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EXHIBIT 4.10
BRL UNIVERSAL COMPRESSION FUNDING I, L.P.
Issuer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Indenture Trustee
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INDENTURE
Dated as of February 9, 2001
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 101. Defined Terms..............................................................3
Section 102. Other Definitional Provisions.............................................25
Section 103. Computation of Time Periods...............................................26
ARTICLE II
THE NOTES
Section 201. Authorization of Notes....................................................27
Section 202. Form of Notes; Global Notes...............................................27
Section 203. Execution; Recourse Obligation............................................30
Section 204. Certificate of Authentication.............................................31
Section 205. Registration; Registration of Transfer and Exchange of Notes..............31
Section 206. Xxxxxxxxx, Xxxxxxxxx, Lost and Stolen Notes...............................33
Section 207. Xxxxxxxx, Retention and Cancellation of Notes.............................33
Section 208. ERISA Deemed Representations..............................................34
ARTICLE III
PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS
Section 301. Principal and Interest....................................................34
Section 302. Trust Account.............................................................34
Section 303. Investment of Monies Held in the Trust Account and Series
Accounts; Control over Eligible Investments...............................37
Section 304. Reports to Noteholders....................................................38
Section 305. Records...................................................................38
Section 306. CUSIP Numbers.............................................................38
Section 307. No Claim..................................................................38
Section 308. Compliance with Withholding Requirements..................................38
Section 309. Tax Treatment of Notes....................................................38
ARTICLE IV
COLLATERAL
Section 401. Collateral................................................................39
Section 402. Pro Rata Interest.........................................................39
Section 403. Indenture Trustee's Appointment as Attorney-in-Fact.......................40
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Section 404. Release of Security Interest..............................................40
Section 405. Administration of Collateral..............................................42
ARTICLE V
RIGHTS OF NOTEHOLDERS; ALLOCATION
AND APPLICATION OF COLLECTIONS;
REQUISITE GLOBAL MAJORITY
Section 501. Rights of Noteholders.....................................................42
Section 502. Collections and Allocations...............................................43
Section 503. Determination of Requisite Global Majority................................43
ARTICLE VI
COVENANTS
Section 601. Payment of Principal and Interest; Payment of Taxes.......................43
Section 602. Maintenance of Office.....................................................44
Section 603. Corporate Existence.......................................................44
Section 604. Protection of Collateral..................................................44
Section 605. Enforce Head Lease Rights.................................................45
Section 606. Negative Covenants Regarding Collateral...................................45
Section 607. Non-Consolidation of the Issuer...........................................45
Section 608. No Bankruptcy Petition....................................................46
Section 609. Liens; Fixtures...........................................................46
Section 610. Other Debt................................................................46
Section 611. Guarantees, Loans, Advances and Other Liabilities.........................46
Section 612. Consolidation, Xxxxxx and Sale of Assets..................................47
Section 613. Other Agreements..........................................................47
Section 614. Charter Documents.........................................................47
Section 615. Capital Expenditures......................................................47
Section 616. Permitted Activities; Compliance with Limited Partnership Agreement.......47
Section 617. Investment Company Act....................................................48
Section 618. Payments of Collateral....................................................48
Section 619. Notices...................................................................48
Section 620. Books and Records.........................................................48
Section 621. Taxes.....................................................................48
Section 622. Subsidiaries..............................................................49
Section 623. Investments...............................................................49
Section 624. Use of Proceeds...........................................................49
Section 625. Asset Base Certificate....................................................49
Section 626. Financial Statements......................................................49
Section 627. Other Information.........................................................49
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Section 628. Independent Directors of General Partner..................................49
Section 629. [Reserved.................................................................50
Section 630. Hedging Requirements......................................................50
Section 631. Separate Identity.........................................................50
Section 632. New Master Lease Agreement with Users.....................................50
Section 633. Annual Perfection Opinion.................................................51
ARTICLE VII
DISCHARGE OF INDENTURE; PREPAYMENTS
Section 701. Full Discharge............................................................51
Section 702. Prepayment of Notes.......................................................51
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES
Section 801. Event of Default..........................................................52
Section 802. Acceleration of Stated Maturity; Rescission and Annulment.................54
Section 803. Collection of Indebtedness................................................55
Section 804. Remedies 55
Section 805. Indenture Trustee May Enforce Claims Without Possession of Notes..........56
Section 806. Allocation of Money Collected.............................................57
Section 807. Limitation on Suits.......................................................58
Section 808. Unconditional Right of Holders to Receive Principal and Interest..........59
Section 809. Restoration of Rights and Remedies........................................59
Section 810. Rights and Remedies Cumulative............................................59
Section 811. Delay or Omission Not Waiver..............................................59
Section 812. Control by Requisite Global Majority......................................59
Section 813. Waiver of Past Defaults...................................................60
Section 814. Undertaking for Costs.....................................................60
Section 815. Waiver of Stay or Extension Laws..........................................60
Section 816. Sale of Collateral........................................................60
Section 817. Action on Notes...........................................................61
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 901. Duties of the Indenture Trustee...........................................61
Section 902. Certain Matters Affecting the Indenture Trustee...........................63
Section 903. Indenture Trustee Not Liable..............................................64
Section 904. Indenture Trustee May Own Notes...........................................65
Section 905. Indenture Trustee's Fees and Expenses.....................................65
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Section 906. Eligibility Requirements for the Indenture Trustee........................65
Section 907. Resignation and Removal of the Indenture Trustee..........................66
Section 908. Successor Indenture Trustee...............................................66
Section 909. Merger or Consolidation of the Indenture Trustee..........................67
Section 910. Separate Indenture Trustees, Co-Indenture Trustees and Custodians.........67
Section 911. Representations and Warranties............................................68
Section 912. Indenture Trustee Offices.................................................70
Section 913. Notice of Event of Default................................................70
Section 914. Indenture Trustee's Application for Instructions from the Issuer..........70
Section 915. Indenture Trustee's Duties - Quarterly Tape...............................70
Section 916. Indenture Trustee's Duties - Monthly Tape.................................70
ARTICLE X
SUPPLEMENTAL INDENTURES; AMENDMENTS
Section 1001. Supplemental Indentures (Not Creating a New Series)
Not Requiring Consent of Holders..........................................71
Section 1002. Supplemental Amendment (Not Creating a New Series)
with Consent of Holders...................................................72
Section 1003. Execution of Supplemental Indentures......................................74
Section 1004. Effect of Supplemental Indentures.........................................74
Section 1005. Reference in Notes to Supplemental Indentures.............................74
Section 1006. Issuance of Series of Notes...............................................74
ARTICLE XI
HOLDERS LISTS
Section 1101. Indenture Trustee to Furnish Issuer Names and Addresses of Holders........75
Section 1102. Preservation of Information; Communications to Holders....................76
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 1201. Compliance Certificates and Opinions......................................76
Section 1202. Form of Documents Delivered to Indenture Trustee..........................76
Section 1203. Acts of Holders...........................................................77
Section 1204. Inspection................................................................77
Section 1205. Limitation of Rights......................................................78
Section 1206. Severability..............................................................78
Section 1207. Notices...................................................................78
Section 1208. Consent to Jurisdiction...................................................79
Section 1209. Captions..................................................................79
Section 1210. Governing Law.............................................................79
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Section 1211. No Petition...............................................................79
Section 1212. General Interpretive Principles...........................................79
Section 1213. WAIVER OF JURY TRIAL......................................................80
Section 1214. Waiver of Immunity........................................................80
Section 1215. Judgment Currency.........................................................80
Exhibits
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A -- Form of Non-Recourse Release
B -- Investment Letter
C -- Form of Master Lease
D -- Interest Rate Swap Agreements
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This Indenture, dated as of February 9, 2001 (as amended or
supplemented from time to time as permitted hereby, the "Indenture"), between
BRL UNIVERSAL COMPRESSION FUNDING I, L.P., a limited partnership formed under
the laws of the State of Delaware (the "Issuer") and XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association, as Indenture Trustee.
GRANTING CLAUSE
To secure the payment of all Outstanding Obligations and the
performance of all of the Issuer's covenants and agreements in this Indenture
and all other Related Documents, the Issuer hereby grants, assigns, conveys,
mortgages, pledges, hypothecates and transfers to the Indenture Trustee, for the
benefit of the Noteholders, any Series Enhancer and any Eligible Interest Rate
Swap Counterparty, a security interest in and to all of the Issuer's right,
title and interest in, to and under the following, whether now existing or
hereafter created or acquired:
(i) the Compressors (including all Substitute Compressors acquired
by the Issuer from time to time) and other Sold Assets acquired by the
Issuer from time to time;
(ii) the Head Lease, including without limitation, (A) any and all
payments and payment obligations of the Head Lessee thereunder, (B) all
proceeds from any expropriation, seizure or condemnation payable to the
Head Lessor pursuant thereto and any insurance proceeds payable to the
Head Lessor pursuant thereto, (C) the Head Lessee Security Agreement
and the Head Lease Collateral and (D) all rights of the Head Lessor to
receive any payments or other amounts or 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 Head Lease, the Head Lessee Security
Agreement, or the Head Lease Collateral, accept surrender or redelivery
of the Head Lease Collateral or any part thereof, as well as all the
rights, powers and remedies on the part of the Head Lessor, whether
acting under the Head Lessee Security Agreement or by statute or at law
or in equity or otherwise, arising out of any Head Lease Event of
Default under the Head Lease and any right to restitution from the Head
Lessee, any sublessee or any other Person in respect of any
determination of invalidity of any such document;
(iii) all cash and cash equivalents, Eligible Investments,
Financial Assets, Investment Property, Securities Entitlements and
other instruments or amounts credited or deposited from time to time in
any Trust Account, the Lockbox Accounts and any Series Account;
(iv) the Contribution Agreement, the Bills of Sale, the Sale
Agreement, the Management Agreement, the Management Guaranty, the
Representations and Warranties Agreement, the Intercreditor Agreement,
all Interest Rate Swap Agreements and all other Related Documents;
(v) all income, payments and Proceeds of the foregoing; and
(vi) all of the following which arise out of or in any way relate
to (but only to the extent they relate to) the Compressors and other
Sold Assets acquired from time to time:
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(a) All Accounts;
(b) All Chattel Paper;
(c) All Contracts;
(d) All Documents;
(e) All General Intangibles;
(f) All Instruments;
(g) All Inventory;
(h) All property of the Issuer held by the Indenture Trustee
including, without limitation, all property of every description now or
hereafter in the possession or custody of or in transit to the Indenture Trustee
for any purpose, including, without limitation, safekeeping, collection or
pledge, for the account of the Issuer, or as to which the Issuer may have any
right or power (but only to the extent such property relates to the Compressors
and other Sold Assets acquired from time to time);
(i) To the extent not included above and without limiting the
foregoing, all Chattel Paper, all Leases and all schedules, supplements,
amendments, modifications, renewals, extensions, and all guarantees and other
credit support with respect to the foregoing, in each case whether now owned or
hereafter acquired and all amounts, rentals, proceeds and other sums of money
due and to become due under the Head Lease and/or Compressor Related Agreements,
including (in each case only to the extent related to the Head Lease and/or the
Compressors), without limitation, (1) all rentals, payments and other moneys,
including all insurance payments and claims for losses due and to become due to
the Issuer under, and all claims for damages arising out of the breach of, any
Compressor Related Agreement; (2) the right of the Issuer to terminate, perform
under, or compel performance of the terms of the Compressor Related Agreements;
and (3) any guarantee of or credit support with respect to the Compressor
Related Agreements and any rights of the Issuer in respect of any subleases or
assignments permitted under the Compressor Related Agreements;
(j) All insurance proceeds of the Compressors and the other
Collateral and all proceeds of the voluntary or involuntary disposition of the
Compressors and the other Collateral;
(k) Any and all payments made or due to the Issuer in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Compressors and the other Collateral by any Governmental
Authority and any other cash or non-cash receipts from the sale, exchange,
collection or other disposition of the Compressors and the other Collateral;
(l) To the extent not otherwise included, all income and Proceeds
of each of the foregoing and all accessions to, substitutions and replacements
for, and rents, profits and products of each of the foregoing; and
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(m) Subject to the terms and conditions set forth in the
Intercreditor Agreement, all of the Issuer's funds from time to time on deposit
in the Lockbox Accounts and the Proceeds thereof.
All of the property described in this Granting Clause is herein collectively
called the "Collateral".
In furtherance of the foregoing, the Issuer hereby appoints the
Indenture Trustee as its designee for purposes of exercising any power of
attorney or right granted by the Manager pursuant to the Management Agreement.
ARTICLE 1
DEFINITIONS
Section 101. Defined Terms. Capitalized terms used in this
Indenture shall have the following meanings and the definitions of such terms
shall be equally applicable to both the singular and plural forms of such terms:
Accounts: Any "account," as such term is defined in Section 9-106 of the
UCC, arising out of or in any way related to the Compressors and, in any event,
shall include, without limitation, all accounts receivable, book debts and other
forms of obligations (other than forms of obligations evidenced by Chattel
Paper, Documents or Instruments) now owned or hereafter received or acquired by
or belonging or owing to the Issuer (including, without limitation, under any
trade name, style or division thereof) whether arising out of goods sold or
services rendered by the Issuer or from any other transaction, whether or not
the same involves the sale of goods or services by the Issuer (including,
without limitation, any such obligation which may be characterized as an account
or contract right under the UCC) and all of the Issuer's rights in, to and under
all purchase orders or receipts now owned or hereafter acquired by it for goods
or services, and all of the Issuer's rights to any goods represented by any of
the foregoing (including, without limitation, unpaid seller's rights of
rescission, replevin, reclamation and stoppage in transit and rights to
returned, reclaimed or repossessed goods), and all monies due or to become due
to the Issuer under all purchase orders and contracts for the sale of goods or
the performance of services or both by the Issuer (whether or not earned by
performance on the part of the Issuer or in connection with any other
transaction), now in existence or hereafter occurring, including, without
limitation, the right to receive the proceeds of said purchase orders and
contracts, and all collateral security credit support and guarantees of any kind
given by any Person with respect to any of the foregoing.
Act: Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture or any Supplement 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 agents
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, with a copy (or if expressly required an
original) to the Issuer and the Manager. Such instrument or instruments (and the
action embodied therein and evidenced
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thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments.
Additional Payments: Has the meaning set forth in Section 1 of the Head
Lease.
Advance Rate: The Advance Rate for each Lease Pool is set forth opposite
the numerical designation of such Lease Pool in the table set forth below;
provided, however, that the Advance Rate for a particular Lease Pool will reduce
to zero on and after the date on which a Head Lease Event of Default shall have
occurred and then be continuing:
Supplement Number Lease Pool Designation Advance Rate
----------------- ---------------------- ------------
1 1 80%
2 2 75%
3 3 70%
4 4 70%
5 5 65%
6 6 60%
Affiliate: With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, "control", when
used with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Aggregate Appraised Value: The sum of the most recently available Appraised
Values of the Compressors; provided, however, that if the Return Option has been
selected on the most recent Termination Date in accordance with the provisions
of Section 20.2 of the Head Lease, then, notwithstanding the results of any
Appraisal, the Aggregate Appraised Value for the remaining Compressors will not
exceed the product of (a) total horsepower of all Compressors and (b) the
quotient of (i) the Net Sales Proceeds obtained in the most recent sale of
Compressors made in connection with the exercise of the Return Option divided by
(ii) the total number of horsepower in the Lease Pool sold pursuant to the
Return Option.
Applicable Law: With respect to any Person or Compressor, all existing
laws, rules, regulations (including proposed, temporary and final income tax
regulations), statutes, treaties, codes, ordinances, permits, certificates,
orders and licenses of and interpretations by any Governmental Authority and
judgments, decrees, injunctions, writs, or orders of any court, arbitrator or
other administrative, judicial, or quasi-judicial tribunal or agency of
competent jurisdiction applicable to such Person or item of equipment.
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Appraisal: An appraisal prepared by an Eligible Appraiser in conformity
with, and subject to, the requirements of the code of professional ethics and
standards of professional conduct of the American Society of Appraisers with
respect to one or more Compressors which shall take into account, but not
limited to, considerations such as the type of equipment, original year of
manufacture and any refurbishment or overhaul of such equipment and compliance
with the Maintenance Policy; provided that such Appraisal shall be conducted not
more than 60 days prior to the Closing Date, each annual anniversary of the
Closing Date or any other date specified in the Related Documents on which the
Appraised Value is to be determined. The Appraised Value of a Compressor shall
be automatically adjusted upon the delivery of any subsequent Appraisal in
accordance with the terms of the Related Documents.
Appraisal Date: The Payment Date occurring in February of each calendar
year, commencing with the Payment Date in February 2002.
Appraised Value: With respect to each Compressor, an amount equal to the
mathematical average of three Appraisals, each of which shall estimate the
amount which would be obtained in an arm's-length, all cash transaction between
an informed and willing purchaser under no compulsion to buy and an informed and
willing seller under no compulsion to sell such Compressor, which determination
shall take into account (i) the age, type, manufacturer and physical condition
of such Compressor, (ii) the actual level of compliance with the Manager's
Maintenance Policy then in effect, (iii) all Liens on such Compressor and (iv)
any material legal impediments to the prompt sale of such property interest;
provided however, that for purposes of calculating the Asset Base, the Appraised
Value of a Compressor that has been sold by or on behalf of Head Lessor and/or
Head Lessee or that has been subject to a Casualty Loss shall be deemed to be
zero.
Asset Base: As of any date of determination, an amount equal to the lesser
of (A) the product of (x) the Appraised Value of all Eligible Compressors (for
the avoidance of doubt, this clause (x) includes all Head Lessor Compressors and
all Head Lessee Compressors) and (y) the lesser of (i) 70% and (ii) the simple
mathematical average (but not the weighted average) of the Advance Rates of all
Lease Pools then outstanding; and (B) the product of (x) four and one-half (4.5)
and (y) annualized Net Revenue for the Collection Period immediately preceding
each Annual Appraisal Date, provided, however, that in calculating Net Revenue
for purposes of this clause (B), such amount will be calculated utilizing the
Monthly S&A Fee Rate and Operations Fee Rates that will be in effect for the
next succeeding year as determined in accordance with the provisions of the
Management Agreement.
Asset Base Certificate: A certificate with appropriate insertions setting
forth the components of the Asset Base as of the last day of the month for which
such certificate is submitted, which certificate shall be in the form attached
to the Management Agreement and shall be certified by an Authorized Signatory.
Authorized Officer: With respect to any matter, any officer of or other
Person representing the Issuer, the Manager or a Noteholder, as the case may be,
who is authorized to act for that party with respect to the applicable matter.
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Authorized Signatory: Any Person designated by written notice delivered to
the Indenture Trustee, the Deal Agent and any Series Enhancer as authorized to
execute documents and instruments on behalf of a Person.
Available Distribution Amount: For any Payment Date, an amount equal to the
sum (without duplication) of (i) all Head Lessor Collections received during the
immediately preceding Collection Period, (ii) all amounts received by the Issuer
on the related Determination Date pursuant to any Interest Rate Swap Agreement,
(iii) all Manager Advances received by the Issuer on the related Determination
Date and (iv) any earnings on Eligible Investments in the Trust Account to the
extent that such earnings were credited to such account during the related
Collection Period.
Back-up Management Agreement: A management agreement, in form and substance
reasonably acceptable to the Requisite Global Majority among an Eligible Back-up
Manager, the Manager, the Head Lessee and the Issuer.
Back-up Manager: This term shall have the meaning set forth in Section 1 of
the Management Agreement.
Back-up Manager Fee: Shall have the meaning set forth in Section 1 of the
Management Agreement.
Bankruptcy Code: The Bankruptcy Reform Act of 1978, as amended.
Bills of Sale: The Bills of Sale, dated as of February 9, 2001, by any
Person(s) conveying Compressors to the Issuer other than UCI.
Book Entry Custodian: The Person appointed pursuant to Section 202(g)
hereof to act in accordance with a certain letter of representations agreement
such person has with DTC, in which DTC delegates its duties to maintain the Book
Entry Notes to such Person and authorizes such Person to perform such duties.
Book Entry Notes: Each Note for so long as such Note is registered in the
name of its depository or its nominee in accordance with the terms and
conditions of the Indenture.
Business Day: Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York City, London, England, Houston, Texas,
Charlotte, North Carolina, or the city in which the Corporate Trust Office of
the Indenture Trustee is located, are authorized or are obligated by law,
executive order or governmental decree to be closed.
Capital: Has the meaning set forth in Article I of the Partnership
Agreement.
Casualty Loss: Any of the following events with respect to any Compressor:
(a) the actual total loss of such Compressor, (b) the Issuer's knowledge that
such Compressor has become lost, stolen or destroyed, (c) 30 days following the
Issuer's determination that such Compressor is damaged beyond repair or
permanently rendered unfit for use for any reason whatsoever, or (d) if
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such Compressor is subject to a Lease, such Compressor shall have been deemed
under its Lease to have suffered a casualty loss.
Certificates: The certificates or other evidence of ownership held by the
Preferred Limited Partners.
Chattel Paper: Any lease or other "chattel paper," as such term is defined
in Section 9-105(1)(b) of the UCC, arising out of or in any way related to the
Compressors now owned or hereafter acquired by the Issuer.
Class: With respect to any Series, all Notes having the same rights to
payment and the same Final Maturity Date under the related Supplement.
Closing Date: February 9, 2001.
Code: The Internal Revenue Code of 1986, as amended, or any successor
statute thereto.
Collateral: This term shall have the meaning set forth in the Granting
Clause of this Indenture.
Collection Period: With respect to the first Payment Date, the period
commencing on the Closing Date and ending on the last day of the next succeeding
calendar month and for any subsequent Payment Date, the period from the first
day of the calendar month immediately preceding the month in which such Payment
Date occurs through the last day of such calendar month.
Compressor: A natural gas compressor equipment unit, together with any
tangible components thereof and all related appliances, parts, accessories,
appurtenances, accessions, additions, improvements, replacements and other
equipment or components of any nature from time to time incorporated or
installed therein, owned by the Issuer or the Head Lessee.
Compressor Related Agreement: Any agreement relating to (i) the Compressors
or (ii) the use or management of such Compressors, whether in existence on any
Series Issuance Date or thereafter acquired, including, but not limited to, all
User Leases, the Management Agreement, the Contribution Agreement, the Head
Lease, the Sale Agreement (if any), the Representations and Warranties Agreement
(if any) and all Chattel Paper.
Compressor Representations and Warranties: This term shall have the meaning
set forth in the Contribution Agreement.
Contracts: All contracts, undertakings, franchise agreements or other
agreements (other than rights evidenced by Chattel Paper, Documents or
Instruments), arising out of or in any way related to the Compressors or to the
Notes, in or under which the Issuer may now or hereafter have any right, title
or interest, including, without limitation, the Management Agreement, the
Contribution Agreement, the Bill of Sale, the Sale Agreement, the
Representations and Warranties Agreements (if any), any Interest Rate Swap
Agreements and any related agreements, security interests or UCC
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or other financing statements and, with respect to an Account, any agreement
relating to the terms of payment or the terms of performance thereof.
Contribution Agreement: The Contribution Agreement, dated as of February 9,
2001, between Universal and the Head Lessee, as such agreement may be amended,
modified or supplemented from time to time in accordance with its terms.
Contributor: This term shall have the meaning set forth in Section 1.01 of
the Contribution Agreement.
Control Party: This term shall have the meaning set forth in Section 402 of
the related Supplement.
Conversion Date: For each Series, has the meaning set forth in the
applicable Supplement.
Corporate Trust Office: The principal office of the Indenture Trustee at
which at any particular time its corporate trust business shall be administered,
which office shall initially be located at MAC X0000-000, Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000.
Corporate Trust Officer: Any Treasurer, Assistant Treasurer, Assistant
Trust Officer, Trust Officer, Assistant Vice President, Vice President or Senior
Vice President of the Indenture Trustee or any other officer who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers to whom any corporate trust matter is referred because of
their knowledge of and familiarity with the particular subject.
Deal Agent: This term shall have the meaning set forth in Section 101 of
the Supplement.
Default Interest: The incremental interest specified in the related
Supplement payable by the Issuer resulting from (i) the failure of the Issuer to
pay when due any principal or interest of the Notes of the related Series and
(ii) the occurrence of an Event of Default with respect to such Series.
Definitive Note: A Note issued in definitive form pursuant to the terms and
conditions of Section 202 hereof.
Depreciation Expense: Depreciation expense shall be calculated utilizing
either (i) a depreciation policy which provides for calculation in accordance
with straight-line depreciation over a fifteen (15) year useful life to an
estimated residual value of twenty percent (20%) of the original cost of such
Compressor or (ii) such other depreciation policy as may be utilized by the
Manager from time to time, provided that use of such depreciation policy is more
conservative than the standard described in clause (i) above (e.g., use of such
depreciation policy would result in (a) a higher annual Depreciation Expense or
(b) a lower estimated residual value) and is otherwise in accordance with GAAP.
Depositary: The Depository Trust Company until a successor depositary shall
have become such pursuant to the applicable provisions of the Indenture and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary thereunder. For purposes of the Indenture, unless
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otherwise specified pursuant to Section 202, any successor Depositary shall, at
the time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Exchange Act, and any other applicable
statute or regulation.
Depositary Participants: A broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book-entry transfers and pledges of securities deposited with the Depositary.
Determination Date: The third Business Day prior to any Payment Date.
Documents: Any "documents," as such term is defined in Section 9-105(1)(f)
of the UCC, arising out of or in any way related to the Compressors and now
owned or hereafter acquired by the Issuer.
Dollars: United States Dollars.
DTC: The Depository Trust Company.
Effective Date: The date upon which the Notes of the first Series of Notes
created under this Indenture are issued.
Eligible Account: Either (a) a segregated account with an Eligible
Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States or any of the states thereof, including the District of Columbia (or any
domestic branch of a foreign bank), and acting as a trustee for funds deposited
in such account, so long as the senior securities of such depository institution
shall have a credit rating from each Rating Agency in one of its generic credit
rating categories no lower than "A3" or "A-", as the case may be, or (c) any
account held with the Indenture Trustee provided that the institution then
acting as Indenture Trustee is an Eligible Institution.
Eligible Appraiser: An appraiser reasonably acceptable to the Requisite
Global Majority which is independent with respect to Universal and its
Affiliates within the meaning of the code of professional ethics of the American
Society of Appraisers.
Eligible Back-up Manager: Any Person acceptable to the Requisite Global
Majority to fulfill the duties of the Back-up Manager pursuant to the Related
Documents; provided, however, that on the Closing Date, each of Xxxxxxxxxxx
International, Enron Corp. and Duke Energy Corp. will be deemed to be an
acceptable Eligible Back-up Manager.
Eligible Compressor: As of any date of determination, any Compressor which,
when considered individually (in the case of clauses (i), (iv) and (v) below)
and collectively with all other Head Lessor Compressors and Head Lessee
Compressors (in the case of clauses (i), (ii) and (iii) below), shall comply
with all of the following requirements:
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(i) Compressor Representations and Warranties. The Compressor
complies with all of the Compressor Representations and Warranties as
if such representations were made as of such date; and
(ii) Concentration Limits. Does not result in a violation of the
Concentration Limits; and
(iii) Portfolio Age Limit. Will not cause the Weighted Average Age
of all Head Lessor Compressors and Head Lessee Compressors to exceed
fifteen (15) years; and
(iv) Compressor Location. Such Compressor is then located in one
of the Equipment Filing Locations; and
(v) Casualty Losses. Such Compressor is not then the subject of a
Casualty Loss.
Eligible Institution: Any one or more of the following institutions: (i)
the corporate trust department of the Indenture Trustee, or (ii) a depositary
institution organized under the laws of the United States of America or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (a) which has both (x) a long-term unsecured senior debt rating
of not less than "A" by Standard & Poor's Ratings Group and "A-2" by Xxxxx'x
Investors Service, Inc., and (y) a short-term unsecured senior debt rating rated
in the highest rating category by each Rating Agency and (b) whose deposits are
insured by the Federal Deposit Insurance Corporation.
Eligible Interest Rate Swap Counterparty: Any of the following: (A) any
bank which has both (x) a long-term unsecured debt rating of at least "A" (or
its equivalent) from each Rating Agency and (y) a short-term unsecured debt
rating of "A1" (or its equivalent) from a Rating Agency or (B) any bank which is
otherwise acceptable to each Series Enhancer and such notification of such other
bank is given to the Rating Agencies.
Eligible Investments: One or more of the following:
(i) direct obligations of, and obligations fully guaranteed as to the
timely payment of principal and interest by, the United States or
obligations of any agency or instrumentality thereof when such obligations
are backed by the full faith and credit of the United States;
(ii) certificates of deposit and bankers' acceptances (which shall each
have an original maturity of not more than 365 days) of any United States
depository institution or trust company incorporated under the laws of the
United States or any State and subject to supervision and examination by
federal and/or State authorities, provided that the long-term unsecured
senior debt obligations of such depository institution or trust company at
the date of acquisition thereof have been rated "AA-" (or its equivalent)
or better by the Rating Agencies, or the short-term unsecured senior debt
obligations of such depository institution or trust company are rated by
each Rating Agency in its highest rating category;
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(iii) commercial paper (having original maturities of not more than 270
days) of any corporation (other than the Issuer), incorporated under the
laws of the United States or any State thereof which on the date of
acquisition has been rated by each Rating Agency in the highest short-term
unsecured commercial paper rating category;
(iv) any money market fund that has been rated by each Rating Agency in
its highest rating category (including any designations of "plus" or
"minus") or that invests solely in Eligible Investments;
(v) eurodollar deposits (which shall each have an original maturity of
not more than 365 days) of any depository institution or trust company,
provided that the long-term unsecured senior debt obligations of such
depository institution or trust company at the date of acquisition thereof
have been rated "AA-" (or its equivalent) by the Rating Agencies, or the
short-term unsecured senior debt obligations of such depository institution
or trust company are rated by each Rating Agency in its highest rating
category;
(vi) repurchase obligations with a term not to exceed 90 days with
respect to any security described in clause (i) above and entered into with
a depository institution or trust company (acting as a principal) rated
"AA-" or higher by the Rating Agencies; provided, however, that collateral
transferred pursuant to such repurchase obligation must (A) be valued
weekly at current market price plus accrued interest, (B) pursuant to such
valuation, equal, at all times, 105% of the cash transferred by the
Indenture Trustee in exchange for such collateral and (C) be delivered to
the Indenture Trustee or, if the Indenture Trustee is supplying the
collateral, an agent for the Indenture Trustee, in such a manner as to
accomplish perfection of a security interest in the collateral by
possession of certificated securities; and
(vii) other obligations or securities that are acceptable to the
related Series Enhancers and each Rating Agency as an Eligible Investment
hereunder and will not result in a reduction or withdrawal in the then
current rating of the Notes as evidenced by a letter to such effect from
each Rating Agency and the related Series Enhancers.
(viii) Each of the Eligible Investments may be purchased by or through
an Affiliate of the Indenture Trustee.
Enhancement Agreement: Any agreement, instrument or document governing the
terms of any Series Enhancement or pursuant to which any Series Enhancement is
issued or outstanding.
Entitlement Order: This term shall have the meaning set forth in Section
303(c).
Equipment Cost: With respect to any Compressor, the sum of (i) the vendor's
or manufacturer's invoice price of such Compressor, (ii) all reasonable and
customary costs necessary to put such Compressor in service and (iii) the costs
of any overhauls performed with respect to such Compressor to the extent that
such overhaul costs should be capitalized in accordance with GAAP.
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Equipment Filing Locations: The office(s) specified by Applicable Law in
which UCC financing statements are to be filed for each State where any Eligible
Compressor is located.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: With respect to any Series, the occurrence and
continuance beyond any applicable notice and cure period of any of the events or
conditions set forth in Section 801 of the Indenture.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Excluded Payment: Taxes, fees or other charges imposed by, and payable to,
any Governmental Authority.
Existing Commitment: With respect to any Series, the aggregate Initial
Commitment to purchase Notes, consisting of one or more classes, expressed as a
dollar amount, as set forth in the related Supplement and subject to reduction
from time to time in accordance with the related Supplement.
Expected Final Payment Date: With respect to any Series, the date on which
the principal balance of the Notes which are Outstanding of such Series are
expected to be paid in full. The Expected Final Payment Date for a Series shall
be set forth in the related Supplement.
Final Maturity Date: With respect to any Series, the date on which the
unpaid principal balance of, and accrued interest on, the Notes of such Series
will be due and payable. The Final Maturity Date for a Series shall be set forth
in the related Supplement.
Finance Lease: A lease which satisfies the criteria for classification as a
capital lease pursuant to GAAP, including Financing Accounting Standards Board
Statement No. 13, as amended.
Financial Assets: This term shall have the meaning set forth in Section
8-102(9) of the UCC.
First Union: First Union Securities, Inc. and its permitted successors and
assigns.
General Intangibles: Any "general intangibles," as such term is defined in
Section 9-106 of the UCC, arising out of or in any way related to the
Compressors and now owned or hereafter acquired by the Issuer and, in any event,
shall include, without limitation, all right, title and interest which the
Issuer may now or hereafter have in or under any Contract, interests in
partnerships, joint ventures and other business associations, licenses, permits,
software, data bases, data, materials and records, claims in or under insurance
policies, including unearned premiums, uncertificated securities, deposit
accounts, rights to receive tax refunds and other payments and rights of
indemnification.
Generally Accepted Accounting Principles or GAAP: Those generally accepted
accounting principles and practices which are recognized as such by the American
Institute of Certified Public Accountants acting through its Accounting
Principles Board or by the Financial Accounting
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Standards Board or through other appropriate boards or committees thereof
consistently applied as to the party in question.
General Partner: Has the meaning set forth in Article I of the Partnership
Agreement.
Global Note: Either a Rule 144A Global Note or a Public Global Note.
Governmental Authority: Any one of the following: (a) any federal, state,
county, municipal or foreign government, or political subdivision thereof, (b)
any governmental or quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body, (c) any court or
administrative tribunal or (d) with respect to any Person, any arbitration
tribunal or other non-governmental authority to whose jurisdiction that Person
has consented.
Xxxxx: Xxxxx, bargain, xxxx, convey, assign, transfer, mortgage, pledge,
create and perfect a security interest in and right of set-off against, deposit,
set over and confirm.
Gross Compressor Revenues: With respect to any Collection Period, an amount
equal to all rental and other revenues and Net Sales Proceeds actually received
by, or on behalf of, the Head Lessee during such Collection Period from the
leasing or subleasing, as the case may be, of the Head Lessee Compressors and
the Head Lessor Compressors.
Head Lease: The Master Equipment Lease Agreement, dated as of February 9,
2001, by and between the Head Lessor and the Head Lessee, as such agreement may
be amended, modified or supplemented from time to time in accordance with its
terms.
Head Lease Collateral: The Head Lessee Compressors and all other collateral
security pledged by the Head Lessee to the Head Lessor pursuant to the terms of
the Head Lessee Security Agreement.
Head Lease Event of Default: This term shall have the meaning set forth in
the Head Lease.
Head Lessee: UCO Compression LLC, a limited liability company organized
under the laws of the State of Delaware, and its successors and permitted
assigns.
Head Lessee Compressors: All Compressors now or hereafter owned by the Head
Lessee.
Head Lessee Security Agreement: The lessee security agreement, dated as of
February 9, 2001, between the Head Lessee, as grantor, and the Head Lessor, as
secured party, as such agreement shall be amended, modified or supplemented from
time to time in accordance with its terms.
Head Lessor: BRL Universal Compression Funding I, L.P., a limited
partnership organized under the laws of the State of Delaware, and its
successors and permitted assigns.
Head Lessor Collections: With respect to any Collection Period, all
payments (including any cash proceeds) actually received by the Head Lessor
pursuant to the terms of the Head Lease, including, without limitation and/or
duplication, (i) the Monthly Lease Payment, (ii) all
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Supplemental Rent, (iii) Net Sale Proceeds from Head Lessor Compressors, (iv)
Warranty Purchase Amounts, (v) proceeds from the exercise of the Head Lessee
Purchase Option under the Head Lease, (vi) all Additional Payments, (vii) any
income, payments or proceeds of the Head Lease Collateral, and (viii) all other
amounts, liabilities and obligations (other than indemnification payments) which
the Head Lessee agrees to pay to the Head Lessor pursuant to the terms of the
Head Lease. In no event shall any Excluded Payment received by, or on behalf of,
the Head Lessor be included in the calculation of Head Lessor Collections.
Head Lessor Compressors: All Compressors now or hereafter owned by the Head
Lessor.
Head Lessor Margin Letter: The letter agreement dated February 9, 2001,
between the Head Lessee and the Head Lessor.
Hedging Requirement: This term is defined in Section 630(a) of this
Indenture.
Holder: See Noteholder.
Indebtedness: With respect to any Person means, without duplication, (a)
any obligation of such Person for borrowed money, including, without limitation,
(i) any obligation incurred through the issuance and sale of bonds, debentures,
notes or other similar debt instruments, and (ii) any obligation for borrowed
money which is non-recourse to the credit of such Person but which is secured by
any asset of such Person, (b) any obligation of such Person on account of
deposits or advances, (c) any obligation of such Person for the deferred
purchase price of any property or services, except accounts payable arising in
the ordinary course of such Person's business, (d) any obligation of such Person
as lessee under a capital lease, (e) any Indebtedness of another secured by a
Lien on any asset of such Person, whether or not such Indebtedness is assumed by
such Person and (f) any obligation in respect of interest rate or foreign
exchange hedging agreements.
Indemnity Amounts: Indemnity payments to the Holders of the Notes (or their
related credit or liquidity providers) or any Series Enhancer for increased
costs, funding costs, breakage costs, taxes, other taxes, expenses or other
indemnity payment.
Indenture: This Indenture, dated as of February 9, 2001, between the Issuer
and the Indenture Trustee and all amendments hereof and supplements hereto,
including, with respect to any Series or Class, the related Supplement.
Indenture Trustee: The Person performing the duties of the Indenture
Trustee under this Indenture; initially, Xxxxx Fargo Bank Minnesota, National
Association.
Indenture Trustee's Fees: This term is defined in Section 905 of this
Indenture.
Indenture Trustee Indemnified Amounts: This term is defined in Section 905
of this Indenture.
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Independent Accountants: Either (i) any "Big 5" accounting firm or (ii) any
other independent certified public accountants of internationally recognized
standing selected by the Issuer and acceptable to the Deal Agent and each Series
Enhancer.
Independent Director: A director who is not a current or former employee,
officer, director, partner, member, or shareholder, creditor or customer of
Universal or any of its Affiliates and is not related by blood or marriage to
any such person and who has not received, and was not an employee, officer,
director, partner, member or shareholder of any person that has received, from
Universal or any of Universal's Affiliates, in any year within the five (5)
years immediately preceding or any year during such director's incumbency as an
Independent Director, fees or other income in excess of five percent (5%) of the
gross income of such Person for any applicable year, provided that an
Independent Director may serve in similar capacities for other special purpose
entities formed by Universal or its Affiliates. As used in this defined term,
"control", including the terms "controlling," "controlled by" and "under common
control with," means the direct or indirect possession of the power to direct or
cause the direction of the management and policies of a person, whether through
the ownership of at least 10% of the voting securities, by contract or
otherwise. No resignation or removal of an Independent Director shall be
effective until a successor Independent Director has been elected to replace
such Independent Director.
Initial Commitment: With respect to any Series, the aggregate initial
commitment, expressed as a dollar amount, to purchase up to a specified
principal balance of all Classes of such Series, which commitments shall be set
forth in the related Supplement.
Insolvency Law: The Bankruptcy Code or similar applicable law in any State
or other applicable jurisdiction.
Insolvency Proceeding: Any Proceeding under any applicable Insolvency Law.
Instruments: Any "instrument," as such term is defined in Section
9-105(1)(i) of the UCC arising out of or in any way related to the Compressors
and now owned or hereafter acquired by the Issuer, including, without
limitation, all notes, certificated securities, and other evidences of
indebtedness, other than instruments that constitute, or are a part of a group
of writings that constitute, Chattel Paper.
Intercreditor Agreement: The Intercreditor Agreement to be executed in the
future among Universal Compression, Inc., the Issuer and various other financial
institutions named therein, as such agreement has been and may be amended,
modified or supplemented from time to time in accordance with its terms.
Interest Rate Hedge Provider: Any Eligible Interest Rate Swap Counterparty
or any counterparty to a cap, collar or other hedging instrument permitted to be
entered into pursuant to this Indenture.
Interest Rate Swap Agreement: An ISDA interest rate swap agreement cap,
collar or other hedging instrument between the Issuer and the Eligible Interest
Rate Swap Counterparty named therein, including any schedules and confirmations
prepared and delivered in connection therewith,
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pursuant to which (i) the Issuer will receive payments from the Eligible
Interest Rate Swap Counterparty based on LIBOR and (ii) recourse by the Eligible
Interest Rate Swap Counterparty to the Issuer is limited to the Available
Distribution Amount which pursuant to the terms of this Indenture are available
for such purpose.
Inventory: Any "inventory," as such term is defined in Section 9-109(4) of
the UCC, wherever located, arising out of or in any way related to the
Compressors and now or hereafter owned or acquired (whether as lessee or
otherwise) by the Issuer and, in any event, shall include, without limitation,
all Compressors, all inventory, merchandise, goods and other personal property
which are held by or on behalf of the Issuer for sale or lease or are furnished
or are to be furnished under a contract of service or which constitute raw
materials, work in process or materials used or consumed or to be used or
consumed in the Issuer's business, or the processing, packaging, promotion,
delivery or shipping of the same, and all furnished goods whether or not such
inventory is listed on any schedules, assignments or reports furnished to the
Indenture Trustee from time to time and whether or not the same is in transit or
in the constructive, actual or exclusive occupancy or possession of the Issuer
or is held by the Issuer or by others for the Issuer's account, including,
without limitation, all goods covered by purchase orders and contracts with
suppliers and all goods billed and held by suppliers and all inventory which may
be located on premises of the Issuer or of any carriers, forwarding agents,
truckers, warehousemen, vendors, selling agents or other persons.
Investment: When used in connection with any Person, any investment by or
of that Person, whether by means of purchase or other acquisition of securities
of any other Person or by means of loan, advance, capital contribution, guaranty
or other debt or equity participation or interest, or otherwise, in any other
Person, including any partnership and joint venture interests of such Person in
any other Person. The amount of any Investment shall be the original principal
or capital amount thereof less all returns of principal or equity thereon (and
without adjustment by reason of the financial condition of such other Person)
and shall, if made by the transfer or exchange of property other than cash, be
deemed to have been made in an original principal or capital amount equal to the
fair market value of such property.
Investment Letter: This term is defined in Section 205 of this Indenture.
Investment Property: This term shall have the meaning set forth in Section
9-115(f) of the UCC.
Issuer: BRL Universal Compression Funding I, L.P., a limited partnership
organized and existing under the laws of the State of Delaware, and its
successors and permitted assigns.
Lease: Each and every item of chattel paper, installment sales agreement,
equipment lease or rental agreement (including progress payment authorizations)
to which a Compressor is subject. The term "Lease" includes (a) all payments to
be made thereunder, (b) all rights of the Issuer therein, and (c) any and all
amendments, renewals, extensions or guaranties thereof.
Lease Payment Adjustment: This term shall have the meaning set forth in the
Head Lease.
Lease Pool: This term shall have the meaning set forth in the Head Lease.
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LIBOR: The London Interbank Offered Rate.
Lien: Any security interest, lien, charge, pledge, equity or encumbrance of
any kind.
Liquidity Reserve Account: This term shall have the meaning set forth in
Section 311.
Lockbox Accounts: This term shall have the meaning set forth in the
Management Agreement.
Maintenance Policy: The policy annexed as Exhibit B to the Management
Agreement.
Management Agreement: The Management Agreement, dated as of February 9,
2001, among the Manager, the Head Lessee and the Issuer, as such agreement shall
be amended, supplemented or modified from time to time in accordance with its
terms.
Management Fee: This term shall have the meaning set forth in the
Management Agreement.
Management Guaranty: The Guaranty, dated as of February 9, 2001, issued by
the Management Guarantor in respect of the Management Agreement, as such
agreement shall be amended, supplemented or modified from time to time in
accordance with its terms.
Management Guarantor: Universal Compression Holdings, Inc., a Delaware
corporation and its successors and permitted assigns.
Manager: The Person performing the duties of the Manager under the
Management Agreement; initially, Universal.
Manager Advances: This term is defined in the Management Agreement.
Manager Default: The occurrence of any of the events or conditions set
forth in Section 12.1 of the Management Agreement.
Manager Report: A written informational statement in the form attached as
an exhibit to the Management Agreement to be provided by the Manager in
accordance with the Management Agreement and furnished to the Indenture Trustee,
the Deal Agent and each Series Enhancer.
Manager Termination Notice: A written notice to be provided to the Manager
pursuant to Section 405(a) of this Indenture with a copy to each Series Enhancer
and the Deal Agent.
Managing Officer: Any representative of the Manager involved in, or
responsible for, the management of the day-to-day operations of the Issuer and
the administration and servicing of the Compressors and the other Collateral
whose name appears on a list of managing officers furnished to Issuer, each
Series Enhancer and the Indenture Trustee by the Manager, as such list may from
time to time be amended.
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Material Adverse Change: Any set of circumstances or events which is or
could reasonably be expected to be material and adverse to the business,
financial condition, operations or properties of the Head Lessee, the
Contributor, the Management Guarantor, the Issuer or the Manager, individually
or taken together as a whole.
Monthly Lease Payment: This term shall have the meaning set forth in the
Head Lease.
Monthly Tape: This term shall have the meaning set forth in the Management
Agreement.
Net Book Value: With respect to a Compressor, the net book value thereof
determined in accordance with GAAP as reflected on the books and records of the
applicable Person.
Net Revenue Event: This term shall have the meaning set forth in the Head
Lease.
Net Sales Proceeds: This term shall have the meaning set forth in Section 1
of the Head Lease.
Notes: Any one of the promissory notes executed by the Issuer and
authenticated by or on behalf of the Indenture Trustee, substantially in the
form attached to the related Supplement.
Noteholder or Holder: The person in whose name a Note is registered in the
Note Register, except that, solely for the purposes of giving any consent,
waiver, request or demand, the interest evidenced by any Note registered in the
name of the Head Lessee, the Contributor or the Issuer or any Affiliate of any
of them known to be such an Affiliate by the Indenture Trustee shall not be
taken into account in determining whether the requisite percentage of the
aggregate principal balance of the Notes which are Outstanding necessary to
effect any such consent, waiver, request or demand is represented.
Note Owners: With respect to a Global Note, the Person who is the owner of
such Global Note, as reflected on the books of (i) the Depositary (a direct
participant) or (ii) a Person maintaining an account with the Depositary (an
indirect participant), in each case in accordance with the rules of the
Depositary.
Note Purchase Agreement: Any underwriting agreement or other purchase
agreement for the Notes of any Series or Class.
Note Register: The register maintained by the Indenture Trustee pursuant to
Section 205 of this Indenture.
Note Registrar: This term shall have the meaning as set forth in Section
205 hereof.
Officer's Certificate: A certificate signed by a duly authorized officer of
the Person who is required to sign such certificate.
Opinion of Counsel: A written opinion of counsel, who, unless otherwise
specified, may be counsel employed by the Issuer, the Transferor, the
Contributor, the Sellers or the Manager, in each
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case reasonably acceptable to the Person or Persons to whom such Opinion of
Counsel is to be delivered. The counsel rendering such opinion may rely (i) as
to factual matters on a certificate of a Person whose duties relate to the
matters being certified, and (ii) insofar as the opinion relates to local law
matters, upon opinions of local counsel.
Outstanding: When used with reference to the Notes and as of any particular
date, any Note theretofore and thereupon being authenticated and delivered
except:
(i) any Note canceled by the Indenture Trustee or proven to the
satisfaction of the Indenture Trustee to have been duly canceled by the
Issuer at or before said date;
(ii) any Note, or portion thereof, called for payment or redemption for
which monies equal to the principal amount or redemption price thereof, as
the case may be, with interest to the date of maturity or redemption, shall
have theretofore been deposited with the Indenture Trustee (whether upon or
prior to maturity or the redemption date of such Note);
(iii) any Note in lieu of or in substitution for which another Note
shall subsequently have been authenticated and delivered; and
(iv) any Note held by the Issuer, the Contributor, the Seller or any
Affiliate of any such Person.
Notwithstanding the foregoing, any Note on which any portion of principal
or interest has been paid by a Series Enhancer pursuant to an Enhancement
Agreement shall be Outstanding until the Series Enhancer has been reimbursed in
full therefor in accordance with the related Series Enhancement Agreement.
Outstanding Obligations: As of any date of determination an amount equal to
the sum of (i) the then outstanding principal balance of, and accrued interest
payable on, all Notes issued under this Indenture, any Supplement hereto or any
Note Purchase Agreement, (ii) all other amounts owing to Noteholders or to any
Person under the Indenture, any Supplement hereto or any Note Purchase
Agreement, including without limitation any amounts owed to any Series Enhancer
and (iii) amounts outstanding under any Interest Rate Swap Agreement.
Overcollateralization Event: This term shall have the meaning set forth in
the Head Lease.
Overdue Rate: The rate of interest specified in the related Supplement
applicable to a Note then earning Default Interest.
Ownership Interests: An ownership interest in a Global Note.
Partnership Agreement: The First Amended and Restated Agreement of Limited
Partnership of BRL Universal Compression Funding I, L.P., as such agreement
shall be amended, supplemented or modified from time to time in accordance with
its terms.
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Partnership Preferred Capital Payments: This term shall have the meaning
set forth in the Partnership Agreement.
Partnership Priority Payments: This term shall have the meaning set forth
in the Partnership Agreement.
Payment Date: With respect to any Series, the fifteenth (15th) day of each
calendar month (or if such day is not a Business Day, the next succeeding
Business Day).
Permitted Encumbrance: With respect to the Collateral, any or all of the
following: (i) Liens for taxes not yet delinquent or which are being contested
in good faith by appropriate Proceedings and for the payment of which adequate
reserves are provided by the Manager; (ii) with respect to the Compressors,
carriers', warehousemen's, mechanics, or other like Liens arising in the
ordinary course of business and relating to amounts not yet due or which shall
not have been overdue for a period of more than sixty (60) days or which are
being contested in good faith by appropriate Proceedings and for the payment of
which adequate reserves are provided by the Manager; (iii) with respect to the
Compressors, Leases entered into in the ordinary course of business providing
for the leasing of Compressors; and (iv) Liens created pursuant to the terms of
this Indenture or any other Related Document; provided that any Proceedings of
the type described in clauses (i) and (ii) above could not reasonably be
expected to subject the Indenture Trustee or any Series Enhancer or Noteholder
to any civil or criminal penalty or liability or involve any significant risk of
material loss, sale or forfeiture of all or any material portion of the
Collateral.
Person: An individual, a partnership, a limited liability company, a
corporation, a joint venture, an unincorporated association, a joint-stock
company, a trust, or other entity or a Governmental Authority.
Plan: An "employee benefit plan," as defined in Section 3(3) of ERISA or a
"Plan" within the meaning of Section 4975(e)(1) of the Code.
Preferred Limited Partner or Limited Partner: This term shall have the
meaning set forth in the Partnership Agreement.
Prepayments: Any mandatory or optional prepayment of principal of any Class
of Notes prior to the Expected Final Payment Date of such Class of Notes
including, without limitation, any prepayment pursuant to Section 702 of this
Indenture.
Principal Payment Amount: With respect to any Series, the amount identified
as such in the related Supplement.
Principal Terms: With respect to any Series, (i) the name or designation of
such Series; (ii) the initial principal amount of the Notes to be issued for
such Series (or method for calculating such amount); (iii) the interest rate and
any commitment fee to be paid with respect to each Class of Notes for such
Series (or method for the determination thereof); (iv) the Payment Date and the
date or dates from which interest shall accrue and principal shall be paid; (v)
the designation of any Series Accounts and the terms governing the operation of
any such Series Accounts; (vi) the terms
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of any form of Series Enhancement with respect thereto; (vii) the Expected Final
Payment Date and the Final Maturity Date for the Series; (viii) the number of
Classes of Notes of the Series and, if the Series consists of more than one
Class, the rights and priorities of each such Class; (ix) the priority of the
Series with respect to any other Series; and (x) the Control Party with respect
to such Series; and (xi) any other terms of such Series.
Proceeding: Any suit in equity, action at law, or other judicial or
administrative proceeding.
Proceeds: "Proceeds," as such term is defined in Section 9-306(1) of the
UCC and, in any event, shall include, without limitation, (a) any and all
Accounts, Chattel Paper, Instruments, cash or other proceeds payable to the
Issuer from time to time in respect of the Collateral, (b) any and all proceeds
of any insurance, indemnity, warranty or guaranty payable to the Issuer from
time to time with respect to any of the Collateral, (c) any and all payments (in
any form whatsoever) made or due and payable to the Issuer from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral above by any Governmental
Authority (or any Person acting under color of Governmental Authority), and (d)
any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
Prospective Owner: This term is defined in Section 208 of this Indenture.
Public Global Notes: A Book-Entry Note evidencing all or part of an
issuance of Notes registered under the Securities Act and to which the
provisions of Article II shall apply.
Purchase Option Amount: Has the meaning set forth in Section 1 of the Head
Lease.
Quarterly Tape: This term shall have the meaning set forth in Section 1 of
the Management Agreement.
Rated Institutional Noteholder: An institutional Noteholder whose long term
unsecured debt obligations are then rated BBB- or better by Standard & Poor's
Rating Services and Baa3 or better by Xxxxx'x Investors Service, Inc.
Rating Agency or Rating Agencies: With respect to any outstanding Series or
Class, each statistical rating agency selected by the Issuer with the approval
of any Series Enhancer for such Series to rate such Series or Class and that has
an outstanding rating with respect to such Series or Class.
Rating Agency Condition: With respect to any action to be taken or proposed
action to be taken, shall mean that each Rating Agency shall have notified the
Issuer, the Manager, any related Series Enhancer and the Indenture Trustee in
writing that such action will not result in a reduction or withdrawal of any
rating at issuance of any Notes which are Outstanding with respect to which it
is a Rating Agency, including any underlying rating issued to a Series Enhancer
of such Notes as if such Notes were issued without the benefit of any credit
enhancement provided by such Series Enhancer.
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Record Date: With respect to any Payment Date, for Notes issued in physical
form the last Business Day of the month preceding the month in which the related
Payment Date occurs, except as otherwise provided with respect to a Series in
the related Supplement. For Notes issued in book entry form, the last Business
Day preceding the Payment Date.
Related Assets: This term shall have the meaning set forth in Section 1.01
of the Contribution Agreement.
Related Documents: With respect to any Series, the Contribution Agreement,
the Sale Agreement, the Head Lease, the Head Lessee Security Agreement, the
Intercreditor Agreement, the Supplemental Agreement, any Interest Rate Swap
Agreements, the Management Agreements, the Management Guaranty, the Back-up
Management Agreement (upon execution thereof), this Indenture, the related
Supplement, the Notes of such Series, any Series Enhancement Agreement and each
other document or instrument executed in connection with the issuance to any
Series.
Replacement Manager: This term shall have the meaning set forth in Section
1 of the Management Agreement.
Representations and Warranties Agreement: The Agreement regarding the Bills
of Sale, dated as February 9, 2001, between Universal and the Indenture Trustee,
as such agreement may be amended, modified and supplemented from time to time in
accordance with its terms.
Requisite Global Majority: As of any date of determination, the
determination of whether a Requisite Global Majority exists with respect to a
particular course of action shall be determined in accordance with Section 503
of this Indenture.
Responsible Officer: When used with respect to the Indenture Trustee, any
officer assigned to the Corporate Trust Office (or any successor thereto),
including any Vice President, Assistant Vice President, Trust Officer, any
Assistant Secretary, any trust officer or any other officer of the Indenture
Trustee customarily performing functions similar to those performed by any of
the above designated officers and having direct responsibility for the
administration of this Indenture.
Return Option: Has the meaning set forth in the Head Lease.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be amended
from time to time.
Rule 144A Global Notes: A Note evidencing all or a part of an issuance of
the Notes, registered in the name of the Depositary or its nominee, and
delivered to the Depositary pursuant to the Depositary's instruction, in
accordance with Section 202 of this Indenture and bearing the legend prescribed
in Section 202 of this Indenture.
Sale: This term shall have the meaning set forth in Section 816 of this
Indenture.
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Sale Agreement: The Sale Agreement, dated as of February 9, 2001, between
Head Lessee and the Issuer, as such agreement may be amended, modified or
supplemented from time to time in accordance with its terms.
Sales Date: The date on which a Compressor is sold by the Head Lessee to
the Issuer pursuant to the terms of the Sale Agreement.
Securities Act: The Securities Act of 1933, as amended from time to time.
Securities Entitlement: This term shall have the meaning set forth in
Section 8-102(17) of the UCC.
Seller: UCO Compression LLC, a limited liability company organized and
existing under the laws of the State of Delaware, and its successors and
permitted assigns.
Senior Class or Senior Notes: With respect to any Series of Notes, those
Class(es) or Note(s) of such Series, if any, that are designated as a "Senior
Class" or "Senior Notes" in the related Supplement.
Senior Class Priority Payments: For each Series of Senior Notes which are
Outstanding on any Payment Date, all amounts to be paid from the related Series
Account on such Payment Date which represent payments of (i) interest (but not
Default Interest) on such Series of Senior Notes or (ii) commitment fees, deal
agent fees or other fees payable to the Holders of such Series of Senior Notes.
If any Senior Class Priority Payments are paid by a Series Enhancer, then any
reimbursement obligations of the Issuer to such Series Enhancer in respect of
such payments, including interest thereby shall be included in the calculation
of the Senior Class Priority Payments for such Series and paid to the Series
Enhancer to the extent that such payment would not cause a shortfall in other
Senior Class Priority Payments for the Noteholders of such Series.
Series: Any series of Notes established pursuant to a Supplement.
Series Account: Any deposit, trust, escrow or similar account maintained
for the benefit of the Noteholders and any related Series Enhancer of any Series
or Class as specified in the related Supplement.
Series Enhancement: The rights and benefits provided to the Noteholders of
any Series or Class pursuant to any letter of credit, surety bond, financial
guaranty insurance policy, insurance agreement or other similar arrangement. The
subordination of any Class to another Class shall not be deemed to be a Series
Enhancement.
Series Enhancement Agreement: Any Enhancement Agreement for any Series.
Series Enhancer: The Person then providing any Series Enhancement, other
than the Noteholders of any Class which is subordinated to another Class.
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Series Expected Final Payment Date: With respect to any Series, the
Expected Final Payment Date specified in the related Supplement.
Series Issuance Date: With respect to any Series, the date on which the
Notes of such Series are to be originally issued in accordance with Section 1006
of this Indenture and the related Supplement.
Sold Assets: This term shall have the meaning set forth in the Sale
Agreement.
State: Any state of the United States of America and, in addition, the
District of Columbia.
Sublessor: means the Head Lessee.
Subordinate Class or Subordinate Notes: With respect to any Series of
Notes, those Class(es) or Note(s) of such Series, if any, that are designated as
a "Subordinate Class" or "Subordinate Notes" in the related Supplement.
Subordinate Class Priority Payments: For each Series of Subordinate Notes
which are Outstanding on any Payment Date, all amounts to be paid from the
related Series Account on such Payment Date which represent payments of (i)
interest (but not Default Interest) on such Series of Subordinate Notes or (ii)
commitment fees, deal agent fees or other fees payable to such Series of
Subordinate Notes.
Subsidiary: A subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than fifty percent (50.0%) of the voting stock or other equity
interests (in the case of Persons other than corporations) is owned or
controlled directly or indirectly by such Person, or one or more of the
Subsidiaries of such Person, or a combination thereof.
Substitute Compressor: This term shall have the meaning set forth in
Section 3.04 of the Contribution Agreement.
Supplement: Any supplement to the Indenture executed in accordance with
Article X of this Indenture.
Supplemental Rent: This term shall have the meaning set forth in Section
2.3 of the Head Lease.
Termination Date: Has the meaning set forth in Section 1 of the Head Lease.
Trigger Event: The occurrence and continuation of any of the following
events or conditions: (i) a Manager Default, (ii) a Head Lease Event of Default,
(iii) an Event of Default under this Indenture, (iv) an Overcollateralization
Event that continues unremedied on the next succeeding Determination Date and/or
(v) a Net Revenue Event that continues unremedied on the next succeeding
Determination Date.
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Trust Account: The account or accounts established by and held in the name
of the Indenture Trustee for the benefit of the Noteholders and any Series
Enhancer pursuant to Section 303 hereof.
UCC: The Uniform Commercial Code as the same may, from time to time, be in
effect in the State of New York; provided, however, in the event that, by reason
of mandatory provisions of law, any or all of the attachment, perfection or
priority of the Indenture Trustee's security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection of priority and for purposes of
definitions related to such provisions.
Universal: Universal Compression, Inc., a Texas corporation, and its
successors and permitted assigns.
Universal Party: Any one or more of the Head Lessee, Universal, the Manager
or any Affiliate of any of the foregoing.
User: This term shall have the meaning set forth in Section 1 of the Head
Lessee Security Agreement.
User Lease: This term shall have the meaning set forth in Section 1 of the
Head Lessee Security Agreement.
VFCC: Means Variable Funding Capital Corporation, a Delaware corporation,
and its successors and assigns.
Warranty Purchase Amount: With respect to any Compressor, the most recent
Appraised Value of such Compressor.
Weighted Average Age: As of any date of determination shall be equal to the
sum for each Eligible Compressor of a fraction, the numerator of which is equal
to the product of (x) the number of years (or portion thereof) elapsed from the
date on which such Compressor was originally built and (y) the number of
horsepower in such Compressor, and the denominator of which is equal to the
total number of horsepower for all Eligible Compressors.
Wholly-Owned Subsidiary: With respect to any Person, any corporation,
association, partnership, limited liability company, joint venture or other
business entity of which one hundred percent (100%) of the voting stock or, in
the case of business entities other than corporations, other equity interests is
owned or controlled directly or indirectly, by one or more of such Person.
Section 102. Other Definitional Provisions. (a) With respect to any
Series, all terms used herein and not otherwise defined herein shall have
meanings ascribed to such terms in the related Supplement.
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(b) All terms defined in this Indenture shall have the defined meanings
when used in any agreement, certificate or other document made or delivered
pursuant hereto, including any Supplement, unless otherwise defined therein.
(c) As used in this Indenture and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Indenture or in any such certificate or other document, and accounting
terms partly defined in this Indenture or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under GAAP consistently applied. To the extent that the definitions of
accounting terms in this Indenture or in any such certificate or other document
are inconsistent with the meanings of such terms under GAAP or regulatory
accounting principles, the definitions contained in this Indenture or in any
such certificate or other document shall control.
(d) With respect to any Collection Period, the "related Record Date,"
the "related Determination Date," and the "related Payment Date," shall mean the
Record Date occurring on the last Business Day of such Collection Period and the
Determination Date and Payment Date next following the end of such Collection
Period.
(e) With respect to any Series of Notes, the "related Supplement" shall
mean the Supplement pursuant to which such Series of Notes is issued and the
"related Series Enhancer" shall mean the Series Enhancer for such Series of
Notes.
(f) All references to the Manager's financial statements shall mean the
consolidated financial statements of the Manager and its consolidated
subsidiaries.
(g) With respect to any ratio analysis required to be performed as of
the most recently completed fiscal quarter, the most recently completed fiscal
quarter shall mean the fiscal quarter for which financial statements were
required hereunder to have been delivered.
(h) With respect to the calculations of the ratios set forth in this
Indenture, the components of such calculations are to be determined in
accordance with GAAP, consistently applied, with respect to the Manager.
Section 103. Computation of Time Periods. Unless otherwise stated in
this Indenture or any Supplement issued pursuant to the terms hereof, in the
computation of a period of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding."
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ARTICLE II
THE NOTES
Section 201. Authorization of Notes. (a) The number of Series or
Classes of Notes which may be created by this Indenture is not limited;
provided, however, that, the issuance of any Series of Notes shall not result
in, or with the giving of notice or the passage of time or both would result in,
the occurrence of an Event of Default or Trigger Event. The aggregate principal
amount of Notes of each Series which may be issued, authenticated and delivered
under this Indenture is not limited except as shall be set forth in any
Supplement and as restricted by the provisions of this Indenture.
(b) The Notes issuable under this Indenture shall be issued in such
Series, and such Class or Classes within a Series, as may from time to time be
created by Supplement pursuant to this Indenture. Each Series shall be created
by a different Supplement and shall be designated to differentiate the Notes of
such Series from the Notes of any other Series. The Issuer intends that each
such Note shall constitute a "security" within the meaning of Article 8 of the
UCC.
(c) Upon satisfaction of and compliance with the requirements and
conditions to closing set forth in the related Supplement, Notes of the Series
to be executed and delivered on a particular Series Issuance Date pursuant to
such related Supplement, may be executed by the Issuer and delivered to the
Indenture Trustee for authentication following the execution and delivery of the
related Supplement creating such Series or from time to time thereafter, and the
Indenture Trustee shall authenticate and deliver Notes upon an Issuer request
set forth in an Officer's Certificate of the Issuer signed by one of its
Authorized Signatories, without further action on the part of the Issuer.
Section 202. Form of Notes; Global Notes.
(a) Notes of any Series or Class may be issued, authenticated and
delivered, at the option of the Issuer, as Public Global Notes, Rule 144A Global
Notes, or as Definitive Notes or as may otherwise be set forth in a Supplement
and shall be substantially in the form of the exhibits attached to the related
Supplement. Notes of each Series shall be dated the date of their authentication
and shall bear interest at such rate, be payable as to principal, premium, if
any, and interest on such date or dates, and shall contain such other terms and
provisions as shall be established in the related Supplement. Except as
otherwise provided in any Supplement, the Notes shall be issued in minimum
denominations of $1,000,000 and in integral multiples of $1,000,000 in excess
thereof; provided that one Note of each Class may be issued in a nonstandard
denomination.
(b) If the Issuer shall choose to issue Public Global Notes or Rule
144A Global Notes, such notes shall be issued in the form of one or more Public
Global Notes or one or more Rule 144A Global Notes which (i) shall represent,
and shall be denominated in an aggregate amount equal to, the aggregate
principal amount of all Notes to be issued hereunder, (ii) shall be delivered as
one or more Notes held by the Book Entry Custodian, or, if appointed to hold
such Notes as provided below, the Notes shall be registered in the name of the
Depositary or its nominee, (iii) shall be substantially in the form of the
exhibits attached to the related Supplement, with such changes
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therein as may be necessary to reflect that each such Note is a Global Note, and
(iv) shall each bear a legend substantially to the effect included in the form
of the exhibits attached to the related Supplement.
(c) Notwithstanding any other provisions of this Section 202 or of
Section 205, unless and until a Global Note is exchanged in whole for Definitive
Notes, a Global Note may be transferred, in whole, but not in part, and in the
manner provided in this Section 202, only by (i) the Depositary to a nominee of
such Depositary, or (ii) by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or (iii) by such Depositary or any such
nominee to a successor Depositary selected or approved by the Issuer or to a
nominee of such successor Depositary or in the manner specified in Section
202(d). The Depositary shall order the Note Registrar to authenticate and
deliver any Book-Entry Notes and any Global Note for each Class of Notes having
an aggregate initial outstanding principal balance equal to the initial
outstanding balance of such Class. Note Owners shall hold their respective
Ownership Interests in and to such Notes through the book-entry facilities of
the Depositary. Without limiting the foregoing, any Note Owners shall hold their
respective Ownership Interests, if any, in Public Global Notes only through
Depositary Participants.
(d) If (i) the Issuer elects to issue Definitive Notes, (ii) the
Depositary for the Notes represented by one or more Global Notes at any time
notifies the Issuer that it is unwilling or unable to continue as Depositary of
the Notes or if at any time the Depositary shall no longer be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation, and a successor Depositary is not appointed or approved by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such condition, as the case may be, (iii) the Indenture Trustee, at the
direction of the Noteholders representing more than 50% of the outstanding
principal balance of the Notes, elects to terminate the book-entry system
through the Depositary or (iv) after an Event of Default or a Manager Default,
Noteholders notify the Depositary, or Book Entry Custodian, as the case may be,
in writing that the continuation of a book-entry system through the Depositary,
or the Book Entry Custodian, as the case may be, is no longer in the
Noteholders' best interest, upon the request of the Noteholders, the Issuer will
promptly execute, and the Indenture Trustee, upon receipt of an Officer's
Certificate evidencing such determination by the Issuer, will promptly
authenticate and make available for delivery, Definitive Notes without coupons,
in authorized denominations and in an aggregate principal amount equal to the
principal amount of the Global Note then outstanding in exchange for such Global
Note or as an original issuance of Notes and this Section 202(d) shall no longer
be applicable to the Notes. Upon the exchange of the Global Notes for such
Definitive Notes without coupons, in authorized denominations, such Global Notes
shall be canceled by the Indenture Trustee. All Definitive Notes shall be issued
without coupons. Such Definitive Notes in definitive form issued in exchange of
the Global Notes pursuant to this Section 2.02(d) shall be registered in such
names and in such authorized denominations as the Depositary in the case of an
exchange or the Note Registrar in the case of an original issuance, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Indenture Trustee. The Indenture Trustee may conclusively rely on
any such instructions furnished by the Depositary or the Note Registrar, as the
case may be and shall not be liable for any delay in delivery of such
instructions. The Indenture Trustee shall make such Notes available for delivery
to the Persons in whose names such Notes are so registered.
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(e) As long as the Notes outstanding are represented by one or more
Global Notes:
(i) the Note Registrar and the Indenture Trustee may deal with the
Depositary for all purposes (including the payment of principal of and
interest on the Notes) as the authorized representative of the Note Owners;
(ii) the rights of Note Owners shall be exercised only through the
Depositary and shall be limited to those established by law and agreements
between such Note Owners and the Depositary and/or the Depositary
Participants. Unless and until Definitive Notes are issued, the Depositary
will make book-entry transfers among the Depositary Participants and
receive and transmit payments of principal of, and interest on, the Notes
to such Depositary Participants; and
(iii) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes evidencing
a specified percentage of the voting rights of a particular series, the
Depositary shall be deemed to represent such percentage only to the extent
that it has received instructions to such effect from Note Owners and/or
Depositary Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes (or Class of Notes) and
has delivered such instruction to the Indenture Trustee.
(f) Whenever a notice or other communication to the Noteholders is
required under this Indenture, unless and until Notes have been issued in
definitive form to Note Owners, the Indenture Trustee shall give all such
notices and communications to the Depositary.
(g) The Indenture Trustee is hereby initially appointed as the Book
Entry Custodian and hereby agrees to act as such in accordance with the
agreement that it has with the Depositary authorizing it to act as such. The
Book Entry Custodian may, and, if it is no longer qualified to act as such, the
Book Entry Custodian shall, appoint, by written instrument delivered to the
Issuer and the Depositary, any other transfer agent (including the Depositary or
any successor Depositary) to act as Book Entry Custodian under such conditions
as the predecessor Book Entry Custodian and the Depositary or any successor
Depositary may prescribe, provided that the predecessor Book Entry Custodian
shall not be relieved of any of its duties or responsibilities by reason of any
such appointment of other than the Depositary. If the Indenture Trustee resigns
or is removed in accordance with the terms hereof, the successor Indenture
Trustee or, if it so elects, the Depositary shall immediately succeed to its
predecessor's duties as Book Entry Custodian. The Issuer shall have the right to
inspect, and to obtain copies of, any Notes held as Book-Entry Notes by the Book
Entry Custodian.
(h) [Reserved]
(i) No transfer of any Class of Note or interest therein shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If a transfer of any Definitive Note
is to be made
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without registration under the Securities Act (other than in connection with the
initial issuance thereof or a transfer thereof by the Depositary or one of its
Affiliates), then the Note Registrar shall refuse to register such transfer
unless it receives (and upon receipt, may conclusively rely upon) either: (i) a
certificate from such Noteholder substantially in the form attached as Exhibit B
hereto or such other certification reasonably acceptable to the Indenture
Trustee and a certificate from such Noteholder's prospective transferee
substantially in the form attached as Exhibit B hereto or such other
certification reasonably acceptable to the Indenture Trustee; or (ii) an Opinion
of Counsel satisfactory to the Indenture Trustee (which Opinion of Counsel shall
not be an expense of the Issuer or any Affiliate thereof) to the effect that
such transfer may be made without registration under the Securities Act,
together with the written certification(s) as to the facts surrounding such
transfer from the Noteholder desiring to effect such transfer and/or such
Noteholder's prospective transferee on which such Opinion of Counsel is based.
If such a transfer of any interest in a Book-Entry Note is to be made without
registration under the Securities Act, the transferor will be deemed to have
made each of the representations and warranties set forth on Exhibit B hereto in
respect of such interest as if it was evidenced by a Definitive Note and the
transferee will be deemed to have made each of the representations and
warranties set forth in either Exhibit B hereto in respect of such interest as
if it was evidenced by a Definitive Note. None of the Depositary, the Issuer,
the Indenture Trustee or the Note Registrar is obligated to register or qualify
any Class of Notes under the Securities Act or any other securities law or to
take any action not otherwise required under this Indenture to permit the
transfer of any Note or interest therein without registration or qualification.
Any Noteholder or Note Owner desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositary, the Issuer, the Indenture Trustee and
the Note Registrar against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
Section 203. Execution; Recourse Obligation. The Notes shall be
executed on behalf of the Issuer by manual or facsimile signature of an
Authorized Signatory of the Issuer. The Notes shall be dated the date of their
authentication by the Indenture Trustee.
In case any Authorized Signatory of the Issuer whose signature or
facsimile signature shall appear on the Notes shall cease to be an Authorized
Signatory of the Issuer before the authentication by the Indenture Trustee and
delivery of such Notes, such signature or facsimile signature shall nevertheless
be valid and sufficient for all purposes.
All Notes and the interest thereon shall be limited recourse
obligations of the Issuer and shall be secured by all of the Issuer's right,
title and interest in the Collateral. The Notes shall never constitute
obligations of the Indenture Trustee, the Contributor, the Manager, the Seller
or of any shareholder or any Affiliate of any other Person (other than the
Issuer) or any officers, directors, employees or agents of any thereof, and no
recourse may be had under or upon any obligation, covenant or agreement of this
Indenture, any Supplement or of any Notes, or for any claim based thereon or
otherwise in respect thereof, against any incorporator or against any past,
present, or future owner, partner of an owner or any officer, employee or
director thereof or of any successor entity, or any other Person, either
directly or through the Issuer, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly agreed that this Indenture and the obligations issued
hereunder are solely obligations of the Issuer, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, any other
Person under or by reason of this Indenture, any Supplement or any Notes
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or implied therefrom, or for any claim based thereon or in respect thereof, all
such liability and any and all such claims being hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of such Notes. Except as may be provided in any
Supplement, no Person other than the Issuer shall be liable for any obligation
of the Issuer under this Indenture or any Note or any losses incurred by any
Noteholder.
Section 204. Certificate of Authentication. No Notes shall be secured
hereby or entitled to the benefit hereof or shall be or become valid or
obligatory for any purpose unless there shall be endorsed thereon by manual
signature a certificate of authentication by the Indenture Trustee,
substantially in the form set forth in the form of Note attached to the related
Supplement. Such certificate on any Note issued by the Issuer shall be
conclusive evidence and the only competent evidence that it has been duly
authenticated and delivered hereunder.
At the written direction of the Issuer, the Indenture Trustee shall
authenticate and deliver the Notes. It shall not be necessary that the same
Authorized Signatory of the Indenture Trustee execute the certificate of
authentication on each of the Notes.
Section 205. Registration; Registration of Transfer and Exchange of
Notes.
(a) The Indenture Trustee shall keep at its Corporate Trust Office
books for the registration and transfer of the Notes (the "Note Register"). The
Issuer hereby appoints the Indenture Trustee as its registrar (the "Note
Registrar") and transfer agent to keep such books and make such registrations
and transfers as are hereinafter set forth in this Section 205 and also
authorizes and directs the Indenture Trustee to provide a copy of such
registration record to the Deal Agent upon its request. The names and addresses
of the Holders of all Notes and all transfers of, and the names and addresses of
the transferee of, all Notes will be registered in such Note Register. The
Person in whose name any Note is registered shall be deemed and treated as the
owner and Holder thereof for all purposes of this Indenture, and the Indenture
Trustee, any related Series Enhancer and the Issuer shall not be affected by any
notice or knowledge to the contrary. If a Person other than the Indenture
Trustee is appointed by the Issuer to maintain the Note Register, the Issuer
will give the Indenture Trustee and the Deal Agent prompt written notice of such
appointment and of the location, and any change in the location, of the
successor note registrar, and the Indenture Trustee and any related Series
Enhancer shall have the right to inspect the Note Register at all reasonable
times and to obtain copies thereof, and the Indenture Trustee shall have the
right to conclusively rely upon a certificate executed on behalf of the Note
Registrar by an officer thereof as to the names and addresses of the Noteholders
and Series, Class and the principal amounts and number of such Notes.
(b) Payments of principal, premium, if any, and interest on any
Note shall be payable on each Payment Date only to the registered Holder thereof
on the Record Date immediately preceding such Payment Date. The principal of,
premium, if any, and interest on each Note shall be payable at the Corporate
Trust Office of the Indenture Trustee in immediately available funds in such
coin or currency of the United States of America as at the time for payment
shall be legal tender for the payment of public and private debts. Except as set
forth in any Supplement, all interest payable on the Notes shall be computed on
the basis of a 360 day year consisting of twelve months of 30 days each.
Notwithstanding the foregoing or any provision in any Note to the contrary, if
so requested by the registered Holder of any Note by written notice to the
Indenture Trustee, all
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amounts payable to such registered Holder may be paid either (i) by crediting
the amount to be distributed to such registered Holder to an account maintained
by such registered Holder with the Indenture Trustee or by transferring such
amount by wire to such other bank in the United States, including a Federal
Reserve Bank, as shall have been specified in such notice, for credit to the
account of such registered Holder maintained at such bank, or (ii) by mailing a
check to such address as such Holder shall have specified in such notice, in
either case (subject to the provisions of Section 207 hereof) without any
presentment or surrender of such Note to the Indenture Trustee at the Corporate
Trust Office of the Indenture Trustee.
(c) Upon surrender for registration of transfer of any Note at the
Corporate Trust Officer the Issuer shall execute and the Indenture Trustee, upon
written request, shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of the same class, of any
authorized denominations and of a like aggregate original principal amount.
(d) All Notes issued upon any registration of transfer or exchange
of Notes shall be the legal, valid and binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this Indenture
and any Supplement, as the Notes surrendered upon such registration of transfer
or exchange.
(e) Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Issuer or the Indenture
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Issuer and the Indenture Trustee duly executed, by
the holder thereof or his attorney duly authorized in writing.
(f) Any service charge, fees or expenses made or expense incurred
by the Indenture Trustee for any such registration, discharge from registration
or exchange referred to in this Section 205 shall be paid by the Noteholder. The
Indenture Trustee or the Issuer may require payment by the Holder of a sum
sufficient to cover any tax expense or other governmental charge payable in
connection therewith.
(g) If Notes are issued or exchanged in definitive form under
Section 202, such Notes will not be registered by the Indenture Trustee unless
each prospective Noteholder acquiring a Note, each prospective transferee
acquiring a Note and each prospective owner (or transferee thereof) of a
beneficial interest in Notes acquiring such beneficial interest provides the
Manager, the Issuer, the Indenture Trustee and any successor Manager with a
written representation that the statements in either subsections (1) or (2) of
Section 208 is an accurate representation as to all sources of funds to be used
to pay the purchase price of the Notes.
(h) No transfer of a Note shall be deemed effective unless the
registration and prospectus delivery requirements of Section 5 of the Securities
Act and any applicable state securities laws are complied with, or such transfer
is exempt from the registration and prospectus delivery requirements under the
Securities Act and such laws. In the event that a transfer is to be made without
registration or qualification, such Noteholder's prospective transferee shall
deliver to the Indenture Trustee an investment letter substantially in the form
of Exhibit B hereto (the "Investment Letter"). The Indenture Trustee is not
under any obligation to register the Notes under
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the Securities Act or any other securities law or to bear any expense with
respect to such registration by any other Person or monitor compliance of any
transfer with the securities laws of the United States, regulations promulgated
in connection thereto or ERISA unless the Notes are issued or exchanged in
definitive form under Section 202.
Section 206. Mutilated, Destroyed, Lost and Stolen Notes. (a) If (i)
any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
or indemnity as it and the Issuer may require to hold the Issuer and the
Indenture Trustee harmless (the unsecured indemnity of a Rated Institutional
Noteholder being deemed satisfactory for such purpose), then the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Series and Class and maturity and of like terms as
the mutilated, destroyed, lost or stolen Note; provided, however, that if any
such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become, or within thirty (30) days shall be or become due and payable, the
Issuer may pay such destroyed, lost or stolen Note when so due or payable
instead of issuing a replacement Note.
(b) If, after the delivery of such replacement Note, or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any and all loss, damage, cost or
expense incurred by the Issuer or the Indenture Trustee in connection therewith.
(c) The Indenture Trustee and the Issuer may, for each new Note
authenticated and delivered under the provisions of this Section 206, require
the advance payment by the Noteholder of the expenses, including counsel fees,
service charges and any tax or governmental charge which may be incurred by the
Indenture Trustee or the Issuer. Any Note issued under the provisions of this
Section 206 in lieu of any Note alleged to be destroyed, mutilated, lost or
stolen, shall be equally and proportionately entitled to the benefits of this
Indenture with all other Notes of the same Series and Class. The provisions of
this Section 206 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.
Section 207. Delivery, Retention and Cancellation of Notes. Each
Noteholder is required, and hereby agrees, to surrender to the Indenture
Trustee, prior to the Expected Final Payment Date, any Note on which the final
payment due thereon has been made. Any such Note as to which the Indenture
Trustee has made or holds the final payment thereon shall be deemed canceled and
unless any unreimbursed payment on such Note has been made by a Series Enhancer,
shall no longer be Outstanding for any purpose of this Indenture, whether or not
such Note is ever returned to the Indenture Trustee. Matured Notes delivered
upon final payment to the Indenture Trustee and any Notes transferred or
exchanged for other Notes shall be canceled and disposed of by the Indenture
Trustee in accordance with its policy of disposal and the Indenture Trustee
shall promptly deliver to the Issuer such canceled Notes upon reasonable prior
written request. If the Indenture Trustee shall acquire, for its own account,
any of the Notes, such acquisition shall not
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operate as a redemption or satisfaction of the indebtedness represented by such
Notes. If the Issuer shall acquire any of the Notes, such acquisition shall
operate as a redemption or satisfaction of the indebtedness represented by such
Notes. Notes which have been canceled by the Indenture Trustee shall be deemed
paid and discharged for all purposes under this Indenture.
Section 208. XXXXX Xxxxxx Representations. Each prospective initial
Noteholder acquiring Notes, each prospective transferee acquiring the Notes, and
each prospective owner (or transferee thereof) of a beneficial interest in Notes
(each a "Prospective Owner") will be deemed to have represented by such purchase
to the Issuer, Variable Funding Capital Corporation, the Indenture Trustee, the
Manager and any successor Manager that either (1) it is not acquiring the Notes
with the assets of a Plan; or (2) the acquisition and holding of the Notes will
not give rise to a nonexempt prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code.
ARTICLE III
PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS
Section 301. Principal and Interest. Distributions of principal,
premium, if any, and interest on any Series or Class of Notes shall be made to
Noteholders of each Series and Class as set forth in Section 302 of this
Indenture and the related Supplement. The maximum Overdue Rate for any Note of
any Series shall be equal to the sum of (i) two percent (2%) per annum and (ii)
the interest rate per annum payable on such Note prior to the event giving rise
to such Default Interest or, if interest payments on the affected Series of
Notes is calculated based on a variable rate of interest, the interest rate that
will be payable as a consequence of such default. If interest or principal
amounts are paid by a Series Enhancer, then the Default Interest shall be owed
to the Series Enhancer and shall not be paid to applicable Noteholders of such
Series unless the related Series Enhancer has failed to make payment of such
amounts in accordance with the terms of any applicable Series Enhancement
Agreement.
Section 302. Trust Account. (a) On or prior to the Closing Date, the
Indenture Trustee shall establish and maintain the Trust Account with Xxxxx
Fargo Bank National Association. The Trust Account shall be in the name of the
Indenture Trustee, on behalf of the Noteholders, any Eligible Interest Rate Swap
Counterparty and any Series Enhancer, pursuant to the terms of this Indenture.
Neither the Issuer nor the Indenture Trustee shall establish any additional
Trust Accounts without prior written consent of the Deal Agent.
(b) On or prior to the Closing Date, the Issuer shall direct the Head
Lessee to deposit in the Trust Account when due (but in no event later than the
Determination Date), all payments required to be deposited therein by this
Indenture and the other Related Documents.
(c) Pursuant to the Management Agreement, the Manager is required to
deliver to the Indenture Trustee all calculations and allocations required by
the Manager Report. On each Payment Date, the Indenture Trustee, based on the
Manager Report provided that, in the absence of any Manager Report, the
Indenture Trustee shall distribute all funds from the Trust Account available
for distribution in accordance with the written direction of the Deal Agent,
shall distribute
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funds in an amount equal to the Available Distribution Amount to the following
Persons in the following order of priority:
(1) To the extent not sufficient on a pro rata basis: (A) to the
Indenture Trustee by wire transfer of immediately available funds, all Indenture
Trustee's Fees and Indenture Trustee Indemnified Amounts then due and payable
for all Series then Outstanding, to the extent not paid by the Manager not to
exceed $20,000 annually, and (B) to the Back-up Manager, any Back-up Manager Fee
than due and payable;
(2) To each Eligible Interest Rate Swap Counterparty, on a pro
rata basis, an amount equal to the sum of (i) any payments (other than
termination payments) then due and payable pursuant to the terms of any Interest
Rate Swap Agreement then in effect and (ii) any termination payment then due and
payable pursuant to the terms of any Interest Rate Swap Agreement then in effect
to the extent (but only to the extent) that such termination payments were not
caused by a default by the related Eligible Interest Rate Swap Counterparty;
(3) To the Series Account for each Series of Senior Notes then
Outstanding, an amount equal to the Senior Class Priority Payments (including
reimbursements payable to any Series Enhancer for interest previously paid
provided for in the related Enhancement Agreement) for each such Series. If
sufficient funds do not exist to pay in full all such Senior Class Priority
Payments, such amounts shall be allocated among the Series of Senior Notes in
the same proportion as the ratio of (x) the Senior Class Priority Payments of a
particular Series of Senior Notes then Outstanding to (y) the aggregate Senior
Class Priority Payments of all Series of Senior Notes then Outstanding;
(4) To the Series Account for each Series of Subordinate Notes
then Outstanding, an amount equal to the Subordinate Class Priority Payments for
each such Series. If sufficient funds do not exist to pay in full all such
Subordinate Class Priority Payments, such amounts shall be allocated among the
Series of Subordinate Notes in the same proportion as the ratio of (x) the
Subordinate Class Priority Payments of a particular Series of Subordinate Notes
then Outstanding to (y) the aggregate Subordinate Class Priority Payments of all
Series of Subordinate Notes then Outstanding;
(5) To the Issuer, the Partnership Priority Payments and the
amounts required to be paid pursuant to the Head Lessor Margin Letter;
(6) To the Series Account for each Series of Senior Notes then
Outstanding, an amount equal to the Principal Payment Amounts for such Series;
(7)To the Series Account for each Series of Subordinate Notes then
Outstanding, an amount equal to the Principal Payment Amounts for such Series;
(8) To the Issuer, an amount equal to the Partnership Preferred
Capital Payments;
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(9) To the Series Account for each Series of Senior Notes then
Outstanding, that Series pro rata portion (based on then unpaid principal
balances of such Senior Notes) of any Prepayment permitted or required pursuant
to the provisions of Section 702 hereof;
(10) To the Series Account for each Series of Subordinate Notes
then Outstanding, that Series pro rata portion (based on then unpaid principal
balances of such Subordinate Notes) of any Prepayment permitted or required
pursuant to the provisions of Section 702 hereof;
(11) To the Series Account for each Series of Notes then
Outstanding, that Series pro rata portion (based on then unpaid principal
balances of such Notes) of any Prepayment permitted or required pursuant to the
provisions of Section 702 hereof;
(12) To the Series Account for each Series of Senior Notes then
Outstanding, an amount equal to any Indemnity Amounts (including indemnities
owing to the Series Enhancer, the Deal Agent and each Noteholder) then due and
owing pursuant to the terms of the related Supplement for such Series;
(13) To the Series Account for each Series of Subordinate Notes
then Outstanding, an amount equal to any Indemnity Amounts (including
indemnities owing to the Series Enhancer, the Deal Agent and each Noteholder)
then due and owing pursuant to the terms of the related Supplement for such
Series;
(14) To the Issuer, an amount equal to any Indemnity Amounts then
due and owing pursuant to the terms of the Partnership Agreement;
(15) To each Eligible Interest Rate Swap Counterparty, on a pro
rata basis, the amount of any unpaid termination payments then due and payable
pursuant to the terms of any Interest Rate Swap Agreement then in effect;
(16) To the Indenture Trustee by wire transfer of immediately
available funds, all remaining unpaid Indenture Trustee's Fees and Indenture
Trustee's Indemnified Amounts then due and payable (after giving effect to any
payments made pursuant to clause (1); and
(17) To the Issuer, any remaining Available Distribution Amount.
(d) If any Series has more than one Class of Senior Notes then
Outstanding, then the portion of Head Lessor Collections and other amounts
allocable to such Series in accordance with Section 302(c) shall be calculated
without regard to the payment priorities of the Classes of Senior Notes within
such Series. If any Series has more than one Class of Subordinate Notes then
Outstanding, then the portion of Head Lessor Collections and other amounts
allocable to such Series in accordance with Section 302(c) shall be calculated
without regard to the payment priorities of the Classes of Subordinate Notes
within such Series. Once such Head Lessor Collections have been allocated to
each Series, then that portion of the Head Lessor Collections allocable to such
Series shall be paid to each Class of Noteholders of such Series in accordance
with the priority of payments set forth in the related Supplement.
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Section 303. Investment of Monies Held in the Trust Account and Series
Accounts; Control over Eligible Investments. (a) The Indenture Trustee shall
invest any cash deposited in the Trust Account and each Series Account in such
Eligible Investments as the Manager shall direct in writing or by telephone and
subsequently confirmed in writing. Each Eligible Investment (including
reinvestment of the income and proceeds of Eligible Investments) shall be held
to its maturity and shall mature or shall be payable on demand not later than
the Business Day immediately preceding the next succeeding Payment Date. If the
Indenture Trustee has not received written instructions from the Manager by 2:30
p.m. (New York time) on the day such funds are received as to the investment of
funds then on deposit in any of the aforementioned accounts, the Issuer hereby
instructs the Indenture Trustee to invest such funds in Eligible Investments of
the type described in clause (iv) of the definition of Eligible Investments. Any
funds in the Trust Account and each Series Account not so invested must be fully
insured by the Federal Deposit Insurance Corporation. Eligible Investments shall
be made in the name of the Indenture Trustee for the benefit of the Noteholders,
any Eligible Interest Rate Swap Counterparty and any Series Enhancer. Any
earnings on Eligible Investments in the Trust Account and each Series Account
shall be retained in each such account and be distributed in accordance with the
terms of this Indenture or any related Supplement. The Indenture Trustee shall
not be liable or responsible for losses on any investments made by it pursuant
to this Section 303.
(b) Each of the Issuer and the Indenture Trustee hereby agrees that (i)
each of the Trust Account and the Series Accounts will be a "securities account"
as such term is defined in Section 8-501(a) of the UCC, (ii) the Indenture
Trustee shall, subject to the terms of this Indenture, treat the Issuer as
entitled to exercise the rights that comprise any Financial Asset credited to
such accounts, (iii) all Eligible Investments will be promptly credited to such
accounts and shall be treated as a "Financial Asset" within the meaning of
Section 8-102(a)(9) of the UCC, and (iv) all securities or other property
underlying any Financial Assets credited to such accounts shall be registered in
the name of the Indenture Trustee, indorsed to the Indenture Trustee and in no
case will any financial asset credited to the Trust Account or Series Account be
registered in the name of the Issuer, payable to the order of the Issuer or
specially indorsed to the Issuer except to the extent the foregoing have been
specially indorsed to the financial intermediary at which such accounts are
maintained or in blank.
(c) Upon the occurrence of a Trigger Event or an Event of Default
hereunder, the Indenture Trustee, acting in accordance with the terms of this
Indenture, shall be entitled to provide an Entitlement Order (as defined in
Section 8-102(a)(8) of the UCC) to the financial intermediary at which such
accounts are maintained. Upon receipt of the Entitlement Order in accordance
with the provisions of this Indenture, the Indenture Trustee shall comply with
such Entitlement Order without further consent by the Issuer or any other
Person.
(d) In the event that a Corporate Trust Officer of the Indenture
Trustee obtains actual knowledge that the Indenture Trustee has or subsequently
obtains by agreement, operation of law or otherwise a security interest in any
of the Trust Account, any Series Account or any security entitlement credited
thereto, the Indenture Trustee hereby agrees that such security interest shall
be subordinate to the security interest created by this Indenture. The financial
assets and other items deposited to the accounts will not be subject to
deduction, set-off, banker's lien, or any other right in favor of any Person
except as created pursuant to this Indenture.
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Section 304. Reports to Noteholders. The Indenture Trustee shall
promptly upon request furnish to each Noteholder and each Series Enhancer a copy
of all reports, financial statements and notices received by the Indenture
Trustee pursuant to any Related Document.
Section 305. Records. The Indenture Trustee shall cause to be kept and
maintained adequate records pertaining to the Trust Account and each Series
Account and all receipts and disbursements therefrom. The Indenture Trustee
shall deliver at least monthly an accounting thereof in the form of a trust
statement to the Issuer, the Deal Agent, the Manager and each Series Enhancer.
Section 306. CUSIP Numbers.
The Issuer in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Indenture Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuer will promptly notify the
Indenture Trustee of any change in the "CUSIP" numbers.
Section 307. No Claim.
Indemnities payable to the Indenture Trustee, the Manager and any other
Person shall be non-recourse to the Issuer and shall not constitute a claim
against the Issuer or the Collateral in the event such amounts are not paid in
accordance with Section 302 of this Indenture.
Section 308. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Indenture, the Indenture
Trustee shall comply with all United States federal income tax withholding
requirements with respect to payments to Noteholders of interest, original issue
discount, or other amounts that the Indenture Trustee reasonably believes are
applicable under the Code. The consent of Noteholders shall not be required for
any such withholding.
Section 309. Tax Treatment of Notes.
The Issuer has entered into this Indenture, and the Notes will be
issued, with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness. The
Issuer and the Indenture Trustee, by entering into this Indenture, and each
Noteholder, by its acceptance of its Note, agree to treat the Notes for federal,
state and local income, single business and franchise tax purposes as
indebtedness.
ARTICLE IV
COLLATERAL
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Section 401. Collateral. (a) The Notes and the obligations of the
Issuer hereunder shall be an obligation of the Issuer as provided in Section 203
hereof. The Noteholders and any Series Enhancer shall also have the benefit of,
and the Notes shall be secured by and be payable solely from, the Issuer's
right, title and interest in the Collateral.
(b) Notwithstanding anything contained in this Indenture to the
contrary, the Issuer expressly agrees that it shall remain liable under the Head
Lease and each other agreement and contract included in the Collateral to
observe and perform all the conditions and obligations to be observed and
performed by the Issuer thereunder and that the Issuer shall perform all of its
duties and obligations thereunder, all in accordance with and pursuant to the
terms and provisions of each such contract and agreement. However, each of the
Issuer and the Indenture Trustee acknowledge that the security interest of the
Indenture Trustee in the Head Lease is subject to the Head Lessee's right of
quiet enjoyment so long as no Head Lease Event of Default has occurred and is
continuing and the Head Lessor continues to receive when due all amounts payable
under the Head Lease.
(c) The Indenture Trustee hereby acknowledges the appointment by the
Issuer of the Manager to service and administer the Collateral in accordance
with the provisions of the Management Agreement and, so long as such Management
Agreement shall not have been terminated in accordance with its terms, the
Indenture Trustee hereby agrees to provide the Manager with such documentation,
and to take all such actions with respect to the Collateral as the Manager may
reasonably request in writing in accordance with the express provisions of the
Management Agreement. Until such time as the Management Agreement has been
terminated in accordance with its terms, the Manager, on behalf of the Issuer,
shall continue to collect all Accounts and payments on the Leases in accordance
with the provisions of the Management Agreement.
Section 402. Pro Rata Interest. (a) Except as expressly provided for
herein and in any Supplement, the Notes of all Outstanding Series shall be
equally and ratably entitled to the benefits of this Indenture without
preference, priority or distinction, all in accordance with the terms and
provisions of this Indenture and the related Supplement. All Notes of a
particular Class issued hereunder are and are to be, to the extent (including
any exceptions) provided in this Indenture and the related Supplement, equally
and ratably secured by this Indenture without preference, priority or
distinction on account of the actual time or times of the authentication or
delivery of the Notes so that all Notes of a particular Series and Class at any
time Outstanding (including Notes owned by the Seller and its Affiliates, other
than the Issuer) shall have the same right, Lien and preference under this
Indenture and shall all be equally and ratably secured hereby with like effect
as if they had all been executed, authenticated and delivered simultaneously on
the date hereof.
(b) With respect to each Series of Notes, the execution and delivery of
the related Supplement shall be upon the express condition that, if the
conditions specified in Section 701 of this Indenture are met with respect to
such Series of Notes, the security interest and all other estate and rights
granted by this Indenture with respect to such Series of Notes shall cease and
become null and void and all of the property, rights, and interest granted as
security for the Notes of such Series shall revert to and revest in the Issuer
without any other act or formality whatsoever.
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Section 403. Indenture Trustee's Appointment as Attorney-in-Fact.
(a) The Issuer hereby irrevocably constitutes and appoints the
Indenture Trustee, and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Issuer and in the name of the
Issuer or in its own name, from time to time, for the purpose of carrying out
the terms of this Indenture, to take any and all appropriate action and to
execute and deliver any and all documents and instruments which may be necessary
or desirable to accomplish the purposes of this Indenture; provided, however,
that the Indenture Trustee has no obligation or duty to determine whether to
perfect, file, record or maintain any perfected, filed or recorded document or
instrument (all of which the Issuer shall prepare, deliver and instruct the
Indenture Trustee to execute) in connection with the grant or security interest
in the Collateral hereunder.
(b) The Indenture Trustee shall not exercise the power of attorney or
any rights granted to the Indenture Trustee pursuant to this Section 403 unless
an Event of Default shall have occurred and then be continuing. The Issuer
hereby ratifies, to the extent permitted by law, all actions that said attorney
shall lawfully do, or cause to be done, by virtue hereof. The power of attorney
granted pursuant to this Section 403 is a power coupled with an interest and
shall be irrevocable until all Series of Notes are paid and performed in full.
(c) The powers conferred on the Indenture Trustee hereunder are solely
to protect the Indenture Trustee's interests in the Collateral and shall not
impose any duty upon it to exercise any such powers except as set forth herein.
The Indenture Trustee shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers and neither it nor any of
its officers, directors, employees, agents or representatives shall be
responsible to the Issuer for any act or failure to act, except for its own
negligence or willful misconduct.
(d) The Issuer also authorizes the Indenture Trustee, at any time and
from time to time upon the occurrence of an Event of Default, to (i) at the
written direction of the Requisite Global Majority, terminate the Management
Agreement then in effect and (ii) execute, in connection with the sale of
Collateral provided for in Article VIII hereof, any endorsements, assignments or
other instruments of conveyance or transfer with respect to the Collateral.
(e) If the Issuer fails to perform or comply with any of its agreements
contained herein, the Indenture Trustee, with the consent of, or at the
direction of, the Requisite Global Majority, shall perform or comply, or
otherwise cause performance or compliance, with such agreement. The reasonable
expenses, including attorneys' fees and expenses, of the Indenture Trustee
incurred in connection with such performance or compliance, together with
interest thereon at the rate specified in the related Supplement, shall be
payable by the Issuer to the Indenture Trustee on demand and shall constitute
additional Outstanding Obligations secured hereby.
Section 404. Release of Security Interest. The Indenture Trustee, at
the written direction of the Manager ( a copy of which direction shall be
delivered to the Deal Agent, each Series Enhancer and each Eligible Interest
Rate Swap Counterparty), shall release from the Lien of this Indenture, (i)
those Interest Rate Swap Agreements identified by the Manager; provided that,
after giving effect to any such release of an Interest Rate Swap Agreement, the
Issuer shall be in
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compliance with the requirement of Section 630 hereof and (ii) any additional
Compressors identified by the Manager; provided, however, that any such release
of Collateral shall be conditioned upon the receipt and approval by the Deal
Agent of such documentation as the Deal Agent may reasonably request to
demonstrate that, after giving effect to any such requested release of
Compressors, none of the following events or conditions does or will exist:
(i) a Net Revenue Event; or
(ii) an Overcollateralization Event; or
(iii) an Event of Default; or
(iv) a Head Lease Event of Default; or
(v) any Manager Default of the type described in paragraphs (a),
(f), (h), (j), (k), (m) and (n) in Section 12.1 of the
Management Agreement; or
(vi) any other Manager Default not described in clause (v) above,
but only to the extent that, the Requisite Global Majority has elected to
terminate the defaulting Manager as the consequence of any such Manager Default
in accordance with the terms of the Management Agreement.
In connection with proving the existence or non-existence of either a Net
Revenue Event or an Overcollateralization Event, the Issuer shall deliver (or
shall cause to be delivered) to the Deal Agent all of the following:
(A) three Appraisals establishing the then Aggregate Appraised
Value (calculated after giving effect to the release of the
requested Compressors);
(B) a pro forma calculation establishing that, after giving
effect to any such release of the requested Compressors and
any associated Prepayment of the Notes and the Capital, no
Net Revenue Event or Overcollateralization Event shall or
will exist; and
(C) an Officer's Certificate of the Manager that all of the
conditions specified in this Section 404 have been satisfied.
The Indenture Trustee will, promptly upon receipt of such certificate
from the Manager and at the Issuer's expense, execute and deliver to the Issuer,
the Seller or the Manager, as appropriate, each Series Enhancer, each Eligible
Interest Rate Swap Counterparty and the Deal Agent, a non-recourse certificate
of release substantially in the form of Exhibit A hereto and such additional
documents and instruments as that Person may reasonably request to evidence the
termination and release from the Lien of this Indenture of such Compressor and
the other related items of Collateral.
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Section 405. Administration of Collateral. (a) The Indenture Trustee
shall promptly as practicable notify the Noteholders, each Eligible Interest
Rate Swap Counterparty, each Series Enhancer and the Deal Agent of any Manager
Default of which a Corporate Trust Officer has actual knowledge. If a Manager
Default shall have occurred and then be continuing, the Indenture Trustee, in
accordance with the written direction of the Requisite Global Majority, shall
deliver to the Manager (with a copy to the Deal Agent, each Rating Agency, each
Series Enhancer and each Eligible Interest Rate Swap Counterparty) a Manager
Termination Notice terminating the Manager of its responsibilities in accordance
with the terms of the Management Agreement. If the Back-up Manager is prohibited
by Applicable Law from serving as the Manager (and delivering the document
evidencing such inability as set forth in the Back-up Management Agreement) and
if the Deal Agent is unable to locate and qualify a replacement Manager within
sixty (60) days after the date of delivery of the Manager Termination Notice,
then the Indenture Trustee may appoint, or petition a court of competent
jurisdiction to appoint as a successor Manager, a Person reasonably acceptable
to the Requisite Global Majority, having a net worth of not less than
$15,000,000 and whose regular business includes leasing of natural gas
compressors. In connection with the appointment of a replacement Manager, the
Indenture Trustee or Deal Agent may, with the written consent of the Requisite
Global Majority, make such arrangements for the compensation of such replacement
out of Head Lessor Collections as the Indenture Trustee, each Eligible Interest
Rate Swap Counterparty, each Series Enhancer, the Deal Agent and such
replacement Manager shall agree. The Indenture Trustee shall take such action,
consistent with the Management Agreement and the other Related Documents, as
shall be necessary to effectuate the appointment and installation of the Back-up
Manager or another Manager.
(b) Upon a Corporate Trust Officer's obtaining actual knowledge or the
receipt of notice by the Indenture Trustee that a Warranty Purchase Amount has
not been paid when due pursuant to the terms of the Related Documents, the
Indenture Trustee shall notify each Series Enhancer, each Rating Agency, each
Eligible Interest Rate Swap Counterparty and the Requisite Global Majority of
such event and shall enforce such repurchase obligations at the direction of the
Requisite Global Majority.
ARTICLE V
RIGHTS OF NOTEHOLDERS; ALLOCATION
AND APPLICATION OF COLLECTIONS;
REQUISITE GLOBAL MAJORITY
Section 501. Rights of Noteholders. The Noteholders of each Series
shall have the right to receive, at the times and in the amounts specified in
the related Supplement, (i) the portion of Head Lessor Collections allocable to
Noteholders of such Series pursuant to this Indenture and the related
Supplement, (ii) funds on deposit in the Trust Account related thereto and (iii)
funds on deposit in any Series Account for such Series or Class, or payable with
respect to, any Series Enhancement for such Series or Class. Each Noteholder, by
acceptance of its Notes, (a) acknowledges and agrees that (except as expressly
provided herein and in a Supplement entered into in accordance with Section
1006(b) hereof) the Noteholders of a Series or Class shall not have any interest
in any Series Account or Series Enhancement for the benefit of any other Series
or Class
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and (b) ratifies and confirms the terms of this Indenture and the Related
Documents executed in connection with such Series.
Section 502. Collections and Allocations. With respect to each
Collection Period, the Available Distribution Amount on deposit in the Trust
Account will be allocated to each Series then Outstanding in accordance with
Article III of this Indenture and the Supplements.
Section 503. Determination of Requisite Global Majority. A Requisite
Global Majority shall exist with respect to any action proposed to be taken
pursuant to the terms of this Indenture or any Supplement if Control Parties
representing a majority of the Existing Commitments of all Series then
Outstanding shall approve or direct such proposed action (in making such a
determination, each Control Party shall be deemed to have voted the entire
Existing Commitment of the related Series in favor of, or in opposition to, such
proposed action, as the case may be).
Except where the Indenture specifically states otherwise, the Indenture
Trustee, provided it has sent out notices in accordance with the Indenture, may
act as directed by a majority of the outstanding Noteholders responding in
writing to such request for amendment or written direction, provided however,
that Noteholders representing at least 51% of the Existing Commitments of all
Series then Outstanding as of the time such voting response is due back to the
Indenture Trustee must have responded in writing to the Indenture Trustee's
notice to amend or for written direction. In addition, the Indenture Trustee
shall not have any liability to any Noteholder or Note Owner with respect to any
action taken pursuant to such notice if the Noteholder or Note Owner does not
respond to such notice within the time period set forth in such notice. By
acceptance of a Note, each Noteholder and Note Owner agree to the foregoing
provisions.
ARTICLE VI
COVENANTS
For so long as any Outstanding Obligations of the Issuer under this
Indenture or any Related Document have not been paid and/or performed, the
Issuer shall observe each of the following covenants:
Section 601. Payment of Principal and Interest; Payment of Taxes.
(a) The Issuer will duly and punctually pay the principal of, and
interest on, the Notes in accordance with the terms of the Notes, this Indenture
and the related Supplement;
(b) The Issuer will take all actions as are necessary to insure that
all taxes and governmental claims, if any, in respect of the Issuer's activities
and assets are promptly paid; and
(c) The Issuer will not claim any credit on, make any deduction from
the principal, premium, if any, or interest payable in respect of the Notes
(other than amounts properly withheld from such payments under any applicable
law) or assert any claim against any present or former Noteholder by reason of
the payment of any taxes levied or assessed upon any of the Collateral.
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Section 602. Maintenance of Office. The chief executive office of the
Issuer is located at 0000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000. The Issuer shall not establish a new location for its chief executive
office unless (i) the Issuer shall provide each of the Indenture Trustee, each
Rating Agency, the Deal Agent, each Eligible Interest Rate Swap Counterparty and
each Series Enhancer not less than sixty (60) days' prior written notice of its
intention so to do, clearly describing such new location and providing such
other information in connection therewith as the Indenture Trustee, the Deal
Agent, any Eligible Interest Rate Swap Counterparty or any Series Enhancer may
reasonably request, and (ii) not less than fifteen (15) days' prior to the
effective date of such relocation, the Issuer shall have taken, at its own cost,
all action necessary so that such change of location does not impair the
security interest of the Indenture Trustee in the Collateral, or the perfection
of the sale or contribution of the Compressors to the Issuer, and shall have
delivered to the Indenture Trustee, the Deal Agent, each Eligible Interest Rate
Swap Counterparty and each Series Enhancer copies of all filings required in
connection therewith together with an Opinion of Counsel, satisfactory to the
Indenture Trustee, the Deal Agent, each Eligible Interest Rate Swap Counterparty
and the Series Enhancers, to the effect that such change of location does not
impair either the perfection or priority of the Indenture Trustee's security
interest in the Collateral.
Section 603. Corporate Existence. The Issuer will keep in full effect
its existence, rights and franchises as a limited partnership organized under
the laws of the State of Delaware, and will obtain and preserve its
qualification in each jurisdiction in which such qualification is necessary to
protect the validity and enforceability of this Indenture, any Supplements
issued hereunder and the Notes.
Section 604. Protection of Collateral. The Issuer will from time to
time execute and deliver all amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, and will, upon the reasonable request of the Manager, the Indenture
Trustee, the Deal Agent, any Eligible Interest Rate Swap Counterparty or any
Series Enhancer, take such other action reasonably necessary or advisable to:
(a) grant more effectively the security interest in all or any portion
of the Collateral;
(b) maintain or preserve the Lien of this Indenture (and the priority
thereof) or carry out more effectively the purposes hereof;
(c) perfect, publish notice of, or protect the validity of the security
interest in the Collateral created pursuant to this Indenture;
(d) enforce any of the items of the Collateral;
(e) preserve and defend its right, title and interest to the Collateral
and the rights of the Indenture Trustee in such Collateral against the claims of
all Persons (other than the Noteholders or any Person claiming through the
Noteholders), including any claims that the Compressor is a fixture; or
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(f) pay any and all taxes levied or assessed upon all or any part of
the Collateral.
Section 605. Enforce Head Lease Rights. Except as otherwise expressly
permitted by the terms of the Related Documents, the Issuer will promptly
enforce all of its rights under, and with respect to, the Head Lease and the
Head Lease Collateral.
Section 606. Negative Covenants Regarding Collateral. The Issuer will
not, without (i) the prior written consent of the Indenture Trustee (acting at
the direction of the Requisite Global Majority) and (ii) satisfaction of the
Rating Agency Condition in each instance:
(a) except as otherwise permitted by this Indenture, any Interest Rate
Swap Agreement or the other Related Documents, the Issuer will not take, or fail
to take, any action, and will use its reasonable efforts not to permit any
action to be taken by others, which would release any Person from any of such
Person's covenants or obligations under any agreement or instrument included in
the Collateral, or which would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such agreement or instrument. In furtherance of the
foregoing, the Issuer will not amend, modify or terminate the Head Lease and/or
the Head Lessee Security Agreement or grant any waiver or consent from
compliance with the express terms thereof.
(b) at any time sell, transfer, exchange or otherwise dispose of any of
the Collateral (including, without limitation, any Head Lease Collateral),
except as follows:
(i) in connection with a sale pursuant to Sections 612 or 816
hereof;
(ii) sales of Compressors for a net sales proceeds payable to the
Issuer of not less than the sum of the Appraised Values (as in effect
on the Conversion Date) of the Compressors that were sold, regardless
of whether such sales are considered to have been made in the ordinary
course of business; or
(iii) sales of Compressors in the ordinary course of business
(including any such sales resulting from the sell/repair decision of
the Manager) regardless of the sales proceeds realized from such sales
so long as an Event of Default or Trigger Event is not then continuing
or would result from such sale of Compressors.
(c) (i) permit the validity or effectiveness of this Indenture to be
impaired, or (ii) permit the Lien of this Indenture with respect to the
Collateral to be subordinated, terminated or discharged, except as permitted in
accordance with Section 404 or Article VII hereof, or (iii) permit any Person to
be released from any covenants or obligations with respect to such Collateral,
except as may be expressly permitted by the Management Agreement.
Section 607. (a) Non-Consolidation of the Issuer. The Issuer shall be
operated in such a manner that it shall not be substantively consolidated with
the trust estate of any other person in the event of the bankruptcy or
insolvency of the Issuer or such other person. Without limiting the foregoing
the Issuer shall (1) conduct its business in its own name, (2) maintain its
books and records separate from those of any other person, (3) maintain its bank
accounts separate from those of any
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other person, (4) maintain separate financial statements, showing its assets and
liabilities separate and apart from those of any other person, (5) pay its own
liabilities and expenses only out of its own funds, (6) enter into a transaction
with an Affiliate only if such transaction is commercially reasonable and on the
same terms as would be available in an arm's length transaction with a person or
entity that is not an Affiliate, (7) allocate fairly and reasonably any overhead
expenses that are shared with an Affiliate, (8) hold itself out as a separate
entity, (9) maintain adequate capital in light of its contemplated business
operations and (10) observe all other appropriate partnership and other
organizational formalities.
(b) Notwithstanding any provision of law which otherwise empowers the
Issuer, the Issuer shall not (1) hold itself out as being liable for the debts
of any other person, (2) act other than in its partnership name and through its
general partner or its duly authorized officers or agents, (4) engage in any
joint activity or transaction of any kind with or for the benefit of any
Affiliate including any loan to or from or guarantee of the indebtedness of any
Affiliate, except payment of lawful distributions to its partners, (5) commingle
its funds or other assets with those of any other person, (6) create, incur,
assume, guarantee or in any manner become liable in respect of any indebtedness
(except pursuant to this Indenture) other than trade payables and expense
accruals incurred in the ordinary course of its business or (7) take any other
action that would be inconsistent with maintaining the separate legal identity
of the Issuer.
Section 608. No Bankruptcy Petition. The Issuer shall not (1) commence
any Insolvency Proceeding seeking to have an order for relief entered with
respect to it, or seeking reorganization, arrangement, adjustment, wind-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, (2) seek appointment of a receiver, trustee, custodian or other similar
official for it or any part of its assets, (3) make a general assignment for the
benefit of creditors, or (4) take any action in furtherance of, or consenting or
acquiescing in, any of the foregoing.
Section 609. Liens; Fixtures. The Issuer shall not permit (i) any Lien
(except any Permitted Encumbrance) to be created on or extend to or otherwise
arise upon or burden the Collateral or any part thereof or any interest therein
or the Proceeds thereof; (ii) the Lien of this Indenture not to constitute a
valid first priority perfected security interest in the Collateral or (iii) any
Compressor to be considered a fixture under applicable local law.
Section 610. Other Debt. The Issuer shall not contract for, create,
incur, assume or suffer to exist any Indebtedness other than (i) the Notes
issued pursuant to this Indenture or any Supplement issued hereunder, (ii) any
Management Fees and all other amounts payable pursuant to the provisions of the
Management Agreement, (iii) trade payables and expense accruals incurred in the
ordinary course and which are incidental to the purposes permitted pursuant to
the Issuer's partnership agreement and (iv) obligations incurred pursuant to
Interest Rate Swap Agreements permitted or required hereunder.
Section 611. Guarantees, Loans, Advances and Other Liabilities. The
Issuer will not make any loan, advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing, or otherwise),
endorse (except for the endorsement of checks for collection or deposit) or
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otherwise become contingently liable, directly or indirectly, in connection with
the obligations, stock or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other Person.
Section 612. Consolidation, Merger and Sale of Assets. (a) The Issuer
shall not consolidate with or merge with or into any other Person or sell,
convey, transfer or lease all or substantially all of its assets, whether in a
single transaction or a series of transactions, to any Person substantially all
of its assets, except for (i) any such sale, conveyance or transfer contemplated
in this Indenture or any Supplement issued hereunder and (ii) any lease of a
Compressor in accordance with the terms of the Head Lease.
(b) The obligations of the Issuer hereunder shall not be assignable nor
shall any Person succeed to the obligations of the Issuer hereunder except in
each case in accordance with the provisions of this Indenture.
(c) The Issuer shall give prior written notice to any Rating Agencies
of any action pursuant to this Section 612.
Section 613. Other Agreements. The Issuer will not after the date of
the issuance of the Notes enter into, or become a party to, any agreements or
instruments other than this Indenture, the Supplement, the Sale Agreement, the
Head Lease, the Management Agreement, the Back-up Management Agreement, the Head
Lessee Security Agreement, the Note Purchase Agreement, or any other
agreement(s) contemplated thereby, including, without limitation, (i) any
agreement(s) for disposition of the Sold Assets permitted by Sections 612, 804
or 816 hereof and (ii) any agreement(s) for the sale or re-lease of a Compressor
made in accordance with the provisions of the Management Agreement. In addition,
the Issuer will not amend, modify or waive any provision of the Head Lease or
the Sale Agreement or give any approval or consent or permission provided for
therein without the prior written consent of the requisite Persons set forth in
the Head Lease or the Sale Agreement.
Section 614. Charter Documents. The Issuer will not amend or modify its
Certificate of Limited Partnership or Partnership Agreement without the prior
written consent of the Requisite Global Majority and satisfaction of the Rating
Agency Condition.
Section 615. Capital Expenditures. The Issuer will not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(both realty and personalty), except for (a) acquisition of additional
Compressors from the Seller pursuant to the Sale Agreement or (b) overhaul
expenses or capital improvements to the Compressors made in the ordinary course
of its business and in accordance with the terms of the Management Agreement.
Section 616. Permitted Activities; Compliance with Limited Partnership
Agreement. The Issuer will not engage in any activity or enter into any
transaction except as permitted under its Partnership Agreement as in effect on
the date on which this Indenture is executed. The Issuer will observe all
partnership, organizational and managerial procedures required
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by its Partnership Agreement, any other partnership formation documents of the
Issuer, and the limited partnership laws of the State of Delaware.
Section 617. Investment Company Act. The Issuer will conduct its
operations, and will cause the Manager to conduct the Issuer's operations, in a
manner which will not subject it to registration as an "investment company"
under the Investment Company Act of 1940, as amended.
Section 618. Payments of Collateral. If the Issuer shall receive from
any Person any payments (other than rental payments from Users which will be
processed in accordance with provisions of the Management Agreement) with
respect to the Collateral (to the extent such Collateral has not been released
from the Lien of this Indenture in accordance with Section 404 hereof), the
Issuer shall receive such payment in trust for the Indenture Trustee, as secured
party hereunder, and subject to the Indenture Trustee's security interest and
shall immediately deposit such payment in the Trust Account.
Section 619. Notices. The Issuer shall notify the Indenture Trustee,
the Deal Agent, each Rating Agency and each Series Enhancer in writing of any of
the following immediately upon learning of the occurrence thereof, describing
the same and, if applicable, the steps being taken by the Person(s) affected
with respect thereto:
(a) Default. The occurrence of an Event of Default or Trigger Event;
(b) Litigation. The institution of any litigation, arbitration
proceeding or Proceeding before any Governmental Authority which, if adversely
resolved, would result in a Material Adverse Change;
(c) Material Adverse Change. The occurrence of a Material Adverse
Change with respect to the Issuer.
Section 620. Books and Records. The Issuer shall, and shall cause the
Manager to, maintain complete and accurate books and records in which full and
correct entries in conformity with GAAP shall be made of all dealings and
transactions in relation to its business and activities. The Issuer shall
report, or cause to be reported, on its financial records the transfer of the
Sold Assets as a sale under GAAP. The Issuer will ensure that no financial
statement, nor any consolidated financial statements of the Issuer, suggests
that the assets of the Issuer are available to pay the debts of either the
Contributor, the Seller, the Lessee or the Manager. The Issuer shall (i) keep
complete minutes of the meetings and other proceedings of the Issuer, (ii)
continuously maintain the resolutions, agreements and other instruments
underlying the sale and transfer of the Sold Assets as official records of the
Issuer.
Section 621. Taxes. The Issuer shall, or shall cause the Manager to,
pay when due, all of its taxes, unless, and only to the extent that, the Issuer
is contesting such taxes in good faith and by appropriate proceedings and the
Issuer has set aside on its books such reserves or other appropriate provisions
therefor as may be required by GAAP.
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The Issuer shall remit (or cause to be remitted) to each Governmental
Authority, all Excluded Payments actually by, or on behalf of, the Issuer and
shall promptly remit to the Deal Agent and Indenture Trustee evidence that all
such payments have been made.
Section 622. Subsidiaries. The Issuer shall not create any
Subsidiaries.
Section 623. Investments. The Issuer shall not make or permit to exist
any Investment in any Person except for Investments in Eligible Investments made
in accordance with the terms of this Indenture.
Section 624. Use of Proceeds. The Issuer shall use the proceeds of the
Notes only for (i) the purchase of Compressors and related Collateral and (ii)
other general corporate purposes. In addition, the Issuer shall not permit any
proceeds of the Notes to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of "purchasing or carrying
any margin stock" within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System, as amended from time to time, and shall furnish
to each Holder, upon its request, a statement in conformity with the
requirements of Regulation U.
Section 625. Asset Base Certificate. The Issuer shall prepare and
deliver to the Indenture Trustee, each Series Enhancer, each Rating Agency and
the Deal Agent on each Determination Date, an Asset Base Certificate.
Section 626. Financial Statements. The Issuer shall prepare and deliver
to the Indenture Trustee, each Eligible Interest Rate Swap Counterparty, each
Series Enhancer, each Rating Agency and the Deal Agent, or shall cause the
Manager to prepare and deliver pursuant to the Management Agreement, (i)
quarterly financial statements of the Issuer and Manager within 60 days of the
end of each fiscal quarter and (ii) annual financial statements of the Issuer
and Manager, audited by their regular Independent Accountants, within 120 days
of the end of each fiscal year. All financial statements shall be prepared in
accordance with GAAP. Delivery of such reports, information and documents to the
Indenture Trustee is for informational purposes only and the Indenture Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Issuer's compliance with any of its covenants hereunder (as to which the
Indenture Trustee is entitled to rely exclusively on Officer's Certificates).
Section 627. Other Information. For so long as any of the Notes are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act and the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, the Issuer will, and shall cause Manager to, (i) provide or cause
to be provided to any Holder of Notes and any prospective purchaser thereof
designated by such a Holder, upon the request of such Holder or prospective
purchaser, the information required to be provided to such Holder or prospective
purchaser by Rule 144A(d)(4) under the Securities Act; and (ii) update such
information to prevent such information from becoming materially false and
materially misleading in a manner adverse to any Noteholder.
Section 628. Independent Directors of General Partner. The general
partner of the Issuer shall at all times be a corporation with one or more
Independent Directors such that if there
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is more than one Independent Director, the Independent Directors will constitute
a majority of all directors.
Section 629. [Reserved.]
Section 630. Hedging Requirements. (a) The Issuer will enter into and
maintain (or will cause to be entered into and maintained) one or more Interest
Rate Swap Agreements with one or more Eligible Interest Rate Swap Counterparties
having an aggregate notional balance not less than 90% (and not greater than
100%) of the sum of the then unpaid principal balance of the Notes of all Series
then Outstanding and all outstanding Capital. The duration of the Interest Rate
Swap Agreements will be consistent with the Termination Dates of the Lease
Pools. All of the foregoing requirements shall be collectively referred to as
the "Hedging Requirement".
(b) If (1) the Issuer, or Manager on behalf of Issuer, fails to
maintain the requisite level of hedging set forth in Section 630(a) above, or
(2) the Issuer prepays any Note, or (3) a Trigger Event shall have occurred, the
Deal Agent (acting on behalf of the Requisite Global Majority) shall have the
right, in its sole discretion and at the expense of the Issuer, to direct the
Indenture Trustee, to either (i) enter into Interest Rate Swap Agreements on the
Issuer's behalf or (ii) terminate any Interest Rate Swap Agreement then in
effect in accordance with the terms of such Interest Rate Swap Agreement (and in
the event of a partial prepayment of a Note, reduce the notional amount of such
Interest Rate Swap Agreements in accordance with the terms thereof so that the
remaining aggregate notional amounts shall not exceed the Hedging Requirement).
In the event the Deal Agent or the Requisite Global Majority determines to
direct the Indenture Trustee to enter into or to terminate or reduce an Interest
Rate Swap Agreement on the Issuer's behalf, the Deal Agent or the Requisite
Global Majority shall promptly send a copy of any such agreement to the Issuer
and may provide the Indenture Trustee and Manager with a written direction to
deposit in the Trust Account certain amounts to purchase, or reimburse the Deal
Agent or the Requisite Global Majority or a third party for purchase or
termination, such Interest Rate Swap Agreement.
(c) All payments received from an Interest Rate Hedge Provider shall be
deposited by the Issuer directly into the Trust Account in accordance with
Section 302(a) hereof.
Section 631. Separate Identity. The Issuer makes herein by this
reference each of the representations and warranties made by it to Xxxxxxx Xxxxx
Xxxxxx, LLP in support of their opinions issued and delivered in connection with
the issuance of the Notes, as if specifically made herein and agrees to comply
with each of the factual assumptions contained in such opinions.
Section 632. New Master Lease Agreement with Users. With respect to
each Head Lessee Compressor and each Head Lessor Compressor, the Issuer shall
(or shall cause such actions to be taken), within the timeframes set forth
below, cause each related User to execute a revised master lease agreement,
substantially in the form of Exhibit C hereto. The Issuer shall be deemed to be
in compliance with this Section 632 if Users representing at least ninety-five
percent (95%) of the Aggregate Appraised Value have executed such revised master
lease agreement by August 8, 2001 and one hundred percent (100%) of the
Aggregate Appraised Value by February 9, 2002.
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Section 633. Annual Perfection Opinion. Within 90 days after the
beginning of each calendar year, beginning with the calendar year 2002, the
Issuer shall furnish to the Indenture Trustee, the Deal Agent, each Rating
Agency, and each Series Enhancer, an Opinion of Counsel either stating that, in
the opinion of such counsel, such action has been taken with respect to the
recording, filing, recording and refiling of this Indenture, any Supplements
hereto and any other requisite documents, and with respect to the execution and
filing of any financing statements and continuation statements, as are necessary
to maintain the Lien created by this Indenture and reciting the details of such
action or stating that, in the opinion of such counsel, no such action is
necessary to maintain such Lien. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Indenture, any Supplements
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that, in the opinion of such
counsel, are required to maintain the lien and security interest of this
Indenture.
ARTICLE VII
DISCHARGE OF INDENTURE; PREPAYMENTS
Section 701. Full Discharge. Upon payment in full of all Outstanding
Obligations, the Indenture Trustee shall, at the written request and at the
expense of the Issuer, execute and deliver to the Issuer such deeds or other
instruments as shall be requisite to evidence the satisfaction and discharge of
this Indenture and the security hereby created, and to release the Issuer from
its covenants contained in this Indenture and the related Supplement in
connection with the satisfaction and discharge of the Indenture. The Indenture
Trustee shall be entitled to receive an Opinion of Counsel stating that such
satisfaction and discharge is authorized and permitted.
Section 702. Prepayment of Notes .
(a) Optional Prepayments. The Issuer may, from time to time, make an
optional Prepayment of principal of the Notes of any Series at the times, in the
amounts and subject to the conditions set forth in the related Supplement. The
Issuer shall promptly confirm any telephonic notice of prepayment in writing.
Any optional Prepayment of principal made by the Issuer pursuant to this Section
702 shall also include accrued interest to the date of the prepayment on the
amount being prepaid. All Prepayments made in accordance with this Section
702(a) shall be accomplished by a deposit of funds (including any amounts
required pursuant to the provisions of Section 702(c) hereof) directly into the
Trust Account.
(b) Mandatory Prepayments. If either or both of an
Overcollateralization Event or a Net Revenue Event has occurred and is
continuing, the Issuer may on or prior to the immediately succeeding
Determination Date, either (i) acquire additional Eligible Compressors having an
aggregate Appraised Value, or (ii) prepay the outstanding principal balance of,
and accrued interest thereon (including, if any such prepayment relates to a
variable funding Series, interest accrued through the end of any applicable
interest tranche or fixed period), of any or all Series of Notes, in each case
in an amount necessary to eliminate such conditions, which prepayment shall be
applied in accordance with the provisions of Section 302 of this Indenture and
the applicable provisions of the affected Supplements. If the Issuer does not
cure such Overcollateralization Event or Net Revenue Event in the manner and
within the time frame set forth in the preceding sentence or if any
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other Trigger Event is continuing, then on each subsequent Payment Date on which
any such Trigger Event is continuing, that portion of Available Distribution
Amount remaining after making all distributions required pursuant to clauses (1)
through (5) inclusive of Section 302(c) hereof shall be used to prepay the then
unpaid principal balance of the Notes and the Capital in accordance with Section
302(c) hereof, until the earlier to occur of (x) the then unpaid principal
balance of the Notes and the Capital have been reduced to zero and (y) the date
on which no Overcollateralization Event, Net Revenue Event or other Trigger
Event is continuing.
In addition to the foregoing, if the Head Lessee exercises the purchase
option set forth in Section 32 of the Head Lease, then the Issuer shall prepay
the Notes and the Capital in an amount equal to the sum of (i) the Purchase
Option Amount then payable, (ii) accrued interest and accrued Partnership
Priority Payments to the date of prepayment on the principal balance of the
Notes and the Capital, respectively, so prepaid, (iii) any amounts payable
pursuant to Section 702(c) and (iv) any breakage cost and other amounts
specified in the related Supplement.
All Prepayments made in accordance with this Section 702(b) shall be
accomplished by a deposit of funds (including any funds required pursuant to
Section 702(c) hereof) directly into the Trust Account.
(c) Repayment of Eligible Interest Rate Swap Counterparties. If the
Issuer has elected to make an optional Prepayment in accordance with the
provisions of Section 702(a) above or is required to make a Prepayment in
accordance with the provisions of Section 702(b), then the amount of such
Prepayment shall include an amount necessary (determined by the Deal Agent) to
reduce the notional balance of any Interest Rate Swap Agreement required by this
Indenture in accordance with the terms of such Interest Rate Swap Agreement such
that the remaining notional balances of such Interest Rate Swap Agreement shall
not exceed the Hedging Requirement and to pay in full any termination charges
assessed by the Eligible Interest Rate Swap Counterparty. Such additional amount
shall be applied in accordance with Section 302 hereunder.
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES
Section 801. Event of Default. "Event of Default", wherever used herein
with respect to any Series of Notes, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority):
(i) default in (A) the payment on any Payment Date of any interest,
premium or commitment fees, if any, or Principal Payment Amount then due and
payable on any Series of Notes, or (B) the payment on the Final Maturity Date of
the then unpaid principal balance of any Class of Notes;
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(ii) default in the due observance or performance of any covenant of
the Issuer set forth in Sections 606, 608, 610, 611, 612, 613, 614, 615, 616,
622, 623 or 629 hereof;
(iii) default in the due observance or performance of any covenant of
the Issuer or any Universal Party in any Related Document (to the extent such
breach is not otherwise addressed in this Section 801) which breach or failure
continues unremedied for a period of 30 days after the earliest of (i) any
Authorized Officer of the Issuer, or the president, chief financial officer or
any executive vice president of the applicable Universal Party, as the case may
be, first acquiring knowledge thereof, (ii) the Indenture Trustee's giving
written notice thereof to the Issuer and each Universal Party or (iii) any
Noteholder giving written notice thereof to the Issuer, each Universal Party and
the Indenture Trustee;
(iv) any representation or warranty of the Issuer, or any Universal
Party made in any other Related Document shall prove to be incorrect in any
material respect as of the time when the same shall have been made and remains
unremedied for a period of 30 days after the earliest of (i) any Authorized
Officer of the Issuer or the president, chief financial officer or any executive
vice president of the applicable Universal Party, as the case may be, first
acquiring knowledge thereof, (ii) the Indenture Trustee's giving written notice
thereof to the Issuer, and each Universal Party, or (iii) any Noteholder giving
written notice thereof to the Issuer, each Universal Party and the Indenture
Trustee;
(v) the entry of a decree or order for relief by a court having
jurisdiction in respect of any of the Issuer, Head Lessee, Universal or the
Management Guarantor, as the case may be, in any involuntary case under any
applicable Insolvency Law, or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, or sequestrator
(or other similar official) for the Issuer, Head Lessee, Universal or the
Management Guarantor, as the case may be, or for any substantial part of their
respective properties, or ordering the winding up or liquidation of their
respective affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days;
(vi) the commencement by any of the Issuer, the Head Lessee, Universal,
the Management Guarantor of a voluntary case under any applicable Insolvency
Law, or other similar law now or hereafter in effect, or the consent by the
Issuer, the Head Lessee, Universal or the Management Guarantor to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or other similar official) of the Issuer,
the Head Lessee, Universal or the Management Guarantor or any substantial part
of their respective properties, or the making by the Issuer, the Head Lessee,
Universal or the Management Guarantor of any general assignment for the benefit
of creditors, or the failure by the Issuer, the Head Lessee, Universal or the
Management Guarantor generally to pay its debts as they become due, or the
taking of any action by the Issuer, the Head Lessee, Universal or the Management
Guarantor in furtherance of any such action;
(vii) Either of the following conditions shall exist: (A) the Indenture
Trustee shall fail to have a first priority perfected security interest in all
or any portion of the Collateral; or (B) the Head Lessor shall fail to have a
first priority security interest in the Head Lease Collateral;
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(viii) a Manager Default shall have occurred and a replacement Manager
has not assumed the duties of the terminated Manager by the second Payment Date
following the occurrence of such Manager Default;
(ix) a Head Lease Event of Default (after giving effect to all
applicable grace and cure periods set forth in the Head Lease) shall have
occurred and then be continuing;
(xi) the Issuer is required to register as an investment company under
the Investment Company Act of 1940, as amended;
(xii) any payment shall be made by a Series Enhancer under any
Enhancement Agreement;
(xiii) the rendering against the Issuer of a final judgment, decree or
order for the payment of money in excess of $10,000 and the continuance of such
judgment, decree or order unsatisfied, unbonded or uninsured for a period of 60
consecutive days; or
(xiv) if on any Payment Date, the sum of (i) the then unpaid principal
balance of all Series of Notes then Outstanding and (ii) the then unpaid
Capital, exceeds an amount equal to the then Aggregate Appraised Value, and such
condition continues unremedied until the next succeeding Determination Date.
The occurrence of an Event of Default with respect to one Series of Notes shall
constitute an Event of Default with respect to all other Series of Notes then
Outstanding unless the related Supplement with respect to each such Series of
Notes shall specifically provide to the contrary.
Section 802. Acceleration of Stated Maturity; Rescission and Annulment.
(a) Upon the occurrence of an Event of Default of type described in paragraph
(v) or (vi) of Section 801, the unpaid principal balance of, and accrued
interest on, all Classes of Notes, together with all other amounts then due and
owing to the Noteholders, shall become immediately due and payable without
further action by any Person. Except as set forth in the immediately preceding
sentence, if an Event of Default under Section 801 occurs and is continuing,
then and in every such case the Requisite Global Majority may declare the
principal of and accrued interest on all Notes of all Series then Outstanding to
be due and payable immediately, by a notice in writing to the Issuer and to the
Indenture Trustee given by the Requisite Global Majority, and upon any such
declaration such principal and accrued interest shall become immediately due and
payable.
(b) At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Indenture Trustee as hereinafter in this Article provided, the Requisite
Global Majority, by written notice to the Issuer and the Indenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
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(A) all of the installments of interest and premium, if any,
on and, if the Expected Final Payment Date has occurred, principal
of all Notes which were overdue prior to the date of such
acceleration;
(B) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the Overdue Rate
for such Notes set forth in the related Supplement;
(C) all sums paid or advanced by the Indenture Trustee
hereunder or the Manager and the reasonable compensation,
out-of-pocket expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel incurred in connection
with the enforcement of this Indenture;
(D) all amounts due to any Series Enhancer;
(E) all scheduled payments then due under any Interest Rate
Swap Agreement, together with interest thereon in accordance with
the terms thereof; and
(ii) all Events of Default, other than the nonpayment of the
principal of or interest on Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 813 hereof.
No such rescission with respect to any Event of Default shall affect any
subsequent Event of Default or impair any right consequent thereon.
Section 803. Collection of Indebtedness. The Issuer covenants that, if
an Event of Default occurs and is continuing and a declaration of acceleration
has been made under Section 802 and not rescinded, the Issuer will, upon demand
of the Indenture Trustee, pay to the Indenture Trustee, for the benefit of the
Noteholders of all Series then Outstanding, all Eligible Interest Rate Swap
Counterparties and all Series Enhancers, the whole amount then due and payable
on such Notes for principal and interest, with interest upon the overdue
principal and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the Overdue Rate payable
with respect to each such Note; and, in addition thereto, such further amount as
shall be sufficient to cover all other Outstanding Obligations and the costs and
out-of-pocket expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel incurred in connection with the enforcement of this Indenture.
Section 804. Remedies. If an Event of Default shall occur and be
continuing, the Indenture Trustee, by such officer or agent as it may appoint,
shall notify the applicable Rating Agencies, if any, of such Event of Default
and shall, if instructed by the Requisite Global Majority:
(i) institute any Proceedings, in its own name and as trustee of
an express trust, for the collection of all amounts then due
and payable on the Notes of all Series or under this
Indenture or the related
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Supplement with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from
the Collateral and any other assets of the Issuer any monies
adjudged due;
(ii) subject to (A) the quiet enjoyment rights of any lessee of a
Compressor (other than the Head Lessee) and (B) the
restrictions set forth in the Intercreditor Agreement, sell
(including any sale made in accordance with Section 816
hereof), hold or lease the Collateral or any portion thereof
or rights or interest therein, at one or more public or
private transactions conducted in any manner permitted by
law;
(iii) terminate the Management Agreement and engage the Back-up
Manager or another replacement Manager;
(iv) terminate the Head Lease;
(v) institute any Proceedings from time to time for the complete
or partial foreclosure of the Lien created by this Indenture
with respect to the Collateral;
(vi) institute such other appropriate Proceedings to protect and
enforce any other rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to
enforce any other proper remedy;
(vii) exercise any remedies of a secured party under the UCC or any
applicable law and take any other appropriate action to
protect and enforce the rights and remedies of the Indenture
Trustee or the Noteholders hereunder; and
(viii) appoint a receiver or a manager over the Issuer or its
assets.
Section 805. Indenture Trustee May Enforce Claims Without Possession of
Notes. (a) In all Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all of the Noteholders, and it shall not be necessary to make
any Noteholder a party to any such Proceedings.
(b) All rights of action and claims under this Indenture, the related
Supplement or such Notes may be prosecuted and enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
Proceeding relating thereto, and any such Proceeding instituted by the Indenture
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery whether by judgment, settlement or otherwise shall, after provision for
the payment of the reasonable compensation, expenses, and disbursements incurred
and advances made, by the Indenture Trustee, its agents and counsel, be for the
ratable benefit of the Holders of
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the Notes, subject to the subordination of payments among Classes of a
particular Series as set forth in the related Supplement.
Section 806. Allocation of Money Collected. If the Notes of all Series
have been declared due and payable following an Event of Default and such
declaration and its consequences have not been rescinded or annulled, any money
collected by the Indenture Trustee pursuant to this Article or otherwise and any
other monies that may be held or thereafter received by the Indenture Trustee as
security for such Notes shall be applied, to the extent permitted by law, in the
following order, at the date or dates fixed by the Indenture Trustee:
(1) To the payment of all costs and expenses of collection
incurred by the Indenture Trustee (including the reasonable fees and expenses of
counsel to the Indenture Trustee) and of all other amounts due the Indenture
Trustee under Section 905 hereof; and
(2) To each Eligible Interest Rate Swap Counterparty, on a pro
rata basis, an amount equal to the sum of (i) any payments (other than
termination payments) then due and payable pursuant to the terms of any Interest
Rate Swap Agreement then in effect and (ii) any termination payment then due and
payable pursuant to the terms of any Interest Rate Swap Agreement then in effect
to the extent (but only to the extent) that such termination payments were not
caused by a default by the related Eligible Interest Rate Swap Counterparty;
(3) To the Series Account for each Series of Senior Notes then
Outstanding, an amount equal to the Senior Class Priority Payments (including
reimbursements payable to any Series Enhancer for interest previously paid
provided for in the related Enhancement Agreement) for each such Series. If
sufficient funds do not exist to pay in full all such Senior Class Priority
Payments, such amounts shall be allocated among the Series of Senior Notes in
the same proportion as the ratio of (x) the Senior Class Priority Payments of a
particular Series of Senior Notes then Outstanding to (y) the aggregate Senior
Class Priority Payments of all Series of Senior Notes then Outstanding;
(4) To the Series Account for each Series of Subordinate Notes
then Outstanding, an amount equal to the Subordinate Class Priority Payments for
each such Series. If sufficient funds do not exist to pay in full all such
Subordinate Class Priority Payments, such amounts shall be allocated among the
Series of Subordinate Notes in the same proportion as the ratio of (x) the
Subordinate Class Priority Payments of a particular Series of Subordinate Notes
then Outstanding to (y) the aggregate Subordinate Class Priority Payments of all
Series of Subordinate Notes then Outstanding;
(5) To the Issuer, Partnership Priority Payments and the amounts
required to be paid pursuant to the Head Lessor Margin Letter;
(6) To the Series Account for each Series of Senior Notes then
Outstanding, an amount equal to the then unpaid principal balance of such Series
of Senior Notes;
(7) To the Series Account for each Series of Subordinate Notes
then Outstanding, an amount equal to the then unpaid principal balance of such
Series of Senior Notes;
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(8) To the Issuer, an amount equal to the Partnership Preferred
Capital Payments;
(9) To the Series Account for each Series of Senior Notes then
Outstanding, an amount equal to any Indemnity Amounts (including indemnities
owing to the Series Enhancer, the Deal Agent and each Noteholder) then due and
owing pursuant to the terms of the related Supplement for such Series;
(10) To the Series Account for each Series of Subordinate Notes
then Outstanding, an amount equal to any Indemnity Amounts (including
indemnities owing to the Series Enhancer, the Deal Agent and each Noteholder)
then due and owing pursuant to the terms of the related Supplement for such
Series;
(11) To the Preferred Limited Partners, an amount equal to any
Indemnity Amounts then due and owing pursuant to the terms of the Partnership
Agreement;
(12) To each Eligible Interest Rate Swap Counterparty, on a pro
rata basis, the amount of any unpaid termination payments then due and payable
pursuant to the terms of any Interest Rate Swap Agreement then in effect; and
(13) To the Issuer, any remaining amount.
Section 807. Limitation on Suits. Except to the extent provided in
Section 808 hereof, no Noteholder shall have the right to institute any
Proceeding, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Requisite Global Majority shall have made written request
to the Indenture Trustee to institute Proceedings in respect of such
Event of Default in its own name as the Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture Trustee
reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such request
(the unsecured indemnity of a Rated Institutional Noteholder being
deemed satisfactory for such purpose);
(iv) the Indenture Trustee has, for 30 days after its receipt by a
Corporate Trust Officer of such notice, request and offer of security
or indemnity, failed to institute any such Proceeding; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 30 day period by the
Requisite Global Majority;
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it being understood and intended that no one or more Noteholders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Noteholder, or to obtain or to seek to obtain priority or preference over any
other Noteholder (except to the extent provided in the related Supplement) or to
enforce any right under this Indenture, except in the manner herein provided and
for the benefit of all Noteholders.
Section 808. Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision of this Indenture, each Noteholder
shall have the right, which is absolute and unconditional, to receive payment of
the principal of and interest on such Note as such principal and interest
becomes due and payable and to institute any Proceeding for the enforcement of
such payment, and such rights shall not be impaired without the consent of such
Holder.
Section 809. Restoration of Rights and Remedies. If the Indenture
Trustee, any Series Enhancer or any Holder has instituted any Proceeding to
enforce any right or remedy under this Indenture or the related Supplement and
such Proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Indenture Trustee, any Series Enhancer or to such
Holder, then and in every such case, subject to any determination in such
Proceeding, the Issuer, the Indenture Trustee, such Series Enhancer and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Indenture Trustee, such
Series Enhancer and the Holders shall continue as though no such Proceeding had
been instituted.
Section 810. Rights and Remedies Cumulative. No right or remedy
conferred upon or reserved to the Indenture Trustee, any Series Enhancer or to
the Holders pursuant to this Indenture or any Supplement is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 811. Delay or Omission Not Waiver. No delay or omission of the
Indenture Trustee, of any Series Enhancer or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Indenture Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Indenture Trustee or by the Holders,
as the case may be.
Section 812. Control by Requisite Global Majority. Upon the occurrence
of an Event of Default, the Requisite Global Majority 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 (i) such direction shall not be in conflict
with any rule of law or with this Indenture, including, without limitation,
Section 804 hereof, (ii) such Requisite Global Majority has offered to the
Indenture Trustee reasonable security or indemnity against costs, expenses and
liabilities which it might incur in connection therewith as
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provided in Section 902(iii) hereof and (iii) the Indenture Trustee may take any
other action deemed proper by the Indenture Trustee which is not inconsistent
with such direction.
Section 813. Waiver of Past Defaults. (a) The Requisite Global Majority
may, on behalf of all Noteholders of all Series, waive any past Event of Default
and its consequences, except an Event of Default:
(i) in the payment of the principal of, or interest on, any Note
of any Series; or
(ii) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of all the Noteholders of all
Series pursuant to Section 1002 of this Indenture.
(b) Upon any such waiver, such Event of Default shall cease to exist
and shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; provided, however, that no such waiver shall extend
to any subsequent or other Event of Default or impair any right consequent
thereon.
Section 814. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as the
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided, however, that the provisions of this Section shall not apply to any
suit instituted by the Indenture Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% of the aggregate
principal balance of the Notes of all Series then Outstanding, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
or interest on any Note on or after the Expected Final Payment Date of such
Note.
Section 815. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 816. Sale of Collateral. (a) The power to effect any sale (a
"Sale") of any portion of the Collateral pursuant to Section 804 hereof shall
not be exhausted by any one or more Sales as to any portion of the Collateral
remaining unsold, but shall continue unimpaired until the entire Collateral
shall have been sold or all Outstanding Obligations shall have been paid. The
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Indenture Trustee (at the direction of the Requisite Global Majority) may from
time to time postpone any Sale by public announcement made at the time and place
of such Sale.
(b) Upon any Sale, whether made under the power of sale hereby given or
under judgment, order or decree in any Proceeding for the foreclosure or
involving the enforcement of this Indenture: (i) the Indenture Trustee, at the
written direction of the Requisite Global Majority, may bid for and purchase the
property being sold, and upon compliance with the terms of such Sale may hold,
retain and possess and dispose of such property in accordance with the terms of
this Indenture; and (ii) the receipt of the Indenture Trustee or of any officer
thereof making such Sale shall be a sufficient discharge to the purchaser or
purchasers at such Sale for its or their purchase money, and such purchaser or
purchasers, and its or their assigns or personal representatives, shall not,
after paying such purchase money and receiving such receipt of the Indenture
Trustee or of such officer therefor, be obliged to see to the application of
such purchase money or be in any way answerable for any loss, misappropriation
or non-application thereof.
(c) The Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion of the
Collateral in connection with a Sale thereof. In addition, the Indenture Trustee
is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to
transfer and convey its interest (subject to lessee's rights of quiet enjoyment)
in any portion of the Collateral in connection with a Sale thereof, and to take
all action necessary to effect such Sale. No purchaser or transferee at such a
Sale shall be bound to ascertain the Indenture Trustee's authority, inquire into
the satisfaction of any conditions precedent or see to the application of any
monies.
(d) The Indenture Trustee acknowledges that its right to sell, transfer
or otherwise convey any Interest Rate Swap Agreement or exercise any foreclosure
rights with respect thereto shall be subject to compliance with the provisions
of the applicable Interest Rate Swap Agreement.
Section 817. Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture or any Supplement shall
not be affected by the seeking, obtaining or application of any other relief
under or with respect to this Indenture or any Supplement. Neither the Lien of
this Indenture nor any rights or remedies of the Indenture Trustee, any Series
Enhancer or the Noteholders shall be impaired by the recovery of any judgment by
the Indenture Trustee against the Issuer or by the levy of any execution under
such judgment upon any portion of the Collateral or upon any of the assets of
the Issuer.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 901. Duties of the Indenture Trustee. The Indenture Trustee,
prior to the occurrence of an Event of Default or after the cure or waiver of
any Event of Default that may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture and the
related Supplement and no implied duties shall be inferred against it. If an
Event of Default with respect to any Series has occurred and is continuing, the
Indenture Trustee, at the written direction of the Requisite Global Majority,
shall exercise such of the rights and powers
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vested in it by this Indenture and the related Supplement, and use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
The Indenture Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Indenture Trustee which are specifically required to be furnished
pursuant to any provisions of this Indenture and any applicable Supplement,
shall determine whether they are substantially in the form required by this
Indenture and any applicable Supplement; provided, however, that the Indenture
Trustee shall not be responsible for the accuracy or content (including
mathematical calculations) of any such resolution, certificate, statement,
opinion, report, document, order or other instrument furnished pursuant to this
Indenture and any applicable Supplement.
No provision of this Indenture or any Supplement shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided, however,
that:
(i) Prior to the occurrence of an Event of Default and after the cure
or waiver of any Event of Default that may have occurred, the duties and
obligations of the Indenture Trustee shall be determined solely by the
express provisions of this Indenture and any Supplements issued pursuant to
the terms hereof. The Indenture Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Indenture and any Supplements issued pursuant to the terms hereof, and
no implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee and, in the absence of bad faith on the part
of the Indenture Trustee, the Indenture Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates, statements, reports, documents,
orders, opinions or other instruments (whether in their original or
facsimile form) furnished to the Indenture Trustee and conforming to the
requirements of this Indenture and any Supplements issued pursuant to the
terms hereof;
(ii) The Indenture Trustee shall not be liable for an error of judgment
made in good faith by a Corporate Trust Officer or Corporate Trust Officers
of the Indenture Trustee, unless it shall be proved that the Indenture
Trustee was negligent in ascertaining the pertinent facts; and
(iii) The Indenture Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Requisite Global Majority 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.
No provisions of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate security or indemnity against such risk or liability is not
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reasonably assured to it (the unsecured indemnity of (A) a Rated Institutional
Noteholder, or (B) any Series Enhancer (so long as its claims paying ability is
rated "AAA" or "Aaa", as applicable) shall not constitute reasonable grounds for
believing that repayment of any such funds is not reasonably assured to it.)
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Indenture Trustee shall be subject to the provisions of this
Section 901.
Section 902. Certain Matters Affecting the Indenture Trustee. Except as
otherwise provided in Section 901 hereof:
(i) The Indenture Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any Opinion of Counsel,
certificate of an officer of the Manager, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document (whether in its
original or facsimile form) reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) The Indenture Trustee may consult with counsel of its selection
and any advice of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance in reliance thereof;
(iii) The Indenture Trustee shall be under no obligation to institute,
conduct or defend any litigation or proceeding hereunder or in relation
hereto at the request, order or direction of the Requisite Global Majority,
pursuant to the provisions of this Indenture, unless the Requisite Global
Majority shall have offered to the Indenture Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby (the unsecured indemnity of (A) a
Rated Institutional Noteholder being deemed satisfactory for such purpose
or (B) any Series Enhancer (so long as its claims paying ability is rated
"AAA" or "Aaa", as applicable) being deemed satisfactory for such purpose);
(iv) The Indenture Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(v) 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, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
the Requisite Global Majority; provided, however, that the Indenture
Trustee may require reasonable security or indemnity satisfactory to it
against any cost, expense or liability likely to be incurred in making such
investigation as a condition to so proceeding (the unsecured indemnity of
(A) a Rated Institutional Noteholder being deemed satisfactory for such
purposes or (B) any Series Enhancer (so long as its claims paying ability
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is rated "AAA" or "Aaa," as applicable,) being deemed satisfactory for such
purpose). The reasonable expense of any such examination shall be paid, on
a pro rata basis, by the Noteholders or, if paid by the Indenture Trustee,
shall be reimbursed by such Noteholders upon demand;
(vi) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its 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 by it with due care hereunder; provided, however, that any
agreement with an agent or an attorney shall provide for due care by such
agent or attorney in respect of the Issuer;
(vii) The Indenture Trustee shall not be charged with knowledge of any
default or Event of Default unless either a Corporate Trust Officer of the
Indenture Trustee shall have actual knowledge or written notice of such
shall have been actually received by a Corporate Trust Officer of the
Indenture Trustee; and
(viii) the rights, privileges, protections, immunities and benefits
given to the Indenture Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Indenture
Trustee in each of its capacities hereunder, and to each agent, custodian
and other Person employed to act hereunder.
The provisions of this Section 902 shall be applicable to the Indenture
Trustee in its capacity as the Indenture Trustee under this Indenture.
Section 903. Indenture Trustee Not Liable. (a) The recitals contained
herein (other than the representations and warranties contained in Section 911
hereof), in any Supplement and in the Notes (other than the certificate of
authentication on the Notes) shall be taken as the statements of the Issuer, 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, any Supplement, the Notes, the Collateral or of any related
document. The Indenture Trustee shall not be accountable for the use or
application by the Issuer of any of the Notes or of the proceeds thereof, or for
the use or application of any funds paid to the Issuer or the Manager in respect
of the Collateral.
(b) The Indenture Trustee shall have no responsibility or liability for
or with respect to the existence or validity of any Compressor, the perfection
of any security interest (whether as of the date hereof or at any future time),
the maintenance of or the taking of any action to maintain such perfection, the
validity of the assignment of any portion of the Collateral to the Indenture
Trustee or of any intervening assignment, the compliance by any Universal Party
with any covenant or the breach by any Universal Party of any warranty or
representation made hereunder, in any Supplement or in any related document or
the accuracy of such warranty or representation, any investment of monies in the
Trust Account or any Series Account or any loss resulting therefrom (provided
that such investments are made in accordance with the provisions of Section 303
hereof), or the acts or omissions of the Seller or the Manager taken in the name
of the Indenture Trustee.
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(c) Except as expressly provided herein or in any Supplement, the
Indenture Trustee shall not have any obligation or liability under any Contract
by reason of or arising out of this Indenture or the granting of a security
interest in such Contract hereunder or the receipt by the Indenture Trustee of
any payment relating to any Contract pursuant hereto, nor shall the Indenture
Trustee be required or obligated in any manner to perform or fulfill any of the
obligations of the Issuer, the Seller or the Manager under or pursuant to any
Contract, or to make any payment, or to make any inquiry as to the nature or the
sufficiency of any payment received by it, or the sufficiency of any performance
by any party, under any Contract.
Section 904. Indenture Trustee May Own Notes. The Indenture Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
with the same rights it would have if it were not the Indenture Trustee;
provided that such transaction shall not result in the disqualification of the
Indenture Trustee for purposes of Rule 3a-7 under the Investment Company Act of
1940.
Section 905. Indenture Trustee's Fees and Expenses. The fees
("Indenture Trustee Fees") of the Indenture Trustee shall be paid by the Issuer
in accordance with Section 302 hereof and shall in no event exceed $12,000 per
year. Subject to the provisions of Section 902(iii) hereof, the Issuer shall, to
the extent not paid by the Manager, indemnify the Indenture Trustee and each of
its officers, directors and employees for, and hold them harmless against, any
loss, liability, damage claim or expense incurred without negligence or willful
misconduct on their part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself both individually and in its representative capacity against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder ("Indenture Trustee Indemnified Amounts").
The obligations of the Issuer under this Section 905 to compensate the
Indenture Trustee, to pay or reimburse the Indenture Trustee for expenses,
disbursements and advances and to indemnify and hold harmless, the Indenture
Trustee shall constitute Outstanding Obligations hereunder and shall survive the
resignation or removal of the Indenture Trustee and the satisfaction and
discharge of this Indenture.
When the Indenture Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(v) or Section
801(vi), the expenses and the compensation for the services are intended to
constitute expenses of administration under any bankruptcy law.
Section 906. Eligibility Requirements for the Indenture Trustee. The
Indenture Trustee hereunder shall at all times be a national banking association
or a corporation, organized and doing business under the laws of the United
States of America or any State, and authorized under such laws to exercise
corporate trust powers. In addition, the Indenture Trustee or its parent
corporation shall at all times (i) have a combined capital and surplus of at
least $250,000,000, (ii) be subject to supervision or examination by Federal or
state authority and (iii) have a long-term unsecured senior debt rating of "A-2"
or better by Xxxxx'x Investors Service, Inc. and a long-term unsecured senior
debt rating of "A" by Standard & Poor's Rating Services and short-term unsecured
senior debt rating of "P-1" or better by Xxxxx'x Investors Service, Inc. and a
short-term unsecured
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senior debt rating of "A-2" by Standard & Poor's Rating Services. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of such supervising or examining authority, then, for the
purposes of this Section 906, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Indenture Trustee shall cease to be eligible in accordance with the provisions
of this Section, the Indenture Trustee shall resign promptly in the manner and
with the effect specified in Section 907 hereof.
Section 907. Resignation and Removal of the Indenture Trustee. The
Indenture Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Issuer, the Manager, the
Deal Agent, each Series Enhancer and the Noteholders. Upon receiving such notice
of resignation, the Issuer shall promptly appoint a successor trustee by written
instrument, a copy of which original instrument shall be delivered to the
resigning Indenture Trustee and the successor Indenture Trustee. A copy of the
instrument shall also be delivered to the Deal Agent. If no successor Indenture
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the Requisite Global
Majority may appoint a successor trustee or, if it does not do so within 30 days
thereafter, the resigning Indenture Trustee, with the consent of the Deal Agent
and each Series Enhancer, may petition at the expense of the Issuer any court of
competent jurisdiction for the appointment of a successor trustee, which
successor trustee shall meet the eligibility standards set forth in Section 906.
If at any time the Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 906 hereof and shall fail to resign
after written request therefor by the Issuer, any Series Enhancer or the
Manager, or if at any time 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 the
Issuer shall remove the Indenture Trustee and appoint a successor Indenture
Trustee by written instrument, in duplicate, one copy of which original
instrument shall be delivered to the Indenture Trustee so removed and one copy
to the successor Indenture Trustee.
Any resignation or removal of the Indenture Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 908 hereof.
Section 908. Successor Indenture Trustee. Any successor Indenture
Trustee appointed as provided in Section 907 hereof shall execute, acknowledge
and deliver to the Issuer and to its predecessor Indenture Trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Indenture Trustee shall become effective and such successor
Indenture Trustee, without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as the Indenture
Trustee herein. The predecessor Indenture Trustee shall upon payment of all
charges due it, its agents and counsel deliver to the successor Indenture
Trustee all documents relating to the Collateral, if any, delivered to it,
together with any amount remaining in the Trust Account, and any other Series
Accounts. In addition, the predecessor Indenture Trustee and, upon request of
the successor Indenture Trustee, the Issuer shall execute and deliver such
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instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Indenture Trustee
all such rights, powers, duties and obligations.
No successor Indenture Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Indenture
Trustee shall be eligible under the provisions of Section 906 hereof and a
Requisite Global Majority has not objected to such appointment within ten (10)
days.
Upon acceptance of appointment by a successor Indenture Trustee as
provided in this Section, the Issuer shall mail notice of the succession of such
Indenture Trustee hereunder to all Noteholders at their addresses as shown in
the registration books maintained by the Indenture Trustee. If the Issuer fails
to mail such notice within 10 days after acceptance of appointment by the
successor Indenture Trustee, the successor Indenture Trustee shall cause such
notice to be mailed at the expense of the Issuer.
Section 909. Merger or Consolidation of the Indenture Trustee. Any
entity into which the Indenture Trustee may be merged or converted or with which
it may be consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Indenture Trustee shall be a party, or any entity
succeeding to the business of the Indenture Trustee, shall be the successor of
the Indenture Trustee hereunder, provided such entity shall be eligible under
the provisions of Section 906 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 910. Separate Indenture Trustees, Co-Indenture Trustees and
Custodians. If the Indenture Trustee is not capable of acting outside the United
States, it shall have the power from time to time to appoint one or more Persons
or corporations to act either as co-trustees jointly with the Indenture Trustee,
or as separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any of the Collateral,
when such separate trustee or co-trustee is necessary or advisable under any
applicable laws or for the purpose of otherwise conforming to any legal
requirement, restriction or condition in any applicable jurisdiction. The
separate trustees, co-trustees, or custodians so appointed shall be trustees,
co-trustees, or custodians for the benefit of all Noteholders and shall have
such powers, rights and remedies as shall be specified in the instrument of
appointment; provided, however, that no such appointment shall, or shall be
deemed to, constitute the appointee an agent of the Indenture Trustee. The
Issuer shall join in any such appointment, but such joining shall not be
necessary for the effectiveness of such appointment.
Every separate trustee, co-trustee and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody and payment of moneys
shall be exercised solely by the Indenture Trustee;
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(ii) all other 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 separate trustee,
co-trustee, or custodian 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
(including the holding of title to the Collateral or any portion thereof in
any such jurisdiction) shall be exercised and performed by such separate
trustee, co-trustee or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Issuer or the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee, co-trustee or custodian so
appointed by it or them if such resignation or removal does not violate the
other terms of this Indenture.
Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee, or custodian shall refer to this
Indenture and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be furnished to the Indenture Trustee and each Series Enhancer.
Any separate trustee, co-trustees, or custodian may, at any time,
constitute the Indenture Trustee, its agent or attorney-in-fact, with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee, co-trustee, or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee or custodian.
No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
906 hereof and no notice to Noteholders of the appointment thereof shall be
required under Section 908 hereof.
The Indenture Trustee agrees to instruct the co-trustees, if any, to
the extent necessary to fulfill the Indenture Trustee's obligations hereunder.
Section 911. Representations and Warranties. The Indenture Trustee
hereby represents and warrants as of the Effective Date of each Series that:
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(a) Organization and Good Standing. The Indenture Trustee is a national
banking association duly organized, validly existing and in good standing under
the laws of the United States of America, and has the power to own its assets
and to transact the business in which it is presently engaged;
(b) Authorization. The Indenture Trustee has the power, authority and
legal right to execute, deliver and perform this Indenture and each Supplement
and to authenticate the Notes, and the execution, delivery and performance of
this Indenture and each Supplement and the authentication of the Notes has been
duly authorized by the Indenture Trustee by all necessary corporate action;
(c) Binding Obligations. This Indenture and each Supplement, assuming
due authorization, execution and delivery by the Issuer, constitutes the legal,
valid and binding obligations of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, except that (i) such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws (whether statutory, regulatory or decisional) now or hereafter in
effect relating to creditors' rights generally and the rights of trust companies
in particular and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to certain equitable defenses and
to the discretion of the court before which any proceeding therefor may be
brought, whether in a proceeding at law or in equity;
(d) No Violation. The performance by the Indenture Trustee of its
obligations under this Indenture and each Supplement will not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice, lapse of time or both) a default under, the charter documents
or bylaws of the Indenture Trustee;
(e) No Proceedings. There are no proceedings or investigations to which
the Indenture Trustee is a party pending, or, to the knowledge of the Indenture
Trustee without independent investigation, threatened, before any court,
regulatory body, administrative agency or other tribunal or Governmental
Authority (A) asserting the invalidity of this Indenture or the Notes, (B)
seeking to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Indenture or (C) seeking any determination or
ruling that would materially and adversely affect the performance by the
Indenture Trustee of its obligations under, or the validity or enforceability
of, this Indenture or the Notes; and
(f) Approvals. Neither the execution or delivery by the Indenture
Trustee of this Indenture nor the consummation of the transactions by the
Indenture Trustee contemplated hereby requires the consent or approval of, the
giving of notice to, the registration with or the taking of any other action
with respect to any Governmental Authority under any existing federal or State
of Minnesota law governing the banking or trust powers of the Indenture Trustee.
(g) Control of Indenture Trustee. The Indenture Trustee is not directly
or indirectly controlled by Universal or any of its Affiliates. The Indenture
Trustee will promptly notify the Issuer, each Series Enhancer, the Deal Agent
and the Contributor if it at any time it becomes controlled by Universal or any
of its affiliates.
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(h) Knowledge of Adverse Claims. Xxxxx Fargo Bank Minnesota, National
Association does not have any knowledge of adverse claim with respect to the
Collateral in which the security interest is being granted.
Section 912. Indenture Trustee Offices. The Indenture Trustee shall
maintain in the State of Minnesota an office or offices or agency or agencies
where Notes may be surrendered for registration of transfer or exchange, which
office shall initially be located at MAC X0000-000, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 and shall promptly notify the Issuer, the
Manager and the Noteholders of any change of such location.
Section 913. Notice of Event of Default. If a Corporate Trust Officer
of the Indenture Trustee shall have actual knowledge that an Event of Default
with respect to any Series shall have occurred and be continuing, the Indenture
Trustee shall promptly (but in any event within five (5) Business Days) give
written notice thereof to each Noteholder and any Rating Agency and Series
Enhancer of such Series. For all purposes of this Indenture, in the absence of
actual knowledge by a Corporate Trust Officer of the Indenture Trustee, the
Indenture Trustee shall not be deemed to have actual knowledge of any Event of
Default unless notified in writing thereof by the Issuer, the Seller, the
Manager, any Series Enhancer or any Noteholder, and such notice references the
applicable Series of Notes generally, the Issuer, this Indenture or the
applicable Supplement.
Section 914. Indenture Trustee's Application for Instructions from the
Issuer. Any application by the Indenture Trustee for written instructions from
the Issuer may, at the option of the Indenture Trustee, set forth in writing any
action proposed to be taken or omitted by the Indenture Trustee under this
Indenture and the date on and/or after which such action shall be taken or such
omission shall be effective. The Indenture Trustee shall not be liable for any
action taken by, or omission of, the Indenture Trustee in accordance with a
proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the
date any officer of the Issuer actually receives such application, unless any
such officer shall have consented in writing to any earlier date) unless prior
to taking any such action (or the effective date in the case of an omission),
the Indenture Trustee shall have received written instructions in response to
such application specifying the action to be taken or omitted.
Section 915. Indenture Trustee's Duties - Quarterly Tape. Pursuant to
the Management Agreement, the Manager is required to deliver to the Indenture
Trustee and the Indenture Trustee hereby covenants to accept, on the Closing
Date and within thirty (30) days after the end of each calendar quarter
thereafter, the Quarterly Tape, which Quarterly Tape shall contain each User's
name, address, telephone number, location of Compressor(s), monthly rental rate,
maintenance information and other pertinent terms and conditions of the User
Lease; provided, however, that the Quarterly Tape is in a format to be agreed
upon the by Manager and the Indenture Trustee.
Section 916. Indenture Trustee's Duties - Monthly Tape. (a) Pursuant to
the Management Agreement the Manager is required to deliver to the Indenture
Trustee and the Indenture Trustee hereby consents to accept, on each
Determination Date, the Monthly Tape, which Monthly Tape shall contain the data
necessary or desirable for the Indenture Trustee to recompute the monthly
distributions under this Indenture and the Head Lease. The Indenture Trustee
shall notify
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the Issuer, the Manager, any Eligible Swap Counterparty and any Series Enhancer
in writing of any material inconsistencies between the related Manager Report
and the Monthly Tape and of any information that is missing from such Manager
Report and shall confirm conformity of actual Manager remittances to such
Manager Report.
(b) If the Manager disagrees with the computations provided under
paragraph (a) above by the Indenture Trustee or if the Manager has not
reconciled such discrepancy, the Indenture Trustee agrees to confer with the
Manager to resolve such disagreement on or prior to the next succeeding
Determination Date and shall settle such discrepancy with the Manager, and
notify the Deal Agent and any Series Enhancer of the resolution thereof. The
Manager xxxxxx agrees to cooperate, at its own expense, with the Indenture
Trustee in reconciling any discrepancies herein. If within thirty (30) days of
notice to the Manager, any Series Enhancer, the Deal Agent and the Indenture
Trustee, such discrepancy is not resolved, the Indenture Trustee shall promptly
notify the Indenture Trustee and any Series Enhancer of such discrepancy.
Following receipt of such notice from the Indenture Trustee, the Manager shall
deliver to the Rating Agencies, the Noteholders, any Series Enhancer, any
Eligible Swap Counterparty and the Indenture Trustee no later than the related
Payment Date a certificate describing the nature and cause of such discrepancies
and the Manager shall hire independent accountants (who may also provide other
services to the Manager), at Manager's expense, to examine the Manager Report
and attempt to reconcile discrepancies at the earliest possible date. The
result, if any, of such reconciliation shall be reflected in the Manager Report
for the next succeeding Determination Date.
Other than the duties specifically set forth in this Indenture, the
Indenture Trustee shall have no obligations hereunder, including, without
limitation, to supervise, verify, monitor or administer the performance of the
Manager. The Indenture Trustee shall have no liability for any actions taken or
omitted by the Manager. The duties and obligations of the Indenture Trustee
shall be determined solely by the express provisions of this Indenture and no
implied covenants or obligations shall be read into this Indenture against the
Indenture Trustee.
ARTICLE X
SUPPLEMENTAL INDENTURES; AMENDMENTS
Section 1001. Supplemental Indentures (Not Creating a New Series) Not
Requiring Consent of Holders. (a) Without the consent of any Holder and based on
an Opinion of Counsel in form and substance reasonably acceptable to the
Requisite Global Majority to the effect that such Supplement is for one of the
purposes set forth in clauses (i) through (vii) below, the Issuer and the
Indenture Trustee, at any time and from time to time, may, with the consent of
each affected Series Enhancer, enter into an amendment hereto or into one or
more Supplements in form satisfactory to the Indenture Trustee, for any of the
following purposes; provided, however, if any party to this Indenture is unable
to sign any amendment due to its dissolution, winding up or comparable
circumstances, then the consent of the Noteholders representing at least 51% of
the Existing Commitments of all Series then Outstanding shall be sufficient to
amend this Indenture without such party's signature:
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(i) to add to the covenants of the Issuer in this Indenture for
the benefit of the Holders of all Series then Outstanding or of any
Series Enhancer, or to surrender any right or power conferred upon the
Issuer in this Indenture;
(ii) to cure any ambiguity, to correct or supplement any provision
in this Indenture which may be inconsistent with any other provision in
this Indenture, or to make any other provisions with respect to matters
or questions arising under this Indenture;
(iii) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required
to be subjected to the Lien of this Indenture, or to subject additional
property to the Lien of this Indenture;
(iv) to add to the conditions, limitations and restrictions on the
authorized amount, terms and purposes of issue, authentication and
delivery of the Notes, as herein set forth, or additional conditions,
limitations and restrictions thereafter to be observed by the Issuer;
(v) to convey, transfer, assign, mortgage or pledge any additional
property to or with the Indenture Trustee;
(vi) to evidence the succession of the Indenture Trustee pursuant
to Article IX; or
(vii) to add any additional Events of Default.
Prior to the execution of any amendment or Supplement issued pursuant to this
Section 1001, the Issuer shall provide written notice to each Rating Agency
setting forth in general terms the substance of any such amendment or
Supplement.
(b) Promptly after the execution by the Issuer and the Indenture
Trustee of any amendment or Supplement pursuant to this Section 1001, the
Indenture Trustee shall mail to the Holders of all Notes then Outstanding, each
Rating Agency, each Eligible Interest Rate Swap Counterparty and Series Enhancer
related to such Series, a notice setting forth in general terms the substance of
such amendment or Supplement, together with a copy of the text of such amendment
or Supplement. Any failure of the Issuer to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such amendment or Supplement.
Section 1002. Supplemental Amendment (Not Creating a New Series) with
Consent of Holders. (a) With the consent of the Requisite Global Majority and
each affected Series Enhancer, the Issuer and the Indenture Trustee may enter
into an amendment or a Supplement hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however, if any party to this Indenture is unable to
sign any amendment due to its dissolution, winding up or comparable
circumstances, then the consent of the Noteholders
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representing at least 51% of the Existing Commitments of all Series then
Outstanding shall be sufficient to amend this Indenture without such party's
signature: provided, further, that no such amendment or Supplement shall amend
or modify the terms of any Supplement related to a particular Series (i.e., the
Supplement establishing the Principal Terms of such Series) without the consent
of the Control Party for such Series; and provided, further, that no such
amendment or Supplement shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) reduce the principal amount of any Note or the rate of
interest thereon, change the priority of any payments required pursuant
to this Indenture or any Supplement, or the date on which, or the place
of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Final Maturity Date
thereof;
(ii) reduce the percentage of Outstanding Notes or commitments of
the Noteholders or the Partners required for (a) the consent of any
Supplement to this Indenture, (b) the consent required for any waiver
of compliance with certain provisions of this Indenture or certain
Events of Default hereunder and their consequences as provided for in
this Indenture or (c) the consent required to waive any payment default
on the Notes;
(iii) modify any of the provisions of this Section except to
increase any percentage provided herein, or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected thereby;
(iv) modify or alter the definition of the terms "Outstanding,"
"Requisite Global Majority", "Asset Base", "Overcollateralization
Event", "Net Revenue Event", "Trigger Event", "Existing Commitment",
"Eligible Compressor" or "Initial Commitment";
(v) impair or adversely affect the Collateral except as otherwise
permitted herein;
(vi) modify or alter Section 702 of this Indenture;
(vii) permit the creation of any Lien ranking prior to or on a
parity with the Lien of this Indenture with respect to any part of the
Collateral or terminate the Lien of this Indenture on any property at
any time subject hereto or deprive the Holder of any Note of the
security afforded by the Lien of this Indenture; or
(viii) modify any of the provisions of this Indenture in such a
manner as to affect the amount or timing of any payments of interest or
principal due on any Note.
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Prior to the execution of any amendment or Supplement issued pursuant to this
Section 1002, the Issuer shall provide a written notice to each Rating Agency
setting forth in general terms the substance of any such amendment or
Supplement.
(b) Promptly after the execution by the Issuer and the Indenture
Trustee of any amendment or Supplement pursuant to this Section, the Issuer
shall mail to the Holders of the Notes, each Rating Agency, each Eligible
Interest Rate Swap Counterparty and Series Enhancer related to such Series, a
notice setting forth in general terms the substance of such amendment or
Supplement, together with a copy of the text of such amendment or Supplement.
Any failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment or
Supplement.
Section 1003. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, a Supplement permitted by this
Article or the modification thereby of the trusts created by this Indenture, the
Indenture Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
Supplement is authorized or permitted by this Indenture. The Indenture Trustee
may, but shall not be obligated to, enter into any such Supplement which affects
the Indenture Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 1004. Effect of Supplemental Indentures. Upon the execution of
any Supplement under this Article, this Indenture shall be modified in
accordance therewith, and such Supplement shall form a part of this Indenture
for all purposes, and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 1005. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any Supplement pursuant to
this Article may, and shall if required by the Issuer, bear a notation in form
approved by the Indenture Trustee as to any matter provided for in such
Supplement. If the Issuer shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee, may be prepared and executed
by the Issuer and authenticated and delivered by the Indenture Trustee in
exchange for Outstanding Notes.
Section 1006. Issuance of Series of Notes. (a) The Issuer may from time
to time direct the Indenture Trustee in writing to execute and authenticate one
or more Series of Notes (each, a "Series").
(b) On or before the Series Issuance Date relating to any Series, the
Issuer and the Indenture Trustee will execute and deliver a Supplement which
will specify the Principal Terms of such Series. The terms of such Supplement
may modify or amend the terms of this Indenture solely as applied to such
Series, and, with the consent of the Control Party for any other Series, may
amend this Indenture as applicable to such other Series, in accordance with
Section 1002 hereof. The obligation of the Indenture Trustee to authenticate,
execute and deliver the Notes of such Series and to execute and deliver the
related Supplement is subject to the satisfaction of the following conditions:
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(i) except for any Supplement executed on the Closing Date on or
before the tenth Business Day immediately preceding the Series Issuance Date
(unless the parties to be notified agree to a shorter notice period), the Issuer
shall have given the Indenture Trustee, the Manager, the Deal Agent, each Rating
Agency (and, if such additional Series is to be registered pursuant to the
Securities Act, all Rating Agencies that have rated any prior Series) and any
Series Enhancer entitled thereto pursuant to the relevant Supplement notice of
the Series and the Series Issuance Date;
(ii) the Issuer shall have delivered to the Indenture Trustee the
related Supplement, in form satisfactory to the Indenture Trustee, executed by
the Issuer;
(iii) the Issuer shall have delivered to the Indenture Trustee any
related Enhancement Agreement executed by each of the parties thereto;
(iv) the Rating Agency Condition shall have been satisfied with
respect to all Series;
(v) the Issuer shall have delivered to the Indenture Trustee, each
Rating Agency, each Series Enhancer and, if required, any Noteholder, any
Opinions of Counsel required by the related Supplement, including without
limitation with respect to true sale, enforceability, non-consolidation and
security interest perfection issues;
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate of the Issuer stating that no Trigger Event or Event of
Default has occurred and is then continuing and that there is not a substantial
likelihood that the issuance of such additional Series would result in a Trigger
Event or an Event of Default at any time in the future;
(vii) such other conditions as shall be specified in the related
Supplement; and
(viii) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate that all of the conditions specified in clauses (i)
through (vii) have been satisfied.
Upon satisfaction of the above conditions, the Indenture Trustee shall execute
the Supplement and authenticate, execute and deliver the Notes of such Series.
ARTICLE XI
HOLDERS LISTS
Section 1101. Indenture Trustee to Furnish Issuer Names and Addresses
of Holders. Unless otherwise provided in the related Supplement, the Indenture
Trustee will furnish or cause to be furnished to the Issuer and each Series
Enhancer (i) not more than 10 days after receipt of a request from the Issuer, a
list, in such form as the Issuer may reasonably require, of the names and
addresses and tax identification numbers of the Holders of Notes as of such
Date, and (ii) at such other times as the Issuer may request in writing, within
30 days after the receipt by the Issuer of any
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such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished.
Section 1102. Preservation of Information; Communications to Holders.
The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Indenture Trustee as provided in Section 1101 and the
names and addresses of Holders received by the Indenture Trustee in its capacity
as Note Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in Section 1101 upon receipt of a new list so furnished.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 1201. Compliance Certificates and Opinions. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture or any Supplement, the Issuer shall
furnish to the Indenture Trustee a certificate stating that all conditions
precedent, if any, provided for in this Indenture and any relevant Supplement
relating to the proposed action have been complied with and, if deemed
reasonably necessary by the Indenture Trustee or if required pursuant to the
terms of this Indenture, an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether such covenant or
condition has been complied with; and
(ii) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1202. Form of Documents Delivered to Indenture Trustee. (a) In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) 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 knows that the
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certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous.
(c) 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 1203. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture or
any Supplement to be given or taken by Holders may be (i) embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing, (ii) evidenced
by the written consent or direction of Holders of the specified percentage of
the principal amount of the Notes, or (iii) evidenced by a combination of such
instrument or instruments; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments and
record are delivered to the Indenture Trustee and, where it is hereby expressly
required, to the Issuer. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Indenture Trustee and the Issuer, if
made in the manner provided in this Section 1203.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
Section 1204. Inspection. (a) Upon reasonable request, the Issuer
agrees that it shall make available to any representative of the Indenture
Trustee, the Deal Agent, any Eligible Interest Rate Swap Counterparty or any
Series Enhancer and their duly authorized representatives, attorneys or
accountants, for inspection and copying its books of account, records and
reports relating to the Compressors and copies of all Leases or other documents
relating thereto. The Indenture Trustee, Series Enhancers and Noteholders shall
and shall cause their respective representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing). Each of
Indenture Trustee, Series Enhancers and Noteholders agree that it and its
shareholders, directors, agents, accountants and attorneys shall keep
confidential any matter of which it becomes aware through such inspections or
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discussions (unless readily available from public sources), except as may be
otherwise required by regulation, law or court order or required by appropriate
governmental authorities or as necessary to preserve its rights or security
under or to enforce the Related Documents, provided that the foregoing shall not
limit the right of the Series Enhancer to make such information available to its
regulators, securities rating agencies, reinsurers and credit and liquidity
providers whom the Series Enhancer reasonably believes will respect the
confidential nature of such information. Any expense incident to the reasonable
exercise by the Indenture Trustee, Series Enhancer or any Noteholder of any
right under this Section shall be borne by the Person exercising such right
unless an Event of Default shall have occurred and then be continuing in which
case such expenses shall be borne by the Issuer.
(b) The Issuer also agrees to allow the Indenture Trustee, Deal Agent,
any Eligible Interest Rate Swap Counterparty, any Series Enhancer or any
prospective owner to inspect the Manager's facilities during normal business
hours. Subject in all cases to the disclosure requirements and regulations
promulgated under the Exchange Act.
Section 1205. Limitation of Rights. Except as expressly set forth in
this Indenture, this Indenture shall be binding upon the Issuer, the Noteholders
and their respective successors and permitted assigns and shall not inure to the
benefit of any Person other than the parties hereto, the Noteholders and the
Manager as provided herein. Notwithstanding the previous sentence, the parties
hereto, the Seller and the Manager acknowledge that any Series Enhancer for a
Series of Notes and any Eligible Interest Rate Swap Counterparty is an express
third party beneficiary hereof entitled to enforce its rights hereunder as if
actually a party hereto.
Section 1206. Severability. If any provision of this Indenture is held
to be in conflict with any applicable statute or rule of law or is otherwise
held to be unenforceable for any reason whatsoever, such circumstances shall not
have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever.
The invalidity of any one or more phrases, sentences, clauses or
Sections of this Indenture shall not affect the remaining portions of this
Indenture, or any part thereof.
Section 1207. Notices. All demands, notices and communications
hereunder shall be in writing, personally delivered, or by facsimile (with
subsequent telephone confirmation of receipt thereof), or sent by
internationally recognized overnight courier service, (a) in the case of the
Indenture Trustee, at the following address: MAC X0000-000 Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services-Asset-Backed Administration (b) in the case of the Issuer, at the
following address: 0000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: General Counsel, (c) in the case of each Rating Agency, its address
set forth in the related Supplement, in the case of any Series Enhancer, at its
address set forth in the related Supplement, or at other such address as shall
be designated by such party in a written notice to the other parties. Any notice
required or permitted to be given to a Noteholder shall be given by certified
first class mail, postage prepaid (return receipt requested), or by courier, or
by facsimile, with subsequent telephone confirmation of receipt thereof, in each
case at the address of such Holder as shown in the Note Register or to the
telephone and fax number furnished by such Noteholder.
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Notice shall be effective and deemed received (a) two days after being delivered
to the courier service, if sent by courier, (b) upon receipt of confirmation of
transmission, if sent by facsimile, or (c) when delivered, if delivered by hand.
Any rights to notices conveyed to a Rating Agency pursuant to the terms of this
Indenture with respect to any Series or Class shall terminate immediately if
such Rating Agency no longer has a rating outstanding with respect to such
Series or Class.
Section 1208. Consent to Jurisdiction. ANY LEGAL SUIT, ACTION OR
PROCEEDING AGAINST THE ISSUER ARISING OUT OF OR RELATING TO THIS INDENTURE, OR
ANY TRANSACTION CONTEMPLATED HEREBY, MAY BE INSTITUTED IN ANY FEDERAL OR STATE
COURT IN THE CITY OF NEW YORK, STATE OF NEW YORK AND THE ISSUER HEREBY WAIVES
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING, AND, SOLELY FOR THE PURPOSES OF ENFORCING THIS
INDENTURE, THE ISSUER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE
ISSUER HEREBY CONSENTS TO SERVICE OF PROCESS BY REGISTERED MAIL, FEDERAL EXPRESS
OR SIMILAR COURIER SERVICE AT THE ADDRESS AT WHICH NOTICES ARE TO BE GIVEN, IT
BEING AGREED THAT SERVICE IN SUCH MANNER SHALL CONSTITUTE VALID SERVICE UPON
SUCH PARTY AND ITS SUCCESSORS AND ASSIGNS IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION 1208 SHALL AFFECT
THE RIGHT OF ANY SUCH PARTY OR ITS SUCCESSORS AND ASSIGNS TO SERVICE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW.
Section 1209. Captions. The captions or headings in this Indenture are
for convenience only and in no way define, limit or describe the scope or intent
of any provisions or sections of this Indenture.
Section 1210. Governing Law. THIS INDENTURE SHALL BE CONSTRUED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW, AND THE RIGHTS, OBLIGATIONS AND
REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
Section 1211. No Petition. The Indenture Trustee, on its own behalf,
hereby covenants and agrees, and each Noteholder by its acquisition of a Note
shall be deemed to covenant and agree, that it will not institute against the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law, at any time other than on a date which is at least one year and one
day after the last date on which any Note of any Series was Outstanding.
Section 1212. General Interpretive Principles. For purposes of this
Indenture except as otherwise expressly provided or unless the context otherwise
requires:
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(a) the defined terms in this Indenture shall include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include any other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect on the date hereof;
(c) references herein to "Articles", "Sections", "Subsections",
"paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, paragraphs and other subdivisions of
this Indenture;
(d) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to paragraphs and other
subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation by
reason of enumeration.
Section 1213. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, AS AGAINST THE OTHER PARTIES HERETO, ANY RIGHTS IT MAY HAVE
TO A JURY TRIAL IN RESPECT OF ANY CIVIL ACTION OR PROCEEDING (WHETHER ARISING IN
CONTRACT OR TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING UNDER OR
RELATING TO THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, INCLUDING IN RESPECT
OF THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF OR THEREOF.
Section 1214. Waiver of Immunity. To the extent that any party hereto
or any of its property is or becomes entitled at any time to any immunity on the
grounds of sovereignty or otherwise from any legal actions, suits or
proceedings, from set-off or counterclaim, from the jurisdiction or judgment of
any competent court, from service of process, from execution of a judgment, from
attachment prior to judgment, from attachment in aid of execution, or from
execution prior to judgment, or other legal process in any jurisdiction, such
party, for itself and its successors and assigns and its property, does hereby
irrevocably and unconditionally waive, and agrees not to plead or claim, any
such immunity with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Indenture, the other Related
Documents or the subject matter hereof or thereof, subject, in each case, to the
provisions of the Related Documents and mandatory requirements of applicable
law.
Section 1215. Judgment Currency. The parties hereto (A) acknowledge
that the matters contemplated by this Indenture are part of an international
financing transaction and (B) hereby agree that (i) specification and payment of
Dollars is of the essence, (ii) Dollars shall be the currency of account in the
case of all obligations under the Related Documents unless otherwise expressly
provided herein or therein, (iii) the payment obligations of the parties under
the Related Documents shall not be discharged by an amount paid in a currency or
in a place other than that
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specified with respect to such obligations, whether pursuant to a judgment or
otherwise, except to the extent actually received by the Person entitled thereto
and converted into Dollars by such Person (it being understood and agreed that,
if any transaction party shall so receive an amount in a currency other than
Dollars, it shall (A) if it is not the Person entitled to receive payment,
promptly return the same (in the currency in which received) to the Person from
whom it was received or (B) if it is the Person entitled to receive payment,
either, in its sole discretion, (x) promptly return the same (in the currency in
which received) to the Person from whom it was received or (y) subject to
reasonable commercial practices, promptly cause the conversion of the same into
Dollars), (iv) to the extent that the amount so paid on prompt conversion to
Dollars under normal commercial practices does not yield the requisite amount of
Dollars, the obligee of such payment shall have a separate cause of action
against the party obligated to make the relevant payment for the additional
amount necessary to yield the amount due and owing under the Related Documents,
(v) if, for the purpose of obtaining a judgment in any court with respect to any
obligation under any of the Related Documents, it shall be necessary to convert
to any other currency any amount in Dollars due thereunder and a change shall
occur between the rate of exchange applied in making such conversion and the
rate of exchange prevailing on the date of payment of such judgment, the obligor
in respect of such obligation will pay such additional amounts (if any) as may
be necessary to insure that the amount paid on the date of payment is the amount
in such other currency which, when converted into Dollars and transferred to New
York City, New York, in accordance with normal banking procedures, will result
in realization of the amount then due in Dollars and (vi) any amount due under
this paragraph shall be due as a separate debt and shall not be affected by or
merged into any judgment being obtained for any other sum due under or in
respect of the Related Documents.
Section 1216. Statutory References. References in this Indenture and in
each of the other "Related Documents" to any section of the Uniform Commercial
Code or the UCC shall mean, on or after the effective date of adoption of any
revision to the Uniform Commercial Code or the UCC in the applicable
jurisdiction, such revised or successor section thereto.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed and delivered by their respective officers
duly authorized, all as of the day and year first above written.
BRL UNIVERSAL COMPRESSION
FUNDING I, L.P.
By: BRL UNIVERSAL COMPRESSION
MANAGEMENT, INC.
its general partner
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
indenture trustee
By: /s/ XXXXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
INDENTURE
