EXHIBIT 4.5
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TRUST INDENTURE AND SECURITY AGREEMENT
dated as of February 12, 2001
between
[NAME OF LESSOR LLC]
and
FIRST UNION NATIONAL BANK,
not in its individual capacity except as expressly stated
herein, but solely as indenture trustee,
as Indenture Trustee
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AHOLD LEASE U.S.A., INC.
Leveraged Lease of [Supermarket/Warehouse/Office Building] located in
[Location of Leased Property]
TABLE OF CONTENTS
Page
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RECITALS 1
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GRANTING CLAUSES 1
ARTICLE 1 PROVISIONS OF GENERAL APPLICATION......................................................................7
SECTION 1.1 Definitions ................................................................................7
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SECTION 1.2 Compliance Certificates and Opinions........................................................7
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SECTION 1.3 Form of Documents Delivered to Indenture Trustee............................................8
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SECTION 1.4 Acts of Noteholders; Record Dates...........................................................8
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SECTION 1.5 Requests, etc. to Indenture Trustee, Lessee, Lessor and Owner Participant...................9
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SECTION 1.6 Notices to Noteholders; Waiver.............................................................10
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SECTION 1.7 Effect of Headings and Table of Contents...................................................10
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SECTION 1.8 Successors and Assigns.....................................................................10
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SECTION 1.9 Separability Clause........................................................................10
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SECTION 1.10 Benefits of Indenture.....................................................................10
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SECTION 1.11 GOVERNING LAW.............................................................................11
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SECTION 1.12 Legal Holidays............................................................................11
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SECTION 1.13 No Recourse Against Others................................................................11
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SECTION 1.14 Exculpation and Release of Liability......................................................11
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ARTICLE 2 THE NOTES ............................................................................................11
SECTION 2.1 Issuable in Series; Designations...........................................................11
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SECTION 2.2 Form and Denomination......................................................................12
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SECTION 2.3 Equally and Ratably Secured Notes..........................................................12
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SECTION 2.4 Execution of Notes.........................................................................12
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SECTION 2.5 Temporary Notes............................................................................12
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SECTION 2.6 Registration, Registration of Transfer and Exchange........................................13
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SECTION 2.7 Mutilated, Destroyed, Lost and Stolen Notes................................................14
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SECTION 2.8 Payment of Interest and Principal..........................................................14
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SECTION 2.9 Persons Deemed Owners......................................................................16
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SECTION 2.10 Cancellation 16
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SECTION 2.11 Authentication, Execution, Delivery and Dating of Notes...................................16
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SECTION 2.12 Source of Payments; Rights and Liabilities of Lessor; Owner Participant Not Liable........16
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SECTION 2.13 Series of Notes...........................................................................17
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SECTION 2.14 Legends ..................................................................................18
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ARTICLE 3 SATISFACTION AND DISCHARGE............................................................................19
SECTION 3.1 Satisfaction and Discharge of Indenture....................................................19
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ARTICLE 4 RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME AND PROCEEDS FROM THE INDENTURE ESTATE................19
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SECTION 4.1 Basic Rent; Interest on Overdue Installments of Basic Rent.................................19
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SECTION 4.2 Amount Received as Result of Event of Loss, Total Taking or Option to Terminate............21
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SECTION 4.3 Amounts Received After, or Held at Time of, Indenture Event of Default.....................21
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SECTION 4.4 Amounts Received for Which Provision is Made in an Operative Agreement.....................22
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SECTION 4.5 Amounts Received for Which No Provision Is Made............................................22
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SECTION 4.6 Payments to Lessor.........................................................................22
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SECTION 4.7 Excepted Payments..........................................................................22
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ARTICLE 5 COVENANTS ............................................................................................23
SECTION 5.1 Payment of Principal, Premium, if any, and Interest........................................23
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SECTION 5.2 Money for Note Payments To Be Held in Trust in an Eligible Account.........................23
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SECTION 5.3 Maintenance of Office and Agency...........................................................23
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SECTION 5.4 Title; Further Assurances; Recording.......................................................24
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SECTION 5.5 Termination of Lessor LLC Agreement and Transfer of Interest...............................24
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SECTION 5.6 Notice of Default..........................................................................25
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SECTION 5.7 Discharge of Liens; Etc....................................................................25
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SECTION 5.8 Notice of Remedial Action..................................................................25
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SECTION 5.9 Limited Purpose............................................................................25
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SECTION 5.10 Separateness Covenants....................................................................26
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ARTICLE 6 REDEMPTION OF NOTES ..................................................................................27
SECTION 6.1 Applicability of Article...................................................................27
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SECTION 6.2 Notice to Indenture Trustee of Redemption..................................................28
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SECTION 6.3 Selection by Indenture Trustee of Notes To Be Redeemed.....................................28
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SECTION 6.4 Notice of Redemption.......................................................................29
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SECTION 6.5 Deposit of Redemption Price................................................................29
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SECTION 6.6 Notes Payable on Redemption Date...........................................................30
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SECTION 6.7 Notes Redeemed in Part.....................................................................30
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ARTICLE 7 INDENTURE EVENTS OF DEFAULT; REMEDIES.................................................................30
SECTION 7.1 Indenture Events of Default................................................................30
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SECTION 7.2 Acceleration upon Notice; Rescission.......................................................32
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SECTION 7.3 Enforcement of Remedies....................................................................33
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SECTION 7.4 Specific Remedies; Limitations on Enforcement of Claims Without Possession of Notes........34
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SECTION 7.5 Actions for Ratable Benefit of Noteholders.................................................36
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SECTION 7.6 Noteholders May Demand Enforcement of Rights by Indenture Trustee..........................36
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SECTION 7.7 Control by Noteholders.....................................................................36
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SECTION 7.8 Noteholder May Not Bring Suit Except under Certain Conditions..............................37
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SECTION 7.9 Waiver of Past Defaults....................................................................37
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SECTION 7.10 Right of Lessor to Pay Interest, Principal, etc.; Note Purchase...........................37
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SECTION 7.11 Right of Noteholders to Receive Payment Not To Be Impaired................................39
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SECTION 7.12 No Action Contrary to Lessee's Rights Under the Lease.....................................39
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SECTION 7.13 Waiver of Stay............................................................................40
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SECTION 7.14 Right of Indenture Trustee to Perform Covenants, etc......................................40
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SECTION 7.15 Certain Other Rights of Lessor............................................................40
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SECTION 7.16 Restoration of Rights and Remedies........................................................41
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SECTION 7.17 Rights and Remedies Cumulative............................................................41
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ARTICLE 8 THE INDENTURE TRUSTEE.................................................................................41
SECTION 8.1. Certain Rights and Duties of Indenture Trustee.............................................41
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SECTION 8.2 Not Responsible for Recitals or Issuance of Notes..........................................44
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SECTION 8.3 Indenture Trustee and Authorized Agents May Hold Notes.....................................44
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SECTION 8.4 Funds May Be Held by Indenture Trustee or Paying Agent; Investments........................45
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SECTION 8.5 Compensation and Reimbursement.............................................................45
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SECTION 8.6 Corporate Indenture Trustee Required; Eligibility..........................................46
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SECTION 8.7 Resignation and Removal; Appointment of Successor..........................................46
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SECTION 8.8 Acceptance of Appointment by Successor.....................................................48
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SECTION 8.9 Merger, Conversion, Consolidation or Succession to Business................................48
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SECTION 8.10 Maintenance of Agencies...................................................................49
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SECTION 8.11 Co-Indenture Trustee or Separate Trustee..................................................50
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ARTICLE 9 NOTEHOLDERS' LISTS ...................................................................................52
SECTION 9.1 List of Names and Addresses of Noteholders.................................................52
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ARTICLE 10 SUPPLEMENTAL INDENTURES; MODIFICATION OF SECURITY DOCUMENTS AND PARTICIPATION AGREEMENT.............52
SECTION 10.1 Supplemental Indentures and Modifications of Security Documents and
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Participation Agreement without Consent of Noteholders.......................52
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SECTION 10.2 Supplemental Indentures and Modifications of Security Documents and
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Participation Agreement with Consent of Noteholders..........................54
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SECTION 10.3 Execution of Supplemental Indentures......................................................55
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SECTION 10.4 Effect of Supplemental Indentures.........................................................56
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SECTION 10.5 Reference Notes to Supplemental Indentures................................................56
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ARTICLE 11 RELEASE OF PROPERTY..................................................................................56
SECTION 11.1 Removal of Property.......................................................................56
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SECTION 11.2 Purchasers Not Bound to Inquire...........................................................56
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SECTION 11.3 Appoint Indenture Trustee Attorney-in-Fact................................................57
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ARTICLE 12 SUNDRY PROVISIONS ...................................................................................57
SECTION 12.1 Execution in Counterparts.................................................................57
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Schedule A Site Description
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Schedule B Property Specific Variables
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TRUST INDENTURE AND SECURITY AGREEMENT
This TRUST INDENTURE AND SECURITY AGREEMENT, dated as of
February 12, 2001, between [NAME OF LESSOR LLC], a Delaware limited liability
company (the "Lessor"), and FIRST UNION NATIONAL BANK, not in its individual
capacity, except as expressly provided herein, but solely as indenture trustee
for the benefit of the Noteholders (the "Indenture Trustee").
RECITALS:
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A. The Owner Participant identified on Schedule B hereto (the
"Owner Participant") is the sole member of the Lessor; and the Lessor is
authorized to acquire the Property (as defined below) and to execute and deliver
this Indenture, the Mortgage and the Assignment of Leases and Rents with respect
to the Property (collectively, the "Security Documents");
B. The Lessor has authorized the Notes, issuable in one or
more series in accordance with the terms of this Indenture and, to secure the
Notes and to provide for the authentication and delivery thereof by the
Indenture Trustee, the Lessor has duly authorized the execution and delivery of
this Indenture; and
C. The Lease, provisions of which have been referred to in
the text of this Indenture, has been executed and delivered contemporaneously
herewith and a memorandum of the Lease will be recorded in the appropriate
recording office, prior to recordation of the Mortgage.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that in
consideration of the premises, of the acceptance by the Indenture Trustee of the
trust hereby created and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, in order to secure (a) the
payment of the principal of, Premium, if any, on and interest on the Notes
Outstanding from time to time hereunder according to their tenor and effect, (b)
the prompt payment of all amounts from time to time owing by, and the
performance of all obligations of, the Lessee under the Operative Agreements
with respect to the Property (the "Operative Agreements") and the Guarantor
under the Guarantee with respect to the Property (the "Guarantee"), in each
case, to the Indenture Indemnitees, and (c) the performance and observance by
the Lessor for the benefit of the Noteholders from time to time of the Notes and
the Indenture Trustee of all the covenants, agreements and provisions contained
herein, in the Mortgage, the Assignment of Leases and Rents and in the Notes, in
each case for the uses and purposes and subject to the terms and provisions
hereof:
GRANTING CLAUSES:
The Lessor hereby grants, conveys, assigns, transfers,
mortgages and pledges to the Indenture Trustee, to the extent that it
constitutes real property, and, to the extent that it does not constitute real
property grants, conveys, assigns, transfers, mortgages, pledges to and creates
a security interest in favor of the Indenture Trustee in, the following
described property, rights and privileges, whether now owned or held or
hereafter acquired (herein called the "Indenture Estate"), to wit, all right,
title and interest of the Lessor, now existing or hereafter arising, in and to:
Granting Clause First
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The entire right, title and interest of the Lessor in and to
the land described in Schedule A attached hereto (the "Site"), together with (a)
all right, title and interest of Lessor in and to all buildings, structures and
other improvements, now standing or at any time hereafter constructed or placed
upon the Site, including, without limitation, all right, title and interest of
Lessor in and to all fixtures of every kind and nature on the Site or in any
such building, structure or other improvements (said buildings, structures,
other improvements and fixtures being herein collectively called the
"Improvements"), (b) all right, title and interest of Lessor in and to all and
singular the tenements, hereditaments, easements, rights of way, rights,
privileges and appurtenances in and to the Site, belonging or in any way
appertaining thereto, including, without limitation, all right, title and
interest of Lessor in, to and under any streets, ways, alleys, vaults, gores or
strips of land adjoining the Site, (c) all claims or demands of Lessor in law or
in equity, in possession or expectancy of, in and to the Site and the
Improvements and (d) all rents, income, revenues, issues, awards, proceeds and
profits from and in respect of the property described in this Granting Clause
First which are, subject to the provisions of Granting Clause Second, hereby
specifically assigned, transferred and set over to Indenture Trustee, it being
the intention of the parties hereto that, so far as may be permitted by law, all
property of the character hereinabove described which is now owned or held or is
hereafter acquired by Lessor and is affixed, attached and annexed to the Site
shall be and remain or become and constitute a portion of the Indenture Estate
and the security covered by and subject to the Lien of the Mortgage. The Site
together with the Improvements and the other property described in this Granting
Clause First relating thereto are herein collectively called the "Property".
Granting Clause Second
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Lessor's interest in the Lease with respect to the Property
(the "Lease"), including the right to all extended terms and all extensions and
renewals of the terms thereof , together with all the right, title and interest
of Lessor as lessor under the Lease, including, without limitation, the present
and continuing right to make claim for, collect, receive and make receipt for
any and all of the rents, income, revenues, issues, awards, proceeds and profits
and other sums of money payable or receivable thereunder (except (i) sums
payable as rent or otherwise, including, without limitation, sums of money
receivable by Lessor thereunder by virtue of a release of existing easements or
other rights in the nature of easements or by virtue of a dedication or transfer
of unimproved portions of the Site and (ii) Excepted Payments), the right (in
each case exclusive of Excepted Rights) to accept or reject any offers made
pursuant to the Lease to purchase any interest in the Property, to bring actions
and proceedings under the Lease or for the enforcement thereof and to do
anything which Lessor or any lessor is or may become entitled to do under the
Lease, provided that the assignment made by this Granting Clause Second and the
disposition of that portion of the Indenture Estate described in this Granting
Clause Second shall be subject to the provisions of this Indenture, and shall
not impair or diminish any obligation of Lessor under
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the Lease nor shall any such obligation be imposed upon Indenture Trustee,
together with Lessor's interest, if any, in and to any and all other leases with
respect to the Property.
Granting Clause Third
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All of the fixtures, furnishings and fittings of every kind
and nature whatsoever, and all appurtenances and additions thereto and
substitutions or replacements thereof (together with, in each case, attachments,
components, parts and accessories) currently owned or subsequently acquired by
Lessor and now or subsequently attached to, or contained in or used or usable in
any way in connection with any operation or letting of, the Property, but
specifically excluding trade fixtures and other personal property of any tenant
on the Property (the "Fixtures").
Granting Clause Fourth
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All of the equipment and apparatus of every kind and nature
whatsoever, and all appurtenances and additions thereto and substitutions or
replacements thereof (together with, in each case, attachments, components,
parts and accessories) currently owned or subsequently acquired by Lessor,
including but without limiting the generality of the foregoing, all storm doors
and windows, heating, electrical, and mechanical equipment, lighting,
switchboards, plumbing, ventilating, air conditioning and air-cooling apparatus,
refrigerating, and incinerating equipment, escalators, elevators, building
cleaning systems (including window cleaning apparatus), communication systems
(including satellite dishes and antennae), sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security systems, motors,
engines, machinery, pipes, pumps, tanks, conduits and fittings of every kind and
description, but specifically excluding the property of any tenant on the
Property (the "Equipment").
Granting Clause Fifth
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All substitutes and replacements of, and all additions and
improvements to, the Improvements, the Fixtures and the Equipment, subsequently
acquired by Lessor or constructed, assembled or placed by Lessor on the Site,
immediately upon such acquisition, release, construction, assembling or
placement, including, without limitation, any and all building materials whether
stored at the Property or offsite, and, in each such case, without any further
mortgage, conveyance, assignment or other act by Lessor.
Granting Clause Sixth
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All estate, right, title and interest and other claim or
demand that Lessor now has or may hereafter acquire with respect to any damage
to the Site, the Improvements, the Fixtures or the Equipment and any and all
proceeds of insurance (exclusive of Excepted Payments) in effect with respect to
the Site, the Improvements, the Fixtures and the Equipment, and any and all
awards made for the taking by eminent domain, or by any proceeding or purchase
in lieu thereof, of the Site, the Improvements, the Fixtures or the Equipment,
including without limitation any awards resulting from a change of grade of
streets or as the result of any other damage to the Site, the Improvements, the
Fixtures or the Equipment for which compensation shall be given by
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any governmental authority subject to the provisions of the Lease with respect
to the collection and application of the same.
Granting Clause Seventh
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All estate, right, title and interest of Lessor in and to all
rights, royalties and profits in connection with all minerals, oil and gas and
other hydrocarbon substances on or in the Property, development rights or
credits, air rights, water, water rights (whether riparian, appropriative or
otherwise and whether or not appurtenant) and water stock.
Granting Clause Eighth
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All renewals, substitutions, improvements, accessions,
attachments, additions, replacements and proceeds (including, without
limitation, all proceeds from the exercise of any termination or purchase option
or right under Articles 5, 14 , 15 and 20 of the Lease, payment of any
Stipulated Loss Value, Premium or otherwise with respect to the Property, the
Fixtures or the Equipment), both cash and noncash, of each of the foregoing and
all conversions of the security constituted thereby.
Granting Clause Ninth
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Lessor's interest in the Guarantee, including without
limitation, the present and continuing right to make claim for, collect, receive
and make receipt for any and all payments under the Guarantee (exclusive of
Excepted Rights and Excepted Payments).
Granting Clause Tenth
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All proceeds of any of the foregoing.
BUT EXCLUDING, HOWEVER, from the Indenture Estate any and all
Excepted Payments and Excepted Rights now existing or hereafter arising and the
rights to collect and enforce the same and subject to the following provisions:
(aa) Except during the period that the Indenture Trustee is
entitled to exercise rights and powers and pursue remedies as provided in
Article 7, the Lessor at all times shall retain, to the exclusion of the
Indenture Trustee, all rights of the Lessor, now existing or hereafter arising,
to exercise any election or option or to make any decision or determination or
to give or receive any notice, consent, waiver or approval or to take any other
action under or in respect of the Granting Clause Documents, as well as all
rights, power and remedies on the part of the Lessor, now existing or hereafter
arising, and arising under the Granting Clause Documents or by statute or at law
or in equity or otherwise, arising out of any Default or Event of Default;
provided, however, that, except (A) insofar as the same relates to Excepted
Rights or Excepted Payments to which the Lessor, the Owner Participant or any
Affiliate thereof is entitled (but subject to the proviso in Section 7.3(b)), or
(B) to the extent that any such amendment, modification, waiver, discharge,
supplement or termination, or consent to any thereof, would not result in a
substantive change to any of the terms and provisions listed in clauses (i) and
(ii) below and in the case of clause (iii) below which would not contradict or
alter any such term or
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provision in a manner that would be prohibited as otherwise set forth in this
paragraph (aa), the Lessor shall not, without Rating Agency Confirmation and, to
the extent required pursuant to the proviso of paragraph (cc) below, prior
written consent of the Indenture Trustee given with the consent of each
Noteholder, agree to any amendment to, or any modification, waiver, discharge,
supplement or termination of, or grant any consent under, any term or provision
of (i) the following provisions of the Lease: Article 2, Article 3 (if the
result thereof would be to shorten the term of the Lease to a period shorter
than the period ending with the latest maturity of any series of Notes), Section
5.2, Section 6.1 (if the result thereof would be that the sum of the Basic Rent
payable thereunder plus the Additional Rent payable pursuant to Section 6.2
thereof in respect of additional interest on the Series A Notes pursuant to
Section 1.4(b) of the First Supplemental Indenture hereto (the "Rent
Differential"), if any, would be insufficient to pay principal or interest on
the Notes as same became due and payable), Section 6.2 (if the result thereof
would be that the Additional Rent payable thereunder would be insufficient to
pay any Premium payable in respect of the Notes or any amount owing to the
Indenture Trustee or other Indenture Indemnitee), Section 6.3 (if it affects any
payment to the Indenture Trustee or other Indenture Indemnitee), Section 6.4 (if
it affects any payment to the Indenture Trustee or other Indenture Indemnitee),
Section 6.5, Article 7 (other than consents or waivers by the Lessor which would
not have an adverse effect on the repayment of the Notes in the event of a
casualty), Article 8 (if the result thereof would permit a use not permitted by
Applicable Law or would cause a violation of an Environmental Covenant), Article
9 (other than consents and actions of Lessor set forth in such section), Article
11 (if the result thereof would permit alterations that adversely affect the
Fair Market Value, expected residual value, condition, utility or useful life of
the Leased Property or cause the Leased Property to be characterized as "limited
use property" as defined by Revenue Procedure 76-30, and with respect to the
Minimum Credit Criteria), Section 11.3, Article 12, Article 14 (if the result
thereof would be to adversely affect or delay or decrease the amount of any
redemption of any of the Notes), Article 15 (if the result thereof would be to
adversely affect or delay or decrease the amount of any redemption of any of the
Notes), Article 16 (if the result thereof would be to diminish the rights of the
Indenture Trustee as assignee of the Lessor), Article 17 (if the result thereof
would be to diminish the rights of the Indenture Trustee), Article 18, Article
19 and Article 20; (ii) the Guarantee; or (iii) the definitions contained in
Appendix A to the Participation Agreement relating to any of the provisions in
clause (i) above or the Guarantee.
(bb) During the period that the Indenture Trustee is entitled
to exercise rights and powers and pursue remedies as provided in Article 7 as
the result of an Indenture Event of Default caused by an Event of Default, the
Lessor (and in the case of clause (iii) below, the Owner Participant) shall at
all times (except as otherwise provided in clause (iii) below) be entitled on a
non-exclusive basis with the Indenture Trustee to (i) enforce any covenant or
obligation (including obligations in respect of the payment of Rent) of the
Lessee under the Lease; provided, that in so enforcing any such covenant, the
Lessor may not exercise any remedies under Article 20 of the Lease other than as
provided in clause (ii) below, unless such exercise is required by law in order
to effect the Lessor's rights under clause (ii) below; (ii) declare the Lease in
default and exercise remedies solely pursuant to Section 20.6(b) of the Lease
(and such other remedies as are required by law in order to effect the rights of
the Lessor under this clause); (iii) make demand upon and exercise remedies to
enforce against the Guarantor under the Guarantee
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to perform its obligations thereunder until foreclosed from doing so by the
Indenture Trustee but such interest may not be foreclosed upon until the
earliest of (A) one year after the occurrence of any Default or Event of Default
with respect to the Guarantor of the type referred to in clause (c) or (d) of
Section 7.1, (B) the discharge by the Guarantor of all of its obligations under
the Guarantee, (C) two years after the commencement of any action, suit or
proceeding to enforce the Guarantee and (D) the resolution of any such action,
suit or proceeding referred to in the immediately preceding subclause (C); it
being understood, however, that any right the Owner Participant may have to make
demand upon and exercise any remedies in respect of any amounts which may be due
the Lessor shall be extinguished upon the Lessor's interest being foreclosed
upon by the Indenture Trustee in accordance with the terms of this clause (iii);
and (iv) receive any notice under the Granting Clause Documents; provided that
any amount obtained by the Lessor (or the Owner Participant) as a consequence of
any of the above actions which is payable to the Indenture Trustee or any
Noteholder or to which the Indenture Trustee is entitled under the terms of this
Indenture shall (apart from Excepted Payments) be received by the Lessor (or the
Owner Participant, as the case may be) for the benefit of, and immediately paid
over to, the Indenture Trustee.
(cc) Subject to paragraph (aa) above, but otherwise without
the consent of the Indenture Trustee or any of the Noteholders, at any time and
from time to time, the respective parties to the Operative Agreements may
modify, amend or supplement any of such Operative Agreements (other than the
Security Documents and, except insofar as the same relates to Excepted Rights or
Excepted Payments, the Participation Agreement) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
thereof or modifying in any manner the rights of the respective parties
thereunder or may give any consent or waiver thereunder; provided, however, that
no such modification, amendment, supplement, consent or waiver shall without the
consent of the Indenture Trustee given with the consent of each Noteholder
affected thereby, modify, amend or supplement, or give any consent in respect of
or waive any provision of, the Lease in such manner (i) as to reduce the amounts
payable by the Lessee under the Lease, or by the Guarantor under the Guarantee,
in either case assigned to the Indenture Trustee, or change the time for the
payment thereof, in either case, so that such payments are less than the amounts
necessary to pay the principal of, Premium, if any, on and interest on the
Outstanding Notes when due (whether at maturity, upon acceleration or
otherwise); or (ii) as would release the Lessee or the Guarantor from its
obligation in respect of payment of Basic Rent, Additional Rent (other than
Excepted Payments), Stipulated Loss Value or any other amount payable under the
Lease (or the guarantee thereof under the Guarantee) and intended to be used to
pay the principal of, Premium, if any, or interest on the Notes, in any manner
inconsistent with clause (i) above.
(dd) Notwithstanding any of the foregoing, in the event that
the membership interest of the Owner Participant in the Lessor shall be acquired
by, or the Owner Participant shall be, the Lessee, the Guarantor or any
Affiliate of either of them, (i) all reservations of rights with respect to the
Indenture Estate by the Owner Participant or the Lessor (whether exclusive or
shared with the Indenture Trustee or otherwise) under this Indenture, including
without limitation those reserved in paragraphs (aa) through (cc) above, and in
Article 7 below, other than the right to receive any payment remaining after the
Notes and all other amounts owing to the Indenture
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Trustee and the Noteholders have been fully paid, shall be eliminated, and (ii)
Schedule 7 of the Participation Agreement shall apply for purposes of all
applicable Operative Agreements.
TO HAVE AND TO HOLD all the Indenture Estate unto the
Indenture Trustee, its respective successors and assigns FOREVER. The Lien and
security interest created hereby is created for the ratable benefit and security
of the Noteholders of the Outstanding Notes from time to time without any
priority of any one Note or series of Notes over any other except as herein
otherwise expressly provided, and for the uses and purposes and subject to the
terms and conditions set forth in this Indenture.
PROVIDED, HOWEVER, that if the principal of, Premium, if any,
on and interest on the Notes, and all other amounts payable hereunder or secured
hereby, shall have been paid pursuant to Section 3.1 or otherwise and the Lessor
shall have performed and complied with all the covenants, agreements, terms and
provisions hereof, then this Indenture and the rights hereby granted and
assigned shall terminate.
IT IS HEREBY COVENANTED AND AGREED that all the Notes are to
be issued and delivered, and that all property, rights and privileges subject or
to become subject hereto, are to be held subject to the further covenants,
conditions, uses and trusts herein set forth, and the Lessor, intending to be
legally bound hereby, hereby covenants and agrees with the Indenture Trustee for
itself and for the equal and proportionate benefit and security of the holders
of the Notes Outstanding from time to time, and the Indenture Trustee agrees to
accept the trusts and duties herein set forth, as follows:
ARTICLE 1
PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions. Unless the context shall otherwise
require, each of the capitalized terms used in this Indenture and not otherwise
defined in this Indenture shall have the meaning assigned to it in Appendix A to
the Participation Agreement, dated January 26, 2001, among the Owner Participant
[and the other owner participant(s) identified therein], the Lessor and the
other lessors identified therein, Ahold Lease U.S.A., Inc., the Seller of the
Leased Property and the other Sellers of property identified therein and First
Union National Bank, not in its individual capacity except as expressly provided
therein but solely in its capacities as Pass Through Trustee and Indenture
Trustee (the "Participation Agreement"), as any such meaning relates to the
transactions contemplated under the Participation Agreement with respect to the
Property, and the rules of usage set forth in Appendix A to the Participation
Agreement shall apply thereto. As used in this Indenture, the term "parties"
means, collectively, the Lessor and the Indenture Trustee. Unless otherwise
indicated, references in this Indenture to articles, sections, paragraphs,
clauses, appendices, schedules and exhibits are to the same contained in or
attached to this Indenture.
SECTION 1.2 Compliance Certificates and Opinions. Every
request or application by the Lessor for action by the Indenture Trustee shall
be accompanied by an Officer's Certificate of the Owner Participant or the
Lessor (which shall contain a provision limiting the
7
liability of the Owner Participant or the Lessor consistent with Section 1.13
hereof) and an Opinion of Counsel stating in each case that in the opinion of
the Person making such certificate or giving such opinion the conditions
precedent, if any, to such action, provided for in this Indenture (including any
covenants compliance with which constitutes a condition precedent) have been
satisfied.
SECTION 1.3 Form of Documents Delivered to Indenture 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 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 may be based, insofar as it relates
to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer actually knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion may be based,
insofar as it, relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Owner Participant or the
Lessor stating that the information with respect to such factual matters is in
possession of the Owner Participant or the Lessor, unless such counsel actually
knows that the certificate or opinion or representations with respect to such
matters are erroneous.
Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.4 Acts of Noteholders; Record Dates.
---------------------------------
(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 Indenture Trustee and, where it is hereby expressly required,
to the Lessor and the Lessee. Such instrument or instruments (and the action
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 (subject to Section 8.1)
conclusive in favor of the Indenture Trustee and the Lessor, if made in the
manner provided in this Section 1.4.
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(b) The fact and date of the execution by any Person of any
such instrument or writing or the authority of the Person executing the same may
be proved (1) by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the Person executing such instrument acknowledged to him the execution
thereof; (2) by a notarized affidavit of a witness to such execution; (3) in any
such manner which the Indenture Trustee deems sufficient; (4) by having the
signature guaranteed by an Eligible Guarantor Institution as that term is
defined in Rule 17Ad-15 under the Exchange Act; or (5) by a certificate of an
officer of a corporation or association, a partner of a partnership, or a member
of a limited liability company and where such execution is by an officer of a
corporation or association, partner of a partnership or a member of a limited
liability company on behalf of such corporation, association, partnership or
limited liability company, such certificate or affidavit shall also constitute
sufficient proof of the authority of such officer, member or partner.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) The Lessor may fix any date as the record date for purpose
of determining the Noteholders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Noteholders, which
date shall be no more than 60 days before the first solicitation of a Noteholder
made by any Person with respect to any such action. If not set by the Lessor
prior to the first solicitation of a Noteholder made by any Person with respect
to any such action, or, in the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th day (or, if later, the
date of the most recent list of Noteholders required to be provided pursuant to
Section 9.1) prior to the first solicitation or vote, as the case may be. With
regard to any record date, only the Noteholders on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the relevant
action.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by any Noteholder shall bind every other holder
of a Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, whether or not notation of such action is made upon such Note.
(f) Without limiting the foregoing, a Noteholder entitled
hereunder to give or take any such action with regard to any particular Note may
do so with regard to all or any part of the principal amount of such Note or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 1.5 Requests, etc. to Indenture Trustee, Lessee,
Lessor and Owner Participant. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders or other document provided for or
permitted by this Indenture to be made upon, given or furnished to, or filed
with the Indenture Trustee, the Lessee, the Lessor or the Owner Participant,
shall be sufficient if in writing and delivered in person or by courier or
mailed, first-class postage prepaid (in the absence of a mail strike or other
disruption of the mail) or transmitted by means of telecopy or other wire
transmission (with request for assurance of receipt in a manner typical with
respect to communications of that type) to the appropriate Person at the address
specified for such Person in Schedule 1 to the Participation Agreement or at
such other
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address or telecopy number as may be subsequently furnished in writing by such
Person to each of the other Persons specified above.
Whenever the Indenture Trustee shall receive any notice,
report, certificate, opinion or other document from the Lessor, it shall
immediately send copies thereof to the other Persons specified above and each
Noteholder (unless it shall be clear from the face of such documents or
otherwise that the originator thereof has already done so), and whenever the
Indenture Trustee shall send any notice, report, certificate, opinion or other
document to the Lessor or the Noteholders (other than to itself as Pass Through
Trustee), it shall simultaneously send copies thereof to the other Persons
specified above.
The Lessor shall be entitled to conclusively rely on the
execution of any consent, authorization or other instrument by the Indenture
Trustee for any purpose of this Indenture as evidence that the requisite
Noteholders have approved such action or instrument.
SECTION 1.6 Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed first-class postage prepaid, to each Noteholder, at its address as it
appears in the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Noteholders shall be filed with the Indenture Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In any case where notice to Noteholders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Noteholder shall affect the sufficiency of such notice
with respect to other Noteholders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
SECTION 1.7 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience of reference only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns. All covenants, agreements,
representations and warranties in this Indenture by the Indenture Trustee and
the Lessor shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
SECTION 1.9 Separability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.10 Benefits of Indenture. Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors and assigns hereunder, the Owner Participant
and its successors and permitted assigns and the Noteholders, any benefit or any
legal, or equitable right, remedy or claim under this Indenture.
10
SECTION 1.11 GOVERNING LAW. THIS INDENTURE HAS BEEN NEGOTIATED
AND DELIVERED IN THE STATE OF NEW YORK AND SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED THAT, TO THE
EXTENT THAT THE LAW OF THE STATE IN WHICH THE PROPERTY IS LOCATED REQUIRES THAT
THE LAWS OF SUCH STATE APPLY TO ANY ASPECT OF THIS INDENTURE, THEN, TO THAT
EXTENT, THE LAW OF SUCH STATE SHALL SO APPLY.
SECTION 1.12 Legal Holidays. Unless otherwise provided with
respect to a specific series of Notes, in any case where any Installment Payment
Date, Interest Payment Date or Redemption Date or the Stated Maturity of any
Note shall not be a Business Day, then (notwithstanding any other provision of
this Indenture) payment of interest or principal, and Premium, if any, need not
be made on such date, and if not made on such date shall instead be made on the
next succeeding Business Day with the same force and effect as if made on the
Installment Payment Date, Interest Payment Date, or Redemption Date or at the
Stated Maturity of such Note and, provided that such payment is so made on such
next succeeding Business Day, no interest shall accrue for the period from and
after such Installment Payment Date, Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to and including such next succeeding
Business Day.
SECTION 1.13 No Recourse Against Others. Neither the Indenture
Trustee, the Owner Participant, nor any director, officer, beneficiary, employee
or stockholder, as such, of the Lessee, the Indenture Trustee, the Lessor or the
Owner Participant, as the case may be, or any Affiliate of any of the foregoing
shall have any liability for any obligations of the Lessor under this Indenture
or for any claim based on, or in respect of or by reason of, such obligations or
their creation. Each Noteholder by accepting a Note expressly waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
SECTION 1.14 Exculpation and Release of Liability. Without in
any way affecting the limitations on liability set forth in the Lease, the
Indenture Trustee, and each Noteholder by accepting a Note hereunder, hereby
acknowledge and agree that none of the Lessor, the Owner Participant, or any
director, officer, employee, beneficiary, stockholder, agent or Affiliate of the
Lessor or the Owner Participant (the "Exculpated Persons") shall have any
obligation, duty or liability of any kind whatsoever to the Indenture Trustee or
any such Noteholder in connection with the exercise by any Exculpated Person of
any rights of the Lessor under Section 21.8 of the Lease to perform certain
obligations of the Lessee to the extent that performance of such obligations may
be satisfied by the payment of money, and the Indenture Trustee and each such
Noteholder hereby waive and release, to the extent permitted by Applicable Law,
each Exculpated Person of any and all such obligations, duties or liabilities.
ARTICLE 2
THE NOTES
SECTION 2.1 Issuable in Series; Designations. The Notes shall
be issuable hereunder in one or more series and with such designations as are
specified in a Supplemental
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Indenture. Except as provided in Section 2.13, the aggregate principal amount of
the Notes that may be issued, authenticated and delivered under this Indenture
shall not exceed the amount specified in Schedule B.
SECTION 2.2 Form and Denomination. The form of the Notes of
any series shall be established by or pursuant to the authority granted in the
Supplemental Indenture creating such series. The Notes of any series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance
with such plans as the officers of the Lessor executing the same may determine
with the approval of the Indenture Trustee.
Any Notes of any series may be issued with appropriate
insertions, omissions, substitutions or variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with the rules of any securities
market in which the Notes of such series are admitted to trading, or to conform
to general usage.
The Notes of each series shall be issued only in registered
form in the denomination of $1,000 or integral multiples thereof, unless
otherwise provided in the Supplemental Indenture creating such series.
SECTION 2.3 Equally and Ratably Secured Notes. All Outstanding
Notes shall be equally and ratably secured by this Indenture and the other
Security Documents, without preference, priority or distinction on account of
the date or dates or the actual time or times of the issue or Stated Maturity of
such Notes, so that all Outstanding Notes shall have the same right, Lien and
preference under and by virtue of this Indenture and the other Security
Documents.
SECTION 2.4 Execution of Notes. The Notes shall be executed by
any Authorized Officer of the Lessor and attested by any of the Authorized
Officers of the Lessor but the same Authorized Officer shall not execute and
attest the same Note. The signature of any Authorized Officer on the Notes may
be manual or facsimile. The Lessor's seal shall be reproduced on the Notes.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Lessor shall bind
the Lessor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of execution of this Indenture.
SECTION 2.5 Temporary Notes. Pending the preparation of
definitive Notes, the Lessor may execute, and upon the written order of the
Lessor signed by an Authorized Officer of the Lessor, the Indenture Trustee
shall authenticate and deliver temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination of the
tenor of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as may be
appropriate for temporary Notes, all as may be determined by the officers
executing such Notes with the concurrence of the Indenture Trustee.
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If temporary Notes of any series are issued, definitive Notes
of such series will be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes held by any Noteholder
shall be exchangeable for definitive Notes upon surrender of the temporary Notes
at any office or agency to be maintained for such purpose pursuant to Section
5.3, without charge to such Noteholder. Upon surrender or cancellation of any
one or more temporary Notes, the Lessor shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor a like aggregate principal
amount of definitive Notes of the same series with the same interest rate and
Stated Maturity in authorized denominations. Until so exchanged the temporary
Notes shall in all respects be entitled to the same security and benefits under
this Indenture as definitive Notes.
SECTION 2.6 Registration, Registration of Transfer and
Exchange. The Indenture Trustee shall cause to be kept at the designated office
of the Note Registrar a register in which, subject to such reasonable
regulations as the Lessor may prescribe, the Indenture Trustee shall provide for
the registration of Notes and of transfers and exchanges of Notes. This register
is herein sometimes referred to as the "Note Register."
Upon surrender for registration of transfer of any Note at the
designated office of the Note Registrar, or at any office or agency maintained
for such purpose pursuant to Section 5.3, the Lessor shall execute and register,
and the Indenture Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of the same series
with the same interest rate and Stated Maturity as the Notes so to be
transferred for a like aggregate principal amount, in any authorized
denominations and bearing numbers not contemporaneously outstanding.
At the option of any Noteholder, Notes may be exchanged for an
equal aggregate principal amount of Notes of the same series with the same
interest rate, amortization schedule and Stated Maturity and other terms as the
Notes so to be exchanged and in any authorized denominations, upon surrender of
the Notes to be exchanged at such designated office, or at any other office or
agency maintained for such purpose pursuant to Section 5.3. Whenever any Notes
are so surrendered for exchange, the Lessor shall execute, and the Indenture
Trustee shall authenticate and deliver, the Notes which the Noteholder making
the exchange is entitled to receive.
All Notes issued upon registration of transfer or exchange of
Notes shall be the valid obligations of the Lessor, evidencing the same debt,
and entitled to the same security and benefits and subject to the same
limitations under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Note Registrar duly executed
by the Noteholder thereof or its attorney thereunto duly authorized in writing.
Unless otherwise provided as a term of a series of Notes, no
service charge shall be required of any Noteholder with respect to any transfer
or exchange of Notes, but the Lessor
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and the Note Registrar may require payment of a sum sufficient to cover any
expense, 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 any of Section 2.5, 6.7 or 10.5 not involving any transfer.
The Lessor shall not be required to issue and the Note
Registrar shall not be required (i) to register the transfer of or exchange any
Note of any series during a period beginning at the opening of business 15 days
before the date of the first mailing of a notice of redemption of Notes of such
series and ending at the close of business on the day of first mailing of such
notice or (ii) to register the transfer of or exchange any Note selected for
redemption in whole or in part except the unredeemed portion of any Note
selected for redemption in part.
SECTION 2.7 Mutilated, Destroyed, Lost and Stolen Notes. Upon
receipt by the Lessor and the Indenture Trustee of evidence satisfactory to them
of the theft, loss, destruction or mutilation of any Outstanding Note, and (in
the case of any such theft, loss or destruction) of indemnity satisfactory to
them (provided, that if the Noteholder of such Note is a "qualified
institutional buyer" of the type referred to in paragraph (a)(1)(i)(A), (B), (D)
or (E) or Rule 144A under the Securities Act or the Pass Through Trustee, such
Person's own unsecured agreement of indemnity will be deemed to be
satisfactory), and upon payment, if the Lessor or the Indenture Trustee shall
require it, of a reasonable charge and upon reimbursement to the Lessor and the
Indenture Trustee of all reasonable expenses incident thereto, and upon
surrender and cancellation of such Note, if mutilated, the Lessor may execute,
and the Indenture Trustee shall thereupon authenticate and deliver, a new Note
of like tenor and of the same series with the same interest rate, Stated
Maturity and other terms in lieu of such stolen, lost, destroyed or mutilated
Note, or if any such Note shall have matured or be about to mature, instead of
issuing a substituted Note the Lessor may pay the same without surrender
thereof. Any indemnity bond shall name as obligees the Lessor, the Indenture
Trustee, and if requested by the Lessor, any Paying Agent.
SECTION 2.8 Payment of Interest and Principal. The Person in
whose name any Note is registered at the close of business on any Record Date
with respect to the immediately succeeding Installment Payment Date or Interest
Payment Date of such Note shall be entitled to receive the Installment Payment
Amount, if any, or interest payable on such Installment Payment Date or Interest
Payment Date notwithstanding any registration of transfer or exchange of such
Note subsequent to such Record Date and on or prior to such Installment Payment
Date or Interest Payment Date, except if and to the extent the Lessor shall
default in the payment of such Installment Payment Amount or the interest due on
such Installment Payment Date or Interest Payment Date, in which case such
defaulted installment ("Defaulted Installment") or defaulted interest (the
"Defaulted Interest") shall be paid to the Persons in whose names Outstanding
Notes of the applicable series are registered at the close of business on a
subsequent Record Date (which shall be not less than 10 Business Days prior to
the date for payment of such Defaulted Installment or Defaulted Interest)
established by notice given by mail by the Indenture Trustee to the Noteholders
of such series not less than 15 days preceding such subsequent Record Date after
receipt of an amount of money at least equal to the aggregate amount proposed to
be paid in respect of such Defaulted Installment or Defaulted Interest or
arrangements satisfactory to the Indenture Trustee have been made for such
payment. The term "Record Date" as used with respect to any Installment Payment
Date or Interest Payment Date (except a date for payment of
14
Defaulted Installment or Defaulted Interest) or any redemption pursuant to
Section 6.1(a)(iii) shall mean the date specified as such in the Supplemental
Indenture providing for the creation of such series. Except as may be provided
otherwise in any Supplemental Indenture or Note, any Defaulted Installment,
Defaulted Interest or any other amounts payable under this Indenture or the
Notes not paid in full when due (whether at Stated Maturity, by acceleration or
otherwise) shall, for the period from and including the date such amount was due
and payable until such amount shall have been paid in full, accrue interest at
the applicable Late Rate.
Unless otherwise provided with respect to a particular series
of Notes, interest on the Notes shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months.
Subject to Article 6 hereof, the principal of any series of
Notes may be payable either in full at Stated Maturity or in installments on
such dates and in such amounts as provided in the Supplemental Indenture
relating to such series. Except as otherwise provided in the applicable
Supplemental Indenture with respect to a series of Notes, principal of and
Premium, if any, on the Notes payable at Stated Maturity shall be payable to the
Noteholders of such Notes upon presentation and surrender of such Notes at the
office or agency for the payment of Notes maintained for such purpose pursuant
to Section 5.3. Except as otherwise provided in the applicable Supplemental
Indenture with respect to a series of Notes, interest or installments of
principal other than installments due at maturity on the Notes shall be paid on
the applicable Installment Payment Date or Interest Payment Date by check drawn
upon the Paying Agent and mailed to the registered addresses of the Noteholders
as they shall appear on the Note Register as of the Record Date preceding such
Interest Payment Date or Installment Payment Date. Payment as aforesaid shall be
made in such coin or currency of the United States of America as, at the
respective times of payment, shall be legal tender for the payment of public and
private debts.
Notwithstanding the foregoing provisions of this Section 2.8,
the Lessor may make, or cause to be made, payment of any Defaulted Installment
or Defaulted Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes in respect of which
installments of principal or interest is in default may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the Lessor
to the Indenture Trustee of the proposed payment pursuant to this paragraph,
such manner of payment shall be deemed practicable by the Indenture Trustee.
Subject to the foregoing provisions of this Section 2.8, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in replacement of any other Note shall carry the rights to
interest accrued and unpaid, and to accrue interest, which were carried by such
other Note, and each such Note shall bear interest from whatever date shall be
necessary so that neither gain nor loss in interest shall result from such
registration of transfer, exchange or replacement.
For all purposes hereof, each payment of principal and
interest or Premium or other amounts due in respect of each Note shall, except
as otherwise expressly provided herein, be applied first, to the payment of any
amount (other than the principal of or Premium or interest on such Note) due in
respect of such Note; second, to the payment of Premium, if any, and interest on
such Note (as well as interest on overdue principal and, to the extent permitted
by
15
Applicable Law, interest and other amounts payable thereunder) due thereunder;
third, to the payment of the principal of such Note then due; and fourth, the
balance, if any, remaining thereafter, to the payment of the principal of such
Note remaining unpaid (provided that such Note shall not be subject to
prepayment or purchase without the consent of the affected Noteholder except as
expressly permitted in this Indenture). The amounts paid pursuant to clause
fourth above shall be applied to the installments of principal of such Note in
inverse order of maturity.
SECTION 2.9 Persons Deemed Owners. Prior to due presentment
for registration of transfer, the Person in whose name any Note is registered on
the Note Register shall be deemed to be the absolute owner of such Note for the
purpose of receiving payment of principal (including, subject to the provisions
of Section 2.8 regarding the applicable record dates and Installment Payment
Amounts) of, Premium, if any, and (subject to Section 2.8) interest on, such
Note and for all other purposes whatsoever, whether or not such Note be overdue,
regardless of any notice to anyone to the contrary.
For all purposes hereof, in determining whether the
Noteholders have given any direction, consent, request, demand, authorization,
notice, waiver, Directive or other Act, under this Indenture, Notes held by the
Lessee, the Guarantor or any Affiliate of any thereof shall be disregarded and
deemed not to be Outstanding for purposes of such determination.
SECTION 2.10 Cancellation. All Notes surrendered for payment
or redemption or registration of transfer or exchange shall, if surrendered to
any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee for cancellation. The Lessor may at any time deliver to the Indenture
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Lessor may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly canceled by the Indenture Trustee. No Notes
shall be authenticated in lieu of or in exchange for any Notes canceled as
provided in this Section 2.10, except as expressly permitted by this Indenture.
All canceled Notes held by the Indenture Trustee shall be destroyed and
certification of their destruction delivered to the Lessor unless, by Lessor
Request, the Lessor otherwise directs.
SECTION 2.11 Authentication, Execution, Delivery and Dating of
Notes. From time to time after the execution and delivery of this Indenture,
series of Notes may be issued pursuant to Section 2.13. Unless otherwise
specifically provided with respect to a series of Notes, Notes shall be dated as
of the date of their authentication. No Note shall be secured by, or entitled to
any benefit under, this Indenture or any of the other Security Documents, or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication in the form provided for in the Supplemental
Indenture creating the Notes of such series, executed by the Indenture Trustee
by the manual or facsimile signature of one of its authorized officers or
signatories, 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 2.12 Source of Payments; Rights and Liabilities of
Lessor; Owner Participant Not Liable. All payments of principal of, Premium, if
any, and interest on, the Notes, and any other amounts due with respect to the
Notes, shall be made only from assets subject to or
16
intended to be subject to the Liens of this Indenture and the other Security
Documents, the income and proceeds received by the Indenture Trustee therefrom
and all payments of principal, Premium, if any, and interest, and any other
amounts due with respect to the Notes, shall be made in accordance with the
terms of Section 2.8 and Article 4. The Indenture Trustee agrees, and each
Noteholder, by its acceptance of a Note, shall be deemed to agree (a) that they
will look solely to the assets subject to or intended to be subject to the Liens
of this Indenture and the other Security Documents, the income and proceeds
received by the Indenture Trustee therefrom to the extent available for
distribution to such Noteholder as herein provided and (b) except as otherwise
expressly provided herein, no Exculpated Person, including the Owner Participant
(except with respect to any election made by it to purchase the Notes as
provided herein), is liable to any Noteholder or to the Indenture Trustee for
any amounts payable under any Note or this Indenture.
Anything in this Indenture or the other Operative Agreements
to the contrary notwithstanding, the Indenture Trustee shall not have any claim,
remedy or right to proceed against the Lessor or the Owner Participant on a
recourse basis or any past, present or future beneficiary, stockholder,
subscriber of capital stock, officer, director, incorporator, partner, employee,
agent or Affiliate of either thereof whether by virtue of any statute or rule of
law or by enforcement of any penalty or assessment or otherwise, for the payment
of any deficiency or any other sum owing on account of the payment of the
indebtedness under the Notes or for any other liability resulting from any
breach of any representation, agreement or warranty of the Lessor of any nature
whatsoever in this Indenture or any other Operative Agreement from any source
other than the Indenture Estate; and the Indenture Trustee and the Noteholders,
by the acceptance of this Indenture, waive and release any such liability of the
Lessor and the Owner Participant on a recourse basis or any past, present or
future beneficiary, stockholder, subscriber of capital stock, officer, director,
incorporator, partner, employee, agent or Affiliate of either thereof for and on
account of such indebtedness or such liability, and the Indenture Trustee and
the Noteholders agree to look solely to the Indenture Estate for the payment or
satisfaction of such liability.
SECTION 2.13 Series of Notes. Subject to the satisfaction or
waiver of the requirements of Sections 2 and 15 of the Participation Agreement,
as applicable, and except as otherwise provided in any Supplemental Indenture,
the Lessor shall have the right from time to time to issue Notes to provide (a)
a portion of the Lessor's Purchase Price of the Leased Property, (b) sufficient
funds to redeem all or a portion of the principal of Notes of any series
theretofore authenticated and delivered hereunder which are to be redeemed, or
(c) for all or a portion of the amount of any Supplemental Financing of any
Alteration in excess of the corresponding Additional Equity Investment. The
terms, conditions, designations and maximum aggregate principal amount of each
series of such Notes (to the extent not inconsistent with this Indenture) shall
be set forth in a Supplemental Indenture executed by the Lessor and the
Indenture Trustee; provided that (i) no Premium or penalty shall be payable as a
result of (a) the redemption of such Notes occurring as a result of an Event of
Loss or a Total Taking or (b) the payment of such Notes after the declaration of
acceleration of such Notes or in connection with the occurrence of an Indenture
Event of Default other than as provided in Section 7.2(a) and (ii) the Interest
Payment Dates for all Notes and the regular Record Dates for all Notes shall not
differ. The Indenture Trustee shall authenticate and deliver Notes in accordance
with the provisions of such Supplemental Indenture upon receipt by the Indenture
Trustee of the following documents:
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(i) a copy of such Supplemental Indenture and the
certificates representing such Notes together with a Lessor Request
that the Indenture Trustee execute such Supplemental Indenture and
authenticate such Notes;
(ii) an Officer's Certificate of each of the Lessor and the
Owner Participant stating that no Indenture Event of Default
attributable to it has occurred and is continuing;
(iii) an Officer's Certificate of the Lessee stating that the
requirements of the Participation Agreement and the Lease, as
appropriate, for the issuance of such Notes have been met or waived;
(iv) an Officer's Certificate of the Lessee stating that no
Default or Event of Default (or, in the case of a refinancing pursuant
to Section 15 of the Participation Agreement, no Material Default) has
occurred and is continuing;
(v) an Officer's Certificate of the Guarantor stating that
no default or breach of any of the Guarantor's obligations under the
Guarantee has occurred and is continuing;
(vi) an Officer's Certificate of the Lessee and an Opinion
of Counsel stating that all requirements for, and conditions precedent
to, the issuance of such Notes under this Indenture and the related
Supplemental Indenture have been satisfied;
(vii) so long as the Pass Through Trust holds any Notes, an
opinion of counsel reasonably satisfactory to the Pass Through Trustee
to the effect that the issuance of such Alteration Notes does not
cause, nor can it be reasonably foreseen to cause, the Pass Through
Trust to become an "investment company," as defined in the Investment
Company Act of 1940, as amended;
(viii) other than an issuance in connection with a refinancing
of all Outstanding Notes, a Rating Agency Confirmation from each Rating
Agency; and
(ix) such additional information, documents, certificates
and opinions as shall be reasonably requested by the Indenture Trustee.
SECTION 2.14 Legends. Unless sold pursuant to an effective
registration statement under the Securities Act, all Notes issued hereunder
shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
Prior to any transfer of any Note bearing such legend, in
whole or in part (other than pursuant to an effective registration statement
under the Securities Act, or a sale or other disposition made pursuant to Rule
144 or 144A (or any successor rules) of such Act), the Noteholder thereof shall
furnish, at the expense of such Noteholder, to the Lessor, the Lessee and the
Indenture Trustee an Opinion of Counsel, which shall be reasonably satisfactory
in form and
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substance to such parties, to the effect that such transfer is exempt from
registration under the Securities Act.
ARTICLE 3
SATISFACTION AND DISCHARGE
SECTION 3.1 Satisfaction and Discharge of Indenture. With
respect to Notes of any series of a particular Stated Maturity, if at any time
(a) the principal of, Premium, if any, on and interest on all of the Notes
Outstanding of such series with such Stated Maturity shall have been paid in
full or (b) all of the Notes of such series with such Stated Maturity
theretofore authenticated (other than any such Notes which shall have been
replaced or paid as provided in Section 2.7) shall have been delivered to the
Indenture Trustee for cancellation and all other sums, if any, secured hereby
owing to the Noteholders thereof shall have been paid in full, then the Liens
and security interests created by this Indenture and the other Security
Documents shall cease to secure any obligations with respect to such Notes and
the terms and conditions set forth in this Indenture shall no longer apply to
such Notes of the applicable Noteholders and, if no Notes of any other series
are then Outstanding and all other sums secured by this Indenture shall have
been paid in full, at the Lessor's expense, the Indenture Trustee shall execute
and deliver to the Lessor (or its designee) appropriate instruments
acknowledging the satisfaction and termination of this Indenture and the other
Security Documents and such other instruments provided to it in recordable form
releasing its Liens on and security interests in the Indenture Estate or
otherwise reconveying the Indenture Estate to the Lessor, as applicable.
ARTICLE 4
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME AND PROCEEDS FROM THE INDENTURE ESTATE
SECTION 4.1 Basic Rent; Interest on Overdue Installments of
Basic Rent. (a) Except as otherwise provided in Section 4.3 or 4.7, each
installment of Basic Rent and any payment of Additional Rent representing Rent
Differential or interest on overdue installments of Basic Rent or in respect of
interest due under Section 2.8, shall be promptly distributed by the Indenture
Trustee on the date such payment is due under the Lease (or as soon thereafter
as such payment shall be received by the Indenture Trustee) in the following
order of priority:
first, so much of such aggregate amount as shall be required
to pay in full the principal of and interest then due on all
Outstanding Notes shall be distributed to the Persons entitled thereto
and in case such aggregate amount shall be insufficient to pay in full
the whole amount so due and unpaid, then to the payment of such
principal and interest, without any preference or priority of one such
Note over another, ratably according to the aggregate amount then due
for principal and interest at the date of payment; and
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second, the balance, if any, of such installment or payment
remaining thereafter shall be distributed to the Lessor or as the
Lessor may direct the Indenture Trustee in writing.
Subject to Sections 4.2, 4.3 and 4.7, if, as a result of any failure by the
Lessee to pay in full any installment of Basic Rent when due (or within any
applicable period of grace) or for any other reason, there shall not have been
distributed pursuant to this Section 4.1 on any date (or within any applicable
period of grace) the full amount then distributable pursuant to clause "first"
of this Section 4.1(a), the Indenture Trustee shall distribute other payments of
the character referred to in Section 4.4 (other than Excepted Payments
representing Additional Rent made pursuant to Section 6.2 of the Lease) or
Section 4.5 then held by it or thereafter received by it, except as otherwise
provided in Section 4.3, to the Noteholders to the extent necessary to make all
the distributions then due pursuant to clause "first" of this Section 4.1(a);
provided, however, that, to the extent any distribution is made from such
amounts held pursuant to Section 4.4 or 4.5 and the payment of Basic Rent or
Additional Rent in respect of which such distribution was made is subsequently
made, such payment of Basic Rent or Additional Rent, unless an Indenture Event
of Default shall have occurred and be continuing, shall be applied to the
purpose for which such amount held pursuant to Section 4.4 had been held or in
accordance with Section 4.5, as applicable, subject, in all cases, to the
provisions of Sections 4.4 and 4.5. The portion of each such installment or
payment made to the Indenture Trustee that is to be distributed by the Indenture
Trustee in payment of Notes shall be applied in accordance with this Section
4.1(a). Any payment received by the Indenture Trustee pursuant to the first
sentence of Section 7.10(a)(1) shall be distributed to the Noteholders in the
order of priority set forth in clause "first" of this Section 4.1(a).
(b) Subject to Sections 4.2, 4.3 and 4.7, if, at the time of
receipt by the Indenture Trustee of any installment of Basic Rent (whether or
not then overdue) or Additional Rent of the kind described in Section 6.2 of the
Lease, there shall have occurred and be continuing an Indenture Event of
Default, then the Indenture Trustee shall retain such payments (to the extent
the Indenture Trustee is not then required to distribute such amount pursuant to
clause "first" of Section 4.1(a)) as part of the Indenture Estate and shall not
distribute any such payments pursuant to clause "second" of Section 4.1(a) until
the earliest of (i) the first Business Day occurring more than 180 days
following (a) in the case of an Indenture Event of Default under Section 7.1(a),
the date of the occurrence of such Indenture Event of Default and (b) in the
case of any other Indenture Event of Default (other than an Indenture Event of
Default which is not an Event of Default), the date on which the Indenture
Trustee shall have received notice of such Indenture Event of Default, in which
cases such retained payment (to the extent not theretofore applied as provided
herein) shall be distributed pursuant to clause "second" of Section 4.1(a), (ii)
such time as the Notes shall have been declared, or shall have become, due and
payable pursuant to Section 7.2 or if sooner, such time as the Indenture Trustee
has commenced to exercise its rights and remedies under Article 7, in which case
such retained payment shall be distributed pursuant to Section 4.3 and (iii)
such time as neither such Indenture Event of Default nor any other Indenture
Event of Default shall any longer be continuing or have been cured or waived, in
which case such retained payment shall be distributed pursuant to clause
"second" of Section 4.1(a); it being understood that following an Indenture
Event of Default and the lapse of 180 days during which period the Indenture
Trustee failed to accelerate the Notes, such Indenture
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Event of Default shall not thereafter be the basis of a retention of any Basic
Rent or Additional Rent payment hereunder.
SECTION 4.2 Amount Received as Result of Event of Loss, Total
Taking or Option to Terminate.
(a) Except as otherwise provided in Sections 4.3 and 4.7, if
an Event of Loss (as provided in Article 14 of the Lease) or a Total Taking (as
provided by Article 15 of the Lease) shall occur, any amounts payable by the
Lessee under Article 14 or 15 of the Lease and received by the Indenture Trustee
in respect of such Event of Loss or Total Taking shall be distributed on the
date of receipt as provided in Section 4.3 (except that payments and other
amounts shall be distributed under clause "second" thereof first and under
clause "first" thereof second).
(b) Except as otherwise provided in Section 4.3 or 4.7, any
payments received and amounts realized by the Indenture Trustee upon exercise of
the Lessee's option to terminate the Lease pursuant to Article 5 thereof shall
in each case be distributed on the Obsolescence Termination Date as provided in
Section 4.3 (except that payments and other amounts shall be distributed under
clause "second" thereof first and under clause "first" thereof second).
(c) Except as otherwise provided in Section 4.3 or 4.7, any
payments received and amounts realized by the Indenture Trustee upon an optional
redemption as contemplated by Section 6.1(b)(iii) shall in each case be
distributed on the date set for such redemption as provided in Section 4.3
(except that payments and other amounts shall be distributed under clause
"second" thereof first (except references therein to "all Notes" shall be deemed
to be references to "all Notes of the series that called for such redemption")
and under clause "first" thereof second).
SECTION 4.3 Amounts Received After, or Held at Time of,
Indenture Event of Default. Except as otherwise provided in Section 4.7, all
payments received and amounts held or realized by the Indenture Trustee in
respect of the Indenture Estate (including any amounts realized by the Indenture
Trustee from the exercise of any remedies pursuant to the Lease or Article 7)
after an Indenture Event of Default shall have occurred and be continuing, as
well as all payments thereafter received or amounts then held by the Indenture
Trustee as part of the Indenture Estate, if the Notes shall have been
accelerated or been deemed accelerated pursuant to Section 7.2 or if the
Indenture Trustee shall have commenced to exercise its rights and remedies under
Article 7, shall be distributed by the Indenture Trustee in the following order
of priority:
first, so much of such payments or amounts as shall be
required to pay the Indenture Trustee all amounts then due to it
pursuant to Section 8.5 shall be applied to pay the Indenture Trustee
such amounts;
second, so much of such payment or amounts remaining as shall
be required to pay in full the principal, Premium, if any, on and
interest thereon to the date of distribution shall be applied ratably
to the payment of such principal, Premium, if any, and interest; and in
case such aggregate amount shall be insufficient to pay in full the
whole amount so due and unpaid, then to the payment of such principal,
Premium, if any, and interest without priority of one over another,
ratably according to the aggregate unpaid principal,
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Premium, if any, and interest on all Notes held by each such Noteholder
bears to the aggregate unpaid principal, Premium, if any, and interest
thereon to the date of distribution; and
third, the balance, if any, of such payments or amounts
remaining thereafter shall be distributed to the Lessor or as the
Lessor may direct.
Notwithstanding the provisions of this Section 4.3, Premium, if any, on
Notes other than Series A-1 Notes and Series A-2 Notes shall be distributed in
the order of priority set forth in the Supplemental Indenture providing for the
issuance of such Notes.
SECTION 4.4 Amounts Received for Which Provision is Made in an
Operative Agreement. Except as otherwise provided in Section 4.1, 4.2, 4.3 or
4.7, any payments received by the Indenture Trustee in respect of the Indenture
Estate for which provision as to the application thereof is made in an Operative
Agreement shall be applied forthwith to the purpose for which such payment was
made in accordance with the terms of such Operative Agreement. Notwithstanding
the foregoing, any payments received by the Indenture Trustee from insurers
(other than with respect to self-insurance or policy deductibles) with respect
to damage, loss, condemnation, theft, seizure or other casualty not constituting
an Event of Loss shall, until the requirements of Section 14.2(c) of the Lease
have been satisfied, be held by the Indenture Trustee as a part of the Indenture
Estate, as security for the obligations of the Lessor under this Indenture and
the Notes, but shall (to the extent not theretofore applied to the Lessee's
obligations as provided under Section 14.2 of the Lease) be released to the
Lessee from time to time if and to the extent required by Section 14.2(c) of the
Lease.
SECTION 4.5 Amounts Received for Which No Provision Is Made.
Except as otherwise provided in Section 4.2, 4.3 or 4.7, any payments received
and any amounts realized by the Indenture Trustee in respect of the Indenture
Estate for which no provision as to the application thereof is made in an
Operative Agreement or elsewhere in this Article 4 shall be held by the
Indenture Trustee as part of the Indenture Estate, and, to the extent the same
are received or realized at any time after payment in full of the principal of,
Premium, if any, and interest on all the Notes and all other amounts owing to
the Noteholders hereunder, such payments and amounts, together with any other
amounts remaining as part of the Indenture Estate after payment in full of the
principal of, Premium, if any, and interest on all the Notes and all other
amounts owing to the Noteholders hereunder, shall be distributed by the
Indenture Trustee in the order of priority set forth in clause "second" of
Section 4.1(a).
SECTION 4.6 Payments to Lessor. Unless otherwise directed by
the Lessor, all payments to be made to the Lessor hereunder shall be made to the
Lessor by wire transfer of immediately available funds as soon as practicable
but in any event prior to 2:00 p.m., New York City time, on the date of receipt,
to such account at such bank or trust company as the Lessor shall from time to
time designate in writing to the Indenture Trustee.
SECTION 4.7 Excepted Payments. Anything in this Article 4 or
elsewhere in this Indenture to the contrary notwithstanding, any Excepted
Payment received at any time by the
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Indenture Trustee shall be distributed as promptly as practicable to the Person
entitled to receive such Excepted Payment.
ARTICLE 5
COVENANTS
SECTION 5.1 Payment of Principal, Premium, if any, and
Interest. The Lessor will duly and punctually pay the principal of, Premium, if
any, and interest on and any other amounts due under the Notes and hereunder in
accordance with, and subject to, the terms of the Notes and this Indenture.
SECTION 5.2 Money for Note Payments To Be Held in Trust in an
Eligible Account. All moneys received by the Indenture Trustee or any Paying
Agent for the purpose of paying the principal of, Premium, if any, on or
interest on the Notes shall at all times be deposited into separate Eligible
Accounts for each series of Notes issued hereunder and held in trust for the
benefit of the Noteholders entitled to such principal, Premium, if any, on or
interest, subject to the provisions of this Section 5.2. Moneys so deposited and
held in trust shall not be a part of the Indenture Estate but shall constitute a
separate trust fund for the benefit of the relevant Noteholders of each series
of Notes, and no portion of each such separate trust fund shall be commingled
with other funds, including funds constituting part of the Indenture Estate
which may be held from time to time by the Eligible Institution with which the
Eligible Account is kept.
The Lessor may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same terms as those upon which such sums were held by such Paying Agent, and,
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Indenture Trustee or any Paying
Agent in trust for the payment of the principal of, Premium, if any, or interest
on any Note and remaining unclaimed for two years and 11 months (or such lesser
period as may be required by law to give effect to this provision) after such
principal, Premium, if any, or interest has become due and payable shall be paid
to the Lessor; and the Noteholder of such Note shall thereafter, as an unsecured
general creditor, look solely to the Lessor to the extent such moneys shall have
been paid to the Lessor for payment thereof, and all liability of the Indenture
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Indenture Trustee or such Paying Agent,
before being required to make any such payment, may, at the expense of the
Lessor, cause to be mailed to each such Noteholder notice that such money
remains unclaimed and that, after a date specified therein, which date shall not
be less than 30 days from the date of such mailing, any unclaimed balance of
such money then remaining will be paid to the Lessor.
SECTION 5.3 Maintenance of Office and Agency. The Lessor will
maintain an office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of transfer or exchange
and where notices and demands to or upon
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the Lessor in respect of Notes and this Indenture may be served, which on the
date of this Indenture shall be the Indenture Trustee's Office. The Lessor will
give prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of each such office or agency. If at any time the Lessor
shall fail to maintain any such office or agency or the Lessor shall fail to
furnish the Indenture Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Indenture Trustee's
Office, and the Lessor hereby appoints the Indenture Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
SECTION 5.4 Title; Further Assurances; Recording.
------------------------------------
(a) NEITHER THE OWNER PARTICIPANT, NOR THE LESSOR, MAKES (i)
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, VALUE,
COMPLIANCE WITH SPECIFICATIONS, CONDITION, DESIGN, OPERATION, MERCHANTABILITY,
ABSENCE OF LATENT DEFECTS, FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT OR
FITNESS FOR USE OF THE LEASED PROPERTY (OR ANY PART THEREOF) OR ANY OTHER
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
LEASED PROPERTY (OR ANY PART THEREOF), except that the Lessor represents and
warrants that on the Closing Date (x) the Indenture Estate shall be free of any
Lessor's Lien attributable to it and (y) it shall have received such title to
its assets as was conveyed to it on such date and the Indenture Estate shall be
free of any Lessor's Liens attributable to it or (ii) any representation or
warranty as to the validity, sufficiency, legality or enforceability of any
Operative Agreement, or as to the correctness of any statement contained therein
except, in the case of the Lessor, to the extent that any such statement in any
Operative Agreement was or is expressly made by the Lessor, and except that the
Lessor hereby represents and warrants (x) that it has the requisite power and
authority to execute and deliver the Operative Agreements to which it is a party
and that such Operative Agreements have been, and the Notes, upon execution and
delivery, will have been, duly executed and delivered by one or more of the
Authorized Officers of the Lessor and (y) that its performance of all
transactions contemplated herein or therein have been duly authorized by all
necessary action.
(b) Neither the Owner Participant nor any Noteholder shall
have legal title to any part of the Indenture Estate. No transfer, by operation
of law or otherwise, of any Note or other right, title or interest of the Owner
Participant or of any Noteholder in and to the Indenture Estate or hereunder
shall operate to terminate this Indenture or the trusts hereunder or entitle any
successor or transferee of the Owner Participant or of such Noteholder to any
accounting or to the transfer to it of legal title to any part of the Indenture
Estate, other than as set forth in this Indenture, and such restriction shall
run with the land and survive any termination of this Indenture in violation
thereof.
SECTION 5.5 Termination of Lessor LLC Agreement and Transfer
of Interest. The Lessor shall not act to terminate or permit the termination of
the Lessor LLC Agreement before the date that the Notes and all other sums
payable hereunder to the Noteholders have been paid in full pursuant to Section
3.1, except with the written consent of the Indenture Trustee. Except as
permitted by this Indenture, without the prior written consent of the Indenture
Trustee
24
(which, as long as any Pass Through Certificates are Outstanding, shall require
a Rating Agency Confirmation), the Lessor shall not transfer any interest in the
Leased Property, either legal or equitable, unless the Notes have been redeemed
in accordance with this Indenture and the applicable Supplemental Indenture and
all other sums payable hereunder and thereunder have been paid.
SECTION 5.6 Notice of Default. The Lessor will deliver to the
Indenture Trustee and the Lessee, promptly after an Authorized Officer of the
Lessor has obtained actual knowledge thereof, written notice of any event or
condition which is a Default or an Indenture Default.
SECTION 5.7 Discharge of Liens; Etc.
------------------------
(a) The Lessor agrees that it shall not, directly or
indirectly, create, incur or suffer to exist any Lessor's Liens attributable to
it and will, at its own cost and expense, promptly take such action as may be
necessary duly to discharge any such Lessor's Liens.
(b) Except as expressly permitted or contemplated by the terms
of the Operative Agreements (including, without limitation, Article 10 of the
Lease), the Lessor will not contract for, create, incur, assume or suffer to
exist any debt, and will not guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment or performance of any
obligation or capability of so doing, or otherwise), endorse (other than
endorsements for collection in the ordinary course of business) or otherwise be
or become contingently liable, directly or indirectly, in respect of the debt of
any other Person.
(c) The Lessor will not enter into any business or activity
other than the business of owning the Leased Property, the leasing thereof to
the Lessee and the carrying out of the transactions contemplated by the
Operative Agreements and other activities necessary or appropriate to the
maintenance of its existence and the performance of its obligations under the
Operative Agreements, as amended from time to time as permitted by the Granting
Clauses hereof.
SECTION 5.8 Notice of Remedial Action. The Lessor shall
furnish the Indenture Trustee with prior written notice of any remedy to be
undertaken by it pursuant to Article 20 of the Lease.
SECTION 5.9 Limited Purpose. Notwithstanding anything to the
contrary contained herein, at all times until each of the Notes and all other
obligations of the Lessor under this Indenture and the other Security Documents
have been satisfied and performed in full:
(a) the Lessor shall not incur any indebtedness, except as
contemplated by the Operative Agreements;
(b) the Lessor shall not engage in any dissolution,
liquidation, consolidation, merger or sale of assets, except as may otherwise be
permitted by the Operative Agreements;
25
(c) the Lessor shall not amend, supplement or modify its
organizational documents except by an instrument in writing signed by the Owner
Participant, as its managing member, in accordance with and subject to Sections
4(d)(1) and 5(b)(8)(c) of the Participation Agreement;
(d) the Lessor shall not engage in any business activity other
than the ownership and operation of its assets as contemplated by the Operative
Agreements; and
(e) the Lessor shall not form, or cause to be formed, any
Subsidiaries.
SECTION 5.10 Separateness Covenants. Notwithstanding anything
to the contrary contained herein, at all times until each of the Notes has been
satisfied and performed in full, the Lessor shall:
(a) maintain books and records separate from any other Person;
(b) maintain its bank accounts separate from any other Person;
(c) not commingle its assets with those of any other Person
and hold all of its assets in its own name;
(d) conduct its own business in its own name;
(e) maintain separate financial statements, showing its assets
and liabilities separate and apart from those of any other Person;
(f) pay its own liabilities and expenses only out of its own
funds;
(g) observe all corporate and other organizational formalities
appropriate for the organizational structure of the Lessor;
(h) enter into transactions with Affiliates only when such
transaction is commercially reasonable, and on the same terms as would be
available in an arms' length transaction with a Person that is not an Affiliate;
(i) pay the salaries of its own employees, if any, from its
own funds;
(j) maintain a sufficient number of employees in light of its
contemplated business operations[, which number may be zero if no employees are
needed in light of its contemplated business operations];
(k) not guarantee or become obligated for the debts of any
other Person;
26
(l) not hold out its credit as being available to satisfy the
obligations of any other Person;
(m) not acquire the obligations or securities of its
Affiliates or owners, including members or shareholders, as appropriate;
(n) not make loans to any other Person or buy or hold evidence
of indebtedness issued by any other Person (except for cash and investment-grade
securities);
(o) allocate fairly and reasonably any overhead expenses that
are shared with an Affiliate, including paying for office space and services
performed by any employee of any Affiliate;
(p) use separate stationery, invoices and checks bearing its
own name;
(q) not pledge its assets for the benefit of any other Person;
(r) hold itself out as a separate entity;
(s) correct any known misunderstanding regarding its separate
identity;
(t) not identify itself as a division of any other Person; and
(u) maintain adequate capital in light of its contemplated
business operations.
ARTICLE 6
REDEMPTION OF NOTES
SECTION 6.1 Applicability of Article.
------------------------
(a) Except as otherwise provided in the applicable
Supplemental Indenture with respect to a series of Notes, redemption of Notes,
as required by any provision of this Indenture, shall be made in accordance with
this Article 6. Redemption of any series of Notes shall be made only to the
extent permitted by the Supplemental Indenture providing for the issuance of
such Notes and not inconsistent with the provisions hereof.
(b) (i) Upon the termination of the Lease pursuant to Section
14.1(b) or Section 15.1(b) thereof following the occurrence of an Event of Loss
or Total Taking with respect to the Leased Property, each Outstanding Note shall
be redeemed in whole at a Redemption Price equal to the aggregate unpaid
outstanding principal amount thereof, without Premium, together with accrued and
unpaid interest thereon to but excluding the applicable Redemption Date, unless
in accordance with the provisions of Section 5.2 of the Lease, Replacement
Property shall become subject to the Lien of this Indenture and the other
Security
27
Documents. The Redemption Date for Notes to be redeemed pursuant to this Section
6.1(b)(i) shall be the Casualty Termination Date or the Taking Termination Date,
as the case may be.
(ii) Upon termination of the Lease pursuant to Section 5.1
thereof, each Outstanding Note shall be redeemed in whole at a Redemption Price
equal to the aggregate unpaid principal amount thereof together with accrued but
unpaid interest thereon to, but not including, the applicable Redemption Date
plus, a Premium, if any, as provided for by the Supplemental Indenture relating
to such Note. The Redemption Date for Notes to be redeemed pursuant to this
clause (ii) shall be the Obsolescence Termination Date.
(iii) The Notes of any series are also subject to optional
redemption, in whole or in part, to the extent and under the circumstances set
forth in the Supplemental Indenture pursuant to which the Notes of such series
were issued.
(iv) Upon the giving of the notice of redemption
contemplated by Section 6.4, and subject to Section 6.5, the principal amount of
the Notes to be redeemed, Premium, if any, and interest thereon to the
Redemption Date specified in such notice shall become due and payable on such
Redemption Date as provided in Section 6.6.
SECTION 6.2 Notice to Indenture Trustee of Redemption. In case
of any election by the Lessor to redeem Notes with respect to any series, the
Lessor shall, at least 30 days prior to the scheduled Redemption Date (unless a
shorter notice shall be satisfactory to the Indenture Trustee), notify the
Indenture Trustee in writing of such Redemption Date and of the series, the
principal amount and Stated Maturity of Notes to be redeemed.
SECTION 6.3 Selection by Indenture Trustee of Notes To Be
Redeemed. If less than all the Notes of any series of a particular Stated
Maturity are to be redeemed, the particular Notes of such series and such Stated
Maturity to be redeemed shall be selected by the Indenture Trustee, in reliance
on and following receipt by the Indenture Trustee of the notice required by
Section 6.2, from the Outstanding Notes of such series of such particular Stated
Maturity not previously called for redemption, pro rata in accordance with the
principal amounts thereof, or by lot, or by such other method as shall be more
fully specified in the Supplemental Indenture creating such series of Notes,
which Supplemental Indenture may also provide for the selection for redemption
of portions of the principal of Notes of a denomination larger than the minimum
authorized denomination for such Notes. If Notes are to be selected for any
redemption pursuant to this Section, the Indenture Trustee may make such
adjustments as it shall deem necessary so that the principal amount of Notes
redeemed shall be $1,000 or an integral multiple thereof (unless otherwise
provided in the applicable Supplemental Indenture with respect to a series of
Notes).
The Indenture Trustee shall promptly notify the Lessor, the
Note Registrar and the Paying Agent in writing of the Notes selected for
redemption.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes (other
than with respect to the discharge of this Indenture or the release of any
portion of the Indenture Estate) shall relate, in the case of any
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Note redeemed or to be redeemed only in part, to the portion of the principal of
such Note which has been or is to be redeemed.
SECTION 6.4 Notice of Redemption. Except as otherwise provided
in the applicable Supplemental Indenture with respect to a series of Notes,
notice of redemption of Notes shall be given by the Indenture Trustee, in
accordance with Section 1.5, not less than 25 days prior to the Redemption Date,
to each Noteholder of a Note to be redeemed, at its address appearing on the
Note Register.
Unless otherwise provided as to a particular series of Notes,
all notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all Outstanding Notes of a series are to be
redeemed, the identification of the particular Notes, including the Stated
Maturity of the Notes of such series to be redeemed,
(d) any condition to such redemption including, without
limitation, that, if applicable, such redemption is subject to the provisions
set forth in Section 6.5(b),
(e) that on the Redemption Date, and upon the satisfaction of
each such condition, the Notes or portions thereof to be redeemed shall cease to
bear interest, and
(f) the place where such Notes are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Notes to be redeemed shall be given by
the Indenture Trustee in the name of the Lessor.
SECTION 6.5 Deposit of Redemption Price. (a) Except as
provided in paragraph (b) of this Section 6.5, on or prior to any Redemption
Date, the Lessor shall deposit, or cause to be deposited, with the Indenture
Trustee an amount of money sufficient to pay the Redemption Price of all the
Notes which are to be redeemed on that date and such amount shall be held by the
Indenture Trustee in a separate Eligible Account until such amount has been
applied pursuant to Section 6.6.
(b) Except as otherwise provided in the applicable
Supplemental Indenture with respect to a series of Notes, any redemption notice
with respect to a redemption of the Notes, shall state, and it shall be the case
that, such redemption shall be conditional upon the receipt by the Indenture
Trustee on or prior to 11:00 a.m. local time in New York, New York on the
Business Day fixed for such redemption) of moneys in immediately available funds
sufficient to pay the principal of, Premium, if any, on and interest on such
Notes to be redeemed, and that if such moneys shall not have been so received
such notice of redemption shall be of no force and effect, and the Lessor shall
not be required to redeem such Notes. In the event that such moneys
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are not so received, the redemption shall not be made and the Indenture Trustee
shall prior to the date fixed for such redemption give notice to each
Noteholder, in the manner in which the notice of redemption was given, that such
moneys were not so received.
SECTION 6.6 Notes Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Notes so to be redeemed shall, on
the Redemption Date, except as provided in Section 6.5(b), become due and
payable at the designated corporate trust office of the Paying Agent at the
Redemption Price therein specified, and from and after such date (unless there
shall be a default in the payment of the Redemption Price), such Notes shall
cease to bear interest. Upon surrender of such Notes for redemption in
accordance with such notice, such Notes shall be paid at the Redemption Price,
exclusive, however, of installments of interest maturing on or prior to the
Redemption Date payment of which shall have been made or duly provided for to
the Noteholders registered as such on the relevant Record Dates, or otherwise,
according to the terms and the provisions of Section 2.8.
Except as provided in Section 6.5(b), if any Note called for
redemption shall not be so paid upon surrender thereof for redemption because
the Indenture Trustee shall not have received pursuant to Section 6.5 an amount
of money sufficient to pay the Redemption Price for such Note, the principal and
Premium, if any, and (to the extent permitted by Applicable Law) interest shall,
until paid, continue to bear interest from the Redemption Date at the rate borne
by the Note in respect of overdue payments (and in the absence thereof, at the
contract rate therefor).
SECTION 6.7 Notes Redeemed in Part. Except as otherwise
provided in the applicable Supplemental Indenture with respect to a series of
Notes, any Note which is to be redeemed only in part shall be surrendered at the
corporate trust office of the Paying Agent (with due endorsement by, or a
written instrument of transfer in form satisfactory to the Note Registrar duly
executed by, the holder thereof or its attorney duly authorized in writing) and
the Lessor shall execute and the Indenture Trustee shall authenticate and
deliver to the Paying Agent for delivery to the Noteholder a new Note or Notes
of the same series, interest rate and Stated Maturity and in any authorized
denomination as requested by such Noteholder in an aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the Note
so surrendered.
ARTICLE 7
INDENTURE EVENTS OF DEFAULT; REMEDIES
SECTION 7.1 Indenture Events of Default. The term "Indenture
Event of Default" shall mean any of the following events, and any such event
shall continue to be an Indenture Event of Default if and for so long as it
shall not have been remedied or waived:
(a) the failure of the Lessor to pay when due (other than as a
result of an Event of Default) any payment of principal of, Premium, if
any, or interest on any Note, and such failure shall have continued
unremedied for 10 Business Days; or
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(b) the occurrence of an Event of Default (other than any such
Event of Default arising by reason of nonpayment of, or failure to
perform with respect to, any Excepted Payment when due); or
(c) the Lessor shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or it
shall consent to any such relief or to the appointment of or taking of
possession by any such official in any involuntary case or other
proceeding commenced against it, or it shall make a general assignment
for the benefit of creditors; or
(d) a decree or order for relief shall be entered by a court
having jurisdiction over the Lessor in any involuntary case under any
bankruptcy, insolvency or other similar law now or hereafter in effect;
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Lessor, its interest in the Indenture Estate or
any substantial part of the Lessor's property; or the ordering the
winding-up or liquidation of the Lessor or its affairs, and such
appointment or order shall remain undismissed or unstayed for a period
of 90 consecutive days; or
(e) any failure by the Lessor to comply in any material
respect with any covenant contained in this Indenture or any of the
other Operative Agreements, which failure is not remedied within a
period of 90 days after there has been given to the Lessor or the Owner
Participant, as the case may be, by registered or certified mail, a
written notice specifying such failure and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder, by the
Indenture Trustee or by a Majority in Interest of Noteholders;
provided, however, that if such failure to comply cannot be cured by
payment of money within such 90-day period or, with respect to other
breaches, cannot be cured by diligent efforts within such 90-day period
but efforts to cure shall have been properly commenced within such
period, the cure period, as long as the Lessor or Owner Participant is
diligently pursuing a cure, shall be extended for an additional period
of time not in excess of 90 days, if such failure is capable of being
remedied during such additional period, as may be necessary to cure; or
(f) any representation or warranty made by the Lessor, in, or
in any certificate delivered pursuant to, this Indenture or the
Participation Agreement or by the Owner Participant, in, or in any
certificate delivered pursuant to, the Participation Agreement or by
the Owner Participant Parent Guarantor, in, or in any certificate
delivered pursuant to, the Owner Participant Parent Guaranty shall
prove at any time to have been inaccurate in any material respect as of
the date made and shall remain material at the date of the notice
referred to below and any material adverse impact of such inaccuracy
shall continue unremedied for a period of 90 days after there has been
given to the Lessor, the Owner Participant or the Owner Participant
Parent Guarantor, as the case may be, by registered or certified mail,
a written notice specifying such incorrectness and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder, by the Indenture Trustee or a Majority in Interest of
Noteholders; or
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(g) the revocation, cancellation, repudiation, deemed
invalidity of the Owner Participant Parent Guaranty or termination
thereof by the Owner Participant Parent Guarantor or the Owner
Participant Guaranty shall no longer in full force and effect.
SECTION 7.2 Acceleration upon Notice; Rescission.
------------------------------------
(a) During the continuance of any Indenture Event of Default
and subject to the provisions of Section 7.10, the Indenture Trustee, in its
discretion may (or when so directed in a Directive), or a Majority in Interest
of Noteholders may, in any such case, by notice in writing to the Lessee, the
Lessor and the Owner Participant (and to the Indenture Trustee if given by
Noteholders), declare the principal of all the Outstanding Notes and the
interest accrued thereon to be due and payable immediately, and thereupon the
same shall become immediately due and payable (subject to the last sentence of
this Section 7.2(a)) without Premium. If an Indenture Event of Default referred
to in clause (c) or (d) of Section 7.1 shall have occurred, or an Event of
Default of the type referred to in clause (c) or (d) of Section 7.1 shall have
occurred with respect to the Lessee or the Guarantor, then and in every such
case, the unpaid principal of all Outstanding Notes, together with interest
accrued but unpaid thereon, and all other amounts due thereunder and hereunder,
shall, unless the Indenture Trustee shall otherwise direct, automatically and
without further act become immediately due and payable, (subject to the
following sentence, without Premium) without presentment, demand, protest or
notice, all of which are hereby waived. Upon any exercise of remedies by the
Lessor under the circumstances and as permitted by paragraph (bb) following the
Granting Clauses that result in the termination of the Lease, acceleration of
Rent due thereunder or a demand under Section 20.6(b) of the Lease, then, in
such case, the Indenture Trustee shall be deemed to have declared the principal
of all Outstanding Notes to be due and payable, together with, if the Lessor, on
direction of the Owner Participant, exercises such remedies (other than
commencement of proceedings to enforce the Guarantee that do not result in a
termination of the Lease) within 180 days after the occurrence of an Event of
Default, Premium, all upon the receipt by the Indenture Trustee of any payments
pursuant to such provisions.
(b) At any time after such acceleration and before any sale of
the Indenture Estate, or any part thereof, shall have been made pursuant to any
sale as hereinafter in this Article 7 provided, Noteholders, by Directive
delivered to the Lessee, the Lessor, the Owner Participant and the Indenture
Trustee, shall rescind and annul such declaration and its consequences if
(1) there shall have been paid to or deposited with the
Indenture Trustee a sum sufficient to pay
(A) all overdue installments of interest on all Notes,
(B) the principal of and Premium, if any due under
Sections 1.7 and 1.8 of the First Supplemental Indenture or as
provided in any other Supplemental Indenture, on any Notes
which have become due otherwise than by such acceleration and
interest thereon at the respective rates provided in the Notes
for late payments of principal or Premium, and
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(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the
respective rates provided in the Notes for late payments of
interest; and
(2) all Indenture Events of Default, other than the
non-payment of the principal of Notes which have become due solely by
such acceleration, have been cured or waived as provided in Section
7.9.
No such rescission shall affect any subsequent Indenture Event
of Default or impair any right consequent thereon.
SECTION 7.3 Enforcement of Remedies.
-----------------------
(a) Subject to Section 7.10 and the limitations set forth in
this Section 7.3(a), if an Indenture Event of Default that constitutes an Event
of Default shall have occurred and be continuing, then in every such case the
Indenture Trustee, as assignee and mortgagee or secured party hereunder or
otherwise, may, to the extent permitted by Applicable Law, exercise any or all
of the rights and powers and pursue any or all of the remedies under the Lease
(including Article 20 thereof) and, in connection therewith, corresponding
remedies under this Article 7, and may take possession of all or part of the
Indenture Estate and may exclude the Lessor and, in accordance with the terms of
the Lease, the Lessee and, to the extent permitted by Applicable Law, all
Persons claiming under either of them wholly or partly therefrom; provided,
however, that, notwithstanding any provision herein to the contrary, the
Indenture Trustee shall not exercise any remedies against the Indenture Estate
seeking to deprive the Lessor of its interests therein unless a declaration of
acceleration has been made pursuant to Section 7.2 or the Notes shall otherwise
have become due and payable as provided therein. It is further agreed and
understood that the Indenture Trustee shall not foreclose the Lien of this
Indenture or the other Security Documents or otherwise exercise remedies which
would result in the exclusion of the Lessor from the Indenture Estate as a
result of any Indenture Event of Default that is attributable to one or more
events or circumstances that constitute an Event of Default unless the Indenture
Trustee has first declared the Lease to be in default and has exercised its
rights to terminate the Lease and is diligently pursuing one or more significant
dispossessory remedies under the Lease and has made demand or is currently
making a demand upon the Guarantor under the Guarantee to perform its
obligations thereunder (and, if any such demand has been dishonored, is
diligently pursuing enforcement); provided, further, that, the Indenture Trustee
shall not foreclose the Lessor's or Owner Participant's right to enforce its
rights under the Guarantee prior to the term specified therefor in paragraph
(bb) following the Granting Clauses hereof.
(b) Any provision of the Lease or this Indenture to the
contrary notwithstanding, if the Lessee shall fail to pay any Excepted Payment
to any Person entitled thereto as and when due, such Person shall have the right
at all times, to the exclusion of the Indenture Trustee, to demand, collect, xxx
for, enforce performance of obligations relating to or otherwise obtain all
amounts due in respect of such Excepted Payment; provided, however, that, such
Person shall not be entitled to (i) collect such payment from or execute any
judgment against or otherwise cause the placing of a Lien upon any asset
constituting a portion of the Indenture
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Estate, (ii) terminate the Lease or (iii) exercise any remedies pursuant to
Article 20 of the Lease, except in the case of the Lessor, the remedy in Section
20.6(b) of the Lease.
SECTION 7.4 Specific Remedies; Limitations on Enforcement of
Claims Without Possession of Notes. Subject to Sections 7.3, 7.9 and 7.10 and
the provisions of the Granting Clause Documents, upon the occurrence of any
Indenture Event of Default and at any time thereafter so long as the same shall
be continuing:
(a) The Indenture Trustee may, and upon receipt of a Directive
shall, in order to enforce the rights of the Indenture Trustee and of the
Noteholders, (i) direct payment to it of all moneys and enforce any agreement or
undertaking constituting a part of the Indenture Estate by any action, suit,
remedy or proceeding authorized or permitted by this Indenture, by any of the
other Security Documents or by law or by equity, and whether for the specific
performance of any agreement contained herein, or for an injunction against the
violation of any of the terms hereof, or in aid of the exercise of any power
granted hereby or by Applicable Law, (ii) enforce the Liens and security
interests granted by this Indenture or the other Security Documents on all or
any part of the Indenture Estate by foreclosure, sale or action on the Notes or
any other remedy available to it under Applicable Law and as set forth in the
other Security Documents and (iii) sell, assign, transfer and deliver, from time
to time to the extent and in the manner permitted by Applicable Law, all or any
part of the Indenture Estate or any interest therein, at one or more sales with
or without demand, advertisement or notice (except as herein required or as may
be required by Applicable Law and as set forth in the other Security Documents)
of the date, time and place of sale and any adjournment thereof, for cash or
credit or other property, for immediate or future delivery and for such price or
prices and on such terms as the Indenture Trustee, may determine in consultation
with an investment banking firm appointed by the Indenture Trustee (at the
expense of the Lessee, if such Indenture Event of Default is attributable to an
Event of Default, otherwise at the expense of the Lessor) upon whose
determination as to such terms the Indenture Trustee may, in the absence of
manifest error, conclusively rely and shall be protected in relying, or as may
be required by Applicable Law and as set forth in the other Security Documents,
and, on any such sale or sales, the Indenture Trustee is hereby appointed the
true and lawful attorney-in-fact of the Lessor (which appointment is irrevocable
and coupled with an interest in the Notes), in its name and stead or in the name
of the Indenture Trustee, to execute all deeds, bills of sale and instruments of
assignment and transfer, and to make all necessary conveyances, assignments,
transfers and deliveries; and the receipt of the Indenture Trustee for the
purchase money paid at any such sale shall be a sufficient discharge therefor to
any purchaser of the Indenture Estate or any part thereof. The Indenture Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Indenture Trustee and of the
Noteholders asserted or upheld in any bankruptcy, receivership or other judicial
proceedings. It is agreed that 30 days' notice to the Owner Participant, the
Lessor and the Lessee by the Indenture Trustee or the Noteholders, as the case
may be, of (i) the date, time and place of any proposed sale by the Indenture
Trustee of all or any part of the Indenture Estate or interest therein or (ii)
the appointment of a receiver under any of the Security Documents (the "30 Day
Notice"), is reasonable; provided that neither the Indenture Trustee nor the
Noteholders may commence the foreclosure action or appoint such receiver during
the 10 Business Days following the giving of such 30 Day Notice and, thereafter,
if the Lessor shall have made the election to
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purchase all Outstanding Notes pursuant to Section 7.10(c) below and completed
such purchase within the time specified therefor in Section 7.10(c).
The Indenture Trustee and any of the Noteholders may purchase
at any of the foregoing sales and may, if permitted by Applicable Law, make a
credit bid in an amount of up to the aggregate amount of all sums due under
their respective Notes and this Indenture (including, in the case of the
Indenture Trustee, a credit bid in an amount of up to the aggregate amount due
with respect to all of the Outstanding Notes). If the Indenture Trustee enforces
the Liens and security interests granted by this Indenture or the other Security
Documents on all or any part of the Indenture Estate by foreclosure after the
date of rejection of the Lease by Lessee under the Bankruptcy Code, the
Indenture Trustee shall not thereafter sell (or lease) such Indenture Estate to
Lessee, the Guarantor or any Affiliate of either the Lessee or the Guarantor
(the "Ahold Affiliates"); it being understood, however, that if the Indenture
Trustee is stayed or otherwise prevented by operation of law from removing any
Ahold Affiliates from the Leased Property or any part thereof, such inability to
remove shall not be deemed a violation of this provision nor prevent the
Indenture Trustee or the Noteholders from exercising their rights and remedies
under this Indenture or the other Security Documents.
(b) If any sale is made of the Indenture Estate or any portion
thereof under the terms of this Indenture, the Lessor shall forthwith upon the
making of such sale surrender and deliver possession of the property so sold to
the purchaser at such sale, and in the event of its failure to surrender
possession of said property upon demand, the purchaser, its heirs, successors or
assigns, shall be entitled to institute and maintain an action with respect to
said property in the local court in the county in which said property or any
part thereof is situated as specified in Schedule B attached hereto. To the
extent that the Indenture Estate constitutes personal property, the Indenture
Trustee may elect to proceed as to both the real and personal property in
accordance with its rights and remedies in respect of the real property pursuant
to the Mortgage. The sale or sales by the Indenture Trustee of less than the
whole of the Indenture Estate shall not exhaust the remedies herein granted, and
the Indenture Trustee is specifically empowered to make a successive sale or
sales until the whole of the Indenture Estate shall be sold; and if the proceeds
of such sale or sales of less than the whole of the Indenture Estate shall be
less than the aggregate of the unpaid principal of, Premium, if any, and
interest due on the Outstanding Notes and any other indebtedness secured by this
Indenture, this Indenture and the Lien, security interest and assignment hereof
shall remain in full force and effect as to the unsold portion of the Indenture
Estate just as though no sale or sales had been made; provided, however, that
the Lessor shall never have any right to require the sale or sales of less than
the whole of the Indenture Estate.
(c) Without limiting the foregoing, the Indenture Trustee, its
assigns and its legal representatives, subject to the rights of the Lessee under
the Lease, shall have as to such of the Indenture Estate as is subject to the
Uniform Commercial Code or similar law in each relevant jurisdiction, all the
remedies of a secured party under the Uniform Commercial Code or similar law in
such jurisdiction and such further remedies as from time to time may hereafter
be provided in such jurisdiction for a secured party.
35
(d) The Indenture Trustee may exercise any other right or
remedy that may be available to it under Applicable Law or proceed by
appropriate court action to enforce the terms hereof or to recover damages for
the breach hereof.
(e) The Indenture Trustee shall not be personally liable, in
the case of entry by it upon the Indenture Estate, for debts contracted or
liabilities or damages incurred in the management or operation of the Indenture
Estate, except for its negligence or willful misconduct.
SECTION 7.5 Actions for Ratable Benefit of Noteholders. All
proofs of claim, rights of action and rights to assert claims under this
Indenture or under any of the Notes may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment or reimbursement of the proper charges, expenses or advances of the
Indenture Trustee, be for the ratable benefit of the Noteholders in respect of
which such judgment has been recovered.
SECTION 7.6 Noteholders May Demand Enforcement of Rights by
Indenture Trustee. Subject to Sections 7.3, 7.9 and 7.10, if an Indenture Event
of Default shall have occurred and shall be continuing, the Indenture Trustee
shall, upon the receipt of a Directive and upon the offering of indemnity as
provided in Section 8.1(e), proceed to institute one or more suits, actions or
proceedings at law, in equity or otherwise, or take any other appropriate
remedy, to enforce payment of the principal of, or Premium, if any, or interest
on, the Notes or to foreclose this Indenture or any other Security Documents or
to sell or to cause to be sold the Indenture Estate under a judgment or decree
of a court or courts of competent jurisdiction or under the power of sale
granted herein or in any other Security Documents, or take such other
appropriate legal, equitable or other remedy, as the Indenture Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights or powers of the Indenture Trustee or the Noteholders, or, in case such
Noteholders shall have requested a specific method of enforcement permitted
hereunder, in the manner requested, provided that such action shall be in
accordance with law and the provisions of this Indenture, and the Indenture
Trustee, subject to such indemnity provisions, shall have the right to decline
to follow any such request if the Indenture Trustee in good faith shall
determine that the suit, proceeding or exercise of the other remedy so requested
would involve the Indenture Trustee in personal liability or expense.
SECTION 7.7 Control by Noteholders. The Majority in Interest
of Noteholders shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee or
exercising any trust or power conferred on the Indenture Trustee, provided that:
(1) such direction shall not be in conflict with any rule of
law or with the rights of the Lessor under this Indenture, and
(2) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee which is not inconsistent with such
direction.
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SECTION 7.8 Noteholder May Not Bring Suit Except under Certain
Conditions. Subject to Sections 7.3, 7.9 and 7.10, a Noteholder shall not have
the right to institute any suit, action or proceeding at law or in equity or
otherwise for the foreclosure of this Indenture or for the enforcement of any
other remedy under or upon this Indenture, unless:
(1) such Noteholder previously shall have given written notice
to the Indenture Trustee of a continuing Indenture Event of Default;
(2) the Indenture Trustee shall have received a Directive
requesting that it institute such action, suit or proceeding and shall
have been offered indemnity as provided in Section 8.1(e);
(3) the Indenture Trustee shall have refused or neglected to
institute any such action, suit or proceeding for 60 days after receipt
of such notice, request and offer of indemnity; and
(4) no subsequent Directive inconsistent with the first such
Directive has been given to the Indenture Trustee during such 60-day
period.
It is understood and intended that no one or more of the
Noteholders shall have any right in any manner whatever hereunder or under the
Notes to (i) surrender, impair, waive, affect, disturb or prejudice the Lien of
this Indenture on any property subject hereto or the rights of the Noteholders
of any other Notes, (ii) obtain or seek to obtain priority over or preference to
any other such Noteholder or (iii) enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common
benefit of all the Noteholders of all series, subject to the provisions of this
Indenture.
SECTION 7.9 Waiver of Past Defaults. Upon receipt of a
Directive, the Indenture Trustee shall waive any past Indenture Default and its
consequences and upon any such waiver such Indenture Default shall cease to
exist, and any Indenture Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other Indenture Default or impair any right
consequent thereon; provided, however, that, in the absence of written
instructions from the Noteholders of all Notes then Outstanding, the Indenture
Trustee shall not waive any Indenture Default in the payment of the principal
of, Premium, if any, or interest on, or other amounts due under, any Note then
Outstanding, or in respect of a covenant or provision hereof that, under Article
10, cannot be modified or amended without the consent of each Noteholder.
SECTION 7.10 Right of Lessor to Pay Interest, Principal,
etc.; Note Purchase.
(a) (1) Subject always to the provisions of Section
7.10(a)(5), in the event of any default by the Lessee in the payment of any
installment of Basic Rent or any Rent Differential due under the Lease, the
Lessor, without the consent of the Indenture Trustee or any Noteholder, may pay
to the Indenture Trustee for application in accordance with Section 4.1, a sum
equal to the amount of all (but not less than all) the principal and interest as
shall then be due and payable on the Notes (as if no acceleration had occurred,
if the Notes had been accelerated).
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(2) In the event of any default by the Lessee in the
performance of any obligation under the Lease (other than the obligation to pay
Basic Rent or Rent Differential) or any other Operative Agreement (other than
any payment in respect of Basic Rent under the Guarantee), the Lessor or the
Owner Participant, without the consent of the Indenture Trustee or any
Noteholder, may exercise, to the extent such default may be remedied by the
payment of money (which shall include the payment of money for services such as
repair, maintenance and insurance), the Lessor's rights under Section 21.8 of
the Lease to perform such obligation on behalf of the Lessee.
(3) Solely for the purpose of determining whether there exists
an Indenture Event of Default (including an Indenture Event of Default caused by
an Event of Default), (i) any payment by the Lessor pursuant to, and in
compliance with, Section 7.10(a)(1) shall, for the purposes of this Indenture,
be deemed to remedy any default by the Lessee in the payment of such installment
of Basic Rent theretofore due and payable and to remedy the default by the
Lessor of the payment of the amount due and payable under the Notes, and (ii)
any performance by the Lessor or the Owner Participant of any obligation of the
Lessee under the Lease pursuant to, and in compliance with, Section 7.10(a)(2)
shall, for the purposes of this Indenture, be deemed to remedy any default by
the Lessee in the performance of such obligation and to remedy any related
default by the Lessor under this Indenture.
(4) Until 10 Business Days after the Lessor and the Owner
Participant shall have been given notice by the Indenture Trustee of the
occurrence of an Indenture Event of Default that may be cured under this Section
7.10(a), neither the Indenture Trustee nor any Noteholder shall exercise any
rights as assignee of the Lessor's rights under the Lease or declare the Notes
to be due and payable pursuant to Section 7.2 as a result of such Indenture
Event of Default.
(5) This Section 7.10(a) shall not apply to any default by the
Lessee in the payment of any installment of Basic Rent due under the Lease if
default by the Lessee in the payment of three or more consecutive installments
of Basic Rent, or in the payment of a total of six or more installments of Basic
Rent, shall have been cured by the Lessor or the Owner Participant pursuant to
the foregoing provisions of this Section 7.10(a).
(6) Upon the exercise of any cure right under this Section
7.10(a), neither the Lessor nor the Owner Participant shall obtain any Lien on
any part of the Indenture Estate on account of any payment made or the costs and
expenses incurred in connection therewith nor shall any claim of the Lessor or
the Owner Participant against the Lessee or any other Person for the repayment
thereof impair the prior right and security interest of the Indenture Trustee in
and to the Indenture Estate.
(b) (1) Upon the exercise of any cure right under Section
7.10(a)(1), the Lessor shall be subrogated to the rights of the Noteholders to
receive from the Indenture Trustee the installment of Basic Rent with respect to
which the Lessor effected such cure (including interest on account of such
installment being overdue) in the manner set forth in Section 7.10(b)(2).
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(2) If the Indenture Trustee shall thereafter receive such
installment of Basic Rent, then, notwithstanding the requirements of Section
4.1, the Indenture Trustee forthwith shall remit such installment of Basic Rent
to the Lessor, in reimbursement for the funds so advanced by either of them;
provided, however, that, if any Indenture Event of Default shall have occurred
and be continuing or would result from remittance of such funds to the Lessor,
such installment of Basic Rent shall not be remitted to the Lessor but shall be
held by the Indenture Trustee as security for the obligations secured hereby and
distributed in accordance with Section 4.1(b), as appropriate; and provided
further that, if the principal of and interest on the Notes shall have become
due and payable pursuant to Section 7.2, such installment of Basic Rent shall be
distributed by the Indenture Trustee in accordance with Section 4.3.
(c) At any time following the occurrence and during the
continuation of an Indenture Event of Default arising by reason of an Event of
Default, the Lessor may elect to purchase all of the Outstanding Notes by giving
not less than 10 nor more than 30 Business Days irrevocable written notice of
such election to the Indenture Trustee and paying to the Indenture Trustee
within 10 Business Days of such notification the unpaid principal amount of the
Outstanding Notes together with all accrued and unpaid interest thereon to the
date of such payment (as well as any interest on overdue principal and overdue
interest as provided in Article 4) and any other amounts then due and payable to
each Noteholder hereunder or otherwise secured hereby, without Premium or
penalty (unless the Lessor elects to purchase all of the Outstanding Notes prior
to the earlier of (a) 180 days after the occurrence of any such Indenture Event
of Default or (b) any acceleration of the Notes other than any deemed
acceleration of the Notes by reason of the Lessor's exercise of rights under
Section 20.6(b) of the Lease in accordance with the provisions of this
Indenture, in which case the Lessor shall pay the Premium on such Notes).
SECTION 7.11 Right of Noteholders to Receive Payment Not To Be
Impaired. Anything in this Indenture to the contrary notwithstanding, the right
of any Noteholder to receive payment of the principal of, Premium, if any, and
interest on, such Note, on or after the respective due dates expressed in such
Note (or, in case of redemption, on the Redemption Date fixed for such Note
subject, however, in the case of an optional redemption or redemption pursuant
to Section 6.1(b)(ii), to Section 6.5(b)), or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Noteholder; provided, however,
that such Noteholder shall not have the right to institute any such suit, if and
to the extent that the institution or prosecution thereof or the entry of
judgment therein would, under Applicable Law, result in the surrender,
impairment, waiver or loss of the Liens of the Indenture or any of other
Security Documents upon the Indenture Estate or any part thereof.
SECTION 7.12 No Action Contrary to Lessee's Rights Under the
Lease. Notwithstanding the Granting Clauses, any other provision of this
Indenture, any Supplemental Indenture, any other Security Document or any other
Operative Agreement, the Indenture Trustee warrants that, unless an Event of
Default shall have occurred and be continuing, the Indenture Trustee shall (i)
not name the Lessee as a party in any action or procedures to foreclose the Lien
of this Indenture, unless such joinder shall be required under Applicable Law,
and in which case Indenture Trustee shall not seek affirmative relief from the
Lessee in such action nor shall the Lease be cut off or terminated nor the
Lessee's possession thereunder be disturbed in any such
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action or proceeding, and (ii) subject to the next succeeding sentence of this
Section 7.12, recognize the Lease and the Lessee's rights thereunder. Without in
any way limiting the requirements of Section 7.14, upon any acquisition by the
Indenture Trustee or any purchaser at foreclosure or transferee pursuant to a
plan of reorganization under Chapter 11 of the Bankruptcy Code (collectively, a
"Successor Landlord") of the Lessor's interest in the Lease, the Lease shall
continue as a direct Lease between the Successor Landlord and the Lessee upon
all terms, covenants and conditions set forth in the Lease, except that the
Successor Landlord shall not be (A) liable for any previous act or omission of
Lessor under the Lease, (B) subject to any offsets, claims, defenses or
counterclaims Lessee may have against the Lessor, (C) bound by any prepayment of
Rent not actually received by Successor Landlord or (D) bound by any amendment
to the Lease requiring Indenture Trustee's consent unless such consent was
obtained.
SECTION 7.13 Waiver of Stay. To the extent it may lawfully do
so, the Lessor, for itself and for any Person who may claim through or under it,
hereby:
(a) agrees that neither it nor any such Person will set up,
plead, claim or in any manner whatsoever take advantage of, any statute
or rule of law now or hereafter in force providing for any stay,
moratorium, extension, appraisement, valuation or redemption or any
statute of limitations or any rights to require a marshalling of assets
which may delay, prevent or otherwise hinder (i) the performance or
enforcement or foreclosure of this Indenture or the other Security
Documents, (ii) the sale of any of the Indenture Estate, or (iii) the
putting of the purchaser or purchasers thereof into possession of such
property immediately after the sale thereof;
(b) waives and releases all benefit or advantage of such laws;
and
(c) consents and agrees that all the Indenture Estate may at
any such sale be sold by the Indenture Trustee in parcels or as an
entirety.
SECTION 7.14 Right of Indenture Trustee to Perform Covenants,
etc. If the Lessor shall fail to make any payment required to be made or to
perform any act required to be performed by it hereunder or under the Lease, the
Indenture Trustee, without notice to or demand upon the Lessor and without
waiving or releasing any obligation or default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of the Indenture Estate. All sums so paid by the
Indenture Trustee and all costs and expenses (including, without limitation,
reasonable fees and expenses of legal counsel and other professionals) so
incurred together with interest thereon from the date of payment or occurrence,
shall constitute additional indebtedness secured by this Indenture and shall be
paid from the Indenture Estate to the Indenture Trustee on demand. The Indenture
Trustee shall not be liable for any damages resulting from any such payment or
action unless such damages shall be a consequence of willful misconduct or
negligence on the part of the Indenture Trustee.
SECTION 7.15 Certain Other Rights of Lessor. The Indenture
Trustee shall not modify, waive, amend or supplement any Granting Clause
Document or deliver any notices, consents, determinations, demands, approvals,
requests, directions or releases in respect of any
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such other Granting Clause Document so as to release the Lessee from any of its
obligations in respect of the payment of Basic Rent, Additional Rent, Stipulated
Loss Value or any other payments in respect of the Leased Property as set forth
in the Lease, or reduce the amount of, or change the time or manner of payment
of or the absolute and unconditional character of, such payment obligations of
the Lessee as set forth in any Granting Clause Document or impose or create any
obligation on the part of the Lessor or the Owner Participant under the Lease or
extend or shorten the duration of the Basic Term or any Renewal Term of the
Lease; provided that adjustments to amounts payable in respect of the Leased
Property under the Lease may be made in accordance with Section 6.6 of the Lease
at any time this Indenture is in effect, at the times and in the manner
contemplated by the Lease. Nothing in this Section 7.15 shall prevent the
Indenture Trustee from exercising remedies in accordance with the Lease (as
assigned to the Indenture Trustee pursuant to this Indenture and the other
Security Documents), the Indenture and the other Security Documents so long as
such exercise does not involve a modification to a Granting Clause Document that
has the effect outlined above prior to such time as the Indenture Trustee shall
be entitled pursuant to Section 7.3 hereof to exercise remedies that would
result in the exclusion of the Lessor from all or any substantial part of the
Indenture Estate.
SECTION 7.16 Restoration of Rights and Remedies. In case the
Indenture Trustee shall have instituted any proceeding to enforce any right,
power or remedy under this Indenture and the other Security Documents by
foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Indenture Trustee, then and in every such case the Lessor, the Owner
Participant, the Indenture Trustee, the Noteholders and the Lessee shall be
restored to their former positions and rights hereunder and thereunder with
respect to the Indenture Estate, and all rights, powers and remedies of the
Indenture Trustee shall continue as if no such proceedings had been taken.
SECTION 7.17 Rights and Remedies Cumulative. Subject to the
limitations on the Indenture Trustee's rights and remedies contained herein,
each and every right, power and remedy herein specifically given to the
Indenture Trustee under this Indenture and the other Security Documents shall be
cumulative and shall be in addition to every other right, power and remedy
herein specifically given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether specifically herein
given or otherwise existing may be exercised from time to time and as often and
in such order as may be deemed expedient by the Indenture Trustee and the
exercise or the beginning of the exercise of any right, power and remedy shall
not be construed to be a waiver of the right to exercise at the same time or
thereafter any other right, power or remedy. No delay or omission by the
Indenture Trustee in the exercise of any right, power or remedy or in the
pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Lessor or the Owner
Participant or to be an acquiescence therein.
ARTICLE 8
THE INDENTURE TRUSTEE
SECTION 8.1. Certain Rights and Duties of Indenture Trustee.
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(a) The Indenture Trustee may rely and shall be protected in
acting or refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, Officer's Certificate, notice, request,
direction, consent, order, bond, debenture or other paper or document 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 Lessor mentioned herein
shall be sufficiently evidenced by a Lessor Request or an Officer's Certificate
of the Lessor or Owner Participant.
(c) Whenever in the administration of this Indenture the
Indenture Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder the Indenture
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely and shall be protected in relying upon an
Officer's Certificate of the Lessor.
(d) The Indenture 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, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(e) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture (including
instituting, conducting or defending any litigation) at the request or direction
of any of the Noteholders pursuant to this Indenture, unless such Noteholders
shall have offered to the Indenture Trustee reasonable security or indemnity
(including, without limitation, the advancement of monies for out-of-pocket
costs) against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
(f) The Indenture 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, bond, debenture or other paper or document; but the Indenture Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Indenture Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
relevant books, records and premises of the Lessor, personally or by agent or
attorney.
(g) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or indirectly
or by or through agents or attorneys and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it.
(h) The Indenture Trustee shall not be personally liable for
debts, contracts or liabilities or damages (collectively, "Liabilities")
incurred in the management or operation of the Indenture Estate, except such
Liabilities which result from its negligence or willful misconduct.
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(i) For all purposes of this Indenture, in the absence of
actual knowledge of an Authorized Officer of the Indenture Trustee, the
Indenture Trustee shall not be deemed to have knowledge of an Indenture Default
or any other Default (except the failure of the Lessee to pay any installment of
Basic Rent (plus Rent Differential, if any) when the same shall become due)
unless notified in writing by any Noteholder, the Owner Participant, the Lessor
or the Lessee.
(j) Except during the continuance of (i) an Indenture Event of
Default or an Event of Default arising by reason of failure of the Lessee to pay
any installment of Basic Rent (plus Rent Differential, if any) when the same
shall become due or (ii) any other Indenture Event of Default or an Event of
Default of which an Authorized Officer of the Indenture Trustee has actual
knowledge:
(1) The Indenture Trustee need perform only those duties
that are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Indenture Trustee.
(2) In the absence of bad faith on its part, the Indenture
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 Indenture Trustee and conforming to the requirements of this
Indenture. However, the Indenture Trustee shall examine these certificates and
opinions to determine whether or not they conform to the requirements of this
Indenture.
(k) If an Indenture Event of Default or an Event of Default
has occurred and is continuing, the Indenture Trustee shall exercise its rights
and powers under this Indenture, and shall use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of its own affairs.
(l) The Indenture Trustee may not be released from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(j) of this Section 8.1.
(2) The Indenture Trustee shall not be liable for any
error of judgment made in good faith by an Authorized Officer or Officers,
unless it shall be proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts.
(3) The Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with the
direction of the Majority in Interest of Noteholders relating to the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee, or exercising any trust or power conferred upon the Indenture
Trustee under this Indenture.
(m) The Indenture Trustee shall not be required to expend or
risk its own funds or otherwise incur financial liability for the performance of
any of its duties hereunder or the exercise of any of its rights or powers if
there is reasonable ground for believing that the
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the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(n) Subject to the other provisions of this Indenture and
without limiting the generality of this Section 8.1, the Indenture Trustee shall
have no duty (A) to see to any recording, filing, or depositing of this
Indenture or any agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing or to any rerecording,
refiling or redepositing of any thereof, (B) to see to any insurance or (C) to
see to the payment or discharge of any tax, assessment or other governmental
charge or any Lien or encumbrance of any kind owing with respect to, assessed or
levied against any part of the Indenture Estate other than from funds available
in the Indenture Estate.
(o) The Indenture Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion of rights or powers conferred upon it by
this Indenture.
(p) The right of the Indenture Trustee to perform any
discretionary act enumerated in this Indenture shall not be construed as a duty,
and the Indenture Trustee shall not be answerable for, other than its negligence
or willful misconduct in the performance of, such act.
(q) The Indenture Trustee shall not be required to give any
bond or surety in respect of the execution of the Indenture Estate created
hereby or the powers granted hereunder.
(r) Anything in this Indenture to the contrary
notwithstanding, in no event shall the Indenture Trustee be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Indenture Trustee has been advised of
the likelihood of such loss or damage and regardless of the form of action.
(s) If any of the Property is located in the Commonwealth of
Massachusetts, the Indenture Trustee shall make such filings from time to time
as shall be necessary or desirable to ensure that the obligations secured hereby
shall be exempted from any limitations imposed by Massachusetts usury law.
SECTION 8.2 Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the Indenture Trustee's
certificates of authentication, shall not be taken as the statements of the
Indenture Trustee, and the Indenture Trustee assumes no responsibility for their
correctness. The Indenture Trustee makes no representations as to the validity
or sufficiency of this Indenture, the Indenture Estate or the Notes, except that
the Indenture Trustee in its individual capacity hereby represents and warrants
that this Indenture has been executed and delivered by one of its officers who
is duly authorized to execute and deliver such document on its behalf and that
it has power to perform hereunder.
SECTION 8.3 Indenture Trustee and Authorized Agents May Hold
Notes. The Indenture Trustee, any Paying Agent, Note Registrar or any other
agent of the Indenture Trustee,
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in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Lessor and the Lessee with the same rights
it would have if it were not Indenture Trustee, Paying Agent, or such other
agent.
SECTION 8.4 Funds May Be Held by Indenture Trustee or Paying
Agent; Investments.
(a) Subject to Section 5.2 and subsection (b) of this Section
8.4, any moneys received by the Indenture Trustee or the Paying Agent hereunder
as part of the Indenture Estate may, until paid out by the Indenture Trustee or
the Paying Agent as herein provided, be carried by the Indenture Trustee or the
Paying Agent in an Eligible Account on deposit with itself so long as the
Indenture Trustee or the Paying Agent, as the case may be, is an Eligible
Institution, and without commingling with other funds held by Indenture Trustee
or the Paying Agent, as applicable. Neither the Indenture Trustee nor the Paying
Agent shall have any liability for interest upon any such moneys except as
otherwise agreed in writing with the Lessor or the Lessee.
(b) At any time and from time to time (subject to Section
3.1), the Indenture Trustee shall, provided no Event of Default has occurred and
is continuing, at the request (given directly by the Lessee to the Indenture
Trustee) of the Lessee acting as the agent of the Lessor, invest and reinvest in
Permitted Investments as specified in such request any moneys at the time on
deposit with the Indenture Trustee as part of the Indenture Estate, together
with any income and gains from the investment and reinvestment thereof, and sell
any Permitted Investments, in either case, including accrued interest, as are
set forth in such request, and such Permitted Investments shall be held by the
Indenture Trustee until so sold in trust as part of the Indenture Estate;
provided that the Lessee, on behalf of the Lessor, as agent of the Lessor, shall
upon demand pay to the Indenture Trustee the amount of any loss realized upon
maturity, sale or other disposition of any such Permitted Investment and, so
long as no Event of Default shall have occurred and be continuing, be entitled
to receive from the Indenture Trustee, and the Indenture Trustee, on behalf of
the Lessor, shall promptly pay to the Lessee any profit, income, interest,
dividend or gain realized upon maturity, sale or other disposition of any
Permitted Investment. If any Event of Default shall have occurred and be
continuing, any net income, profit, interest, dividend or gain realized upon
maturity, sale or other disposition of any Permitted Investment shall be held as
part of the Indenture Estate and shall be applied by the Indenture Trustee at
the same time, on the same conditions and in the same manner as the amounts in
respect of which some income, profit, interest, dividend or gain was realized
are required to be held. The Indenture Trustee shall not be responsible for any
losses on any investments or sales of Permitted Investments made pursuant to the
procedure specified in this Section 8.4.
SECTION 8.5 Compensation and Reimbursement. The Lessor agrees,
to the extent funds are made specifically available by the Lessee for the
purposes referred to below pursuant to the specific provisions in the
Participation Agreement or the Lease:
(1) to pay, or cause to be paid, to each of the
Indenture Trustee and any Authorized Agent from time to time reasonable
compensation for all 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);
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(2) to reimburse, or cause to be reimbursed, each of
the Indenture Trustee and any Authorized Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by it in
accordance with any provision of this Indenture (including the reasonable
compensation, expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its own gross
negligence, willful misconduct or bad faith; and
(3) to indemnify, or cause to be indemnified, each of
the Indenture Trustee, in its individual capacity, any predecessor Indenture
Trustee and any Authorized Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, willful misconduct or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder except for any cost or expense that may be attributable to its
own gross negligence, willful misconduct or bad faith.
As security for the performance of the obligations of the
Lessor under this Section 8.5, the Indenture Trustee shall have a Lien prior to
the Notes upon all property and funds held or collected by the Indenture Trustee
as such, other than Excepted Payments and funds held in trust for the payment of
principal of, Premium, if any, or interest on particular Notes.
SECTION 8.6 Corporate Indenture Trustee Required; Eligibility.
There shall at all times be a trustee hereunder which (i) shall be a U.S. Person
within the meaning of Section 7701(a)(30) of the Code, (ii) shall be eligible to
act as a trustee under Section 310(a) of the Trust Indenture Act, (iii) shall be
an institution whose long-term senior unsecured debt obligations are rated at
least A- by S&P and A-3 by Moody's and (iv) shall have a combined capital and
surplus of at least $100,000,000 (or a combined capital and surplus in excess of
$50,000,000 and the obligations of which, whether now in existence or hereafter
incurred, are fully and unconditionally guaranteed by a corporation organized
and doing business under the laws of the United States, any State, Territory
thereof or of the District of Columbia that has a combined capital and surplus
of at least $100,000,000). If such corporation publishes reports of conditions
at least annually, pursuant to law or to the requirements of Federal, State,
Territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 8.6, 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 conditions so published. The Lessor may not, nor
may any Person directly or indirectly controlling, controlled by, or under
common control with the Lessor, serve as Indenture Trustee. If at any time the
Indenture Trustee shall cease to be eligible in accordance with the provisions
of this Section 8.6, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 8.7 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Indenture Trustee under
Section 8.8.
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(b) The Indenture Trustee may resign at any time by giving
written notice thereof to the Lessor and the Lessee. If an instrument of
acceptance by a successor Indenture Trustee shall not have been delivered to the
Lessor, the Lessee and the Indenture Trustee within 45 days after the giving of
such notice of resignation, the resigning Indenture Trustee may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee or any Noteholder who has been a bona fide Noteholder for at least six
months may, subject to the provisions of Sections 8.8 and 8.11, on behalf of
itself and all others similarly situated, petition any such court for the
appointment of a successor Indenture Trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor
Indenture Trustee.
(c) The Indenture Trustee may be removed at any time by a
Directive delivered to the Indenture Trustee, the Lessor and the Lessee.
(d) If at any time:
(i) the Indenture Trustee shall cease to be eligible
under Section 8.6 and shall fail to resign after written
request therefor by the Lessor or by a Noteholder who has been
a bona fide Noteholder for at least six months may, or
(ii) the Indenture Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent, or a
receiver of the Indenture Trustee or of its property shall be
appointed, or any public officer shall take charge or control
of the Indenture Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) so long as no Indenture Event of Default or Event of
Default shall have occurred and be continuing, the Lessor, with the consent of
the Lessee (which consent shall not be required if an Event of Default has
occurred and is continuing), may remove the Indenture Trustee or (ii) subject to
Sections 8.8 and 8.11, unless the Indenture Trustee's duty to resign is stayed
as provided in the Trust Indenture Act, any Noteholder who has been a bona fide
Noteholder for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Indenture Trustee and appoint a successor Indenture
Trustee.
(e) If the Indenture Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Indenture Trustee for any cause, the Owner Participant, with the consent of
Lessee (which consent shall not be required if an Event of Default has occurred
and is continuing), shall promptly appoint a successor Indenture Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Indenture Trustee shall be appointed
pursuant to a Directive delivered to the Lessor, the Lessee and the retiring
Indenture Trustee, the successor Indenture Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Indenture Trustee
and supersede the successor Indenture Trustee appointed by the Owner
Participant. If no successor
47
Indenture Trustee shall have been so appointed by the Owner Participant with the
consent of Lessee (which consent shall not be required if an Event of Default
has occurred and is continuing) or the Noteholders and accepted appointment in
the manner provided in Section 8.8, any Noteholder who has been a bona fide
Noteholder for at least six months may, subject to the provisions of Sections
8.8 and 8.11, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Indenture
Trustee. Such court may thereupon after such notice, if any, as it may deem
proper or prescribe, appoint a successor Indenture Trustee.
(f) The Lessor shall give notice of each resignation and each
removal of the Indenture Trustee and each appointment of a successor Indenture
Trustee by mailing written notice of such event by first-class mail, postage
prepaid, to the Noteholders as their names and addresses appear in the Note
Register. Each notice shall include the name of the successor Indenture Trustee
and the address of its Indenture Trustee Office.
SECTION 8.8 Acceptance of Appointment by Successor. Every
successor Indenture Trustee appointed hereunder shall execute, acknowledge and
deliver to the Lessor, the Lessee and to the retiring Indenture Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Indenture Trustee shall become effective and such successor
Indenture Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Indenture
Trustee; but on request of the Lessor or the successor Indenture Trustee, such
retiring Indenture Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Indenture Trustee all the
rights, powers and trusts of the retiring Indenture Trustee, and it shall duly
assign, transfer and deliver to such successor Indenture Trustee all property
and money held by such retiring Indenture Trustee hereunder, subject
nevertheless to its Lien, if any, provided for in Section 8.5. Upon request of
any such successor Indenture Trustee, the Lessor shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Indenture Trustee all such rights, powers and trusts.
No successor Indenture Trustee shall accept its appointment
unless at the time of such acceptance such successor Indenture Trustee shall be
qualified and eligible under this Article.
SECTION 8.9 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Indenture Trustee, shall be the successor of
the Indenture Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Notes shall have been authenticated, but not delivered, by the Indenture
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Indenture Trustee may adopt such authentication and deliver
the Notes so authenticated with the same effect as if such successor Indenture
Trustee had itself authenticated such Notes.
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SECTION 8.10 Maintenance of Agencies.
-----------------------
(a) Any Paying Agent (other than the Indenture Trustee) from
time to time appointed hereunder shall execute and deliver to the Indenture
Trustee an instrument in which said Paying Agent shall agree with the Indenture
Trustee, subject to the provisions of this section, that such Paying Agent will:
(1) hold all sums held by it for the payment of principal
of, Premium, if any, and interest on 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;
(2) give the Indenture Trustee within five days thereafter
notice of any default in the making of any payment of principal of,
Premium, if any, or interest on the Notes; and
(3) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such Paying
Agent.
Notwithstanding any other provision of this Indenture, any payment required to
be made to or received or held by the Indenture Trustee may, to the extent
authorized by written instructions of the Indenture Trustee, be made to or
received or held by a Paying Agent for the account of the Indenture Trustee.
(b) From time to time the Indenture Trustee for the Notes of
any series may, subject to its sole discretion, appoint one or more
Authenticating Agents with respect to the Notes of such series, with power to
act on the Indenture Trustee's behalf and subject to its discretion in the
authentication and delivery of the Notes of such series in connection with
transfers and exchanges under Sections 2.5, 2.6, 2.10 and 6.7 as fully to all
intents and purposes as though such Authenticating Agent had been expressly
authorized by those Sections of the Indenture to authenticate and deliver the
Notes of such series. For all purposes of this Indenture, the authentication and
delivery of Notes of such series by an Authenticating Agent for such Notes
pursuant to this Section 8.10 shall be deemed to be authentication and delivery
of such Notes "by the Indenture Trustee." Any such Authenticating Agent shall at
all times be a Person that is eligible to act as an Indenture Trustee hereunder
pursuant to the provisions of Section 8.6 of this Indenture. If at any time an
Authenticating Agent for any series of Notes shall cease to be so eligible in
accordance with the provisions of Section 8.6, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section
8.10.
(c) If an appointment of an Authenticating Agent with respect
to one or more series of Notes is made pursuant to this Section 8.10, the Notes
may have endorsed thereon, in addition to the Indenture Trustee's certification
of authentication, an alternate certificate of authentication in the following
form:
CERTIFICATE OF AUTHENTICATION
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This is one of the ___________________________ Notes, Series
___, Due _______________, described in the within-mentioned Indenture.
By ____________________________
as Indenture Trustee
By ____________________________
as Authenticating Agent
By ____________________________
as Authenticating Agent
(d) 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 Authorized Agent shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 8.10, without the execution or filing of any paper
or any further act on the part of the parties hereto or such Authenticating
Agent or such successor corporation.
(e) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Indenture Trustee and the Lessor. The
Lessor, may, and at the request of the Indenture Trustee shall, at any time,
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Indenture Trustee. Upon the
resignation or termination of an Authenticating Agent or in case at any time any
such Authenticating Agent shall cease to be eligible under this Section (and, in
either case, no other Authenticating Agent performing the functions of such
Authenticating Agent shall have been appointed), the Lessor shall promptly
appoint one or more qualified successor Authenticating Agents approved by the
Indenture Trustee to perform the functions of the Authenticating Agent who has
resigned or whose agency has been terminated or who shall have ceased to be
eligible under this Section 8.10. The Indenture Trustee shall give written
notice of any such appointment to all Noteholders as their names and addresses
appear on the Note Register.
SECTION 8.11 Co-Indenture Trustee or Separate Trustee. (a) If
at any time or times it shall be necessary or prudent in order to conform to any
law of any jurisdiction in which property shall be held subject to the Lien
hereof and of the other Security Documents, or the Indenture Trustee shall be
advised by counsel, satisfactory to it, that it is necessary, prudent or
convenient in the interest of the Noteholders, or upon receipt of a Directive,
the Indenture Trustee and the Lessor shall execute and deliver all instruments
and agreements necessary or proper to constitute another bank or trust company
or one or more Persons approved by the Indenture Trustee either to act as
co-trustee or co-trustees of all or any part of the Indenture Estate jointly
with the Indenture Trustee originally named herein or any successor or
successors, or to act as separate trustee or trustees of all or any such
property. In the event the Lessor shall
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have not joined in the execution of such instruments and agreements within 10
days after the receipt of a written request from the Indenture Trustee to do so,
or in case an Indenture Event of Default shall have occurred and be continuing,
the Indenture Trustee may act under the foregoing provisions of this Section
without the concurrence of the Lessor upon giving written notice to the Lessor
of the name and address of such proposed additional trustee; and the Lessor
hereby appoints the Indenture Trustee its agent and attorney to act for it under
the foregoing provisions of this Section in either of such contingencies;
provided, however, that within 90 days following any appointment of an
additional trustee without the concurrence of the Lessor, the Lessor may, with
consent of the Lessee (which consent shall not be required if an Event of
Default has occurred and is continuing), if there shall not have occurred and be
continuing an Indenture Event of Default, remove such additional trustee by
written notice to the Indenture Trustee, the additional trustee and the Lessee.
(b) Every additional trustee hereunder shall, to the extent
permitted by law, be appointed and act, and such additional trustee and its
successors shall act, subject to the following provisions and conditions,
namely:
(1) the Notes shall be authenticated and delivered, and all
powers, duties, obligations and rights conferred upon the Indenture Trustee in
respect of the custody, control and management of moneys, papers or securities,
shall be exercised, solely by the Indenture Trustee;
(2) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such additional trustee or
trustees jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Indenture Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such additional trustee or trustees;
(3) no power given hereby to, or which it is provided hereby
may be exercised by, any such additional trustee or trustees, shall be exercised
hereunder by such additional trustee or trustees, except jointly with, or with
the consent in writing of, the Indenture Trustee, anything herein contained to
the contrary notwithstanding;
(4) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(5) with the consent of the Lessee (which consent shall not be
required if an Event of Default has occurred and is continuing), the Lessor and
the Indenture Trustee, at any time by an instrument in writing, executed by them
jointly, may remove any such additional trustee, and in that case, by an
instrument in writing executed by them jointly, may appoint a successor or
successors to such additional trustee or trustees, as the case may be, anything
herein contained to the contrary notwithstanding. In the event that the Lessor
shall not have joined in the execution of any such instrument within 10 days
after the receipt of a written request from the Indenture Trustee to do so, the
Indenture Trustee shall have the power to remove any such additional trustee and
to appoint a successor additional trustee without the concurrence of the
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Lessor; and the Lessor hereby appoints the Indenture Trustee, its agent and
attorney to act for it in such connection in such contingency; provided,
however, that, if there shall not have occurred and be continuing an Indenture
Event of Default, within 90 days following any appointment of a successor
additional trustee without the concurrence of the Lessor, the Lessor may, with
the consent of Lessee (which consent shall not be required if an Event of
Default has occurred and is continuing), remove such successor additional
trustee by written notice to the Indenture Trustee and the successor additional
trustee. In the event that the Indenture Trustee alone shall have appointed an
additional trustee or trustees as above provided, it may at any time, by an
instrument in writing, remove any such additional trustee, the successor to any
such additional trustee so removed to be appointed by the Lessor and the
Indenture Trustee, or by the Indenture Trustee alone, as hereinbefore in this
Section provided, subject to the aforesaid right of Lessor, if there shall not
have occurred and be continuing an Indenture Event of Default, to remove, with
the consent of Lessee (which consent shall not be required if an Event of
Default has occurred and is continuing), such additional trustee within 90 days
after such appointment.
ARTICLE 9
NOTEHOLDERS' LISTS
SECTION 9.1 List of Names and Addresses of Noteholders. The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list delivered to it pursuant to this Section 9.1,
as the case may be, of the names and addresses of the Noteholders. If the
Indenture Trustee is not the Note Registrar, the Note Registrar will furnish or
cause to be furnished to the Indenture Trustee semiannually, on a date not more
than 15 days after each regular Record Date with respect to an Interest Payment
Date, in each year, and at such other times as the Indenture Trustee may request
in writing, within 30 days after receipt by the Note Registrar of any such
request, a list, in such form as the Indenture Trustee may reasonably require,
containing all of the information in the possession or control of the Note
Registrar as to the names and addresses of the Noteholders, in each case as of a
date not more than 15 days prior to the time such list is furnished. The
Indenture Trustee may destroy any list furnished to it as provided in this
Section 9.1, as the case may be, upon receipt of a new list so furnished.
ARTICLE 10
SUPPLEMENTAL INDENTURES;
MODIFICATION OF SECURITY DOCUMENTS AND PARTICIPATION AGREEMENT
SECTION 10.1 Supplemental Indentures and Modifications of
Security Documents and Participation Agreement without Consent of Noteholders.
Without the consent of any of the Noteholders, each of the Lessor and the
Indenture Trustee may enter into one or more Supplemental Indentures or
amendments to, modifications of, replacements of or waivers or consents with
respect to the other Security Documents and the Participation Agreement, in form
satisfactory to the Indenture Trustee and the Lessor, for the following
purposes:
(a) to effect the issuance of Notes in the circumstances
contemplated by Section 15(a) of the Participation Agreement;
52
(b) subject to the provisions of the Operative Agreements, to
evidence the succession of another entity to the Lessee or to evidence the
succession of another entity to the Lessor, and the assumption by any such
successor of the covenants of the Lessor contained herein and in the Notes;
(c) to add to the covenants of the Lessor, for the benefit of
the Noteholders, or to surrender any right or power herein conferred upon the
Lessor;
(d) to convey, transfer and assign to the Indenture Trustee,
as the case may be, and to subject to the Liens of this Indenture and the other
Security Documents, with the same force and effect as though included in the
Granting Clause hereof, additional properties, and to correct or amplify the
description of any property at any time subject to the Lien of this Indenture or
to assure, convey and confirm unto the Indenture Trustee, as the case may be,
any property subject or required to be subject to the Liens of this Indenture
and the other Security Documents;
(e) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to qualify this Indenture
(including any Supplemental Indenture) under the Trust Indenture Act, or under
any similar Federal statute hereafter enacted;
(f) to cure any ambiguity or to correct or supplement any
provision herein or in any of the other Security Documents or the Participation
Agreement which may be defective or inconsistent with any other provision herein
or therein;
(g) to establish the form or terms of the Notes of any series
as permitted by Section 2.13;
(h) to permit or facilitate the issuance of Notes in
uncertificated form;
(i) to change or amend any provision hereof; provided that
such change or amendment shall become effective only when there is no
Outstanding Note of any series created prior to the execution of such
Supplemental Indenture which is entitled to the benefit of such provision;
(j) to evidence the succession of a new Indenture Trustee
hereunder or add a co-trustee or separate trustee and to make provisions as to
the rights and duties of such additional trustee and as to the appointment and
dismissal of any such additional trustee;
(k) to effectuate the Lessee's assumption (as co-obligor
without release or as sole obligor with release, as the case may be) of the
Lessor's obligations on the Notes and the Security Documents in connection and
pursuant to the provisions of Section 18(r) of the Participation Agreement; or
(l) to make any other amendments to, modifications of,
replacements of or waivers or consents or provisions with respect to matters or
questions arising under this Indenture, any of the other Security Documents or
the Participation Agreement, provided that, except insofar as the same relates
to Excepted Rights or Excepted Payments to which the Lessor, the Owner
Participant or any Affiliate thereof is entitled (but subject to the proviso in
Section
53
7.3(b)), the Indenture Trustee and, so long as any Pass Through Trustee holds
any Notes, such Pass Through Trustee shall receive (i) only in the case of the
Participation Agreement, an Opinion of Counsel reasonably satisfactory to the
Indenture Trustee and such Pass Through Trustee that such action shall not have
a material adverse effect on the interest of the Noteholders or the holders of
the related Pass Through Certificates or (ii) Rating Agency Confirmation.
This Section 10.1 is not intended to limit, expand, alter or
override the provisions of paragraphs (aa) and (cc) following the Granting
Clauses hereof which govern with respect to the matters covered therein.
Notwithstanding the foregoing, no Supplemental Indenture nor
any amendment to, modification of or replacement of any other Security Document
or the Participation Agreement shall become effective except with the consent of
the Noteholders of all Notes then outstanding if as a result thereof the amounts
payable to the Lessor under the Lease (other than Excepted Payments) and
assigned to the Indenture Trustee hereunder shall not be sufficient to pay when
due the principal of, Premium, if any, and interest on all Outstanding Notes.
SECTION 10.2 Supplemental Indentures and Modifications of
Security Documents and Participation Agreement with Consent of Noteholders. With
the consent of the Noteholders, by Directive delivered to the Lessor and the
Indenture Trustee, the Lessor may, and the Indenture Trustee, subject to Section
10.3, shall, enter into Supplemental Indentures or amendments to, modifications
of or replacements of the other Security Documents and the Participation
Agreement for the purpose of adding any provisions to or changing in any manner
the rights and obligations of the Noteholders and of the Lessor under this
Indenture; provided, however, that no such Supplemental Indenture, amendment,
modification or replacement shall, without the consent of the holder of each
Outstanding Note affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, or the dates or
circumstances of payment of Premium, if any, on, any Note, or reduce
the principal amount thereof or the interest thereon or any amount
payable upon the redemption thereof, or change the circumstances for
redemption or change the place of payment where, or the coin or
currency in which, any Note or the Premium, if any, or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment of principal or interest on or after
the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date subject, however, to Section 6.5(b)) or such
payment of Premium, if any, on or after the date such Premium becomes
due and payable in respect of a Note of any series,
(2) permit the creation of any Lien prior to or, except as may
be permitted by Section 15 of the Participation Agreement, pari passu
with the Lien of this Indenture or the Liens of the other Security
Documents with respect to any of the Indenture Estate, or terminate the
Lien of this Indenture or the Liens of the other Security Documents on
any of the Indenture Estate or deprive any Noteholder of the security
afforded by the Lien of this Indenture or the Liens of the other
Security Documents, except as may be required to effectuate Article 11,
54
(3) terminate the Lease, reduce the amounts payable under the
Lease assigned to the Indenture Trustee or change the time for the
payment thereof so that such payments are less than the amounts
necessary to pay when due the principal of, Premium, if any, and
interest on the Outstanding Notes,
(4) consent to or otherwise permit any termination of the
Guarantee or discharge of the Guarantor from its obligations under the
Guarantee (other than as respects any Excepted Payment),
(5) reduce the percentage in principal amount of the
Outstanding Notes of all series, the consent of whose holders is
required for any such Supplemental Indenture, amendment, modification
or replacement, or the consent of whose holders is required for any
waiver (of compliance with certain provisions of this Indenture or any
other Security Document or certain defaults hereunder and their
consequences) provided for in this Indenture, or any other Security
Document, or
(6) modify any of the provisions of this Section 10.2, except
to increase the percentage required for any consent pursuant to this
Section 10.2 or to provide that certain other provisions of this
Indenture or any other Security Document cannot be modified or waived
without the consent of each Noteholder affected thereby.
Upon receipt by the Indenture Trustee of an Officer's
Certificate of the Lessor and such other documentation as the Indenture Trustee
may reasonably require and upon the filing with the Indenture Trustee of
evidence of the Act of such Noteholders, the Indenture Trustee shall join in the
execution of such Supplemental Indenture or other instrument, as the case may
be, subject to the provisions of Section 10.3.
It shall not be necessary for any Act of Noteholders under
this Section to approve the particular form of any proposed Supplemental
Indenture or other instrument, but it shall be sufficient if such Act shall
approve the substance thereof. Promptly after the execution by the Lessor and
the Indenture Trustee (with the consent of the Lessee) of any Supplemental
Indenture or other instrument pursuant to the provisions of this Section 10.2,
the Indenture Trustee shall transmit a written notice, setting forth in general
terms the substance of such Supplemental Indenture or other instrument, to all
Noteholders, as the names and addresses of such Noteholders appear on the Note
Register. Any failure of the Indenture Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such Supplemental Indenture or other instrument.
SECTION 10.3 Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any Supplemental
Indenture or other instrument permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Indenture Trustee and the
Lessor shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such Supplemental
Indenture or other instrument is authorized or permitted by this Indenture.
55
SECTION 10.4 Effect of Supplemental Indentures. Upon the
execution of any Supplemental Indenture permitted under this Article, this
Indenture shall be modified in accordance therewith, and such Supplemental
Indenture shall form a part of this Indenture for all purposes; and every holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound to this Indenture as so supplemented.
SECTION 10.5 Reference Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any Supplemental Indenture
pursuant to this Article may, and shall if required by the Lessor, bear a
notation in form approved by the Lessor and the Indenture Trustee as to any
matter provided for in such Supplemental Indenture; and, in such case, suitable
notation may be made upon Outstanding Notes after proper presentation and
demand. If the Lessor shall so determine, new Notes so modified as to conform,
in the opinion of the Lessor and the Indenture Trustee, to any such Supplemental
Indenture may be prepared and executed by the Lessor and authenticated and
delivered by the Indenture Trustee or other Authorized Agent in exchange for
Outstanding Notes.
ARTICLE 11
RELEASE OF PROPERTY
SECTION 11.1 Removal of Property. (a) The Lessor may remove or
permit the removal, pursuant to the Lease and free from the Liens of this
Indenture and the other Security Documents, and without any release from or
consent by the Indenture Trustee, of any Severable Alterations or Additions
which pursuant to Section 11.2 of the Lease are property of the Lessee. All
replacement parts with respect to the Leased Property, if any, shall immediately
become subject to the Lien hereof and of the Mortgage.
(b) The Indenture Trustee shall from time to time execute any
written instrument to confirm the propriety of any action taken by the Lessor
under this Section 11.1 upon receipt by the Indenture Trustee of a Lessor
Request requesting the same, together with an Officer's Certificate of the
Lessee stating that said action was duly taken by the Lessor in conformity with
this Section 11.1 and that the execution of such written instrument is
appropriate to confirm the propriety of such action under this Section 11.1.
(c) The Indenture Trustee shall execute and deliver to the
Lessor (or its designee), at the Lessee's expense, appropriate instruments
provided to it in recordable form, releasing the Leased Property or the relevant
part thereof from the Liens of this Indenture and the other Security Documents,
as applicable, provided that all applicable conditions set forth in the
Operative Agreements have been satisfied (i) under the circumstances described
in Section 11.1(a); (ii) if such Leased Property being replaced by Replacement
Property which pursuant to Section 5.2(c) of the Lease is conveyed by the Lessor
to the Lessee; and (iii) if such Leased Property is the subject of a Partial
Taking and with respect to which the Lessee has elected to terminate the Lease
pursuant to Section 15.2 of the Lease.
SECTION 11.2 Purchasers Not Bound to Inquire. In no event
shall any purchaser or purchasers in good faith of any property purported to be
released hereunder be
56
bound to ascertain the authority of the Indenture Trustee to execute a release,
or to inquire as to any facts required by the provisions hereof for the exercise
of such authority, or to see to the application of the purchase moneys.
SECTION 11.3 Appoint Indenture Trustee Attorney-in-Fact. For
the purpose of granting releases provided in this Article 11, the Indenture
Trustee is hereby irrevocably constituted as agent and attorney-in-fact for the
Noteholders and to that end may execute, sign, seal, acknowledge and deliver all
necessary instruments of release as may be reasonably requested by the Lessee or
the Lessor.
ARTICLE 12
SUNDRY PROVISIONS
SECTION 12.1 Execution in Counterparts. This instrument may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
57
IN WITNESS WHEREOF, the parties hereto have caused the
Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
[NAME OF LESSOR LLC]
By: [Owner Participant], as managing member
By:
--------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
not in its individual capacity except to
the extent set forth herein, but solely
as Indenture Trustee
By:
--------------------------------
Name:
Title:
58
SCHEDULE A
SITE DESCRIPTION
SCHEDULE B
PROPERTY SPECIFIC VARIABLES
1. Owner Participant: ________________.
2. With respect to Section 2.1 of the Indenture, the aggregate principal
amount of the Notes that may be issued, authenticated and delivered
under the Indenture shall not exceed $________________.
3. With respect to Section 7.4(b) of the Indenture, the County(ies) in
which the Site is (are) located is (are) _________________.
