banks having a remaining maturity closest to the Designated
Maturity.
(v) If the Calculation Agent is required but is unable to determine a rate
in accordance with any of the procedures described in clauses (i), (ii)
or (iv) above, LIBOR with respect to such Interest Period will be
calculated on the last day of such Interest Period and shall be the
arithmetic mean of the Base Rate for each day during such Interest
Period.
For purposes of clauses (i), (iii), (iv) and (v) above, all
percentages resulting from such calculations shall be rounded, if necessary, to
the nearest one hundred-thousandth of a percentage point. For the purposes of
clause (ii) above, all percentages resulting from such calculations shall be
rounded, if necessary, to the nearest one thirty-second of a percentage point.
As used herein:
"Base Rate" means a fluctuating rate of interest determined by
---------
the Calculation Agent as being the rate of interest most recently announced by
the Base Rate Reference Bank at its New York office as its base rate, prime
rate, reference rate or similar rate for Dollar loans. Changes in the Base Rate
will take effect simultaneously with each change in the underlying rate.
"Base Rate Reference Bank" means The Chase Manhattan Bank, or
-------------------------
if such bank ceases to exist or is not quoting a base rate, prime rate,
reference rate or similar rate for Dollar loans, such other major money center
commercial bank in New York City as is selected by the Calculation Agent.
"Designated Maturity" means, with respect to any Class of
--------------------
Notes (i) for the first Interest Period, the number of calendar days from, and
including the Closing Date to, but excluding, the next succeeding Quarterly
Distribution Date, (ii) for each Interest Period thereafter, three months, and
(iii) for the final Interest Period, the number of calendar days from, and
including, the first day of such Interest Period to, but excluding, the next
succeeding Quarterly Distribution Date.
"LIBOR Business Day" means a day on which commercial banks and
------------------
foreign exchange markets settle payments in Dollars in New York and London.
"London Banking Day" means a day on which commercial banks are
------------------
open for business (including dealings in foreign exchange and foreign currency
deposits) in London.
"Reference Banks" means four major banks in the London
----------------
interbank market selected by the Calculation Agent.
A-2
"Reference Dealers" means three major dealers in the secondary
-----------------
market for U.S. Dollar certificates of deposit selected by the Calculation
Agent.
The determination of the Interest Rate for each Class of Notes
by the Calculation Agent shall (in the absence of manifest error) be final and
binding upon all parties.
A-3
EXHIBIT D
FORM OF RULE 144A TRANSFER CERTIFICATE
Private Equity Partnership Structures I, LLC
c/o Aon Capital Managers, LLC
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
The Bank of New York
as Trustee
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department,
Dealing and Trading Unit
Re: [Class A1 Senior Floating Rate Notes Due 2011]
[Class A2 Senior Floating Rate Notes Due 2011]
[Class B1 Subordinated Floating Rate Notes Due 2013]
[Class B2 Subordinated Floating Rate Notes Due 2013]
----------------------------------------------------
(the "Notes")
-------------
Reference is hereby made to the Indenture, dated as of
December 31, 2001 (the "Indenture"), among Private Equity Partnership Structures
I, LLC and The Bank of New York, as trustee (the "Trustee"). Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to the transfer by _________________ (the
"Transferor") of U.S.$____________ principal amount of Notes held by the
----------
Transferor. The Transferor has requested that such beneficial interest in the
Notes be transferred to ___________________ (the "Transferee"). Delivered
herewith is a Transferee Certification completed by the Transferee.
----------
In connection with such request, and in respect of such Notes,
the Transferor does hereby certify that such Notes are being transferred in
accordance with (i) the transfer restrictions set forth in the Indenture and the
Notes and (ii) Rule 144A under the Securities Act to a Transferee that the
Transferor reasonably believes is purchasing the Notes for its own account and
the Transferor reasonably believes that the Transferee is (a) a "qualified
institutional buyer" within the meaning of Rule 144A and (b) a Qualified
Purchaser (as defined in the Indenture), and such Transferee is aware that the
sale to it is being made in reliance upon Rule 144A, in each case in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
D-1
This certificate and the statements contained herein are made
for your benefit.
[INSERT NAME OF TRANSFEROR]
By:______________________________________
Name:
Title:
Dated:____________,________
D-2
TRANSFEREE CERTIFICATE
Private Equity Partnership Structures I, LLC
c/o Aon Capital Managers, LLC
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
The Bank of New York
as Trustee
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department,
Dealing and Trading Unit
The undersigned (the "Transferee") intends to purchase
----------
U.S.$____________ principal amount of Class [A1][A2][B1][B2] Notes (the "Notes")
-----
issued by Private Equity Partnership Structures I, LLC (the "Issuer") from the
------
Transferor named in the Transfer Certificate to which this Transferee
Certificate is attached. In connection with the transfer of such Notes, the
Transferee hereby executes and delivers to each of you this "Transferee
Certificate" in which the Transferee certifies to each of you the information
set forth herein.
General Information
1. Print Full Name of Transferee:
2. Address and Contact Person for Notices:
3. Telephone Number:
4. Telecopier Number:
5. Permanent Address (if different than above):
6. Account details regarding the account to
which the Transferee's interest in the
Notes should be credited:
Status
D-3
7. The Transferee (i) is (x) a "qualified institutional buyer" (within the
meaning of Rule 144A ("Rule 144A") under the United States Securities Act
of 1933, as amended (the "Securities Act")) (a "Qualified Institutional
Buyer") and (y) a Qualified Purchaser (as defined below), (ii) is aware
that the sale to it is being made in reliance on Rule 144A and (iii) is
acquiring such Notes for its own account.
8. If required by the Indenture, the Transferee will, prior to any sale,
pledge or other transfer by it of any Note (or any interest therein),
obtain from the transferee and deliver to the Issuer and the Note
Registrar a duly executed transferee certificate addressed to each of the
Trustee and the Issuer in the form of the relevant exhibit attached to the
Indenture, and such other certificates and other information as the Issuer
or the Trustee may reasonably require to confirm that the proposed
transfer substantially complies with the transfer restrictions contained
in the Indenture.
9. The Transferee agrees that no Note (or any interest therein) may be sold,
pledged or otherwise transferred in a denomination of less than the
applicable minimum denomination set forth in the Indenture.
10. The Transferee understands that the Notes have not been registered under
the Securities Act and, therefore, cannot be offered or sold in the United
States or to U.S. Persons (as defined below) unless they are registered
under the Securities Act or unless an exemption from registration is
available. Accordingly, the certificates representing the Notes will bear
a legend stating that the Notes have not been registered under the
Securities Act and setting forth certain of the restrictions on transfer
of the Notes. The Transferee understands that the Issuer has no obligation
to register the Notes under the Securities Act or to comply with the
requirements for any exemption from the registration requirements of the
Securities Act (other than to supply information specified in Rule
144A(d)(4) of the Securities Act as required by the Indenture).
11. The Transferee is aware that no Notes (or any interest therein) may be
offered or sold, pledged or otherwise transferred to (i) a transferee
acquiring a Restricted Note except (a) to a transferee whom the Transferee
reasonably believes is a Qualified Institutional Buyer, purchasing for its
own account, to whom notice is given that the resale, pledge or other
transfer is being made in reliance on the exemption from the registration
requirements of the Securities Act provided by Rule 144A, (b) to a
transferee that is a "qualified purchaser" (as defined in the United
States Investment Company Act of 1940, as amended (the "Investment Company
Act"), a "knowledgeable employee" with respect to the Issuer within the
meaning of Rule 3c-5 under the Investment Company Act or a company
beneficially owned exclusively by one or more "qualified purchasers"
and/or "knowledgeable employees" with respect to the Issuer (any of the
foregoing, a "Qualified Purchaser"), (c) to a transferee that is not a
Flow-Through Investment Vehicle (other than a Qualifying Investment
Vehicle) (each as defined below), (d) in compliance with the certification
and other requirements set forth in the Indenture and (e) in accordance
with any applicable securities laws of any state of the United States and
any other relevant jurisdiction or (ii) a transferee acquiring an interest
in a Regulation S Global Note except (a) to a transferee that is acquiring
such interest in an offshore transaction (within the meaning of Regulation
S) in accordance with Rule 903 or 904 of Regulation S, (b) to a transferee
that is not a "U.S. person" (within the meaning of Regulation S) (a "U.S.
Person") and is a Qualified Purchaser, (c) to a transferee that is not a
Flow-Through Investment Vehicle (other than a Qualifying Investment
Vehicle), (d) in compliance with the other requirements set forth in the
Indenture and (e) in
D-4
accordance with any applicable securities laws of any state of the United
States and any other relevant jurisdiction.
12. The Transferee understands that there is no market for the Notes and that
no assurance can be given as to the liquidity of any trading market for
the Notes and that it is unlikely that a trading market for the Notes will
develop. Accordingly, the Transferee must be prepared to hold the Notes
for an indefinite period of time or until their maturity.
13. If the Transferee is an entity that, but for the exception provided for in
Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act, would be
an investment company (hereinafter in this paragraph referred to as an
excepted investment company):
(i) all of the beneficial owners of outstanding securities (other than
short-term paper) of the Transferee (such beneficial owners determined in
accordance with Section 3(c)(1)(A) of the Investment Company Act) that
acquired such securities on or before April 30, 1996 (hereinafter in this
paragraph referred to as "pre-amendment beneficial owners"); and
(ii) all pre-amendment beneficial owners of the outstanding securities
(other than short-term paper) of any excepted investment company that,
directly or indirectly, owns any outstanding securities of the Transferee,
have consented to the Transferee's treatment as a Qualified Purchaser in
accordance with Section 2(a)(51)(C) of, and Rule 2a51-2 promulgated under,
the Investment Company Act.
14. The Transferee, if a U.S. Resident, represents that, unless the Transferee
is a Qualifying Investment Vehicle (as defined below), (i) if the
Transferee would be an investment company but for the exception in Section
3(c)(1) or Section 3(c)(7) of the Investment Company Act, the amount of
the Transferee's investment in the Notes (including its investment in all
Classes of Notes) does not exceed 40% of the total assets (determined on a
consolidated basis with its subsidiaries) of the Transferee; (ii) no
person owning any equity or similar interest in the Transferee has the
ability to control any investment decision of the Transferee or to
determine, on an investment-by-investment basis, the amount of such
person's contribution to any investment made by the Transferee; (iii) the
Transferee was not organized or reorganized for the specific purpose of
acquiring a Note; and (iv) no additional capital or similar contributions
were specifically solicited from any person owning an equity or similar
interest in the Transferee for the purpose of enabling the Transferee to
purchase Notes (any such transferee in (i), (ii), (iii) or (iv) above
being herein referred to as a "Flow-Through Investment Vehicle"). For this
purpose, a "Qualifying Investment Vehicle" is an entity (i) as to which
all of the beneficial owners of any securities issued by such entity have
made, and as to which (in accordance with the document pursuant to which
such entity was organized or the agreement or other document governing
such securities) each such beneficial owner must require any transferee of
any such security to make, to the Issuer and the Note Registrar each of
the representations set forth in the Indenture required to be made upon
transfer of any of the Notes (with modifications to such representations
satisfactory to the Issuer to reflect the indirect nature of the interests
of such beneficial owners in the Notes). If the Transferee is a
Flow-Through Investment Vehicle, the Transferee represents and warrants
that either (i) none of the beneficial owners of its securities are U.S.
residents (within the meaning of the Investment Company Act) or (ii) some
or all of the beneficial owners of its securities are U.S. residents
(within the meaning of the Investment
D-5
Company Act) and each such beneficial owner has certified to the
Transferee that it is a Qualified Purchaser, a Knowledgeable Employee with
respect to the Issuer or a company beneficially owned exclusively by one
or more Qualified Purchasers and/or Knowledgeable Employees with respect
to the Issuer. If the Transferee is a Flow-Through Investment Vehicle, the
Transferee also represents and warrants that it has only one class of
securities outstanding (other than any nominal share capital the
distributions in respect of which are not correlated to or dependent upon
distributions on, or the performance of, the Notes).
15. If the Transferee is a U.S. Resident, is the Transferee a Flow-Through
Investment Vehicle:
[ ] Yes [ ] No
If the Transferee has stated above that it is a Flow-Through Investment
Vehicle, the Transferee is a Qualifying Investment Vehicle and has
attached hereto information establishing the truth of the related
representations in Paragraph 10 above:
[ ] Yes [ ] No
16. Either (a) the Transferee is not, and is not a Person acting on behalf of
or investing the assets of, (i) an employee benefit plan (within the
meaning of Section 3(3) of the United States Employee Retirement Income
Security Act of 1974, as amended ("ERISA") that is subject to Title I of
ERISA, (ii) a plan (within the meaning of Section 4975(e)(1) of the United
States Internal Revenue Code of 1986, as amended (the "Code") that is
subject to Section 4975 of the Code, (iii) a governmental plan (within the
meaning of Section 3(32) of ERISA) or church plan (within the meaning of
Section 3(33) of ERISA) that is subject to any Federal, state or local law
that is, to a material extent, similar to the provisions of Title I of
ERISA or Section 4975 of the Code ("Similar Law") (each of the foregoing,
a "Regulated Investor") or (b) the Transferee represents and warrants that
it is a Regulated Investor its purchase and continued holding of the Notes
will be covered by a prohibited transaction class exemption issued by the
United States Department of Labor (or, in the case of a governmental or
church plan, will not result in a violation of any Similar Law). In
addition, if the Transferee is, or is acting on behalf of or investing the
assets of, an employee benefit plan subject to Title I of ERISA or an
employee benefit plan that is not subject to Title I ERISA but is subject
to provisions of a Similar Law, the fiduciaries of such employee benefit
plan represent and warrant that they have been informed of and understand
the Issuer's investment objectives, policies and strategies and that the
decision to invest such employee benefit plan's assets in notes was made
with appropriate consideration of relevant investment factors with regard
to such employee benefit plan, as the case may be, and is consistent with
the duties and responsibilities imposed upon fiduciaries with regard to
their investment decisions under Title I of ERISA or such Similar Law.
17. The Transferee agrees that (a) any sale, pledge or other transfer of a
Note (or any interest therein) made in violation of the transfer
restrictions contained in the Indenture, or made based upon any false or
inaccurate representation made by the Transferee or a transferee to the
Issuer, the Trustee or the Note Registrar, will be void and of no force or
effect and (b) none of the Issuer, the Trustee and the Note Registrar has
any obligation to recognize any sale, pledge or other transfer of a Note
(or any interest therein) made in violation of any such transfer
restriction or made based upon any such false or inaccurate
representation.
18. The Transferee is not a member of the public in the Cayman Islands.
D-6
19. The Transferee understands and agrees that a legend in substantially the
following form will be placed on each Note: THIS NOTE AND ANY BENEFICIAL
INTEREST IN THIS NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
---------------
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION. THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT").
----------------------
THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO
A PERSON WHO IS BOTH (X) A QUALIFIED PURCHASER (AS DEFINED IN THE
INDENTURE REFERRED TO HEREIN) AND (Y) A "QUALIFIED INSTITUTIONAL BUYER"
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") OR,
---------
SOLELY WITH RESPECT TO CERTAIN INITIAL PURCHASERS APPROVED BY THE ISSUER,
AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, PURCHASING FOR ITS
OWN ACCOUNT, TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER OF THIS NOTE IS BEING MADE IN RELIANCE ON THE EXEMPTION FROM
SECURITIES ACT REGISTRATION PROVIDED BY RULE 144A OR ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (SUBJECT TO THE
DELIVERY OF SUCH CERTIFICATES, LEGAL OPINIONS OR OTHER INFORMATION AS THE
ISSUER MAY REASONABLY REQUIRE, INCLUDING DELIVERY OF AN OPINION OF COUNSEL
TO THE EFFECT THAT SUCH TRANSFER COMPLIES WITH THE TRANSFER RESTRICTION
SET FORTH IN THE INDENTURE), AND (B) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION. NEITHER THE ISSUER NOR THE COLLATERAL HAS BEEN REGISTERED
UNDER THE INVESTMENT COMPANY ACT. THIS NOTE IS SUBJECT TO RESTRICTIONS ON
TRANSFER AS PROVIDED IN THE INDENTURE.
NO TRANSFER OF THIS NOTE (OR ANY INTEREST HEREIN) MAY BE MADE (AND NEITHER
THE TRUSTEE NOR THE NOTE REGISTRAR WILL RECOGNIZE ANY SUCH TRANSFER) IF
(A) SUCH TRANSFER WOULD BE MADE TO A TRANSFEREE WHO IS NOT A QUALIFIED
INSTITUTIONAL BUYER AND A QUALIFIED PURCHASER OR AN ACCREDITED
"INSTITUTIONAL INVESTOR", (B) SUCH TRANSFER WOULD HAVE THE EFFECT OF
REQUIRING EITHER THE ISSUER TO REGISTER OR THE COLLATERAL TO BECOME
REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY ACT OR
(C) SUCH TRANSFER WOULD BE MADE TO A PERSON THAT IS OTHERWISE UNABLE TO
MAKE THE CERTIFICATIONS AND REPRESENTATIONS DEEMED TO BE MADE BY SUCH
PERSON IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, AN INVESTOR IN
THIS NOTE MUST BE PREPARED TO BEAR THE ECONOMIC RISK OF THE INVESTMENT FOR
AN INDEFINITE PERIOD OF TIME.
D-7
THE ISSUER MAY REQUIRE ANY HOLDER OF THIS NOTE WHO IS DETERMINED NOT TO
HAVE BEEN (X) EITHER A QUALIFIED INSTITUTIONAL BUYER OR, SOLELY WITH
RESPECT TO CERTAIN INITIAL PURCHASERS APPROVED BY THE ISSUER, AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT AND (Y) A QUALIFIED PURCHASER AT
THE TIME OF ACQUISITION OF THIS NOTE TO SELL THIS NOTE TO A PERSON WHO IS
A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT AND A QUALIFIED PURCHASER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A.
ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT,
WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE
PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY
OF THE ISSUER, THE TRUSTEE OR ANY INTERMEDIARY.
IN ADDITION, NO TRANSFER OF THIS NOTE (OR ANY INTEREST HEREIN) MAY BE MADE
(AND NEITHER THE TRUSTEE NOR THE NOTE REGISTRAR WILL RECOGNIZE ANY SUCH
TRANSFER) IF SUCH TRANSFER WOULD BE MADE TO A TRANSFEREE THAT IS (A) A
DEALER DESCRIBED IN PARAGRAPH (A)(1)(ii) OF RULE 000X XXXXX XXXX XXX
XXXXXXX XX A DISCRETIONARY BASIS LESS THAN U.S.$25,000,000 IN SECURITIES
OF ISSUER THAT ARE NOT AFFILIATED PERSONS OF THE DEALER OR (B) A PLAN
REFERRED TO IN PARAGRAPH (a)(1)(I)(D) OR (a)(1)(i)(E) OF RULE 144A OR A
TRUST FUND REFERRED TO IN PARAGRAPH (a)(1)(i)(F) OF RULE 144A THAT HOLDS
THE ASSETS OF SUCH A PLAN, UNLESS INVESTMENT DECISIONS WITH RESPECT TO THE
PLAN ARE MADE SOLELY BY THE FIDUCIARY, TRUSTEE OR SPONSOR OF SUCH PLAN.
THE TRANSFEREE, AND EACH ACCOUNT FOR WHICH IT IS PURCHASING, IS REQUIRED
TO HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATIONS OF THE NOTES.
20. The Transferee acknowledges that the foregoing acknowledgements,
representations and agreements will be relied upon by the Issuer and the
Trustee for the purpose of determining its eligibility to purchase Notes
of the Issuer. The Transferee agrees to provide, if requested, any
additional information that may be required to substantiate its status as
a Qualified Institutional Buyer or Qualified Purchaser, to determine
compliance with ERISA and/or Section 4975 of the Code or to otherwise
determine its eligibility to purchase Notes of the Issuer.
D-8
Signatures:
PARTNERSHIP, CORPORATION, TRUST,
CUSTODIAL ACCOUNT OR OTHER ENTITY:
________________________________________
(Name of Entity)
By:_____________________________________
(Signature)
______________________________________
(Print Name and Title)
Date:____________________________________
D-9
EXHIBIT E
FORM OF REGULATION S TRANSFER CERTIFICATE
Private Equity Partnership Structures I, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
The Bank of New York
as Trustee
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department,
Dealing and Trading Unit
Re: [Class A1 Senior Floating Rate Notes Due 2011]
[Class A2 Senior Floating Rate Notes Due 2011]
[Class B1 Subordinated Floating Rate Notes Due 2013]
[Class B2 Subordinated Floating Rate Notes Due 2013]
----------------------------------------------------
(the "Notes")
-------------
Reference is hereby made to the Indenture, dated as of
December 31, 2001 (the "Indenture"), among Private Equity Partnership Structures
---------
I, LLC and The Bank of New York, as trustee (the "Trustee"). Capitalized terms
-------
used but not defined herein shall have the meanings given to them in the
Indenture. Other terms shall have the meanings given to them in Regulation S.
This letter relates to the transfer by _________________ (the
"Transferor") of U.S.$____________ principal amount of Notes held by the
----------
Transferor. The Transferor has requested that such beneficial interest in the
Notes be transferred to ___________________ (the "Transferee"). Delivered
----------
herewith is a Transferee Certification completed by the Transferee.
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Indenture and the
Notes and pursuant to and in accordance with Regulation S under the Securities
Act, and accordingly the Transferor does hereby certify that:
(1) the offer of the Notes was not made to a person who is a
"U.S. person" (within the meaning of Regulation S) or a "U.S. resident" (within
the meaning of the Investment Company Act);
(2) the offer of the Notes was not made to a person in the
United States;
(3) either (x) at the time the buy order was originated, the
Transferee was outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of,
a designated offshore securities market and neither the Transferor
E-1
nor any person acting on its behalf knows that the transaction was prearranged
with a buyer in the United States;
(4) no directed selling efforts have been made in
contravention of the requirements of Rule 904(a)(2) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
This certificate and the statements contained herein are made
for your benefit.
[INSERT NAME OF TRANSFEROR]
By:____________________________________
Name:
Title:
Dated: ____________,___________
E-2
TRANSFEREE CERTIFICATE
Private Equity Partnership Structures I, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
The Bank of New York
as Trustee
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department,
Dealing and Trading Unit
The undersigned (the "Transferee") intends to purchase
----------
U.S.$____________ principal amount of Class [A1][A2][B1][B2] Notes (the "Notes")
-----
issued by Private Equity Partnership Structures I, LLC (the "Issuer") from the
------
Transferor named in the Transfer Certificate to which this Transferee
Certificate is attached. In connection with the registration of the transfer of
such Notes, the Transferee hereby executes and delivers to each of you this
"Transferee Certificate" in which the Transferee certifies to each of you the
information set forth herein.
A General Information
-------------------
1. Print Full Name of Transferee: _____________________
2. Address and Contact Person for
Notices: _____________________
_____________________
_____________________
3. Telephone Number: _____________________
4. Telecopier Number: _____________________
5. Permanent Address (if different than
above): _____________________
6. Account details regarding the account
to which the Transferee's interest in
the Notes should be credited: _____________________
E-3
B Status
------
1. The Transferee (i) is not a "U.S. person" (within the meaning of
Regulation S ("Regulation S") under the Securities Act of 1933, as amended
(the "Securities Act") (a "U.S. Person") and is acquiring such Notes in an
offshore transaction in accordance with Rule 904 of Regulation S and is a
Qualified Purchaser, (ii) is acquiring such Notes for its own account,
(iii) is not acquiring, and has not entered into any discussions regarding
its acquisition of, such Notes while it is in the United States of America
or any of its territories or possessions, (iv) understands that such Notes
are being sold without registration under the Securities Act by reason of
an exemption that depends, in part, on the accuracy of these
representations, (v) understands that such Notes may not, absent an
applicable exemption, be transferred without registration and/or
qualification under the Securities Act and applicable state securities
laws and the laws of any other applicable jurisdiction and (vi)
understands that prior to the end of the Distribution Compliance Period,
interests in a Regulation S Note may only be held through Euroclear or
Cedelbank.
2. If required by the Indenture, the Transferee will, prior to any sale,
pledge or other transfer by it of any Note (or any interest therein),
obtain from the transferee and deliver to the Issuer and the Note
Registrar a duly executed transferee certificate addressed to each of the
Trustee and the Issuer in the form of the relevant exhibit attached to the
Indenture, and such other certificates and other information as the Issuer
or the Trustee may reasonably require to confirm that the proposed
transfer substantially complies with the transfer restrictions contained
in the Indenture.
3. The Transferee agrees that no Note (or any interest therein) may be sold,
pledged or otherwise transferred in a denomination of less than the
applicable minimum denomination set forth in the Indenture.
4. The Transferee understands that the Notes have not been registered under
the Securities Act and, therefore, cannot be offered or sold in the United
States or to U.S. Persons unless they are registered under the Securities
Act or unless an exemption from registration is available. Accordingly,
the certificates representing the Notes will bear a legend stating that
the Notes have not been registered under the Securities Act and setting
forth certain of the restrictions on transfer of the Notes. The Transferee
understands that the Issuer has no obligation to register the Notes under
the Securities Act or to comply with the requirements for any exemption
from the registration requirements of the Securities Act (other than to
supply information specified in Rule 144A(d)(4) of the Securities Act as
required by the Indenture).
5. The Transferee is aware that no Notes (or any interest therein) may be
offered or sold, pledged or otherwise transferred to (i) a transferee
acquiring a Restricted Global Note except (a) to a transferee whom the
Transferee reasonably believes is a Qualified Institutional Buyer,
purchasing for its own account, to whom notice is given that the resale,
pledge or other transfer is being made in reliance on the exemption from
the registration requirements of the Securities Act provided by Rule 144A,
(b) to a transferee that is a "qualified purchaser" (as defined in the
Investment Company Act), a "knowledgeable employee" with respect to the
Issuer within the meaning of Rule 3c-5 under the Investment Company Act,
or a company beneficially owned exclusively by one or more "qualified
purchasers" and/or "knowledgeable employees" with respect to the Issuer
(any of the foregoing, a "Qualified Purchaser"), (c) in compliance with
the certification and other requirements set forth in the
E-4
Indenture and (d) in accordance with any applicable securities laws of any
state of the United States and any other relevant jurisdiction or (ii) a
transferee acquiring an interest in a Regulation S Global Note except (a)
to a transferee that is acquiring such interest in an offshore transaction
(within the meaning of Regulation S) in accordance with Rule 903 or 904 of
Regulation S, (b) to a transferee that is not a U.S. Person (within the
meaning of Regulation S) (a "U.S. Person") and is a Qualified Purchaser,
(c) in compliance with the other requirements set forth in the Indenture
and (d) in accordance with any applicable securities laws of any state of
the United States and any other relevant jurisdiction.
6. The Transferee understands that there is no market for the Notes and that
no assurance can be given as to the liquidity of any trading market for
the Notes and that it is unlikely that a trading market for the Notes will
develop. Accordingly, the Transferee must be prepared to hold the Notes
for an indefinite period of time or until their maturity.
7. Either (a) the Transferee is not, and is not a Person acting on behalf of
or investing the assets of, (i) an employee benefit plan (within the
meaning of Section 3(3) of the United States Employee Retirement Income
Security Act of 1974, as amended ("ERISA")that is subject to Title I of
ERISA, (ii) a plan (within the meaning of Section 4975(e)(1) of the United
States Internal Revenue Code of 1986, as amended (the "Code") that is
subject to Section 4975 of the Code, (iii) a governmental plan (within the
meaning of Section 3(32) of ERISA) or church plan (within the meaning of
Section 3(33) of ERISA) that is subject to any Federal, state or local law
that is, to a material extent, similar to the provisions of Title I of
ERISA or Section 4975 of the Code ("Similar Law") (each of the foregoing,
a "Regulated Investor") or (b) the Transferee represents and warrants that
it is a Regulated Investor and that its purchase and continued holding of
the Notes will be covered by a prohibited transaction class exemption
issued by the United States Department of Labor (or, in the case of a
governmental or church plan, will not result in a violation of any Similar
Law). In addition, if the Transferee is, or is acting on behalf of or
investing the assets of, an employee benefit plan subject to Title I of
ERISA or an employee benefit plan that is not subject to Title I ERISA but
is subject to provisions of a Similar Law, the fiduciaries of such
employee benefit plan represent and warrant that they have been informed
of and understand the Issuer's investment objectives, policies and
strategies and that the decision to invest such employee benefit plan's
assets in notes was made with appropriate consideration of relevant
investment factors with regard to such employee benefit plan, as the case
may be, and is consistent with the duties and responsibilities imposed
upon fiduciaries with regard to their investment decisions under Title I
of ERISA or such Similar Law.
8. The Transferee is not a member of the public in the Cayman Islands.
9. The Transferee understands and agrees that a legend in substantially the
following form will be placed on each Note: THIS NOTE AND ANY BENEFICIAL
INTEREST IN THIS NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
---------------
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION. THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT").
----------------------
THIS NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) TO A
PERSON WHO IS BOTH (X) A QUALIFIED PURCHASER (AS DEFINED IN THE INDENTURE
REFERRED TO HEREIN) AND (Y) A "QUALIFIED
E-5
INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") OR, SOLELY WITH RESPECT TO CERTAIN INITIAL PURCHASERS
----------
APPROVED BY THE ISSUER, AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT,
PURCHASING FOR ITS OWN ACCOUNT, TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER OF THIS NOTE IS BEING MADE IN RELIANCE ON THE
EXEMPTION FROM SECURITIES ACT REGISTRATION PROVIDED BY EITHER RULE 144A OR
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(SUBJECT TO THE DELIVERY OF SUCH CERTIFICATES, LEGAL OPINIONS OR OTHER
INFORMATION AS THE ISSUER MAY REASONABLY REQUIRE, INCLUDING DELIVERY OF AN
OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER COMPLIES WITH THE
TRANSFER RESTRICTION SET FORTH IN THE INDENTURE) AND PROVIDED THAT THE
TRANSFEREE IS A QUALIFIED PURCHASER, OR (2) TO A PERSON WHO IS NEITHER A
"U.S. PERSON" (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT
("REGULATION S")) AND IS A QUALIFIED PURCHASER, IN AN OFFSHORE TRANSACTION
------------
IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S, (B) IN COMPLIANCE
WITH THE CERTIFICATION AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE
REFERRED TO HEREIN AND (C) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION. NEITHER THE ISSUER NOR THE COLLATERAL HAS BEEN REGISTERED
UNDER THE INVESTMENT COMPANY ACT. THIS NOTE IS SUBJECT TO RESTRICTIONS ON
TRANSFER AS PROVIDED IN THE INDENTURE.
NO TRANSFER OF THIS NOTE (OR ANY INTEREST HEREIN) MAY BE MADE (AND NEITHER
THE TRUSTEE NOR THE NOTE REGISTRAR WILL RECOGNIZE ANY SUCH TRANSFER) IF
(A) SUCH TRANSFER WOULD BE MADE TO A TRANSFEREE WHO IS NOT A QUALIFIED
INSTITUTIONAL BUYER AND A QUALIFIED PURCHASER OR A TRANSFEREE WHO IS NOT A
U.S. PERSON AND IS A QUALIFIED PURCHASER, (B) SUCH TRANSFER WOULD HAVE THE
EFFECT OF REQUIRING EITHER THE ISSUER TO REGISTER OR THE COLLATERAL TO
BECOME REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OR (C) SUCH TRANSFER WOULD BE MADE TO A PERSON THAT IS OTHERWISE
UNABLE TO MAKE THE CERTIFICATIONS AND REPRESENTATIONS DEEMED TO BE MADE BY
SUCH PERSON IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, AN INVESTOR
IN THIS NOTE MUST BE PREPARED TO BEAR THE ECONOMIC RISK OF THE INVESTMENT
FOR AN INDEFINITE PERIOD OF TIME.
THE ISSUER MAY REQUIRE ANY HOLDER OF THIS NOTE WHO IS DETERMINED NOT TO
HAVE BEEN EITHER A QUALIFIED INSTITUTIONAL BUYER, SOLELY WITH RESPECT TO
CERTAIN INITIAL PURCHASERS APPROVED BY THE ISSUER, OR AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT AND A
E-6
QUALIFIED PURCHASER AT THE TIME OF ACQUISITION OF THIS NOTE TO SELL THIS
NOTE TO A PERSON WHO IS A QUALIFIED INSTITUTIONAL BUYER OR AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT AND A QUALIFIED PURCHASER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR TO A PERSON THAT IS
NOT A U.S. PERSON AND IS A QUALIFIED PURCHASER IN A TRANSACTION MEETING
THE REQUIREMENTS OF REGULATION S.
ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT,
WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE
PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY
TO THE ISSUER, THE TRUSTEE OR ANY INTERMEDIARY.
IN ADDITION, NO TRANSFER OF THIS NOTE (OR ANY INTEREST HEREIN) MAY BE MADE
(AND NEITHER THE TRUSTEE NOR THE NOTE REGISTRAR WILL RECOGNIZE ANY SUCH
TRANSFER) IF SUCH TRANSFER WOULD BE MADE TO A TRANSFEREE THAT IS (A) A
DEALER DESCRIBED IN PARAGRAPH (A)(1)(ii) OF RULE 000X XXXXX XXXX XXX
XXXXXXX XX A DISCRETIONARY BASIS LESS THAN U.S.$25,000,000 IN SECURITIES
OF ISSUER THAT ARE NOT AFFILIATED PERSONS OF THE DEALER OR (B) A PLAN
REFERRED TO IN PARAGRAPH (a)(1)(I)(D) OR (a)(1)(i)(E) OF RULE 144A OR A
TRUST FUND REFERRED TO IN PARAGRAPH (a)(1)(i)(F) OF RULE 144A THAT HOLDS
THE ASSETS OF SUCH A PLAN, UNLESS INVESTMENT DECISIONS WITH RESPECT TO THE
PLAN ARE MADE SOLELY BY THE FIDUCIARY, TRUSTEE OR SPONSOR OF SUCH PLAN.
THE TRANSFEREE, AND EACH ACCOUNT FOR WHICH IT IS PURCHASING, IS REQUIRED
TO HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATIONS OF THE NOTES.
10. The Transferee acknowledges that the foregoing acknowledgements,
representations and agreements will be relied upon by the Issuer and the
Trustee for the purpose of determining its eligibility to purchase Notes
of the Issuer. The Transferee agrees to provide, if requested, any
additional information that may be required to substantiate its status as
a Qualified Institutional Buyer, non-U.S. Person or Qualified Purchaser,
to determine compliance with ERISA and/or Section 4975 of the Code or to
otherwise determine its eligibility to purchase Notes of the Issuer.
E-7
Signatures:
PARTNERSHIP, CORPORATION, TRUST,
CUSTODIAL ACCOUNT OR OTHER ENTITY:
____________________________________________
(Name of Entity)
By: ________________________________________
(Signature)
________________________________________
(Print Name and Title)
INDIVIDUAL:
By: ________________________________________
(Signature)
________________________________________
(Print Name and Title)
Date:___________________
E-8
EXHIBIT J
PEPS I, LLC
Diversification Report
For Quarter Ended March 31, 2002
All measurements are based on aggregate Net Asset Values as reflected in the
most recent report for the General Partners.
1. Industry Concentrations
Sector 3/31/02
------ -------
Commercial Services & Supplies
Consumer Cyclical
Consumer Noncyclical
Energy
Financial Services
Health Care
Industrial
Materials
Real Estate
Technology
Transportation
Utilities
2. Top 3 Industry Concentrations - not to exceed 75% through years 1-5 and
6-10.
Sector 3/31/02
------ -------
Comments Versus 75% Benchmark:
-----------------------------
3. Top 3 LP Concentrations - not to exceed 40% for years 1-5 and not to
exceed 60% for years 6-10.
LP 3/31/02
-- -------
Comments Versus Benchmark:
--------------------------
J-1
4. Top 3 GP Concentrations -- not to exceed 60% for years 1-5 and not to
exceed 80% for years 6-10.
GP 3/31/02
-- -------
Comments Versus Benchmark:
-------------------------
5. Vintage Concentrations
Vintage 3/31/02
------- -------
J-2
