EXHIBIT 10.13
EXECUTION COPY
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ORCAL GEOTHERMAL INC.,
AS THE ISSUER,
ORHEBER 1 INC.,
ORHEBER 2 INC.,
SECOND IMPERIAL GEOTHERMAL COMPANY,
HEBER FIELD COMPANY,
HEBER GEOTHERMAL COMPANY,
AS GUARANTORS,
INDENTURE
DATED AS OF DECEMBER 8, 2005
UNION BANK OF CALIFORNIA, N.A.,
AS TRUSTEE
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY
REFERENCE.....................
1
Section 1.01
Definitions.........................................
1
Section 1.02
Other Definitions...................................
25
Section 1.03
Trust Indenture Act Provisions......................
25
Section 1.04
Rules of Construction...............................
25
ARTICLE II THE SENIOR SECURED
NOTES......................................
26
Section 2.01
Form Generally......................................
26
Section 2.02
Legends on Restricted Notes.........................
28
Section 2.03
Amount of Senior Secured Notes......................
28
Section 2.04
Denominations.......................................
30
Section 2.05
Execution, Authentication, Delivery and Dating......
30
Section 2.06
Temporary Senior Secured Notes......................
31
Section 2.07
Registration, Registration of Transfer and
Exchange............................................
32
Section 2.08
Mutilated, Destroyed, Lost and Stolen Senior
Secured Notes.......................................
38
Section 2.09
Payments; Interest Rights Preserved.................
39
Section 2.10
Persons Deemed Owners...............................
40
Section 2.11
Cancellation........................................
40
Section 2.12
Computation of Interest.............................
41
Section 2.13
Certification Forms.................................
41
Section 2.14
CUSIP Numbers.......................................
41
ARTICLE III REDEMPTION AND
PREPAYMENT....................................
41
Section 3.01
Notices to Trustee..................................
41
Section 3.02
Selection of Senior Secured Notes to Be Redeemed....
42
Section 3.03
Notice of Redemption................................
42
Section 3.04
Effect of Notice of Redemption......................
43
Section 3.05
Deposit of Redemption Price.........................
43
Section 3.06
Senior Secured Notes Redeemed in Part...............
44
Section 3.07
Optional Redemption.................................
44
Section 3.08
Mandatory Redemption................................
44
ARTICLE IV
COVENANTS.....................................................
46
Section 4.01
Payment of Senior Secured Notes.....................
46
Section 4.02
Maintenance of Office or Agency.....................
46
Section 4.03
Reporting Requirements..............................
47
Section 4.04
Delivery of Notices to Trustee......................
49
Section 4.05
Stay, Extension and Usury Laws......................
49
Section 4.06
Restrictions on Sale of Assets......................
49
Section 4.07
Insurance...........................................
49
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Section 4.08
Governmental Approvals; Title.......................
51
Section 4.09
Limitation on Nature of Business....................
51
Section 4.10
Prohibition on Merger or Other Fundamental Changes..
51
Section 4.11
Restricted Payments.................................
52
Section 4.12
Revenue Account; Debt Service Reserve Account.......
52
Section 4.13
Transactions with Affiliates........................
52
Section 4.14
Exercise of Rights..................................
53
Section 4.15
Termination or Amendment to Material Project
Documents...........................................
53
Section 4.16
Additional Project Documents........................
54
Section 4.17
Performance of Project Documents....................
54
Section 4.18
Limitations on Indebtedness.........................
55
Section 4.19
Limitation on Indebtedness of Subsidiaries..........
57
Section 4.20
Limitations on Guarantees...........................
57
Section 4.21
Prohibitions on Other Obligations or Assignments....
57
Section 4.22
Books and Records, Inspection.......................
57
Section 4.23
Maintenance of Existence............................
57
Section 4.24
Additional Documents; Filings and Recordings........
58
Section 4.25
Dividend and Other Payment Restrictions
Affecting Subsidiaries..............................
58
Section 4.26
Budget; Major Maintenance Expenditures..............
59
Section 4.27
Limitation on Liens.................................
59
Section 4.28
Compliance With Laws................................
59
Section 4.29
Operation and Maintenance...........................
59
Section 4.30
Additional Subsidiaries; Bank Accounts..............
59
Section 4.31
Maintenance of Water Supply; Access Rights..........
60
Section 4.32
No Abandonment......................................
60
Section 4.33
Consents to Assignment of Additional
Project Documents...................................
60
Section 4.34
Loans...............................................
60
Section 4.35
Amendments to Organizational Documents..............
60
Section 4.36
Removal of Independent Consultants..................
60
Section 4.37
Payments for Consent................................
61
Section 4.38
Limitation on Issuance and Sale of Capital
Stock of Subsidiaries...............................
61
Section 4.39
Maintenance of Qualifying Facility Status...........
61
Section 4.40
Payment of taxes and claims.........................
61
Section 4.41
Preservation of Liens...............................
62
Section 4.42
Title Report........................................
62
Section 4.43
Additional Capacity.................................
62
Section 4.44
Use of Proceeds.....................................
63
Section 4.45
Fitch Rating........................................
63
ARTICLE V DEFAULTS AND
REMEDIES..........................................
63
Section 5.01
Events of Default...................................
63
Section 5.02
Enforcement of Remedies.............................
66
Section 5.03
Other Remedies......................................
68
Section 5.04
Waiver of Past Defaults.............................
68
Section 5.05
Control by Majority.................................
68
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Section 5.06
Limitation on Suits.................................
69
Section 5.07
Rights of Holders of Senior Secured Notes to
Receive Payment.....................................
69
Section 5.08
Collection Suit by Trustee..........................
69
Section 5.09
Trustee May File Proofs of Claim....................
70
Section 5.10
Priorities..........................................
70
Section 5.11
Undertaking for Costs...............................
71
ARTICLE VI
TRUSTEE.......................................................
71
Section 6.01
Duties of Trustee...................................
71
Section 6.02
Rights of Trustee...................................
72
Section 6.03
Individual Rights of Trustee........................
73
Section 6.04
Trustee's Disclaimer................................
73
Section 6.05
Notice of Defaults..................................
74
Section 6.06
Reports by Trustee to Holders of the Senior
Secured Notes.......................................
74
Section 6.07
Compensation and Indemnity..........................
74
Section 6.08
Replacement of Trustee..............................
76
Section 6.09
Successor Trustee by Merger, etc....................
77
Section 6.10
Eligibility; Disqualification.......................
77
Section 6.11
Preferential Collection of Claims Against
the Issuer..........................................
77
Section 6.12
Receipt of Documents................................
77
ARTICLE VII LEGAL DEFEASANCE AND COVENANT
DEFEASANCE.....................
78
Section 7.01
Option to Effect Legal Defeasance or Covenant
Defeasance..........................................
78
Section 7.02
Legal Defeasance and Discharge......................
78
Section 7.03
Covenant Defeasance.................................
78
Section 7.04
Conditions to Legal or Covenant Defeasance..........
79
Section 7.05
Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.......
80
Section 7.06
Repayment to Issuer.................................
81
Section 7.07
Reinstatement.......................................
81
ARTICLE VIII AMENDMENT, SUPPLEMENT AND
WAIVER............................
82
Section 8.01
Without Consent of Holders of Senior Secured Notes..
82
Section 8.02
With Consent of Holders of Senior Secured Notes.....
82
Section 8.03
Revocation and Effect of Consents...................
84
Section 8.04
Notation on or Exchange of Senior Secured Notes.....
85
Section 8.05
Trustee to Sign Amendments, etc.....................
85
Section 8.06
Execution of Supplemental Indentures................
85
Section 8.07
Effect of Supplemental Indentures...................
85
Section 8.08
Conformity with Trust Indenture Act.................
85
Section 8.09
Reference in Senior Secured Notes to Supplemental
Indentures..........................................
85
ARTICLE IX
GUARANTEE.....................................................
86
Section 9.01
Agreement to Guarantee..............................
86
Section 9.02
Execution and Delivery of Guarantee.................
87
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Section 9.03
Waivers by Guarantors...............................
88
Section 9.04
Guarantors May Consolidate, etc. on Certain Terms...
90
Section 9.05
Covenants of the Guarantors.........................
90
ARTICLE X
MISCELLANEOUS..................................................
91
Section 10.01
Trust Indenture Act Controls........................
91
Section 10.02
Notices.............................................
91
Section 10.03
Communication by Holders of Senior Secured Notes
with Other Holders of Senior Secured Notes .........
92
Section 10.04
Certificate and Opinion as to Conditions Precedent..
92
Section 10.05
Statements Required in Certificate or Opinion.......
92
Section 10.06
Rules by Trustee and Agents.........................
93
Section 10.07
No Personal Liability of Directors, Officers,
Employees and Stockholders..........................
93
Section 10.08
Senior Secured Notes Owned by the Issuer or
Affiliates Deemed Not Outstanding...................
93
Section 10.09
Governing Law.......................................
94
Section 10.10
Right to Set-Off....................................
94
Section 10.11
Submission to Jurisdiction..........................
94
Section 10.12
Waiver of Jury Trial................................
94
Section 10.13
No Adverse Interpretation of Other Agreements.......
95
Section 10.14
Successors..........................................
95
Section 10.15
Severability........................................
95
Section 10.16
Counterpart Originals...............................
95
Section 10.17
Table of Contents, Headings, etc....................
95
SCHEDULES
Schedule A: MATERIAL REAL PROPERTY INTERESTS
Schedule B: GOVERNMENTAL APPROVALS TO BE OBTAINED
EXHIBITS
Exhibit A-1: FORM OF SENIOR SECURED NOTE
Exhibit A-2: FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B:
FORM OF CERTIFICATE OF TRANSFER
Exhibit C:
FORM OF CERTIFICATE OF EXCHANGE
Exhibit D:
SUBORDINATION PROVISIONS
Exhibit E-1: FORM OF FEE DEED OF TRUST
Exhibit E-2: FORM OF FEE AND LEASEHOLD DEED OF TRUST
Exhibit F:
FORM OF GUARANTEE
Exhibit G:
FORM OF SUPPLEMENTAL INDENTURE
-iv-
INDENTURE, dated as of December 8, 2005, among OrCal Geothermal
Inc.,
a Delaware corporation (including its successors and permitted
assigns, the
"Issuer"), OrHeber 1 Inc., a Delaware corporation ("OrHeber 1"),
OrHeber 2 Inc.,
a Delaware corporation ("OrHeber 2"), Second Imperial Geothermal
Company, a
California limited partnership ("Second Imperial Geothermal"),
Heber Field
Company, a California general partnership ("Heber Field"), Heber
Geothermal
Company, a California general partnership ("Heber Geothermal") and
Union Bank of
California, N.A., a national banking association, as trustee (the
"Trustee").
The Issuer, the Guarantors (as defined below) and the Trustee agree
as
follows for the benefit of each other and for the equal and ratable
benefit of
the Holders of the Initial Notes and any Additional Notes (as
defined below):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Acceptable Letter of Credit" means one or more irrevocable standby
letters of credit available for the purpose of drawing in
accordance with the
Depositary Agreement, and any extensions thereof or any substitute
letter of
credit therefor in the stated amount contained in such extension or
substitute,
subject to the limitations set forth in, and permitting draws
thereon as
contemplated by the Depositary Agreement, (i) issued to the
Depositary (for the
benefit of the Secured Parties entitled to the benefits of the
applicable
Account) by a commercial bank having a long-term unsecured senior
debt rating of
at least Investment Grade, (ii) payable in immediately available
U.S. Dollar
funds on any Business Day, (iii) with a minimum term of at least
one year, (iv)
providing for the amount thereof to be available to the Depositary
in multiple
drawings conditioned only upon presentation of sight drafts
accompanied by the
applicable certificate in the form attached to such letter of
credit, (v)
transferable to any successor Depositary, the Collateral Agent or a
successor
Collateral Agent (or if not transferable provides for the amount
thereof to be
drawn upon by the Depositary upon appointment of a successor
Depositary or
Collateral Agent), (vi) governed by the laws of the State of New
York or
California, (vii) does not constitute Indebtedness (directly or
indirectly) of
the Issuer or any of its Subsidiaries, and is not secured by a Lien
on any of
the properties of the Issuer or any of its Subsidiaries, and the
Issuer
certifies to such in an Officer's Certificate and (viii) which
provides that it
may be drawn not more than thirty days prior to its expiration in
the entire
amount then available to be drawn if the issuing bank does not
provide a written
extension of the same to the Depositary at least 30 days prior to
its then
scheduled expiration date.
"Accounts" means the accounts established pursuant to the
Depositary
Agreement.
"Additional Notes" means any Senior Secured Notes (other than
Initial
Notes), if any, issued under this Indenture in accordance with
Sections 2.03 and
2.05 hereof.
"Additional Project Document" means any contract or agreement
entered
into after the Closing Date in respect of the ownership,
construction,
operation, maintenance, modification or administration of a Project
that is
material to the Issuer or one or more of the Projects, other than a
Financing
Document. The replacement of a Project Document that is not a
Material Project
Document shall be deemed not to be an Additional Project Document.
"Administrative Costs" means all of the Issuer's obligations, now
or
hereafter existing, to pay administrative fees, costs and expenses
to any
trustee or agent of the Holders of the Senior Secured Notes or any
Permitted
Additional Senior Lender, including the Collateral Agent, the
Intercreditor
Agent, the Depositary, and the Trustee (including, without
limitation, the
reasonable fees and expenses of counsel, agents and experts).
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries,
controls, is
controlled by or is under common control with such first Person.
The term
"control" means the possession, directly or indirectly, of the
power to direct
or cause the direction of the management or policies of a Person,
whether
through the ownership of voting securities, by contract or
otherwise.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Member" has the meaning set forth in Section 2.07(c)(v)(B)
of
this Indenture.
"Applicable Law" means any constitution, statute, law, rule,
regulation, ordinance, judgment, order, decree or Governmental
Approval, or any
published directive or requirement which has the force of law, or
other
governmental restriction which has the force of law, or any
determination by, or
interpretation of any of the foregoing by, any judicial authority,
applicable to
and/or binding on a given Person or any Project, as the context may
require,
whether in effect as of the Closing Date or thereafter and in each
case as
amended, modified and/or supplemented.
"Auditors" has the meaning specified in Section 4.03(b).
"Authentication Order" means a written order or request signed in
the
name of the Issuer by the President, a Vice President, the
Treasurer or the
Assistant Treasurer, and delivered to the Trustee.
"Authorized Officer" or "Authorized Representative" of any Person
means the individual or individuals authorized to act on behalf of
such Person
by the Board of Directors, managing member, management committee,
board of
control or any other governing body of such Person as designated
from time to
time in a certificate of such Person with specimen signatures.
-2-
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on
behalf of
such board;
(2) with respect to a partnership, the board of directors of the
general partner of the partnership or any committee or person duly
authorized and empowered to take action on behalf of such
partnership by
the partnership agreement of such partnership;
(3) with respect to a limited liability company, the managing
member
or members or any controlling committee of managing members
thereof; and
(4) with respect to any other Person, the board or committee of
such
Person serving a similar function.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or
state law for the relief of debtors.
"Business Day" means any day other than a Saturday or Sunday or
other
day on which banks in New York, New York are authorized or required
by law or
executive order to remain closed.
"Capital Expenditures" means any expenses that are capitalized on
the
Issuer's balance sheet in accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents
(however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests;
and
(4) any other interest or participation that confers on a Person
the
right to receive a share of the profits and losses of, or
distributions of
assets of, the issuing Person including all warrants, options or
other
rights to acquire any of the foregoing, but excluding from all of
the
foregoing any debt securities convertible into or exchangeable for
Capital
Stock, whether or not such debt securities include any right of
participation with Capital Stock.
"Cash Flow Available for Debt Service" means, for any period, (a)
all
revenues (including interest and the proceeds of any business
interruption
insurance but excluding any other insurance proceeds and any other
similar
non-recurring receipts) received in such period and deposited in
the Revenue
Account, less (b) the sum of (x) Operating and Maintenance
-3-
Expenses for such period plus (y) Administrative Costs payable to
the Trustee,
the Collateral Agent, the Depositary, the Intercreditor Agent and
any other
trustee or agent of the Secured Parties for such period, all as
computed on a
cash basis.
"Certificated Note" means a certificated Senior Secured Note
registered in the name of the Holder thereof and issued in
accordance with
Section 2.07 hereof, substantially in the form of Exhibit A-1/A-2
hereto except
that such Senior Secured Note shall not bear the Global Note Legend
and shall
not have the "Schedule of Exchanges of Interests in the Global
Note" attached
thereto.
"Change of Control" means the occurrence of any of the following:
(i)
the sale, lease, transfer, conveyance or other disposition (other
than by way of
merger or consolidation), in one or a series of related
transactions, of all or
substantially all of the Issuer's and/or the Issuer's Subsidiaries'
assets,
taken as a whole; (ii) the adoption of a plan relating to the
Issuer's
liquidation or dissolution; (iii) the consummation of any
transaction or series
of related transactions (including, without limitation, any merger
or
consolidation) the result of which is that any Person other than
Ormat Nevada or
a Related Party, becomes the "beneficial owner" (as such term is
defined Rule
13d-3 and Rule 13d-5 under the Exchange Act) directly or
indirectly, of 50% or
more of the Issuer's voting power; (iv) the consummation of any
transactions or
series of related transactions the result of which is that Ormat
Nevada and the
Related Parties cease to collectively own, directly or indirectly,
more than 50%
of the Issuer's economic or voting interest; or (v) the sale of the
Capital
Stock of any Subsidiary of the Issuer (other than as permitted
herein);
provided, however, that notwithstanding the foregoing, a Change of
Control will
not be deemed to have occurred if (x) prior to giving effect to the
reduction in
Ormat Nevada's and/or the Related Parties' collective voting or
economic
interests in the Issuer, such reduction has been approved by
Holders of at least
66?% of the Senior Secured Notes or (y) prior to giving effect to
any other
Person becoming the beneficial owner of 50% or more of the Issuer's
voting power
pursuant to clause (iii) hereof, the transaction resulting in such
change in
beneficial ownership is approved by Holders of at least 66?% of the
Senior
Secured Notes.
"Clearstream" means Citibank, N.A., as operator of Clearstream
Banking, S.A.
"Closing Date" means December 8, 2005.
"Code" means the U.S. Internal Revenue Code of 1986, as amended.
"Collateral" means all collateral pledged, or in respect of which a
lien is granted, pursuant to this Indenture or the Security
Documents.
"Collateral Agency Agreement" means that certain Collateral Agency
Agreement, dated as of December 8, 2005, among the Issuer, each of
the
Guarantors, the Collateral Agent, the Trustee, the Depositary and
the
Intercreditor Agent.
"Collateral Agent" means Union Bank of California, N.A., a national
banking association organized under the laws of the United States,
as collateral
agent for the benefit of the Secured Parties, together with its
successors and
assigns.
-4-
"Collection Expenses" means all reasonable out-of-pocket costs or
expenses (if any) and, if applicable, reasonable transaction costs,
incurred by
the Issuer in connection with the collection, enforcement,
negotiation,
consummation, settlement, proceedings, administration or other
activity related
to the receipt and/or collection of the relevant proceeds, as
applicable.
"Control Agreements" means (i) each Control Agreement executed and
delivered by the Collateral Agent, the Issuer, certain of the
Issuer's
Subsidiaries and the bank or institution where the Issuer's or its
relevant
Subsidiary's checking accounts permitted to be established under
this Indenture
and the Depositary Agreement are held and (ii) each Control
Agreement executed
and delivered by the Collateral Agent, the Issuer and certain of
the Issuer's
Subsidiaries in connection with the Security Documents.
"Corporate Trust Office of the Trustee" shall be at the address of
the
Trustee specified in Section 10.02 hereof or such other address as
to which the
Trustee may give notice to the Issuer.
"Custodian" means, initially, the Trustee, and its successors and
assigns or any other custodian performing similar functions.
"Debt Service Coverage Ratio" means, for any period, the ratio of
(i)
the sum of all Cash Flow Available for Debt Service for such period
to (ii) the
aggregate payments of scheduled or accelerated (in accordance with
the terms of
the Financing Documents) principal, interest and premium, if any,
required to be
made under this Indenture and the other Financing Documents and in
connection
with all other Permitted Indebtedness (other than Subordinated
Debt) for such
period.
"Debt Service Reserve Account" means the account of such name
created
under the Depositary Agreement.
"Debt Service Reserve Letter of Credit" means an Acceptable Letter
of
Credit that has been delivered and may be drawn in accordance with
Section 3.4
of the Depositary Agreement.
"Debt Service Reserve Requirement" means, as of any date of
calculation, an amount equal to the projected principal and
interest that will
be due on the Senior Secured Notes during the succeeding six-month
period.
-5-
"Deeds of Trust" means, collectively, (i) that certain Deed of
Trust,
Assignment of Rents, Security Agreement, and Fixture Filing, dated
as of the
Closing Date, executed by Second Imperial Geothermal, as grantor,
for the
benefit of the Collateral Agent, as beneficiary, (ii) that certain
Deed of
Trust, Assignment of Rents, Security Agreement, and Fixture Filing,
dated as of
the Closing Date, executed by Heber Field, as grantor, for the
benefit of the
Collateral Agent, as beneficiary and (iii) that certain Deed of
Trust,
Assignment of Rents, Security Agreement, and Fixture Filing, dated
as of the
Closing Date, executed by Heber Geothermal, as grantor, for the
benefit of the
Collateral Agent, as beneficiary.
"Default" means an event or condition that, with the giving of
notice
or lapse of time, or any combination thereof, would become an Event
of Default.
"Depositary" means Union Bank of California, N.A., a national
banking
association organized under the laws of the United States, as
Depositary under
the Depositary Agreement, together with its successors and assigns.
"Depositary Agreement" means the Deposit and Disbursement
Agreement,
dated as of the Closing Date, among the Issuer, each of the
Guarantors, the
Collateral Agent, the Depositary and the Securities Intermediary.
"Depository" means, with respect to the Senior Secured Notes
issuable
or issued in whole or in part in global form, DTC, and any and all
successors
thereto appointed as depository hereunder and having become such
pursuant to the
applicable provision of this Indenture.
"Distribution Account" means the account bearing such title and
created under the Depositary Agreement.
"Distribution Conditions" has the meaning set forth in Section
3.6(b)
of the Depositary Agreement.
"Distribution Date" means any Business Day on or within 60 days
following a Scheduled Payment Date, on which the Issuer may make a
Restricted
Payment in accordance with the terms of this Indenture and the
Depositary
Agreement.
"Distribution Suspense Account" means the account bearing such
title
and created under the Depositary Agreement.
"Dollars" and "$" means lawful money of the United States.
"DTC" means The Depository Trust Company.
"Eligible Letter of Credit Provider" means a U.S. commercial
bank(s)
or financial institution(s) or a U.S. branch of a foreign
commercial bank(s) or
financial institution(s) with an Investment Grade rating (provided
that any such
rating shall not be based solely on such bank's or financial
institution's
foreign currency rating at such time).
-6-
"Eminent Domain Proceeds" means all amounts and proceeds (including
instruments) received by the Issuer or any Guarantor in respect of
any Event of
Eminent Domain.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear system.
"Event of Abandonment" means, with respect to a Plant, the
suspension
or cessation for a period of at least 120 consecutive days of all
or
substantially all of the operational and maintenance activities at
such Plant;
provided, however, that any such suspension or cessation that
arises from an
Event of Loss, a requirement of law, an event of force majeure,
curtailment or
failure to be dispatched, or other bona fide business reasons shall
not
constitute an Event of Abandonment, in each case, so long as the
Issuer or the
Issuer's applicable Subsidiaries are taking commercially reasonable
actions to
overcome or mitigate the effects of the cause of suspension or
cessation so that
maintenance and/or operations, as the case may be, can be resumed.
Any period of
cessation or suspension shall end on the date that operation and
maintenance
activities of a substantial nature are resumed.
"Event of Default" means the occurrence of any of the events set
forth
under Section 5.01 hereof.
"Event of Eminent Domain" means any compulsory transfer or taking
or
transfer under threat of compulsory transfer or taking of any
material part of
the Collateral or a Project by any Governmental Authority.
"Event of Loss" means an event which causes all or a portion of the
Project to be damaged, destroyed or rendered unfit for normal use
for any reason
whatsoever, other than an Event of Eminent Domain or a Title Event.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the
weighted average of
the rates on overnight federal fund transactions with members of
the Federal
Reserve System arranged by federal funds brokers, as published for
such day (or,
if such day is not a Business Day, for the next preceding Business
Day) by the
Federal Reserve Bank of New York or, if such rate is not so
published for any
day that is a Business Day, the average of the quotations for such
day on such
transactions received by the Trustee from three federal funds
brokers of
recognized standing selected by it.
"FERC" means the Federal Energy Regulatory Commission and any
successor agency thereto.
"Final Maturity Date" means the latest stated maturity date of any
of
the Senior Secured Notes.
-7-
"Financing Documents" means this Indenture, the Senior Secured
Notes,
the Note Purchase Agreement, the Security Documents, the
Guarantees, the Letters
of Credit, the Production Tax Credit Agreement, the Subordinated
Loan Agreement
and any other credit or security agreement executed by a Financing
Entity in
respect of a Project.
"Financing Entity" means the Issuer, the Guarantors and Ormat
Nevada.
"Fitch" means Fitch Ratings Ltd., its successors and assigns.
"Fluid Supply Agreements" means the Heber 1 Fluid Supply Agreement
and
the Heber 2 Fluid Supply Agreement.
"GAAP" means generally accepted accounting principles set forth in
the
opinions and pronouncements of the Accounting Principles Board of
the American
Institute of Certified Public Accountants and statements and
pronouncements of
the Financial Accounting Standards Board or in such other
statements by such
other entity as have been approved by a significant segment of the
accounting
profession, which are in effect as of the relevant date of
determination.
"Generating Capacity" means the net amount of electrical energy
available for sale under each Project's relevant power purchase
agreement.
"Geothermal Consultant" means Geothermex, Inc. or another widely
recognized independent geothermal engineering firm retained by the
Issuer as
Geothermal Consultant.
"Geothermal Consultant's Report" means the report, dated November
2005, of the Geothermal Consultant prepared in connection with the
Offering and
attached to the Offering Memorandum as Annex B.
"Geothermal Resource" means the aggregate of any and all geothermal
resources owned, leased or otherwise held by the Issuer or any
Guarantor, used
in connection with the operation of the Projects, which such
geothermal
resources are identified as the "Heber geothermal field" in the
Geothermal
Consultant's Report.
"Global Note Legend" means the legend set forth in Exhibit A-1/A-2
hereto.
"Global Note" means a Senior Secured Note that evidences all or
part
of the Senior Secured Notes and bears the appropriate legend set
forth in
Exhibit A-1/A-2 (or such legend as may be contemplated by Section
2.02 for such
Senior Secured Notes).
"Gould Plant Connection Agreements" means those certain
Interconnection and Operating Agreements, dated December 8, 2005
and December 8,
2005, respectively, between OrHeber 2 and Imperial Irrigation
District.
"Gould Plant" means two geothermal power generating plants located
in
Imperial County, California, and having a Generating Capacity of
approximately
10 MW.
-8-
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for
which the
United States pledges its full faith and credit.
"Governmental Approvals" means all governmental approvals,
authorizations, consents, decrees, permits, waivers, privileges and
filings with
or from all Governmental Authorities required to be obtained or
made for the
ownership, construction, operation and maintenance of a Project.
"Governmental Authority" means the government of any federal,
state,
municipal or other political subdivision in which the Projects are
located, and
any other government or political subdivision thereof exercising
jurisdiction
over the Projects or any of their assets or any party to any of the
Project
Documents, including all agencies and instrumentalities of such
governments and
political subdivisions.
"Guarantee" means each guarantee by a Guarantor of the Issuer's
obligations under the Financing Documents pursuant to Article IX or
another
writing pursuant to which a Guarantor agrees to be bound by the
terms applicable
to Guarantors set forth in Article IX.
"Guarantor" means each of OrHeber 1, OrHeber 2, Second Imperial
Geothermal, Heber Field, Heber Geothermal and their respective
successors and
assigns.
"Hazardous Substance" means any substance, pollutant or contaminant
now or hereafter included in such (or any similar) term under any
state, federal
or local ordinance, statute, law or regulation now in effect or
hereafter
enacted or amended.
"Heber 1 Fluid Supply Agreement" means that certain Geothermal
Sales
Agreement, dated December 18, 1991, between U.S. Trust Company of
California,
N.A. and Heber Geothermal, as amended by that certain First
Amendment to
Geothermal Sales Agreement, dated January 20, 1993, as further
amended by that
certain Second Amendment to Geothermal Sales Agreement, dated
September 4, 1996
and as assumed by Heber Field pursuant to the Ownership Interest
Purchase
Agreement, dated as of November 21, 2003, among OrHeber 1, OrHeber
2, OrHeber 3
Inc., OrMammoth Inc., Covanta Heber Field Energy, Inc., Heber Field
Energy II,
Inc., ERC Energy, Inc., ERC Energy II, Inc., Heber Loan Partners,
Covanta Power
Pacific, Inc., Pacific Geothermal Co., Mammoth Geothermal Co., Amor
14
Corporation, Covanta SIGC Energy II, Inc., Covanta Energy Americas,
Inc., and
Covanta Energy Corporation.
"Heber 1 Plant" means one geothermal power generating plant located
in
Imperial County, California and having a Generating Capacity of 38
MW.
"Heber 1 Plant Connection Agreement" means that certain Plant
Connection Agreement, dated July 31, 1985, between Heber Geothermal
and Imperial
Irrigation District.
"Heber 1 Power Purchase Agreement" means that certain Power
Purchase
and Sales Agreement, dated August 26, 1983, between Southern
California Edison
Company and Chevron U.S.A. Inc., as assigned by Chevron U.S.A. to
Heber
Geothermal under that certain
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Assignment and Assumption Agreement, dated August 26, 1983, as
amended by that
certain Amendment No. 1 to Power Purchase and Sales Agreement,
dated December
11, 1984, and as further amended by that certain Settlement
Agreement and
Amendment No. 2 to Power Purchase Contract, dated August 7, 1995.
"Heber 1 Water Supply Agreement" means that certain Water Supply
Agreement, dated August 16, 1994, between Imperial Irrigation
District and Heber
Geothermal.
"Heber 2 Fluid Supply Agreement" means that certain Fluid Supply
Agreement, dated January 30, 2004, between Heber Field and Second
Imperial
Geothermal.
"Heber 2 Plant" means one geothermal power generating plant located
in
Imperial County, California and having a Generating Capacity of 34
MW.
"Heber 2 Plant Connection Agreement" means that certain Plant
Connection Agreement, dated October 27, 1992, between Second
Imperial Geothermal
and Imperial Irrigation District.
"Heber 2 Power Purchase Agreement" means that certain Power
Purchase
Contract, dated April 16, 1985, between Southern California Edison
Company and
Second Imperial Geothermal, as amended by that certain Amendment
No. 1 to Power
Purchase Contract, dated October 23, 1987, as further amended by
that certain
Amendment No. 2 to Power Purchase Contract, dated July 27, 1990,
and as further
amended by that certain Amendment No. 3 to Power Purchase Contract,
dated
November 24, 1992.
"Heber 2 Water Supply Agreement" means that certain Water Supply
Agreement, dated October 27, 1992, between Imperial Irrigation
District and
Second Imperial Geothermal.
"Heber Field" means Heber Field Company, a general partnership
organized and existing under the laws of the State of California,
its successors
and assigns.
"Heber Geothermal" means Heber Geothermal Company, a general
partnership organized and existing under the laws of the State of
California,
its successors and assigns.
"Holder" means a Person in whose name a Senior Secured Note is
registered in the register maintained pursuant to Section 2.07(a).
"IID Water Supply Agreements" means the Heber 1 Water Supply
Agreement
and the Heber 2 Water Supply Agreement.
"Indebtedness" of any Person means, at any date, without
duplication:
(i) all obligations of such Person for borrowed money;
-10-
(ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments (excluding "deposit only"
endorsements
on checks payable to the order of such Person);
(iii) all obligations of such Person to pay the deferred purchase
price of property or services (except accounts payable and similar
obligations arising in the ordinary course of business);
(iv) all obligations of such Person as lessee under capital leases
to
the extent required to be capitalized on the books of such Person
in
accordance with GAAP;
(v) all obligations of such Person under conditional sale or other
title retention agreements relating to property or assets purchased
by such
Person;
(vi) all Indebtedness of others secured by (or for which the holder
of
such indebtedness has an existing right, contingent or otherwise,
to be
secured by) any Lien on property owned or acquired by such Person,
whether
or not the obligations secured thereby have been assumed;
(vii) all obligations of such Person in respect of interest rate
swaps, collars or caps and other interest rate protection
arrangements,
foreign currency exchange agreements, commodity exchange, commodity
future,
commodity forward or commodity option agreements, or other interest
or
exchange rate or commodity hedging arrangements;
(viii) all obligations of such Person as an account party in
respect
of letters of credit and bankers' acceptances; and
(ix) all obligations of others of the type referred to in clauses
(i)
through (viii) above guaranteed by such Person, whether or not
secured by a
Lien or other security interest on any asset of such Person.
"Indenture" means this Indenture, as amended, modified and/or
supplemented from time to time.
"Independent Accountants" means PricewaterhouseCoopers LLP, a
limited
liability partnership organized and existing under the laws of the
State of
Delaware, its successors and assigns.
"Independent Consultants" means the Independent Engineer, the
Insurance Consultant, the Geothermal Consultant and the Independent
Energy
Market Consultant.
"Independent Energy Market Consultant" means DAI Management
Consultants, Inc, or another widely recognized independent energy
consulting
firm retained as Independent Energy Market Consultant by the
Issuer.
-11-
"Independent Engineer" means Stone & Webster Management
Consultants,
Inc., or another widely recognized independent engineering firm
retained as
Independent Engineer by the Issuer.
"Initial Notes" means $165,000,000 in aggregate principal amount of
6.21% Senior Secured Notes due 2020 issued under this Indenture and
a First
Series Supplemental Indenture dated the date hereof on the Closing
Date.
"Initial Purchaser" means Lehman Brothers Inc.
"Insurance Consultant" means Moore-McNeil LLC, or its successors;
provided that such successor is another nationally recognized
independent
insurance consultant.
"Intercreditor Agent" means, initially, Union Bank of California,
N.A., a national banking association organized and existing under
the laws of
the United States, and any Person appointed as a substitute or
replacement
Intercreditor Agent under the Intercreditor Agreement.
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as
of December 8, 2005, among the Issuer, the Trustee, the Collateral
Agent, the
Intercreditor Agent, the Depositary and any other Secured Party
that becomes a
party thereto pursuant to the terms thereof.
"Interest Payment Date" means each June 30 and December 30
commencing
June 30, 2006 and concluding on the Final Maturity Date.
"Investment Grade" means a rating of "Baa3" or better by Moody's
and
"BBB-" or better by S&P (or an equivalent rating by another
nationally
recognized credit rating agency if one or more of such corporations
are not in
the business of rating long-term obligations of commercial banks at
the time of
issuance); provided, that such rating is not on review for possible
downgrade or
on negative watch by any such agency.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including
Affiliates) in
the forms of loans (including guarantees or other obligations),
advances or
capital contributions (excluding commission, travel and similar
advances to
officers and employees made in the ordinary course of business),
purchases or
other acquisitions for consideration of Indebtedness, Capital Stock
or other
securities, together with all items that are or would be classified
as
investments on a balance sheet prepared in accordance with GAAP.
"Letter of Credit" means the Debt Service Reserve Letter of Credit.
"Lien" means any mortgage, pledge, hypothecation, assignment,
mandatory deposit arrangement, encumbrance, security interest,
charge, lien
(statutory or other), preference, priority or other collateral
agency agreement
of any kind or nature whatsoever which has the substantial effect
of
constituting a security interest, including, without limitation,
any conditional
sale or other title retention agreement, any financing lease having
substantially
-12-
the same effect as any of the foregoing and the filing of any
financing
statement or similar instrument under the Uniform Commercial Code
or comparable
law of any jurisdiction, domestic or foreign.
"Loss Proceeds" means all proceeds from an Event of Loss received
by
the Issuer or any Guarantor, including, without limitation,
insurance proceeds
or other amounts actually received, except proceeds of business
interruption
insurance.
"Major Maintenance Expenditures" means Capital Expenditures or
other
major maintenance expenses to be incurred by the Issuer or any of
its
Subsidiaries (other than any operating costs or expenses included
in the
Issuer's annual Operating Budget pursuant to Section 4.26(a))
"Major Maintenance Expenditure Amount" has the meaning set forth in
Section 4.26 of this Indenture.
"Make-Whole Premium" means, with respect to any Senior Secured
Note,
an amount equal to the excess, if any, of the Discounted Value of
the Remaining
Scheduled Payments with respect to the Called Principal of such
Senior Secured
Note over the amount of such Called Principal; provided that the
Make-Whole
Premium may in no event be less than zero. For the purposes of
determining the
Make-Whole Premium, the following terms have the following
meanings:
"Called Principal" means, with respect to any Senior Secured
Note, the principal of such Senior Secured Note that is to be
redeemed.
"Discounted Value" means, with respect to the Called Principal of
any Senior Secured Note, the amount obtained by discounting all
Remaining
Scheduled Payments with respect to such Called Principal from their
respective scheduled due dates to the Settlement Date with respect
to such
Called Principal, in accordance with accepted financial practice
and at a
discount factor (applied on the same periodic basis as that on
which
interest on such notes is payable) equal to the Reinvestment Yield
with
respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal
of any Senior Secured Note, 0.50% over the yield to maturity
implied by (a)
the yields reported, as of 10:00 a.m. (New York City time) on the
second
Business Day preceding the Settlement Date with respect to such
Called
Principal, on the display designated as "Page PX1" on the Bloomberg
Financial Markets Service (or such other display as may replace
Page PX1 on
the Bloomberg Financial Markets Service) for actively traded U.S.
Treasury
securities having a maturity equal to the Remaining Average Life of
such
Called Principal as of such Settlement Date, or (b) if such yields
are not
reported as of such time or the yields reported as of such time are
not
ascertainable, the Treasury Constant Maturity Series Yields
reported, for
the latest day for which such yields have been so reported as of
the second
Business Day preceding the Settlement Date with respect to such
Called
Principal, in U.S. Federal Reserve Statistical Release H.15 (519)
-13-
(or any comparable successor publication) for actively traded U.S.
Treasury
securities having a constant maturity equal to the Remaining
Average Life
of such Called Principal as of such Settlement Date. Such implied
yield
will be determined, if necessary, by (i) converting U.S. Treasury
bill
quotations to note-equivalent yields in accordance with accepted
financial
practice and (ii) interpolating linearly between (x) the actively
traded
U.S. Treasury security with the duration closest to and greater
than the
Remaining Average Life of such Called Principal and (y) the
actively traded
U.S. Treasury security with the duration closest to and less than
the
Remaining Average Life of such Called Principal.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest
one-twelfth year)
obtained by dividing (a) such Called Principal into (b) the sum of
the
products obtained by multiplying (i) the principal component of
each
Remaining Scheduled Payment with respect to such Called Principal
by (ii)
the number of years (calculated to the nearest one-twelfth year)
that will
elapse between the Settlement Date with respect to such Called
Principal
and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any Senior Secured Note, all payments of such Called
Principal
and interest thereon that would be due after the Settlement Date
with
respect to such Called Principal if no payment of such Called
Principal
were made prior to its scheduled due date; provided that if such
Settlement
Date is not a date on which interest payments are due to be made
under the
terms of the notes, then the amount of the next succeeding
scheduled
interest payment will be reduced by the amount of interest accrued
to such
Settlement Date and required to be paid on such Settlement Date.
"Settlement Date" means, with respect to the Called Principal of
any Senior Secured Note, the date on which such Called Principal is
to be
redeemed.
"Material Adverse Effect" means a material adverse effect on (i)
the
Issuer's or any of the Issuer's Subsidiaries' results of operations
or financial
condition (taken as a whole), (ii) the validity or priority of the
Liens on the
Collateral or Guarantees, (iii) the Issuer's or any of the Issuer's
Subsidiaries' ability (taken as a whole) to observe and perform any
of the
Issuer's or any of the Issuer's Subsidiaries' material obligations
under the
Transaction Documents to which the Issuer or any of the Issuer's
Subsidiaries is
a party or (iv) the ability of the Trustee or the Collateral Agent
to enforce
any of the payment or other material obligations of the Issuer, any
Guarantor or
Ormat Nevada under the Financing Documents to which the Issuer, the
Guarantors
or Ormat Nevada are parties, as the case may be.
"Material Real Property Interests" means the real property
interests
listed on Schedule A hereto.
"Material Project Documents" means the Power Purchase Agreements,
the
Operation and Maintenance Agreement, the Transmission Service
Agreement, the
Material
-14-
Real Property Interests, the IID Water Supply Agreements, the Fluid
Supply
Agreements, the Plant Connection Agreements and any Additional
Project Document.
"Megawatt" or "MW" means one million watts.
"Moody's" means Moody's Investors Service, Inc., its successors and
assigns.
"Net Available Amount" means, with respect to any proceeds, such
proceeds net of the related Collection Expenses.
"Note Purchase Agreement" means the Note Purchase Agreement among
the
Issuer, the Guarantors and the Initial Purchaser for the sale and
purchase of
the Initial Notes.
"Offering" means the offering of the Senior Secured Notes described
herein.
"Offering Memorandum" means that certain offering memorandum, dated
December 2, 2005, relating to the offer of the Initial Notes for
sale.
"Officer's Certificate" means a certificate signed by the Issuer's
Authorized Representative.
"Operating and Maintenance Expenses" means, for any period, all
amounts disbursed by or on behalf of the Issuer or any Subsidiary
of the Issuer
in such period for operation, maintenance, administration, repair
(other than
repair done in response to a casualty event), or improvement of a
Project,
including, without limitation, premiums on insurance policies,
property and
other taxes, litigation expenses and costs, payments under leases,
royalty and
other land use agreements, and fees, expenses, and any other
payments required
under the Project Documents; provided, "Operating and Maintenance
Expenses"
shall not include (i) any payment made in respect of the Financing
Documents or
with respect to any Indebtedness, (ii) any payment or dividends or
other
distributions to Ormat Nevada or any of the Issuer's other
Affiliates other than
payments under the Project Documents or (iii) any tax paid or
payable by any of
the Issuer's direct or indirect equity owners with respect to the
Issuer's
income or receipts.
"Operating Budget" means the annual budget of Operating and
Maintenance Expenses for the Projects, as prepared in good faith by
the Issuer
for each of the Issuer's fiscal years, or part thereof, showing
such costs by
category.
"Operating Subsidiaries" means all of the Issuer's Subsidiaries.
"Operation and Maintenance Agreement" means that certain Amended
and
Restated Operation and Maintenance Agreement, dated December 8,
2005, among
Heber Field, Heber Geothermal, Second Imperial Geothermal, OrHeber
2 and Ormat
Nevada.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements
of Section
10.05 hereof. The counsel may be an employee of or counsel to the
Issuer, any
Affiliate of the Issuer or the Trustee.
-15-
"Organizational Documents" means as to any Person, the articles of
incorporation, by laws, partnership agreement, limited liability
company
agreement, operating agreement or other organizational or governing
documents of
such Person.
"OrHeber 1" means OrHeber 1 Inc., a corporation organized and
existing
under the laws of the State of Delaware, its successors and
assigns.
"OrHeber 2" means OrHeber 2 Inc., a corporation organized and
existing
under the laws of the State of Delaware, its successors and
assigns.
"OrHeber 2 Power Purchase Agreement" means that certain Long-Term
Power Purchase Agreement, dated December 8, 2005, between OrHeber 2
and Southern
California Public Power Authority.
"Ormat Industries" means Ormat Industries Ltd., a corporation
organized and existing under the laws of Israel, its successors and
assigns.
"Ormat Nevada" means Ormat Nevada Inc., a corporation organized and
existing under the laws of the State of Delaware, its successors
and assigns.
"Ormat Technologies" means Ormat Technologies, Inc., a corporation
organized and existing under the laws of the State of Delaware, its
successors
and assigns.
"Outstanding" in connection with the Senior Secured Notes, means,
as
of the time in question, all Senior Secured Notes authenticated and
delivered
under this Indenture, except (i) Senior Secured Notes theretofore
canceled or
required to be canceled under this Indenture; (ii) Senior Secured
Notes for
which provision for payment shall have been made in accordance with
this
Indenture; and (iii) Senior Secured Notes in substitution for which
other Senior
Secured Notes have been authenticated and delivered pursuant to
this Indenture.
"Overdue Principal" means, as of any Payment Date, all principal of
any Senior Secured Note which has become due and payable and not
been punctually
paid or duly provided for when and as due and payable, whether as a
result of
insufficient available funds or otherwise.
"Paying Agent" has the meaning set forth in Section 2.07(a) of this
Indenture.
"Payment Date" means any Interest Payment Date or Principal Payment
Date.
"Permitted Additional Senior Lender" means a holder of any Senior
Secured Obligations other than the Senior Secured Notes.
"Permitted Indebtedness" has the meaning set forth in Section 4.18
of
this Indenture.
"Permitted Investments" means an investment in any of the
following:
(i) direct obligations of the Department of the Treasury of the
United States of
America; (ii) obligations
-16-
of any federal agencies which obligations are backed by the full
faith and
credit of the United States of America; (iii) commercial paper
rated in any one
of the two highest rating categories by Moody's or S& P; (iv)
investment
agreements with banks (foreign and domestic), broker/dealers, and
other
financial institutions rated at the time of bid in any one of the
three highest
rating categories by Moody's and S& P; (v) repurchase
agreements with banks
(foreign and domestic), broker/dealers, and other financial
institutions rated
at the time of bid in any one of the three highest rating
categories by Moody's
and S&P, provided, that (1) collateral is limited to the
securities specified in
clauses (i) and (ii) above, (2) the margin levels for collateral
must be
maintained at a minimum of 102% including principal and interest,
(3) the
Collateral Agent shall have a first priority perfected security
interest in the
collateral, (4) the collateral will be delivered to a third party
custodian,
designated by the Issuer, acting for the benefit of the Collateral
Agent and all
fees and expenses related to collateral custody will be the
responsibility of
the Issuer, (5) the collateral must have been or will be acquired
at the market
price and marked to market at least weekly and collateral level
shortfalls cured
within 24 hours and (6) unlimited right of substitution of
collateral is
allowed; provided, that substitution collateral must be permitted
collateral
substituted at a current market price and substitution fees of the
custodian
shall be paid by the Issuer; (vi) forward purchase agreements
delivering
securities specified in clauses (i) and (iii) above with banks
(foreign and
domestic), broker/dealers, and other financial institutions
maintaining a
long-term rating on the day of bid no lower than investment grade
by both S&P
and Moody's (such rating may be at either the parent or Subsidiary
level); and
(vii) money market funds rated "AAAm" or "AAAm-G" or better by
S&P.
"Permitted Liens" means (a) the rights and interests of the
Collateral
Agent and any other Secured Party as provided in the Financing
Documents; (b)
Liens for any tax, either secured by a bond or other reasonable
security or not
yet due or being contested in good faith and by appropriate
proceedings, so long
as (i) such proceedings shall not involve any substantial danger of
the sale,
forfeiture or loss of the Projects, the Plants, the sites of the
Project or any
easements that are material to the ownership, operation or
maintenance of the
Projects, as the case may be, title thereto or any interest therein
and shall
not interfere in any material respect with the use of any Project,
any Plant,
any Project sites or any easements that are material to the
ownership, operation
or maintenance of the Projects, (ii) a bond or other reasonable
security has
been posted or provided in such manner and amount as to assure that
any taxes
determined to be due will be promptly paid in full when such
contest is
determined or (iii) adequate reserves have been provided therefor
to the extent
required by and in accordance with GAAP; (c) materialmen's,
mechanics',
workers', repairmen's, employees' or other like Liens, arising in
the ordinary
course of business or in connection with the development,
construction,
operation and/or maintenance of any Project, either for amounts not
yet due or
for amounts being contested in good faith and by appropriate
proceedings so long
as (i) the Issuer reasonably determines that such proceedings shall
not involve
any substantial danger of the sale, forfeiture or loss of any
Project, any
Plant, any Project sites or any easements that are material to the
ownership,
operation or maintenance of the Projects, as the case may be, title
thereto or
any interest therein and shall not interfere in any material
respect with the
use or disposition of any Project, any Plant, any Project sites or
any easements
that are material to the ownership, operation or maintenance of the
Projects, or
(ii) a bond or adequate cash reserves have been provided therefor
to the extent
required by and in accordance with GAAP; (d) Liens
-17-
arising out of judgments or awards so long as enforcement of such
Lien has been
stayed and an appeal or proceeding for review is being prosecuted
in good faith
and for the payment of which adequate reserves, bonds or other
reasonable
security have been provided or are fully covered by insurance; (e)
Title
Exceptions as reflected in the Title Policy other than delinquent
taxes and
monetary liens which are to be paid on the Closing Date; (f) Liens,
deposits or
pledges to secure statutory obligations; (g) Liens, deposits or
pledges to
secure performance of bids, tenders, contracts (other than for the
repayment of
borrowed money) or leases, or for purposes of like general nature
in the
ordinary course of its business, not to exceed $5 million in the
aggregate at
any time, and with any such Lien to be released as promptly as
practicable; (h)
other Liens incident to the ordinary course of business that are
not incurred in
connection with the obtaining of any loan, advance or credit and
that do not in
the aggregate materially impair the use of the Issuer's or the
Issuer's
Subsidiaries' property or assets or the value of such property or
assets for the
purposes of such business; (i) involuntary Liens as contemplated by
the
Financing Documents and the Project Documents (including a lien of
an attachment
or execution) securing a charge or obligation on any of the
Issuer's property,
either real or personal, whether now or hereafter owned, in the
aggregate sum of
less than $3 million; and (j) servitudes, easements, rights-of-way,
restrictions, minor defects or irregularities in title and such
other
encumbrances or charges against real property or interests therein
as of a
nature generally existing with respect to properties of similar
character and
which do not in a material way interfere with the value or use
thereof or the
Issuer's business.
"Person" means any individual, sole proprietorship, corporation,
partnership, joint venture, limited liability partnership, limited
liability
company, trust, unincorporated association, institution,
Governmental Authority
or any other entity.
"Place of Payment" when used with respect to the Senior Secured
Notes,
means the office or agency maintained pursuant to Section 4.02.
"Plant Connection Agreements" means the Heber 1 Plant Connection
Agreement, the Heber 2 Plant Connection Agreement and the Gould
Plant Connection
Agreements.
"Plants" means the Heber 1 Plant, the Heber 2 Plant, the Gould
Plant
or any other geothermal power generating plant located in Imperial
County,
California and constructed in accordance with Section 4.43 hereof.
"Pledge and Security Agreements" means each of the Pledge and
Security
Agreements, to be executed by the Issuer, each of the Guarantors
and the
Collateral Agent.
"Power Purchase Agreements" means the Heber 1 Power Purchase
Agreement, the Heber 2 Power Purchase Agreement and the OrHeber 2
Power Purchase
Agreement.
"Predecessor Notes" with respect to any particular Senior Secured
Note, means any previous Senior Secured Note evidencing all or a
portion of the
same debt as that evidenced by such particular Senior Secured Note;
for the
purposes of this definition, any Senior Secured Note authenticated
and delivered
pursuant to Section 2.08 in lieu of a lost, destroyed or stolen
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Senior Secured Note shall be deemed to evidence the same debt as
the lost,
destroyed or stolen Senior Secured Note.
"Principal Payment Date" when used with respect to any Senior
Secured
Obligations means the date on which all or a portion of the
principal of such
Senior Secured Obligations become due and payable as provided in
this Indenture
or any other agreement governing such Senior Secured Obligations,
whether on a
scheduled date for payment of principal, on a Redemption Date, the
Final
Maturity Date, a date of declaration of acceleration, or otherwise.
"Private Placement Legend" means the legend referenced in Section
2.02
to be placed on all Senior Secured Notes issued under this
Indenture except
where otherwise permitted by the provisions of this Indenture.
"Production Tax Credit Agreement" means that certain Production Tax
Credit Agreement, dated December 8, 2005, among the Issuer, Ormat
Technologies
and the Collateral Agent.
"Project" means each Plant together with the related Project
Documents, Governmental Approvals relating to the Plant or Project
Documents,
and any other item relating to the Plant, including any
improvements to, and the
operation of the Plant and all activities related thereto.
"Project Documents" means the Material Project Documents and any
additional agreements relating to the Projects.
"Projections" means certain projections at the Closing Date of the
Projects' revenues and the costs associated therewith prepared by
the
Independent Engineer.
"Prudent Industry Practices" means, at a particular time, (i) any
of
the practices, methods and acts engaged in or approved by a
significant portion
of the electricity generating industry operating in the United
States at such
time, or (ii) with respect to any matter to which clause (i) does
not apply, any
of the practices, methods and acts which, in the exercise of
reasonable judgment
at the time the decision was made, could have been expected to
accomplish the
desired result at a reasonable cost consistent with good business
practices,
reliability, safety and expedition. "Prudent Industry Practice" is
not intended
to be limited to the optimum practice, method or act to the
exclusion of all
others, but rather to be a spectrum of possible practices, methods
or acts
having due regard for, among other things, manufacturers'
warranties and the
requirements of any Governmental Authority of competent
jurisdiction.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualifying Facility" means a facility which is a qualifying
facility
within the meaning of the Public Utility Regulatory Policies Act of
1978 (and
all rules and regulations adopted thereunder) and which meets the
criteria
defined in Title 18, Code of Federal Regulations, Sections 292.201
through
292.207.
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"Redemption Account" means the account bearing such title and
created
under the Depositary Agreement.
"Redemption Date" means the date on which the Issuer redeems or is
required to redeem any Senior Secured Notes in accordance with this
Indenture.
"Registrar" has the meaning specified in Section 2.07(a).
"Regular Record Date" for the interest or principal payable on any
Payment Date on the Senior Secured Notes means the date specified
for that
purpose as contemplated by Section 2.09 (whether or not a Business
Day).
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means the Temporary Regulation S Global
Note or the Regulation S Unrestricted Global Note, as applicable.
"Regulation S Unrestricted Global Note" has the meaning specified
in
Section 2.01.
"Related Party" means (a) Ormat Industries and Ormat Technologies,
(b)
any direct or indirect controlling stockholder or controlling
member or a more
than 50% owned subsidiary of Ormat Nevada or (c) any trust,
corporation,
partnership, limited liability company or other entity, of which
the
beneficiaries, stockholders, partners, members or Persons holding
more than a
50% controlling interest are Ormat Nevada and/or such other Persons
referred to
in the immediately preceding clause (a) or (b).
"Renewable Energy Credits" means all renewable energy credits,
offsets
or other benefits allocated, assigned or otherwise awarded or
certified to the
Issuer or any of the Issuer's Subsidiaries by any Governmental
Authority in
connection with any of the Projects; provided, that the foregoing
shall not
include any federal, state, and/or local production tax credits
and/or
investment tax credits specific to investments in renewable energy
production
and delivery facilities (if any) or any environmental credits,
offsets, or other
similar benefits allocated, assigned or otherwise awarded to the
Issuer or any
of the Issuer's Subsidiaries by any Governmental Authority or
received in any
other manner based in whole or in part on the fact that any of the
Projects
constitutes a "renewable energy system" (as defined under any
Applicable Law) or
the like, including emissions credits or allowances, such as
credits available
because such Project does not produce carbon dioxide or other
emissions when
generating electric energy.
"Required Holders" means, at any time, Persons that at such time
hold
not less than 51% in aggregate principal amount of the Outstanding
Senior
Secured Notes.
"Responsible Officer" means, with respect to knowledge of any
default
under this Indenture, the chairman, president, chief financial
officer, chief
operating officer or any plant manager (with respect to such plant
manager's
responsibilities at any Project) of the Issuer
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or Ormat Nevada, or other officer of the Issuer who in the normal
performance of
his or her managerial duties would have knowledge of the subject
matter relating
to such default.
"Responsible Trust Officer" means, when used with respect to the
Trustee, the Depositary, the Collateral Agent or the Intercreditor
Agent, the
chief executive officer, president, chief financial officer,
general counsel,
principal accounting officer, treasurer, assistant treasurer or any
vice
president of the Trustee, the Depositary, the Collateral Agent or
the
Intercreditor Agent (or any successor group of the Trustee,
Depositary,
Collateral Agent or Intercreditor Agent, as applicable), or any
other officer of
the Trustee, the Depositary, the Collateral Agent or the
Intercreditor Agent
customarily performing functions similar to those performed by any
of the above
designated officers and also means, with respect to a particular
corporate trust
matter, any other officer to whom such matter is referred because
of such
officer's knowledge of and familiarity with the particular subject.
"Restoration Sub-Account" means one or more accounts bearing such
title and created under the Depositary Agreement in connection with
an Event of
Loss or Event of Eminent Domain.
"Restricted Global Note" has the meaning set forth in Section 2.01
hereto.
"Restricted Note" has the meaning specified in Section 2.02.
"Restricted Payment" means, with respect to any Person, (i) the
declaration and payment of distributions, dividends or any other
payment made in
cash, property, obligations or other notes, (ii) any payment of the
principal
of, or interest or premium, if any, on, any Subordinated Debt,
(iii) the making
of any loans or advances to any Affiliate (other than Permitted
Indebtedness),
(iv) any purchase, redemption, acquisition or retirement for value
(including,
without limitation in connection with any merger or consolidation
of the Issuer)
of any of the Issuer's Capital Stock or (v) any Investment in any
Person other
than a Guarantor (other than Permitted Investments made in
accordance with the
provisions herein); provided, however, that the term "Restricted
Payments" shall
not include (x) proceeds of the offering of the Initial Notes in
the amount of
$160,645,387.05 utilized to repay, in full, the Issuer's
outstanding loan with
Beal Bank S.S.B., (y) cash released from any Account as a result of
the
provision of an Acceptable Letter of Credit as provided for in the
Financing
Documents or (z) payments made to any Affiliate of such Person for
goods and
services purchased or procured in accordance with the terms of this
Indenture.
"Restricted Period" has the meaning set forth in Section 2.01.
"Revenue Account" means the account bearing such title and created
under the Depositary Agreement.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Rule 144" means Rule 144 promulgated under the Securities Act.
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"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Note" means restricted, permanent global notes in
fully registered form issued to qualified institutional buyers
under Rule 144A.
"S&P" means Standard & Poor's Rating Services, its
successors and
assigns.
"Scheduled Payment Date" means each June 30 and December 30,
commencing on June 30, 2006 and ending on December 30, 2020.
"SEC" means the United States Securities and Exchange Commission.
"Second Imperial Geothermal" means Second Imperial Geothermal
Company,
a limited partnership organized and existing under the laws of the
State of
California, its successors and assigns.
"Secured Parties" means the Trustee, the Holders, the Collateral
Agent, the Depositary, the Intercreditor Agent and the Holders of
additional
Permitted Indebtedness (other than Permitted Indebtedness of the
type described
in clause (v) or (vi) in the definition thereof), in each case to
the extent
such party (or an agent on such party's behalf) is or becomes a
party to the
Collateral Agency Agreement and the Intercreditor Agreement.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Securities Intermediary" means Union Bank of California, N.A.,
until
a successor replaces it in accordance with the applicable
provisions of the
Depositary Agreement and thereafter means the successor serving
thereunder in
such capacity.
"Security Documents" means, collectively, the Depositary Agreement,
the Deeds of Trust, the Collateral Agency Agreement, the Pledge and
Security
Agreements, the Intercreditor Agreement, the Control Agreements,
the Third Party
Consents and any other document providing for any lien of the
Secured Parties,
pledge, encumbrance, mortgage or security interest on any or all of
the Issuer's
assets or the ownership interests thereof or the Issuer's
Subsidiaries' assets
and the ownership interests thereof.
"Senior Secured Notes" means the Initial Notes and, unless the
context
otherwise requires, the Additional Notes.
"Senior Secured Obligations" means, collectively, without
duplication:
(i) all of the Issuer's Indebtedness, financial liabilities and
obligations, of
whatsoever nature and however evidenced (including, but not limited
to,
principal, interest, premium, fees, reimbursement obligations,
penalties,
indemnities and legal and other expenses, whether due after
acceleration or
otherwise) to the Secured Parties in their capacity as such under
the applicable
Financing Document or any other agreement, document or instrument
evidencing,
securing or relating to such Indebtedness, financial liabilities or
obligations,
in each case, direct or indirect, primary or secondary, fixed or
contingent, now
or hereafter arising out of or relating to any such agreements;
(ii) any and all
sums advanced by the Collateral Agent in order to
-22-
preserve the Collateral or preserve its security interest in the
Collateral; and
(iii) in the event of any proceeding for the collection or
enforcement of the
obligations described in clauses (i) and (ii) above, after an Event
of Default
has occurred and is continuing and unwaived, the expenses of
retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or
realizing on
the Collateral, or of any exercise by the Collateral Agent of its
rights under
the Security Documents, together with reasonable attorneys' fees
and court
costs.
"Series Supplemental Indenture" means an indenture supplemental to
this Indenture entered into by the Issuer, the Trustee and the
Guarantors, if
applicable, for the purpose of establishing, in accordance with
this Indenture,
the title, form and terms of Senior Secured Notes of any series.
"Special Record Date" for the payment of any Overdue Interest or
Overdue Principal means a date fixed by the Trustee pursuant to
Section 2.09.
"Subordinated Debt" means Indebtedness incurred pursuant to a
Subordinated Loan Agreement.
"Subordinated Loan Agreement" means a binding agreement providing
nonrecourse, unsecured debt financing to the Issuer on the terms
and conditions
set forth in Exhibit D to this Indenture.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock
entitled
(without regard to the occurrence of any contingency and after
giving
effect to any voting agreement or stockholders' agreement that
effectively
transfers voting power) to vote in the election of directors,
managers or
trustees of the corporation, association or other business entity
is at the
time owned or controlled, directly or indirectly, by that Person or
one or
more of the other Subsidiaries of that Person (or a combination
thereof);
and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such
Person or
(b) the only general partners of which are that Person or one or
more
Subsidiaries of that Person (or any combination thereof).
"Third Party Consents" means each consent to assignment, among
certain
counterparties to a Material Project Document, the Issuer and/or
the Issuer's
applicable Subsidiary and the Collateral Agent.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified
under the TIA.
"Title Event" means the existence of any defect of title or Lien or
encumbrance on a Project (other than Permitted Liens) in effect on
the Closing
Date that entitles the
-23-
Collateral Agent to make a claim under the policy or policies of
title insurance
required pursuant to the Financing Documents.
"Title Event Proceeds" means all amounts and proceeds (including
instruments) in respect of any Title Event.
"Title Exceptions" means the exceptions to title set forth in the
title policy referred to in Section 4.42.
"Title Policy" means the mortgagee title insurance policy delivered
by
a title company of national standing or its Affiliates insuring to
the Lien of
the Deeds of Trust.
"Transaction Documents" means the Project Documents and the
Financing
Documents.
"Transmission Service Agreement" means that certain Transmission
Service Agreement for Alternative Resources, dated October 27,
1992, between
Imperial Irrigation District and Second Imperial Geothermal.
"Trustee" means Union Bank of California, N.A., a national banking
association organized and existing under the laws of the United
States, until a
successor replaces it in accordance with the applicable provisions
of this
Indenture, and thereafter means the successor serving thereunder in
such
capacity.
"Unrestricted Global Note" means a permanent global Senior Secured
Note in the form of Exhibit A-1 attached hereto that bears the
Global Note
Legend and that has the "Schedule of Exchanges of Interests in the
Global Note"
attached thereto, and that is deposited with or on behalf of and
registered in
the name of the Depositary, representing Senior Secured Notes that
do not bear
the Private Placement Legend.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the
Securities Act.
"Wholly Owned Subsidiary" of any specified Person means a
Subsidiary
of such Person all of the outstanding Capital Stock or other
ownership interests
of which (other than directors' qualifying shares) will at the time
be owned by
such Person or by one or more Wholly Owned Subsidiaries of such
Person.
-24-
Section 1.02 Other Definitions.
Term
Defined in Section
----
------------------
"Affiliate Transaction" ...............
4.13
"Applicable Procedures" ...............
2.07(c)(v)(B)
"Checking Account".....................
4.30
"Covenant Defeasance"..................
7.03
"Debtor Relief Law"....................
5.01
"Issuer"...............................
Preamble
"Legal Defeasance".....................
7.02
"Overdue Interest".....................
2.09
"Temporary Regulation S Global Note"...
2.01
"Transfer" ............................
2.07(b)
"Trustee"..............................
Preamble
Section 1.03 Trust Indenture Act Provisions.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Senior Secured Notes;
"indenture security holder" means a Holder of a Senior Secured
Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Senior Secured Notes means the Issuer and any
successor obligor upon the Senior Secured Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute
or defined by SEC rule under the TIA have the meanings so assigned
to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
-25-
(b) an accounting term not otherwise defined has the meaning
assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) references to a Person shall include such Person's permitted
successors and assigns;
(f) provisions apply to successive events and transactions;
(g) unless otherwise expressly specified, any agreement, contract
or
document defined or referred to herein shall mean such agreement,
contract
or document as in effect as of the date hereof, as the same may
thereafter
be amended, supplemented and/or otherwise modified from time to
time in
accordance with the terms of this Indenture and the other
Transaction
Documents and shall include any agreement, contract or document in
substitution or replacement of any of the foregoing entered into in
accordance with the terms of this Indenture and the other
Transaction
Documents; and
(h) references to sections of or rules under the Securities Act
shall
be deemed to include substitute, replacement or successor sections
or rules
adopted by the SEC from time to time.
ARTICLE II
THE SENIOR SECURED NOTES
Section 2.01 Form Generally.
The Senior Secured Notes of each series shall be in substantially
the
form set forth in Exhibit A-1/A-2 or in such other form as shall,
subject to
Section 2.03 and Section 2.05, be established by or pursuant to one
or more
Series Supplemental Indentures relating to the Senior Secured Notes
of such
series, with such appropriate insertions, omissions, substitutions
and other
variations as are required or permitted by this Indenture, and may
have such
letters, numbers or other marks of identification and such legends
or
endorsements placed thereon as may be required to comply with the
rules of any
securities exchange or Depository therefor or as may, consistently
herewith, be
determined by the officers executing such Senior Secured Notes as
evidenced by
their execution thereof.
The Certificated Notes shall be printed, lithographed or engraved
on
steel engraved borders or may be produced in any other manner, all
as determined
by the Authorized Officers executing such Certificated Notes, as
evidenced by
their execution of such Certificated Notes.
-26-
Restricted Notes shall bear the applicable legends as set forth in
Exhibit A-1/A-2 and as provided in Section 2.02.
Senior Secured Notes offered and sold in their initial distribution
in
reliance on Rule 144A shall be issued in the form of one or more
Global Notes
(each a "Restricted Global Note") in definitive, fully registered
form without
interest coupons, substantially in the form set forth in Exhibit
A-1, or in such
other form as shall, subject to Section 2.03 and Section 2.05, be
established by
or pursuant to one or more Series Supplemental Indentures with
respect to such
Restricted Global Notes, with such applicable legends as are
provided for in
Exhibit A-1. Such Global Notes shall be registered in the name of
the Depository
for such Global Notes or its nominee and deposited with the
Trustee, at the
Corporate Trust Office of the Trustee, as custodian for such
Depository, duly
executed on behalf of the Issuer and authenticated by the Trustee
as herein
provided. The aggregate principal amount of any Restricted Global
Note may from
time to time be increased or decreased by adjustments made on the
records of the
Trustee, as custodian for the Depository for such Global Note, as
provided in
Section 2.07, which adjustments shall be conclusive as to the
aggregate
principal amount of any such Global Notes. Except as agreed by the
Issuer, no
Restricted Global Note shall be issued except as provided in this
paragraph to
evidence Senior Secured Notes offered and sold in their initial
distribution in
reliance on Rule 144A.
Senior Secured Notes offered and sold in their initial distribution
in
reliance on Regulation S shall be issued initially in the form of
one or more
temporary Global Notes (a "Temporary Regulation S Global Note") in
definitive,
fully registered form without interest coupons, substantially in
the form set
forth in Exhibit A-2, or in such other form as shall, subject to
Section 2.03
and Section 2.05, be established by or pursuant to one or more
Series
Supplemental Indentures with respect to such Temporary Regulation S
Global
Notes, with such applicable legends as are provided for in Exhibit
A-2. Such
Temporary Regulation S Global Notes shall be registered in the name
of the
Depository for such Global Notes or its nominee and deposited with
the Trustee,
at the Corporate Trust Office of the Trustee, as custodian for such
Depository,
duly executed by the Issuer and authenticated by the Trustee as
herein provided,
for credit to the respective accounts of beneficial owners of such
Global Notes
(or to such other accounts as they may direct) at Euroclear or
Clearstream.
Beneficial interests in any Temporary Regulation S Global Note may
be held only
through Euroclear or Clearstream. Within a reasonable period of
time after the
expiration of the Restricted Period (as defined below), any
Temporary Regulation
S Global Note will be exchanged for a permanent Regulation S Global
Note (the
"Regulation S Unrestricted Global Note," and together with the
Temporary
Regulation S Global Note, the "Regulation S Global Note")
substantially in the
form set forth in Exhibit A-1 with such applicable legends as are
provided for
in Exhibit A-1, but without the Restricted Notes legend set forth
in Exhibit
A-1, upon delivery to the Depository of certification of non-United
States
ownership and compliance with Regulation S. The Regulation S
Unrestricted Global
Note will be deposited with the Trustee at the Corporate Trust
Office of the
Trustee, as custodian for the Depository and registered in the name
of the
nominee of the Depository. Clearstream and Euroclear will hold
beneficial
interests in the Regulation S Unrestricted Global Note on behalf of
their
participants through their respective depositories, which in turn
will hold such
beneficial interests in the Regulation S Unrestricted Global Note
in
participants' securities accounts in the depositories' names on the
books of the
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Depository. The aggregate principal amount of any Temporary
Regulation S Global
Note and any Regulation S Unrestricted Global Note may from time to
time be
increased or decreased by adjustments made on the records of the
Trustee, as
custodian for the Depository for such Global Note, as provided in
Section 2.07,
which adjustments shall be conclusive as to the aggregate principal
amount of
any such Global Note. As used herein, the term "Restricted Period",
with respect
to Global Notes offered and sold in reliance on Regulation S, means
the period
of 40 consecutive days beginning on and including the later of (i)
the day on
which the Senior Secured Notes are first offered to persons other
than
distributors (as defined in Regulation S) in reliance on Regulation
S (according
to a written notice to the Issuer and the Trustee by the
underwriter(s), if any,
of the offering of such Senior Secured Notes) and (ii) the date of
the closing
of the offering of such Senior Secured Notes. Except as agreed by
the Issuer, no
Temporary Regulation S Global Note or Regulation S Unrestricted
Global Note
shall be issued except as provided in this paragraph to evidence
such Senior
Secured Notes offered and sold in their initial distribution in
reliance on
Regulation S.
Section 2.02 Legends on Restricted Notes.
All Senior Secured Notes issued pursuant to this Indenture
(including
Senior Secured Notes issued upon registration of transfer, in
exchange for or in
lieu of such Senior Secured Notes) shall be "Restricted Notes" and
shall bear
the applicable legend(s) setting forth restrictions on transfer
provided in
Exhibit A-1/A-2 (the "Private Placement Legend"); provided,
however, that the
term "Restricted Notes" shall not include (i) Temporary Regulation
S Global
Notes or Regulation S Unrestricted Global Notes, (ii) Senior
Secured Notes as to
which such restrictive legend(s) shall have been removed pursuant
to Section
2.07 and (iii) Senior Secured Notes issued upon registration of
transfer of, in
exchange for, or in lieu of, Senior Secured Notes that are not
Restricted Notes.
Section 2.03 Amount of Senior Secured Notes.
The aggregate principal amount of Senior Secured Notes which may be
outstanding at any time is unlimited, subject to compliance with
Section 4.18
hereof.
The Senior Secured Notes may be issued in one or more series. There
shall be established in one or more Series Supplemental Indentures,
prior to the
issuance of Senior Secured Notes of any series:
(a) the title of the Senior Secured Notes of such series (which
shall
distinguish the Senior Secured Notes of such series from all other
Senior
Secured Notes) and the form or forms of Senior Secured Notes of
such
series;
(b) any limit upon the aggregate principal amount of the Senior
Secured Notes of such series that may be authenticated and
delivered under
this Indenture (except for Senior Secured Notes authenticated and
delivered
upon registration of transfer of, or in exchange for, or in lieu
of, other
Senior Secured Notes of such series pursuant to Sections 2.06,
2.07, 2.08,
3.06 or 8.09 and except for Senior Secured Notes
-28-
that, pursuant to the last paragraph of Section 2.05, are deemed
never to
have been authenticated and delivered hereunder);
(c) the date or dates on which the principal of the Senior Secured
Notes of such series is payable, the amounts of principal payable
on such
date or dates and the Regular Record Date for the determination of
Holders
to whom principal is payable; and the date or dates on or as of
which the
Senior Secured Notes of such series shall be dated, if other than
as
provided in Section 2.05;
(d) the rate or rates at which the Senior Secured Notes of such
series
shall bear interest, or the method by which such rate or rates
shall be
determined, the date or dates from which such interest shall
accrue, the
interest payment dates on which such interest shall be payable and
the
Regular Record Date for the determination of Holders to whom
interest is
payable; and the basis of computation of interest, if other than as
provided in Section 2.12;
(e) if other than as provided in Section 4.02, the place or places
where (i) the principal of and interest on Senior Secured Notes of
such
series shall be payable, (ii) Senior Secured Notes of such series
may be
surrendered for registration of transfer or exchange and (iii)
notices and
demands to or upon the Issuer in respect of the Senior Secured
Notes of
such series and this Indenture may be served;
(f) the price or prices at which, the period or periods within
which
and the terms and conditions upon which Senior Secured Notes of
such series
may be redeemed, in whole or in part, at the option of the Issuer;
(g) the obligation, if any, of the Issuer to redeem, purchase or
repay
Senior Secured Notes of such series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof and the
price or
prices at which and the periods or periods within which and the
terms and
conditions upon which Senior Secured Notes of such series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to
such
obligations;
(h) if other than minimum denominations of $1,000 and any integral
multiple of $1,000 in excess thereof, the denominations in which
Senior
Secured Notes of such series shall be issuable;
(i) the restrictions or limitations, if any, on the transfer or
exchange of the Senior Secured Notes of such series;
(j) the obligation, if any, of the Issuer to file a registration
statement with respect to the Senior Secured Notes of such series
or to
exchange the Senior Secured Notes of such series for Senior Secured
Notes
registered pursuant to the Securities Act;
(k) any other terms of such series (which terms shall not be
inconsistent with the provisions of this Indenture);
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(l) any trustees, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Senior Secured
Notes of
such series;
(m) the issue price, the issue date and the CUSIP number of the
Senior
Secured Notes of such series; provided, however, that no Senior
Secured
Notes of a particular series may be issued at a price that would
cause such
Senior Secured Notes of such series to have "original issue
discount"
within the meaning of Section 1273 of the Code; and
(o) the use of proceeds of the Senior Secured Note of the relevant
series.
The Initial Notes and any Additional Notes will be treated as a
single
class for all purposes of this Indenture, except as otherwise
provided
hereunder.
Section 2.04 Denominations.
The Senior Secured Notes shall be issuable only in registered form
without coupons and in denominations of $1,000 and any integral
multiple of
$1,000 in excess thereof. Any repayments (either scheduled or
pursuant to any
redemption) of any Senior Secured Note shall be made only in the
denomination or
integral multiple thereof set forth above.
Section 2.05 Execution, Authentication, Delivery and Dating.
The Senior Secured Notes shall be executed on behalf of the Issuer
by
an Authorized Representative of the Issuer. The signature of any of
these
officers on the Senior Secured Notes may be manual or facsimile.
Senior Secured Notes bearing the manual or facsimile signature of
individuals who were at the time of execution the Authorized
Representative of
the Issuer shall bind the Issuer, notwithstanding that such
individuals or any
of them have ceased to hold such offices prior to the
authentication and
delivery of such Senior Secured Notes or did not hold such offices
at the date
of such Senior Secured Notes.
At any time and from time to time after the execution and delivery
of
this Indenture, the Issuer may deliver Senior Secured Notes (with
Guarantees
endorsed thereon), if applicable, of any series executed by the
Issuer to the
Trustee for authentication, together with a Authentication Order
for the
authentication and delivery of such Senior Secured Notes, and the
Trustee in
accordance with the Authentication Order shall authenticate and
deliver such
Senior Secured Notes. The Trustee shall authenticate and deliver:
(i) on the
Closing Date, an aggregate principal amount of $165,000,000 6.21%
Senior Secured
Notes Due 2020 and (ii) Additional Notes for an original issue in
an aggregate
principal amount specified in an Authentication Order pursuant to
this Section
2.05, in each case upon an Authentication Order of the Issuer
signed by an
Authorized Officer of the Issuer. Such order will specify the
amount of the
Senior Secured Notes to be authenticated and the date on which the
original
issue of the Senior Secured Notes is to be authenticated. If the
form or terms
of the Senior Secured Notes have been established by or pursuant to
a
Supplemental Indenture as permitted by Section 2.01 in
authenticating such
Senior Secured Notes, and accepting any additional responsibilities
under
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this Indenture in relation to such Senior Secured Notes, the
Trustee shall be
entitled to receive, and shall be fully protected in relying upon,
an Opinion of
Counsel stating,
(a) that such form has been established in conformity with the
provisions of this Indenture;
(b) that such terms have been established in conformity with the
provisions of this Indenture; and
(c) that such Senior Secured Notes, when authenticated and
delivered
by the Trustee and issued by the Issuer in the manner and subject
to any
conditions specified in such Opinion of Counsel, will constitute
valid and
legally binding obligations of the Issuer, enforceable against the
Issuer
in accordance with their terms (subject to customary qualifications
or
exceptions).
The Trustee shall not be required to authenticate such Senior
Secured
Notes if the issue of such Senior Secured Notes pursuant to this
Indenture will
adversely affect the Trustee's own rights, duties or immunities
under the Senior
Secured Notes and this Indenture or otherwise in a manner which is
not
reasonably acceptable to the Trustee.
Except as otherwise provided in the Series Supplemental Indenture
relating to the Senior Secured Notes of a series, each Senior
Secured Note of
such series shall be dated the date of its authentication.
No Senior Secured Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such
Senior Secured Note a certificate of authentication substantially
in the form
provided for herein executed by the Trustee by manual signature of
an Authorized
Officer, and such certificate upon any Senior Secured Note shall be
conclusive
evidence, and the only evidence, that such Senior Secured Note has
been duly
authenticated and delivered hereunder. Notwithstanding the
foregoing, if any
Senior Secured Note shall have been authenticated and delivered
hereunder but
never issued and sold by the Issuer, and the Issuer shall deliver
such Senior
Secured Note to the Trustee for cancellation as provided in Section
2.11, for
all purposes of this Indenture such Senior Secured Note shall be
deemed never to
have been authenticated and delivered hereunder and shall never be
entitled to
the benefits of this Indenture.
Section 2.06 Temporary Senior Secured Notes.
Pending the preparation of definitive Senior Secured Notes, the
Issuer
may execute, and upon Authentication Order the Trustee shall
authenticate and
deliver, temporary Senior Secured Notes which are printed,
lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination,
substantially of the tenor of the definitive Senior Secured Notes
in lieu of
which they are issued and with such appropriate insertions,
omissions,
substitutions and other variations as the officers of the Issuer
executing the
same may determine, as evidenced by their execution of such Senior
Secured
Notes.
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If temporary Senior Secured Notes are issued, the Issuer will cause
definitive Senior Secured Notes to be prepared without unreasonable
delay. After
the preparation of definitive Senior Secured Notes, the temporary
Senior Secured
Notes shall be exchangeable for definitive Senior Secured Notes
upon surrender
of the temporary Senior Secured Notes at the office or agency of
the Issuer in a
Place of Payment, without charge to the Holder. Upon surrender for
cancellation
of any one or more temporary Senior Secured Notes, the Issuer shall
execute and
the Trustee shall authenticate and deliver in exchange therefor one
or more
definitive Senior Secured Notes of any authorized denominations and
of like
tenor and aggregate principal amount. Until so exchanged, the
temporary Senior
Secured Notes shall in all respects be entitled to the same
benefits under this
Indenture as definitive Senior Secured Notes.
Section 2.07 Registration, Registration of Transfer and Exchange.
(a) General. The Issuer shall cause to be kept at the Corporate
Trust
Office of the Trustee a register in which, subject to such
reasonable
regulations as it may prescribe, the Issuer shall provide for the
registration
of Senior Secured Notes and for transfers of Senior Secured Notes.
The Trustee
is hereby appointed "Registrar" for the purpose of registering
Senior Secured
Notes and transfers of Senior Secured Notes as herein provided. The
Issuer also
shall cause to be kept an office or agency where Senior Secured
Notes may be
presented for payment ("Paying Agent") and where notices and
demands to or upon
the Issuer in respect of the Senior Secured Notes may be served.
Notwithstanding anything to the contrary set forth herein, the
Trustee
shall not be required and shall have no obligation to monitor
compliance with
any federal or state securities laws.
Upon surrender for registration of transfer of any Senior Secured
Note
at the office or agency of the Issuer in a Place of Payment, the
Issuer shall
execute, and the Trustee shall authenticate and deliver, in the
name of the
designated transferee or transferees, one or more new Senior
Secured Notes, of
any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Senior Secured Notes may be exchanged
for
other Senior Secured Notes, of any authorized denominations and of
like tenor
and aggregate principal amount, upon surrender of the Senior
Secured Notes to be
exchanged at such office or agency. Whenever any Senior Secured
Notes are so
surrendered for exchange, the Issuer shall execute, and the Trustee
shall
authenticate and deliver, the Senior Secured Notes which the Holder
making the
exchange is entitled to receive.
All Senior Secured Notes issued upon any registration of transfer
or
exchange of Senior Secured Notes shall be the valid obligations of
the Issuer,
evidencing the same debt, and entitled to the same benefits under
this Indenture
as the Senior Secured Notes surrendered upon such registration of
transfer or
exchange.
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Every Senior Secured Note presented or surrendered for registration
of
transfer or for exchange shall be duly endorsed, or be accompanied
by a written
instrument of transfer in form satisfactory to the Issuer and the
Registrar duly
executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Senior Secured Notes, but the Issuer may require
payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in
connection with any registration of transfer or exchange of Senior
Secured
Notes, other than exchanges pursuant to Section 2.06 or Section
3.06 not
involving any transfer.
If the Senior Secured Notes are to be redeemed in part, the Issuer
shall not be required (A) to issue, register the transfer of, or
exchange, any
Senior Secured Notes during a period beginning at the opening of
business 15
days before the day of the mailing of a notice of redemption of any
such Senior
Secured Notes selected for redemption under Section 3.03 and ending
at the close
of business on the day of such mailing or (B) to register the
transfer of or
exchange any Senior Secured Note so selected for redemption in
whole or in part,
except the unredeemed portion of any Senior Secured Note being
redeemed in part.
(b) Restricted Notes. Every Restricted Note shall be subject to the
restrictions on offers, Transfers and exchanges provided in the
applicable
legend(s) required to be set forth on the face of each Restricted
Note pursuant
to Exhibit A-1/A-2 and Section 2.02, unless such restrictions on
Transfer shall
be waived by the written consent of the Issuer, and the Holder of
each
Restricted Note, by such Holder's acceptance thereof, agrees to be
bound by such
restrictions on Transfer. Whenever any Restricted Note is presented
or
surrendered for registration of Transfer or for exchange for a
Senior Secured
Note registered in a name other than that of the Holder, such
Restricted Note
must be accompanied by an appropriately completed certificate in
substantially
the form set forth in Exhibit B, in the case of Transfer, or, in
the case of any
exchange, Exhibit C or as contemplated by Section 2.13(c) (which
may be attached
to or set forth in the Restricted Note), appropriately completed,
dated the date
of such surrender and signed by the Holder of such Restricted Note,
as to
compliance with such restrictions on Transfer, unless the Issuer
shall have
notified the Trustee in writing pursuant to this Section 2.07 that
there is an
effective registration statement under the Securities Act with
respect to such
Restricted Note. The Registrar shall not be required to accept for
such
registration of Transfer or exchange any Restricted Note not so
accompanied by a
properly completed certificate.
Except as otherwise provided in the preceding paragraph, if Senior
Secured Notes are issued upon the Transfer, exchange or replacement
of Senior
Secured Notes bearing a legend or legends setting forth
restrictions on
Transfer, or if a request is made to remove such legend(s) on a
Senior Secured
Note, the Senior Secured Notes so issued shall bear such legend(s)
or such
legend(s) shall not be removed, as the case may be, unless the
transferor
delivers to the Issuer such satisfactory evidence (which may
include an opinion
of independent counsel experienced in matters of United States
securities law as
may be reasonably satisfactory to the Issuer), as may be reasonably
required by
the Issuer, that neither such legend(s) nor the restrictions on
Transfer set
forth therein are required to ensure that Transfers thereof comply
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with the provisions of Rule 144A or Rule 144 or Regulation S or
that such Senior
Secured Notes are not restricted securities within the meaning of
Rule 144. Upon
provision of such satisfactory evidence to the Issuer, the Trustee,
at the
written direction of the Issuer set forth in an Officer's
Certificate of the
Issuer, shall authenticate and deliver a Senior Secured Note that
does not bear
such legend(s). In the absence of bad faith on its part, the
Trustee may
conclusively rely upon such direction of the Issuer in
authenticating and
delivering a Senior Secured Note that does not bear such legend(s).
As used in this Section 2.07(b), the term "Transfer" encompasses
any
sale, pledge or other transfer of any Senior Secured Notes referred
to herein.
(c) Global Notes. This Section 2.07(c) shall apply to Global Notes.
(i) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depository designated for such Global
Note or
a nominee thereof and delivered to such Depository or a nominee
thereof or
custodian therefor, and each such Global Note shall constitute a
single
Global Note for all purposes of this Indenture. The Senior Secured
Notes
may be represented by one or more Global Notes, and such Global
Notes may
be Restricted Global Notes, Temporary Regulation S Global Notes or
Regulation S Unrestricted Global Notes, or any combination thereof.
(ii) Notwithstanding any other provision in this Indenture, no
Global
Note may be exchanged in whole or in part for Senior Secured Notes
registered, and no transfer of a Global Note in whole or in part
may be
made, in the name of any Person other than the Depository for such
Global
Note or a nominee thereof unless (A) such Depository (1) has
notified the
Issuer that it is unwilling or unable to continue as Depository for
such
Global Note or (2) has ceased to be a clearing agency registered
under the
Exchange Act, and, in either case, a successor Depository is not
appointed
within 90 days thereof, (B) the Issuer executes and delivers to the
Trustee
a Authentication Order providing that such Global Note shall be so
transferable, registrable and exchangeable, or (C) there shall have
occurred and be continuing an Event of Default with respect to the
Global
Notes. Any Global Note exchanged pursuant to subclause (A) above
shall be
so exchanged in whole and not in part and any Global Note exchanged
pursuant to subclause (B) or (C) above may be exchanged in whole or
from
time to time in part as directed by the Depository for such Global
Note.
Notwithstanding any other provision in this Indenture, a Global
Note to
which the restriction set forth in the second preceding sentence
shall have
ceased to apply may be transferred only to, and may be registered
and
exchanged for Senior Secured Notes registered only in the name or
names of,
such Person or Persons as the Depository for such Global Note shall
have
directed and no transfer thereof other than such a transfer may be
registered.
(iii) Subject to clause (ii) above, any exchange of a Global Note
for
other Senior Secured Notes may be made in whole or in part, and all
Senior
Secured Notes issued in exchange for a Global Note or any portion
thereof
shall be registered in such name or names as the Depository for
such Global
Note shall direct.
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(iv) Every Senior Secured Note authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global
Note or any portion thereof, whether pursuant to this Section 2.07,
Section
2.06, 2.09 or 3.06 or otherwise shall be authenticated and
delivered in the
form of, and shall be, a Global Note, unless such Senior Secured
Note is
registered in the name of a Person other than the Depository for
such
Global Note or a nominee thereof.
(v) Notwithstanding any other provision of this Indenture or of the
Senior Secured Notes, transfers of interests in a Global Note of
the kind
described in Section 2.01 and in subclauses (B), (C), (D) and (E)
of this
clause (v) below shall be made only in accordance with this clause
(v), and
all transfers of an interest in a Temporary Regulation S Global
Note shall
comply with subclause (F) of this clause (v). The provisions of
this clause
(v) providing for transfers of Senior Secured Notes or beneficial
interests
in Global Notes to Persons who wish to take delivery in the form of
beneficial interests in a Restricted Global Note, Temporary
Regulation S
Global Note or Regulation S Unrestricted Global Note shall only
apply if
there is a Restricted Global Note, Temporary Regulation S Global
Note or
Regulation S Unrestricted Global Note, as the case may be.
(A) Transfer of Global Note. A Global Note may not be
transferred, in whole or in part to any Person other than the
Depository or a nominee thereof, and no such transfer to any such
other Person may be registered; provided that this subclause (A)
shall
not prohibit any transfer of a Senior Secured Note that is issued
in
exchange for a Global Note but is not itself a Global Note. No
transfer of a Senior Secured Note to any Person shall be effective
under this Indenture or the Senior Secured Notes unless and until
such
Senior Secured Note has been registered in the name of such Person.
Nothing in this Section 2.07 shall prohibit or render ineffective
any
transfer of a beneficial interest in a Global Note effected in
accordance with the other provisions of this Section 2.07(c)(v).
(B) Restricted Global Note to Regulation S Global Note. If the
holder of a beneficial interest in a Restricted Global Note wishes
at
any time to transfer such interest to a person who wishes to take
delivery thereof in the form of a beneficial interest in a
Regulation
S Global Note, such transfer may be effected, subject to the rules
and
procedures of the Depository for such Global Note, Euroclear and
Clearstream, in each case to the extent applicable (the "Applicable
Procedures"), only in accordance with the provisions of this
Section
2.07(c)(v)(B). Upon receipt by the Trustee, as Registrar, at the
Corporate Trust Office of (1) written instructions given in
accordance
with the Applicable Procedures from a member of, or participant in,
the Depository for such Restricted Global Note (each, an "Agent
Member") directing the Trustee to credit or cause to be credited to
a
specified Agent Member's account a beneficial interest in a
Regulation
S Global Note in a principal amount equal to that of the beneficial
interest in the Restricted Global Note to be so transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member
(and
the Euroclear or
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Clearstream account, as the case may be) to be credited with, and
the
account of the Agent Member to be debited for, such beneficial
interest and (3) an appropriately completed certificate in
substantially the form set forth in or contemplated by Section
2.13(a)
given by the holder of such beneficial interest, the Trustee, as
Registrar, shall instruct the Depository for such Notes to reduce
the
principal amount of the Restricted Global Note, and to increase the
principal amount of the Regulation S Global Note, by the principal
amount of the beneficial interest in the Restricted Global Note to
be
so transferred, and to credit or cause to be credited to the
account
of the Person specified in such instructions (which shall be the
Agent
Member for Euroclear or Clearstream or both, as the case may be) a
beneficial interest in the Regulation S Global Note having a
principal
amount equal to the amount by which the principal amount of the
Restricted Global Note was reduced upon such transfer.
(C) Regulation S Global Note to Restricted Global Note. If the
holder of a beneficial interest in a Regulation S Global Note
wishes
at any time to transfer such interest to a Person who wishes to
take
delivery thereof in the form of a beneficial interest in a
Restricted
Global Note, such transfer may be effected, subject to the
Applicable
Procedures, only in accordance with this Section 2.07(c)(v)(C).
Upon
receipt by the Trustee, as Registrar, at the Corporate Trust Office
of
(1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Trustee, as
Registrar,
to credit or cause to be credited to a specified Agent Member's
account a beneficial interest in the Restricted Global Note equal
to
that of the beneficial interest in the Regulation S Global Note to
be
so transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account
of
the Agent Member to be credited with, and the account of the Agent
Member (or, if such account is held for Euroclear or Clearstream,
the
Euroclear or Clearstream account, as the case may be) to be debited
for, such beneficial interest and (3) with respect to a transfer of
a
beneficial interest in the Regulation S Global Note, an
appropriately
completed certificate in substantially the form set forth in or
contemplated by Section 2.13(b) given by the holder of such
beneficial
interest, the Trustee, as Registrar, shall instruct the Depository
for
such Regulation S Global Note to reduce the principal amount of the
Regulation S Global Note and to increase the principal amount of
the
Restricted Global Note, by the principal amount of the beneficial
interest in the Regulation S Global Note to be so transferred, and
to
credit or cause to be credited to the account of the Person
specified
in such instructions a beneficial interest in the Restricted Global
Note having a principal amount equal to the amount by which the
principal amount of the Regulation S Global Note was reduced upon
such
transfer.
(D) Restricted Note (other than a Restricted Global Note) to
Global Note. If the Holder of a Restricted Note (other than a
Restricted Global Note) wishes at any time to transfer such
Restricted
Note to a Person who wishes to take delivery thereof in the form of
a
beneficial interest in a Restricted Global
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Note or an Unrestricted Global Note, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with this
Section 2.07(c)(v)(D). Upon receipt by the Trustee, as Registrar,
at
the Corporate Trust Office of (1) the Restricted Note to be
transferred, (2) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Trustee to
credit or cause to be credited to a specified Agent Member's
account a
beneficial interest in the Restricted Global Note or the
Unrestricted
Global Note, as the case may be, in a principal amount equal to the
principal amount of the Restricted Note to be so transferred, (3) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member
(and,
in the case of any transfer pursuant to Regulation S, the Euroclear
or
Clearstream account for which such Agent Member's account is held
or,
if such account is held for Euroclear or Clearstream, the Euroclear
or
Clearstream account, as the case may be) to be credited with such
beneficial interest and (4) an appropriately completed certificate
in
substantially the form set forth in or contemplated by Section
2.13(c)
(which may be attached to or set forth in the Restricted Note), the
Trustee, as Registrar, shall cancel the Restricted Note, the Issuer
shall execute, and the Trustee shall authenticate and deliver, a
new
Definitive Note for the principal amount, if any, of the Restricted
Note not so transferred, registered in the name of the Holder
transferring such Restricted Note, and the Trustee shall instruct
the
Depository for such Notes to increase the principal amount of the
Restricted Global Note or the Unrestricted Global Note, as the case
may be, by the principal amount of the Restricted Note so
transferred,
and to credit or cause to be credited to the account of the Person
specified in such instructions (which, in the case of any increase
of
the principal amount of an Unrestricted Global Note as the result
of a
transfer pursuant to Regulation S, shall be the Agent Member for
Euroclear or Clearstream or both, as the case may be) a
corresponding
principal amount of the Restricted Global Note or the Unrestricted
Global Note. The transfer of a Restricted Note to a Person who
wishes
to take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note may be effected only in accordance with
Regulation S or Rule 144A (as evidenced by the certificate
delivered
pursuant to Section 2.13(c)).
(E) Other Exchanges. In the event that a Global Note or any
portion thereof is exchanged for Senior Secured Notes other than
Global Notes, the Trustee, as Registrar, shall instruct the
Depository
for the Global Note to reduce the principal amount of the Global
Note
by the principal amount of the Notes other than Global Notes issued
upon such exchange. Such other Notes may in turn be exchanged (on
transfer or otherwise) for beneficial interests in a Global Note
(if
any are then outstanding) only in accordance with such procedures,
which shall be substantially consistent with the provisions of
subclauses (A) through (D) above (including the certification
requirements intended to insure that transfers of beneficial
interests
in a Global Note comply with Rule 144A, Rule 144 or Regulation S,
as
the case may be) and any other procedures as may be from time to
time
adopted by the Issuer and the Trustee.
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(F) Interests in Temporary Regulation S Global Note to be Held
Through Euroclear or Clearstream. Until the termination of the
Restricted Period with respect to Senior Secured Notes represented
by
a Temporary Regulation S Global Note, interests in any Temporary
Regulation S Global Note may be held only through Agent Members
acting
for and on behalf of Euroclear and Clearstream, provided that this
subclause (F) shall not prohibit any transfer in accordance with
subclause (D) of this Section 2.07(c)(v).
Section 2.08 Mutilated, Destroyed, Lost and Stolen Senior Secured
Notes.
If any mutilated Senior Secured Note is surrendered to the Trustee,
the Issuer shall execute and, upon the Issuer's written request,
the Trustee
shall authenticate and deliver a new definitive Senior Secured
Note, of like
tenor and aggregate principal amount and equal face amount of
principal,
registered in the same manner, dated the date of its authentication
and bearing
interest from the date to which interest has been paid on such
Senior Secured
Note, in exchange and substitution for such Senior Secured Note
(upon surrender
and cancellation thereof); provided, that the applicant for such
new Senior
Secured Note shall furnish to the Issuer and to the Trustee such
reasonable bond
or indemnity as may be required by them to save each of them
harmless.
If there shall be delivered to the Issuer and the Trustee (a)
evidence
to their satisfaction of the destruction, loss or theft of any
Senior Secured
Note and (b) such bond or indemnity as may be required by them to
save each of
them and any agent of either of them harmless, then, in the absence
of notice to
the Issuer or the Trustee that such Senior Secured Note has been
acquired by a
bona fide purchaser, the Issuer shall execute and, upon the
Issuer's request,
the Trustee shall authenticate and deliver a new definitive Senior
Secured Note,
of like tenor and aggregate principal amount and equal face amount
of principal
registered in the same manner, dated the date of its authentication
and bearing
interest from the date to which interest has been paid on such
Senior Secured
Note, in lieu of and substitution for such Senior Secured Note.
In case any such mutilated, destroyed, lost or stolen Senior
Secured
Note has become or is about to become due and payable, the Issuer
in its
discretion may, instead of issuing a new Senior Secured Note, pay
such Senior
Secured Note (without surrender thereof, except in the case of a
mutilated
Senior Secured Note) if the applicant for such payment shall
furnish to the
Issuer and the Trustee such reasonable bond or indemnity as they
may require to
save each of them harmless, and in case of destruction, loss or
theft, evidence
to the satisfaction of the Issuer and the Trustee of the
destruction, loss or
theft of such Senior Secured Note.
Upon the issuance of any new Senior Secured Note under this Section
2.08, the Issuer may require the payment of a sum sufficient to
cover any tax or
other governmental charge that may be imposed in relation thereto
and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Senior Secured Note issued pursuant to this Section 2.08
in
lieu of any destroyed, lost or stolen Senior Secured Note shall
constitute an
original additional
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contractual obligation of the Issuer, whether or not the destroyed,
lost or
stolen Senior Secured Note shall be at any time enforceable by
anyone, and shall
be entitled to all the benefits of this Indenture equally and
proportionately
with any and all other Senior Secured Notes duly issued hereunder.
The provisions of this Section 2.08 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
Senior Secured
Notes.
Section 2.09 Payments; Interest Rights Preserved.
Interest on any Senior Secured Note which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
shall be paid
to the Person in whose name that Senior Secured Note (or one or
more Predecessor
Senior Secured Notes) is registered at the close of business on the
Regular
Record Date for such interest.
Any interest on any Senior Secured Note which is payable, but is
not
punctually paid or duly provided for, on any Interest Payment Date
(herein
called "Overdue Interest") shall forthwith cease to be payable to
the Holder on
the relevant Regular Record Date by virtue of having been such
Holder, and such
Overdue Interest may be paid by the Issuer, at its election in each
case, as
provided in clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Overdue Interest to
the Persons in whose names the Senior Secured Notes (or their
respective
Predecessor Notes) are registered at the close of business on a
Special
Record Date for the payment of such Overdue Interest, which shall
be set in
the following manner. The Issuer shall notify the Trustee in
writing of the
amount of Overdue Interest proposed to be paid on each Senior
Secured Note
and the date of the proposed payment, and at the same time the
Issuer shall
deposit with the Trustee an amount of money equal to the aggregate
amount
proposed to be paid in respect of such Overdue Interest or shall
make
arrangements satisfactory to the Trustee for such deposit prior to
the date
of the proposed payment, such money when deposited to be held in
trust for
the benefit of the Persons entitled to such Overdue Interest as in
this
clause (a) provided. Thereupon, the Issuer shall fix a Special
Record Date
for the payment of such Overdue Interest which shall be not more
than 15
days and not less than 10 days prior to the date of the proposed
payment
and not less than 10 days after the receipt by the Trustee of the
notice of
the proposed payment. The Trustee shall promptly, in the name and
at the
expense of the Issuer, mail a written notice of the proposed
payment of
such Overdue Interest and the Special Record Date therefor to be
given to
each Holder of Senior Secured Notes, not less than 10 days prior to
such
Special Record Date. Notice of the proposed payment of such Overdue
Interest and the Special Record Date therefor having been so
mailed, such
Overdue Interest shall be paid to the Persons in whose names the
Senior
Secured Notes (or their respective Predecessor Notes) are
registered at the
close of business on such Special Record Date and shall no longer
be
payable pursuant to the following clause (b).
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(b) The Issuer may make payment of any Overdue Interest on the
Senior
Secured Notes in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Senior
Secured Notes
may be listed, and upon such notice as may be required by such
exchange,
if, after notice given by the Issuer to the Trustee of the proposed
payment
pursuant to this clause (b), such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.09, each
Senior
Secured Note delivered under this Indenture upon registration of
transfer of, or
in exchange for, or in lieu of, any other Senior Secured Note shall
carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such
other Senior Secured Note.
All payments of principal, premium, if any, and interest on Senior
Secured Notes will be made by check or, with respect to Senior
Secured Notes the
Holders of which own at least $1.0 million of Senior Secured Notes
and have
provided the Issuer with wire transfer instructions, will be made
by wire
transfer of immediately available funds to the accounts specified
by the Holders
thereof. Unless such designation is revoked in writing, any
designation made by
such Holder with respect to such Senior Secured Notes will remain
in effect with
respect to any future payments with respect to such Senior Secured
Notes payable
to such Holder. The Issuer will indemnify and hold the Trustee and
the Paying
Agent harmless against any loss, liability or expense (including
attorneys'
fees) resulting from any act or omission to act on the part of the
Trustee, the
Paying Agent or any such Holder in connection with any such
designation or which
the Paying Agent or Trustee may incur as a result of making any
payment in
accordance with any such designation.
All payments of principal and premium, if any, on the Senior
Secured
Notes shall be made upon presentation and surrender thereof at the
office or
agency of the Issuer maintained for such purpose in the Borough of
Manhattan,
The City of New York.
Section 2.10 Persons Deemed Owners.
Prior to due presentment of a Senior Secured Note for registration
of
transfer, the Issuer, the Trustee and any agent of the Issuer or
the Trustee
shall treat the Person in whose name such Senior Secured Note is
registered as
the owner of such Senior Secured Note for the purpose of receiving
payment of
principal of and any premium and (subject to Section 2.09) any
interest on such
Senior Secured Note and for all other purposes whatsoever, whether
or not such
Senior Secured Note be overdue, and neither the Issuer, the Trustee
nor any
agent of the Issuer or the Trustee shall be affected by notice to
the contrary.
Section 2.11 Cancellation.
All Senior Secured Notes surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other
than the Trustee, be delivered to the Trustee and shall be promptly
canceled by
it. The Issuer may at any time deliver to the Trustee for
cancellation any
Senior Secured Notes previously authenticated and delivered
hereunder which the
Issuer may have acquired in any manner whatsoever, and may deliver
to
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the Trustee (or to any other Person for delivery to the Trustee for
cancellation) any Senior Secured Notes previously authenticated
hereunder which
the Issuer has not issued and sold, and all Senior Secured Notes so
delivered
shall be promptly canceled by the Trustee. No Senior Secured Notes
shall be
authenticated in lieu of or in exchange for any Senior Secured
Notes canceled as
provided in this Section 2.11, except as expressly permitted by
this Indenture.
All canceled Senior Secured Notes held by the Trustee shall be
disposed of as
directed by an Authentication Order.
Section 2.12 Computation of Interest.
Except as otherwise provided in the Series Supplemental Indenture
relating to the Senior Secured Notes of a series, interest on the
Senior Secured
Notes of such series shall be computed on the basis of a 360-day
year comprised
of twelve 30-day months.
Section 2.13 Certification Forms.
(a) Whenever any certification is to be given by a beneficial owner
of
a portion of a Restricted Global Note pursuant to Section
2.07(c)(v)(B) in
connection with the initial transfer of a beneficial interest in a
Restricted
Global Note to a Person who wishes to take delivery thereof in the
form of a
beneficial interest in a Regulation S Global Note, such
certification shall be
provided substantially in the form set forth in Exhibit C hereto.
(b) Whenever any certification is to be given by a beneficial owner
of
a portion of a Regulation S Global Note pursuant to Section
2.07(c)(v)(C) in
connection with the initial transfer of a beneficial interest in
the Regulation
S Global Note to a Person who wishes to take delivery thereof in
the form of a
beneficial interest in the Restricted Global Note, such
certification shall be
provided substantially in the form set forth in Exhibit C hereto.
(c) Whenever any certification is to be given by a beneficial owner
of
a Restricted Note or Holder of a Restricted Note (other than a
Restricted Global
Note) pursuant to Section 2.07(b) in connection with the transfer
or exchange of
a Restricted Note, such certification shall be provided
substantially in the
form set forth in Exhibit B (which may be attached to or set forth
on the
Restricted Note).
Section 2.14 CUSIP Numbers.
The Issuer in issuing the Senior Secured Notes may use "CUSIP" or
"ISIN" numbers (if then generally in use), and, if so, the Trustee
shall use
"CUSIP" or "ISIN" numbers in notices of redemption as a convenience
to Holders;
provided, that the Trustee shall assume no responsibility for the
accuracy of
such numbers and any such redemption shall not be affected by any
defect in or
omission of such numbers.
ARTICLE III
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
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If the Issuer elects to redeem Senior Secured Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall
furnish to the
Trustee and Paying Agent, at least 30 days but not more than 60
days before a
redemption date, an Officers' Certificate setting forth (i) the
clause of this
Indenture pursuant to which the redemption shall occur, (ii) the
Redemption
Date, (iii) the principal amount of Senior Secured Notes to be
redeemed and (iv)
the redemption price.
Section 3.02 Selection of Senior Secured Notes to Be Redeemed.
If less than all of the Senior Secured Notes are to be redeemed at
any
time, selection of Senior Secured Notes for redemption will be made
by the
Trustee on a pro rata basis; provided, that no Senior Secured Notes
of $1,000 or
less will be redeemed in part. Notices of redemption will be mailed
by first
class mail at least 30 but not more than 60 days before the
Redemption Date to
each Holder of Senior Secured Notes to be redeemed at its
registered address.
Notices of redemption may not be conditional. If any Senior Secured
Note is to
be redeemed in part only, the notice of redemption that relates to
such Senior
Secured Note will state the portion of the principal amount thereof
to be
redeemed. A new Senior Secured Note in principal amount equal to
the unredeemed
portion thereof will be issued in the name of the Holder thereof
upon
cancellation of the original Senior Secured Note. Senior Secured
Notes called
for redemption become due on the date fixed for redemption. Unless
the Issuer
defaults in payment of the redemption price, interest will cease to
accrue on
Senior Secured Notes or portions of them called for redemption on
and after the
Redemption Date.
The Trustee shall promptly notify the Issuer in writing of the
Senior
Secured Notes selected for redemption and, in the case of any
Senior Secured
Note selected for partial redemption, the principal amount thereof
to be
redeemed. Senior Secured Notes and portions of Senior Secured Notes
selected
shall be in denominations of $1,000 and integral multiples of
$1,000; except
that if all of the Senior Secured Notes of a Holder are to be
redeemed, the
entire outstanding amount of Senior Secured Notes held by such
Holder, even if
not a multiple of $1,000, shall be redeemed. Except as provided in
the preceding
sentence, provisions of this Indenture that apply to Senior Secured
Notes called
for redemption also apply to portions of Senior Secured Notes
called for
redemption.
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date,
the Issuer shall mail or cause to be mailed, by first class mail, a
notice of
redemption to each Holder whose Senior Secured Notes are to be
redeemed at its
registered address.
The notice shall identify the Senior Secured Notes to be redeemed
and
shall state:
(a) the Redemption Date;
(b) the redemption price;
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(c) if any Senior Secured Note is being redeemed in part, the
portion
of the principal amount of such Senior Secured Note to be redeemed
and
that, after the redemption date upon surrender of such Senior
Secured Note,
a new Senior Secured Note or Senior Secured Notes in principal
amount equal
to the unredeemed portion shall be issued upon cancellation of the
original
Senior Secured Note;
(d) the name, address and telephone number of the Paying Agent;
(e) that Senior Secured Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making such redemption
payment, interest on Senior Secured Notes called for redemption
ceases to
accrue on and after the Redemption Date;
(g) the paragraph of the Senior Secured Notes and/or Section of
this
Indenture pursuant to which the Senior Secured Notes called for
redemption
are being redeemed; and
(h) the CUSIP number (provided that the Issuer may state that no
representation is made as to the correctness or accuracy of the
CUSIP
number, if any, listed in such notice or printed on the Senior
Secured
Notes).
At the Issuer's request, the Trustee or the Paying Agent shall give
the notice of redemption in the Issuer's name and at its expense;
provided,
however, that the Issuer shall have delivered to the Trustee, at
least 45 days
prior to the redemption date, an Officers' Certificate requesting
that the
Trustee give such notice and setting forth the information to be
stated in such
notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Senior Secured Notes called for redemption become
irrevocably due and
payable on the Redemption Date at the redemption price. A notice of
redemption
may not be conditional.
Section 3.05 Deposit of Redemption Price.
One Business Day prior to the Redemption Date, the Issuer shall
deposit with the Trustee or with the Paying Agent (other than the
Issuer or an
Affiliate of the Issuer) money sufficient to pay the redemption
price of and
accrued interest on, and premium, if any, on, all Senior Secured
Notes to be
redeemed on that date. The Trustee or the Paying Agent shall
promptly return to
the Issuer any money deposited with the Trustee or the Paying Agent
by the
Issuer in excess of the amounts necessary to pay the redemption
price of, and
accrued interest on, all Senior Secured Notes to be redeemed.
If the Issuer complies with the provisions of the preceding
paragraph
and the other provisions of this Article III, on and after the
Redemption Date,
interest shall cease to
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accrue on the Senior Secured Notes or the portions of Senior
Secured Notes
actually redeemed. If a Senior Secured Note is redeemed on or after
an interest
record date but on or prior to the related Interest Payment Date,
then any
accrued and unpaid interest shall be paid to the Person in whose
name such
Senior Secured Note was registered at the close of business on such
record date.
If any Senior Secured Note called for redemption shall not be so
paid upon
surrender for redemption because of the failure of the Issuer to
comply with the
preceding paragraph, interest shall be paid on the unpaid
principal, from the
Redemption Date until such principal is paid, and to the extent
lawful on any
interest not paid on such unpaid principal, in each case at the
rate and in the
manner provided in the Senior Secured Notes and in Section 4.01
hereof.
Section 3.06 Senior Secured Notes Redeemed in Part.
Upon surrender of a Senior Secured Note that is redeemed in part,
the
Issuer shall issue and, upon the Issuer's written request, the
Trustee shall
authenticate for the Holder at the expense of the Issuer a new
Senior Secured
Note equal in principal amount to the unredeemed portion of the
Senior Secured
Note surrendered.
Section 3.07 Optional Redemption.
(a) The Senior Secured Notes shall be redeemable at the Issuer's
option at any time and from time to time, in whole or in part, upon
not less
than 30 nor more than 60 days' notice to the Trustee and each
Holder of Senior
Secured Notes, at a redemption price equal to the outstanding
principal amount
thereof plus accrued interest, plus the Make-Whole Premium, such
redemption
price to be set forth in the notice to the Trustee. In no event
shall the sum of
the redemption price plus the Make-Whole Premium ever be less than
100% of the
Senior Secured Notes being redeemed plus accrued and unpaid
interest thereon to
the Redemption Date. Unless the Issuer defaults in payment of the
redemption
price, on and after the Redemption Date interest shall cease to
accrue on the
Senior Secured Notes or portions thereof actually redeemed.
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
(a) If the Issuer or any Subsidiary receives more than $5.0 million
of
Loss Proceeds or Eminent Domain Proceeds because of an Event of
Loss or an Event
of Eminent Domain and:
(i) the Issuer determines that all or such portion of the
applicable
Plant cannot be rebuilt, repaired or restored to permit operations
on a
commercially reasonable basis, or the Issuer determines not to
rebuild,
repair or restore the applicable Plant or such portion; or
(ii) only a portion of the applicable Plant is capable of being
rebuilt, repaired or restored on a commercially reasonable basis
and the
Issuer determines to so rebuild, repair or restore;
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then, the Issuer shall use the Net Available Amount of such
proceeds to redeem
the Senior Secured Notes, in whole or in part, at a redemption
price equal to
the principal amount of the Senior Secured Notes being redeemed
plus accrued and
unpaid interest to the Redemption Date and, to the extent required,
to prepay
its other Senior Secured Obligations, except as set forth in the
immediately
following paragraph; provided that, in the case of clause (ii)
above, the Issuer
shall use only the amount of such Loss Proceeds or Eminent Domain
Proceeds not
used to rebuild, repair or restore such Plant for such redemption,
except as set
forth in the immediately following paragraph.
If the Issuer or any Subsidiary receives less than $5.0 million of
Loss Proceeds or Eminent Domain Proceeds or has less than $5.0
million remaining
after rebuilding, repairing or restoring a portion of the
applicable Plant
because of an Event of Loss or Event of Eminent Domain the Issuer
will cause
such amounts to be deposited into the Revenue Account.
(b) If the Issuer or any Subsidiary (i) receives more than $5.0
million of Title Event Proceeds in connection with a Title Event
and is unable
to remedy the Title Event, or (ii) has more than $5.0 million of
Title Event
Proceeds remaining after remedying the Title Event, the Issuer will
have to use
the Net Available Amount of such proceeds, to the extent not used
to cure the
Title Event, on a pro rata basis to redeem the Senior Secured Notes
at a
redemption price equal to the principal amount of the Senior
Secured Notes being
redeemed plus accrued and unpaid interest to the Redemption Date
and, to the
extent required, to prepay its other Senior Secured Obligations.
If the Issuer or any Subsidiary receives less than $5.0 million of
Title Event Proceeds in connection with a Title Event or has less
than $5.0
million remaining after remedying a Title Event the Issuer will
cause such
amounts to be deposited into the Revenue Account and such amounts
will not be
required to be used to redeem the Senior Secured Notes.
(c) In the event that any Senior Secured Obligations (other than
the
Senior Secured Notes) are required to be redeemed before their
scheduled
maturity date pursuant to documents governing such Senior Secured
Obligations
for any reason not otherwise giving rise to a redemption of the
Senior Secured
Notes, the Issuer shall offer to repurchase the Senior Secured
Notes on a pro
rata basis with the other Senior Secured Obligations as are
required to be
redeemed at a redemption price equal to the principal amount of the
Senior
Secured Notes the Issuer offers to repurchase plus accrued and
unpaid interest
to the Redemption Date, but without any premium.
Other than as specifically provided in this Section 3.08, any
purchase
or redemption pursuant to this Section 3.08 shall be made pursuant
to the
provisions of Sections 3.01 through 3.06 hereof.
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ARTICLE IV
COVENANTS
The Issuer and each of the Issuer's Subsidiaries shall be subject
to
the following covenants.
Section 4.01 Payment of Senior Secured Notes.
The Issuer shall pay or cause to be paid the principal of, premium,
if
any, and interest on the Senior Secured Notes on the dates and in
the manner
provided on Exhibits A-1 and A-2 attached hereto including the
Schedule of
Principal Payments set forth on Schedule I attached thereto.
Principal, premium,
if any, and interest shall be considered paid on the date due if
the Paying
Agent, if other than the Issuer or a Subsidiary or an Affiliate
thereof, holds
as of 10:00 a.m. Eastern Time on the due date money deposited by
the Issuer in
immediately available funds and designated for and sufficient to
pay all
principal, interest and premium, if any, then due.
The Issuer shall pay interest (including post-petition interest in
any
proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to
1% per annum in excess of the then applicable interest rate on the
Senior
Secured Notes to the extent lawful; it shall pay interest
(including
post-petition interest in any proceeding under any Bankruptcy Law)
on overdue
installments of interest (without regard to any applicable grace
period) at the
same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuer shall maintain in the Borough of Manhattan, the City of
New
York, and in such other places, if any, as shall be specified for
the Senior
Secured Notes of any series in the related Series Supplemental
Indenture an
office or agency (which may be an office of the Trustee or an
affiliate of the
Trustee, Registrar or co-registrar) where Senior Secured Notes may
be
surrendered for registration of transfer or for exchange and where
notices and
demands to or upon the Issuer in respect of the Senior Secured
Notes and this
Indenture may be served. The Issuer shall give prompt written
notice to the
Trustee of the location, and any change in the location, of such
office or
agency. If at any time the Issuer shall fail to maintain any such
required
office or agency or shall fail to furnish the Trustee with the
address thereof,
such presentations, surrenders, notices and demands may be made or
served at the
Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other
offices or agencies where the Senior Secured Notes may be presented
or
surrendered for any or all such purposes and may from time to time
rescind such
designations; provided, however, that no such designation or
rescission shall in
any manner relieve the Issuer of its obligation to maintain an
office or agency
in the Borough of Manhattan, the City of New York for such
purposes. The Issuer
shall give prompt written notice to the Trustee of any such
designation or
rescission and of any change in the location of any such other
office or agency.
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The Issuer hereby designates the Corporate Trust Office of the
Trustee
as the initial office or agency of the Issuer where the Senior
Secured Notes may
be presented or surrendered in accordance with the foregoing.
Section 4.03 Reporting Requirements.
The Issuer shall deliver to the Trustee and the Collateral Agent
(and,
upon request of a Holder (or owner of a beneficial interest in a
Global Note) or
Fitch, shall deliver directly to such Holder (or owner of a
beneficial interest
in a Global Note) and/or Fitch (which request may indicate that it
is a
continuing request for such information until further notice from
such Holder
(or such owner of a beneficial interest in a Global Note) or Fitch
to the
contrary):
(a) As soon as available but, in any event, within 60 days after
the
close of each of the first three quarterly accounting periods in
each
fiscal year (commencing with the quarter ending March 31, 2006), a
complete
unaudited consolidated balance sheet of the Issuer and its
Subsidiaries as
at the end of such quarterly period with related statements of
income and
capital and statements of cash flows for such quarterly period and
for the
elapsed portion of the fiscal year ended with the last day of such
quarterly period, prepared in accordance with GAAP (but without
footnotes),
consistently applied and setting forth comparative unaudited
figures for
the related periods in the prior fiscal year, all of which shall be
accompanied by a certificate of an Authorized Representative of the
Issuer
to the effect that such financial statements present fairly the
financial
condition and results of operation of the Issuer on the dates and
for the
periods indicated, subject to normal year-end audit adjustments;
(b) As soon as available but, in any event, within 120 days after
the
close of each fiscal year (commencing with the fiscal year ended
December
31, 2005), the following: (i) a consolidated balance sheet of the
Issuer
and its Subsidiaries as at the end of such fiscal year with the
related
statements of income and capital and statements of cash flows for
such
fiscal year, in each case setting forth comparative figures for the
preceding fiscal year and certified by the Independent Accountants
or a
nationally recognized independent accounting firm (the "Auditors")
(all
such statements being in agreement with the Issuer's books of
account and
prepared in accordance with GAAP, consistently applied); and (ii) a
report
or other written communication from the Auditors indicating
whether, in the
course of their regular audit of the consolidated financial
statements of
the Issuer, the Auditors obtained actual knowledge of any Default
or Event
of Default which has occurred and is continuing (and, in the event
the
Auditors obtained any such actual knowledge, indicating the nature
of such
Default or Event of Default);
(c) At the time of the delivery of the financial statements
provided
for in clause (a) or (b) immediately above, a certificate of an
Authorized
Officer of the Issuer to the effect that, to such Authorized
Officer's
actual knowledge, (i) no Default or Event of Default has occurred
and is
continuing or, if any Default or Event of Default has occurred and
is
continuing, specifying the nature and extent thereof and what
action the
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Issuer or any Guarantor is taking or proposes to take in response
thereto
and (ii) such Person is in compliance with all of its material
obligations
under the terms of the Financing Documents to which it is a party
or, if
not, specifying the nature and extent thereof and what action the
Issuer or
any Guarantor is taking or proposes to take in response thereto;
(d) (i) promptly, but in all cases within three Business Days after
the Issuer or any Guarantor obtains actual knowledge thereof,
notice of any
event which constitutes a Default or an Event of Default,
specifying the
nature of such Default or Event of Default and any steps that the
Issuer or
any such Guarantor is taking or proposes to take to remedy the
same, and
(ii) promptly, and in any event within 3 Business Days after the
Issuer or
any Guarantor obtains actual knowledge thereof, notice of:
(A) any litigation, arbitration or governmental proceeding (other
than any governmental proceeding in the ordinary course of
business)
pending (x) against the Issuer or any Guarantor or (y) with respect
to
any Transaction Document to which the Issuer or such Guarantor is a
party or, to the actual knowledge of the Issuer or any Guarantor,
which, in either case, individually or in the aggregate could
reasonably be expected to result in a Material Adverse Effect;
(B) the occurrence and continuance of any Event of Loss, Event of
Eminent Domain or Title Event that could reasonably be expected to
give rise to Loss Proceeds, Eminent Domain Proceeds or Title Event
Proceeds, as applicable, in an amount in excess of $5.0 million;
(C) any change in the Authorized Representatives of the Issuer or
any Guarantor, accompanied by certified specimen signatures of any
Authorized Representatives so appointed;
(D) any report, notice or correspondence received or initiated by
the Issuer or any Guarantor relating to any Governmental Approval
or
any other license or authorization necessary for the performance by
the Issuer or any Guarantor of its obligations under the
Transaction
Documents, which report, notice, correspondence and other document
is
received or initiated other than in the ordinary course of business
and which could reasonably be expected to result in a Material
Adverse
Effect; or
(E) any downgrade in the credit rating of any provider of an
Acceptable Letter of Credit below Investment Grade.
In addition, the Issuer and the Guarantors agree that they shall
furnish to the Holders and to prospective investors, upon the
request of such
Holders, the information required to be delivered pursuant to Rule
144(d)(4)
under the Securities Act so long as the Senior Secured Notes are
not freely
transferable under the Securities Act.
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Notwithstanding the foregoing, the Issuer shall not be required to
present financial information (i) for itself or any Subsidiary for
any period
prior to September 30, 2005 that is not presented in the Offering
Memorandum or
(ii) pursuant to Rule 3-16 of Regulation S-X.
The receipt by the Trustee of any such reports and documents
pursuant
to this Section 4.03 shall not constitute notice or constructive
notice of any
information contained in such documents or determinable from
information
contained in such documents, including the Issuer's compliance with
any
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on
an Officers' Certificate).
Section 4.04 Delivery of Notices to Trustee.
The Issuer shall, and shall cause each of its Subsidiaries to, so
long
as any of the Senior Secured Notes are outstanding, deliver to the
Trustee, the
Collateral Agent and the Intercreditor Agent, forthwith upon any
officer
becoming aware of any Default, Event of Default, Event of Loss,
Event of Eminent
Domain or Title Event or, an Officers' Certificate specifying with
particularity
any such Default, Event of Default, Event of Loss, Event of Eminent
Domain or
Title Event and, if applicable, what action the Issuer is taking or
proposes to
take with respect thereto.
Section 4.05 Stay, Extension and Usury Laws.
The Issuer covenants (to the extent that it may lawfully do so)
that
it shall not at any time insist upon, plead, or in any manner
whatsoever claim
or take the benefit or advantage of, any stay, extension or usury
law wherever
enacted, now or at any time hereafter in force, that may affect the
covenants or
the performance of its obligations under this Indenture and the
Senior Secured
Notes; and the Issuer (to the extent it may lawfully do so) hereby
expressly
waives all benefit or advantage of any such law, and covenants that
it shall
not, by resort to any such law, hinder, delay or impede the
execution of any
power herein granted to the Trustee, but shall suffer and permit
the execution
of every such power as though no such law has been enacted.
Section 4.06 Restrictions on Sale of Assets.
The Issuer shall not, nor shall the Issuer permit any of its
Subsidiaries to, sell, lease (as lessor) or transfer (as
transferor) any
property or assets, other than to the Issuer or a Guarantor, except
for property
or assets which are worn out, obsolete or no longer useful or
necessary in
connection with the operation of a Project as certified by the
Issuer.
The Collateral Agent shall be obligated to release the Lien of the
Security Documents upon the Issuer's transfer of any property or
assets in
compliance with this covenant and receipt by the Collateral Agent
of an
Officer's Certificate stating that such transfer is in compliance
with this
covenant.
Section 4.07 Insurance.
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(a) The Issuer shall, and shall cause each of its Subsidiaries to,
maintain or cause to be maintained business interruption insurance,
property
"all risk" insurance, including flood, earthquake, volcano and
windstorm
coverage, and general liability insurance and erection "all risk"
insurance (if
applicable), as well as customary worker's compensation (upon
hiring of
employees) and automobile insurance and such other insurance, if
any, as is
generally carried by companies engaged in similar businesses and
owning similar
properties in the same general areas and financed in a similar
manner. The
Issuer shall not be required to obtain any insurance that the
Insurance
Consultant determines would not be reasonable under the
circumstances and that
is not available on commercially reasonable terms. To the extent
any such
insurance covers both the Issuer, its Subsidiaries and/or a
Project, on the one
hand, and any other owner and/or plant, on the other hand, the
Issuer shall
ensure that it has specifically designated as applicable solely to
it, its
Subsidiaries and the Projects "all risk" property insurance
coverage in an
amount based upon the estimated full replacement value of the
Plants (provided
that earthquake, flood, volcano and windstorm coverages may be
subject to a
limit with respect to the Issuer and its Subsidiaries' facilities
of not less
than $10 million per occurrence and on an annual aggregate basis)
and business
interruption insurance in an amount of not less than the maximum
fixed expenses
projected over any four month period during the succeeding twelve
month period
(including, without limitation, debt service expenses).
(b) The Issuer shall, on an annual basis until such time as the
insurance coverage described in clause (i) below shall be
consistent with the
insurance coverage described in clause (ii) below, (i) request that
the
Insurance Consultant review the earthquake, flood, volcano and
windstorm
coverages under the Issuer's policy, and if such coverages (x) are
available
with annual aggregate limits above the Issuer's then current limits
on
commercially reasonable terms and (y) are generally carried by
companies engaged
in similar businesses and owning similar properties in the same
general areas
and financed in a similar manner, then the Issuer shall increase
its coverages
accordingly, and (ii) upon such increase, deliver to the Trustee a
certificate
from the Insurance Consultant stating the results of its review and
confirming
that the Issuer's policy has been amended to address the changes,
if any,
required under clause (i) above.
(c) To the extent the Issuer's business interruption insurance or
casualty insurance covers both the Issuer, its Subsidiaries and/or
a Project, on
the one hand, and any other owner and/or plant, on the other hand,
and a claim
is submitted pursuant to an event occurring at another plant or to
another
project owner, the Issuer shall ensure that any sub-limits or other
coverages
that are reduced or otherwise effected by such event are, promptly,
but in no
event later than 10 Business Days following such event, re-instated
for the
Projects to the levels of such sub-limits or coverages prior to the
occurrence
of such event and subject to (a) above.
(d) The Issuer shall, and the Issuer shall cause each of its
Subsidiaries to, cause the Collateral Agent to be named as loss
payee and/or as
an additional insured, as appropriate; all insurance policies shall
provide for
at least 30 days' written notice to the Collateral Agent of a
cancellation
(except cancellation due to failure to pay premiums, if any, which
may be on no
less than 10 days prior written notice to the Collateral Agent) or
reduction in
the amount of coverage or of a material change in coverage.
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Section 4.08 Governmental Approvals; Title.
The Issuer shall, and shall cause each of its Subsidiaries to, at
all
times (a) obtain and maintain in full force and effect the
Governmental
Approvals and other consents and approvals required at any time in
connection
with the Issuer's business, including, without limitation, the
operation of the
Gould Plant, except for such Governmental Approvals and other
consents and
approvals listed on Schedule B hereto, which the Issuer shall, or
shall cause
its relevant Subsidiary to, use all reasonable efforts to obtain
within a
reasonable time-period following the Closing Date but in any event
prior to the
date such Governmental Approvals, consents or approvals are
required to be
obtained by Applicable Law and (b) preserve and maintain good and
valid title to
the Issuer's properties and assets (subject to no Liens other than
Permitted
Liens), except in each case where the failure to do so in clause
(a) or (b)
could not reasonably be expected to have a Material Adverse Effect.
Section 4.09 Limitation on Nature of Business.
The Issuer shall not, and shall not permit or cause any of its
Subsidiaries to, engage or enter into any business other than,
directly or
indirectly the ownership, operation and maintenance of the Projects
and
activities incidental thereto.
Section 4.10 Prohibition on Merger or Other Fundamental Changes.
The Issuer shall not, nor shall it permit any of its Subsidiaries
to,
enter into any transaction of merger or consolidation, sell all or
substantially
all of its or their respective assets to any other Person, change
its or their
respective forms of organization or its or their respective
businesses,
liquidate or dissolve its or their self (or suffer any liquidation
or
dissolution) or discontinue its or their respective businesses and
shall not,
nor shall it permit any of its Subsidiaries to, purchase or
otherwise acquire
all or substantially all of the assets of any other Person;
provided that the
Issuer may, and may permit its Subsidiaries to, enter into a
merger,
consolidation or sale of all or substantially all of their assets
to or into the
Issuer or another Guarantor so long as:
(i)
all Governmental Approvals required in order to consummate such
merger, consolidation or sale or required in respect of the
continued
operation of the affected Projects following such merger,
consolidation or sale shall have been obtained prior to or
concurrently with the consummation of such merger;
(ii)
the Collateral, after giving effect to such merger, consolidation
or
sale, shall continue to have the same priority and perfection as
immediately preceding such merger, consolidation or sale;
(iii) (y) the Issuer or the relevant Guarantor(s) shall not, prior
to or
immediately after giving effect to such merger, consolidation or
sale
be subject to any proceedings under any applicable liquidation,
conservatorship, bankruptcy, moratorium, arrangement, adjustment,
insolvency, reorganization or similar laws or (z) such merger,
consolidation or sale could not reasonably be expected to have a
Material
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Adverse Effect; provided that for purposes of this clause (z), the
definition of "Material Adverse Effect" shall be deemed not to have
the text "(taken as a whole)" set forth therein; and
(iv)
the Issuer shall have delivered a certificate to the Collateral
Agent
certifying as to the matters described in clauses (i), (ii) and
(iii)
above.
Section 4.11 Restricted Payments.
The Issuer shall not, nor shall it permit or cause any of its
Subsidiaries to, make any Restricted Payments, except (i) if the
Issuer meets
the Distribution Conditions set forth in Section 3.6(b) of the
Depositary
Agreement and has satisfied Sections 3.06 (d) and (e) thereof, if
applicable,
and (ii) Restricted Payments made by any of its Subsidiaries;
provided, that
such Restricted Payments in the case of clause (ii) are made to the
Issuer or a
Guarantor.
Section 4.12 Revenue Account; Debt Service Reserve Account.
(a)The Issuer shall, and it shall cause each of its Subsidiaries
to,
take all actions as may be necessary to cause all revenues actually
received by
them from the Projects or otherwise to be deposited in the Revenue
Account to
the extent required by the Depositary Agreement. The Issuer shall,
and shall
cause its Subsidiaries to (x) provide irrevocable written
instruction to each
power purchaser related to a Project, to pay all revenues paid
under power
purchase agreements with respect to the Projects directly into the
Revenue
Account, (y) use commercially reasonable efforts to arrange for all
other
revenues to be paid directly into the Revenue Account and (z) cause
any other
revenues received by the Issuer or any of its Subsidiaries to be
promptly paid
into the Revenue Account.
(b) On or prior to the Closing Date, the Issuer shall, and it shall
cause each of its Subsidiaries to, take all actions as may be
necessary to cause
any and all amounts on deposit in the "OrCal Geothermal Debt
Service Reserve
Account" and the "OrCal Geothermal O&M Account" (as such
accounts are defined in
the Depositary Agreement, dated as of December 18, 2003, among the
Issuer, the
Guarantors thereto, Beal Bank, S.S.B. as administrative agent and
Hudson United
Bank as depositary agent), if any, to be transferred to the Debt
Service Reserve
Account, as required pursuant to the Depositary Agreement.
Section 4.13 Transactions with Affiliates.
The Issuer shall not, and shall not permit any of its Subsidiaries
to,
make any payment to, or sell, lease, transfer or otherwise dispose
of any of its
respective properties or assets to, or purchase any property or
assets from, or
enter into or make or amend any transaction, contract, agreement,
understanding,
loan, advance or guarantee with, or for the benefit of, any of its
respective
Affiliates (each, an "Affiliate Transaction"), unless:
(a) the Affiliate Transaction is on terms that are at arm's length
and
no less favorable to the Issuer or the relevant Subsidiary, at the
relevant
time that any such Affiliate Transaction is consummated, than those
that
would have been obtained in a
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comparable transaction by the Issuer or such Subsidiary with an
unrelated
Person at such time; and
(b) the Issuer delivers to the Trustee:
(i) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $5 million, a resolution of the Board of Directors set
forth
in an Officers' Certificate certifying that such Affiliate
Transaction
complies with this covenant and that such Affiliate Transaction has
been approved by a majority of the Board of Directors; and
(ii) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $25 million, a positive opinion as to the fairness to the
Issuer of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of
national standing. The Trustee shall have no obligation to review
the
fairness opinion, but shall hold such opinion for the benefit of
the
Holders.
The following items shall not be deemed to be Affiliate
Transactions
and, therefore, shall not be subject to the provisions of the prior
paragraph:
(a) transactions between or among the Issuer and/or its
Wholly-Owned
Subsidiaries permitted pursuant to the terms hereof;
(b) Restricted Payments that do not violate the provisions of
Section
4.11 of this Indenture; and
(c) transactions pursuant to the Operation and Maintenance
Agreement.
Section 4.14 Exercise of Rights.
The Issuer shall not, and shall not permit any of its Subsidiaries
to,
exercise, or fail to exercise, its or their respective rights under
the Project
Documents in a manner which could reasonably be expected to result
in a Material
Adverse Effect with respect to the Issuer or the applicable
Subsidiary. The
Issuer shall, and shall cause each of its Subsidiaries to,
diligently pursue all
rights to distributions or dividends and Loss Event Proceeds,
Eminent Domain
Proceeds and Title Proceeds upon the occurrence of a Loss Event, an
Event of
Eminent Domain or a Title Event, as the case may be.
Section 4.15 Termination or Amendment to Material Project
Documents.
The Issuer shall not, and shall not permit any of its Subsidiaries
to,
terminate, amend in any material adverse respect, replace, modify
in any
material adverse respect or assign, other than pursuant to the
Security
Documents (or consent to any of the foregoing) any of the Material
Project
Documents to which the Issuer or they are a party, provided that
the
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Issuer may permit the relevant Subsidiary to terminate any Material
Project
Document solely in connection with (i) the consolidation of any two
or more
Material Project Documents of the same type and scope with the same
counterparties into one replacement Material Project Document with
the same
counterparties, type and scope and (ii) as necessary in connection
with a
merger, consolidation or sale permitted pursuant to Section 4.10
herein, so long
as, in the case of both (i) and (ii):
(i)
the Issuer, its relevant Subsidiary or, following a merger or
consolidation of or into the Issuer or one of the Guarantors, the
relevant successor company has executed and delivered a replacement
agreement substantially in the form of the Material Project
Document
that was so terminated, with all of the material terms remaining
the
same or being more favorable to the Issuer or to the relevant
Guarantor or successor company;
(ii)
all Governmental Approvals related to such termination and such
replacement agreement shall have been obtained prior to such
termination;
(iii) the Collateral, after giving effect to such termination and
replacement, shall maintain the same perfection and priority as it
had prior to giving effect to such termination, and the Issuer or
the
relevant Guarantor or successor corporation, shall have granted a
first priority security interest in such replacement agreement for
the Collateral Agent, on behalf of the Secured Parties;
(iv)
such replacement agreement is included in the definition of
Material
Project Document herein; and
(v)
the Issuer shall have delivered a certificate to the Collateral
Agent
certifying as to the matters set forth in clauses (i), (ii), (iii)
and (iv) above.
Section 4.16 Additional Project Documents.
The Issuer shall not, and shall not permit any of its Subsidiaries
to,
enter into any Additional Project Documents (a) if entering into
such document
could reasonably be expected to result in a Material Adverse
Effect, provided,
however, that nothing in the foregoing is intended to preclude the
Issuer or any
of its Subsidiaries from entering into agreements to sell Renewable
Energy
Credits in connection with any Project as contemplated by the terms
of the
Project Documents or required by Applicable Law or (b) if entering
into any such
Additional Project Document constituting power purchase agreements,
fuel supply
and transportation agreements, transmission agreements and other
agreements,
contracts or other arrangements for the purchase of fuel for, or
the sale of
electricity from, the Project results in the breach of, or conflict
with the
terms of, any then-existing power purchase agreement.
Nothing in the preceding paragraph is intended to preclude any
Guarantor from entering into a replacement Material Project
Document as and to
the extent permitted pursuant to Sections 4.10 and 4.15 herein.
Section 4.17 Performance of Project Documents.
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The Issuer shall, and shall cause each of its Subsidiaries to,
perform
and observe their respective covenants and obligations under all of
the Project
Documents, except where the failure to do so could not reasonably
be expected to
result in a Material Adverse Effect.
Section 4.18 Limitations on Indebtedness.
The Issuer shall not create, incur or suffer to exist any
Indebtedness
except the following Indebtedness (collectively, "Permitted
Indebtedness"):
(a) Indebtedness represented by the Senior Secured Notes to be
issued
on the Closing Date;
(b) Indebtedness incurred by the Issuer to finance Capital
Expenditures to a Project that are required by law or the terms of
the
Project Documents; provided, that:
(i) the Issuer shall have delivered a certificate to the
Collateral Agent certifying that no Default or Event of Default has
occurred and is continuing at the time such Indebtedness is
proposed
to be incurred or would result from the incurrence of such
additional
Indebtedness;
(ii) the Issuer and the Independent Engineer shall each have
delivered a certificate to the Collateral Agent certifying that the
Capital Expenditures to be financed with such Indebtedness conform
to
such legal or Project Document requirements; and
(iii) either:
(A) the Issuer and the Independent Engineer shall each have
delivered a certificate to the Collateral Agent certifying that
after giving effect to the incurrence of such additional
Indebtedness, the minimum projected Debt Service Coverage Ratio
for each twelve-month period (each such period taken as a single
accounting period) commencing on the Scheduled Payment Date
immediately succeeding the date on which such additional
Indebtedness is incurred through the Final Maturity Date (or,
with respect to Indebtedness incurred within the twelve months
immediately prior to the Final Maturity Date, for a period
commencing on the first day of the month immediately following
the month in which such incurrence of Indebtedness occurs and
ending on the Final Maturity Date), will not be less than 1.40 to
1.0; or
(B) the Issuer shall have delivered to the Collateral Agent
a letter from Fitch confirming that, after giving effect to the
incurrence of such Indebtedness, there will be no downgrade of
the then-applicable ratings of the Senior Secured Notes;
(c) Indebtedness incurred by the Issuer to finance discretionary
Capital
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Expenditures with respect to a Project, provided, that:
(i) the Issuer shall have delivered a certificate to the
Collateral Agent certifying that no Default or Event of Default has
occurred and is continuing at the time such Indebtedness is
proposed
to be incurred or would result from the incurrence of such
additional
Indebtedness;
(ii) the Issuer and the Independent Engineer shall each have
delivered a certificate to the Collateral Agent certifying that (1)
the minimum projected Debt Service Coverage Ratio for each
twelve-month period (each such period taken as a single accounting
period) commencing on the Scheduled Payment Date immediately
succeeding the date on which such additional Indebtedness is
incurred
through the Final Maturity Date (or, with respect to Indebtedness
incurred within the twelve months immediately prior to the Final
Maturity Date, for a period commencing on the first day of the
month
immediately following the month in which such incurrence of
Indebtedness occurs and ending on the Final Maturity Date) and (2)
the
average projected Debt Service Coverage Ratio for each twelve-month
period (each such period taken as a single accounting period)
commencing on the Scheduled Payment Date immediately succeeding the
date on which such additional Indebtedness is incurred through the
Final Maturity Date (or, with respect to Indebtedness incurred
within
the twelve months immediately prior to the Final Maturity Date, for
a
period commencing on the first day of the month immediately
following
the month in which such incurrence of Indebtedness occurs and
ending
on the Final Maturity Date), equal or exceed the projected Debt
Service Coverage Ratio for the corresponding twelve-month periods,
as
the case may be, immediately prior to the incurrence of such
additional Indebtedness and the financing of any such Capital
Expenditures; and
(iii) the Issuer shall have delivered to the Collateral Agent a
letter from Fitch confirming that, after giving effect of the
incurrence of such Indebtedness, there will be no downgrade of the
then-applicable ratings of the Senior Secured Notes;
(d) additional Indebtedness incurred by the Issuer to finance
Capital
Expenditures, Major Maintenance Expenditures or working capital at
the
Projects not to exceed an aggregate principal amount outstanding at
any
time of $10 million; so long as, the Issuer shall have obtained
from Fitch
a letter confirming that, after giving effect of the incurrence of
such
Indebtedness, there will be no downgrade of the then-applicable
ratings of
the Senior Secured Notes;
(e) Subordinated Debt; and
(f) Indebtedness incurred by the Issuer in order to refinance
existing
Indebtedness incurred pursuant to clause (b), (c) or (d) above,
provided,
(1) such refinancing Indebtedness has an average life equal to or
greater
than the average life of
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the Indebtedness being refinanced, (2) the aggregate amount of such
refinancing Indebtedness does not exceed the principal amount of
the
Indebtedness being refinanced and (3) to the extent that the
original
incurrence of the refinanced Indebtedness was subject to certain
conditions
and requirements pursuant to this Indenture, such refinancing
Indebtedness
shall comply with all of the conditions and requirements applicable
to the
refinanced Indebtedness.
Section 4.19 Limitation on Indebtedness of Subsidiaries.
The Issuer shall not permit any of its Subsidiaries to create,
incur
or suffer to exist any Indebtedness other than (i) Indebtedness
owed to the
Issuer represented by an intercompany note that has been pledged as
part of the
Collateral securing the Senior Secured Notes, the subordination
terms of which
are substantially consistent with the terms and conditions set
forth in Exhibit
D and (ii) Indebtedness represented by the Guarantees.
Section 4.20 Limitations on Guarantees.
The Issuer shall not, and shall not permit any of its Subsidiaries
to,
contingently or otherwise, be or become liable in connection with
any Guarantee,
except for (i) endorsements and similar obligations in the ordinary
course of
business and (ii) Guarantees of the Senior Secured Notes.
Section 4.21 Prohibitions on Other Obligations or Assignments.
The Issuer shall not, and shall not permit any of its Subsidiaries
to,
assign any of its or its Subsidiaries' respective rights or
obligations under
any Financing Document.
Section 4.22 Books and Records, Inspection.
The Issuer shall, and shall cause each of its Subsidiaries to,
maintain books and records in accordance with GAAP and provide the
Trustee, the
Collateral Agent and the Independent Engineer with reasonable
inspection rights
with respect to the Projects and such books and records.
Section 4.23 Maintenance of Existence.
The Issuer shall, and shall cause each of its Subsidiaries to, do
or
cause to be done all things necessary to preserve and keep in full
force and
effect its and their (i) existence and good standing under the laws
of their
respective states of organization, in accordance with their
organizational
documents (as the same may be amended from time to time), (ii)
qualification to
do business in each jurisdiction in which the character of the
properties owned
or leased by it or in which the transaction of its business as
conducted or
proposed to be conducted makes such qualification necessary and
(iii) powers,
rights (charter and statutory), privileges, licenses and franchises
with respect
to the Projects except where the failure to maintain any of the
foregoing in
clause (iii) could not reasonably be expected to have a Material
Adverse Effect.
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Section 4.24 Additional Documents; Filings and Recordings.
The Issuer shall, and shall cause each of its Subsidiaries to,
execute
and deliver, as requested by the Trustee or the Collateral Agent,
such other
documents as shall reasonably be necessary or advisable in order to
effect or
protect the rights and remedies of the Trustee or the Collateral
Agent, as the
case may be, granted or provided for by the Security Documents to
which the
Issuer is a party and to consummate the transactions contemplated
therein. The
Issuer shall, at its own expense, take all reasonable actions (a)
that are
requested by the Trustee or the Collateral Agent, or (b) that an
Authorized
Officer of the Issuer has actual knowledge are necessary as a legal
matter, to
establish, maintain and perfect the first priority security
interests of Trustee
and the Collateral Agent in the Collateral, subject to Permitted
Liens. Without
limiting the generality of the foregoing, the Issuer shall execute
or cause to
be executed and shall file or cause to be filed such financing
statements,
continuation statements, and fixture filings and such mortgages, or
deeds of
trust in all places necessary or advisable to establish, maintain
and perfect
the Liens purported to be provided for in the Security Documents,
subject to
Permitted Liens.
Section 4.25 Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Issuer shall not, nor shall it permit any of its Subsidiaries
to,
directly or indirectly, create or permit to exist or become
effective any
consensual encumbrance or restriction on the ability of any of its
Subsidiaries
to:
(a) pay dividends or make any other distributions on its Capital
Stock
to the Issuer or any of its Subsidiaries, or with respect to any
other
interest or participation in, or measured by, its profits, or pay
any
Indebtedness owed to the Issuer or any of its Subsidiaries;
(b) make loans or advances to the Issuer or any of its
Subsidiaries;
or
(c) transfer any of its properties or assets to the Issuer or any
of
its Subsidiaries.
However, the preceding restrictions shall not apply to encumbrances
or
restrictions existing under or by reason of:
(a) any of the Financing Documents;
(b) Applicable Law;
(c) customary non-assignment provisions in contracts, agreements,
leases, permits or licenses entered into or issued in the ordinary
course
of business and consistent with past practices;
(d) purchase money obligations for property acquired in the
ordinary
course of business and Capital Lease Obligations that impose
restrictions
on the property
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purchased or leased of the nature described in clauses (a) and (c)
of the
preceding paragraph;
(e) Indebtedness incurred pursuant to clause (f) of the definition
of
Permitted Indebtedness; provided, that the restrictions contained
in the
agreements governing such Indebtedness are not materially more
restrictive,
taken as a whole, than those contained in the agreements governing
the
Indebtedness being refinanced; and
(f) Liens securing Indebtedness otherwise permitted to be incurred
under Section 4.27 that limit the right of the debtor to dispose of
the
assets subject to such Liens or to use the proceeds of any such
disposition.
Section 4.26 Budget; Major Maintenance Expenditures.
The Issuer shall deliver to the Trustee, the Collateral Agent and
the
Independent Engineer at least 30 days prior to the beginning of
each fiscal year
of the Issuer, at its own expense, (a) an annual Operating Budget
and (b) a
certificate setting forth the estimated amount of any Major
Maintenance
Expenditures anticipated to be incurred during such fiscal year
(the "Major
Maintenance Expenditure Amount").
Section 4.27 Limitation on Liens.
The Issuer shall not, and shall not permit any of its Subsidiaries
to,
grant, create, incur or suffer to exist any Liens upon any of its
or their
assets, except for the Permitted Liens.
Section 4.28 Compliance With Laws.
The Issuer shall, and shall cause each of its Subsidiaries to,
comply
with all applicable laws and Governmental Approvals, except where
non-compliance
could not reasonably be expected to have a Material Adverse Effect.
Section 4.29 Operation and Maintenance.
The Issuer shall, and shall cause each of its Subsidiaries to, at
all
times maintain and operate each Project in compliance with Prudent
Industry
Practices.
Section 4.30 Additional Subsidiaries; Bank Accounts.
The Issuer shall own at all times, directly or indirectly, 100% of
the
issued and outstanding Capital Stock of each of its Subsidiaries.
The Issuer
shall not, and shall not permit any of its Subsidiaries to, acquire
or create
any additional Subsidiaries. The Issuer shall not, and shall not
permit any of
its Subsidiaries to, establish or maintain any bank account other
than the
Accounts, and not more than four checking accounts (each, a
"Checking Account"),
provided, that the Secured Parties shall have a perfected security
interest in
such Checking Accounts pursuant to an agreement which is reasonably
satisfactory
to the Collateral Agent.
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Section 4.31 Maintenance of Water Supply; Access Rights.
The Issuer shall, and shall cause its Subsidiaries to, at all times
maintain in full force and effect the agreements and other
arrangements to
ensure that (i) the Projects have a constant and continuous supply
of water to
the extent necessary to permit the operation of the Projects at
levels
contemplated in the Projections and (ii) the Projects have such
real estate
rights as may be necessary to ensure the ingress to and egress from
each of the
Projects.
Section 4.32 No Abandonment.
The Issuer shall, and shall cause its Subsidiaries not to permit
the
occurrence of any Event of Abandonment. Section 4.33 Consents to
Assignment of
Additional Project Documents. The Issuer shall, and shall cause its
Subsidiaries
to (a), to the extent not previously provided, obtain from Southern
California
Edison all executed Third Party Consents related to any Material
Project
Agreement to which it is a party in connection with the Projects
within 90 days
following the Closing Date, and (b) if the Issuer or any of its
Subsidiaries
enters into any Additional Project Document, use commercially
reasonable efforts
to obtain from the counterparty to such Additional Project Document
executed
Third Party Consents.
Section 4.34 Loans.
The Issuer shall not, and shall not permit its Subsidiaries to,
make
any loan or advance (other than a loan or advance to a Guarantor
that
constitutes Indebtedness owed to the Issuer and that is represented
by an
intercompany note that has been pledged as part of the Collateral
securing the
Senior Secured Notes, the subordination terms of which are
substantially
consistent with the terms and conditions set forth in Exhibit D);
provided,
however, the Issuer may make and direct the investment of funds on
deposit in
the accounts in Permitted Investments in accordance with the terms
of the
Financing Documents.
Section 4.35 Amendments to Organizational Documents.
The Issuer shall not, and shall cause its Subsidiaries not to,
amend,
modify or supplement its or their Organizational Documents except
such
amendments that (i) could not reasonably be expected to result in a
Material
Adverse Effect and (ii) could not reasonably be expected to
adversely affect any
provisions of such organizational documents that relate to the
bankruptcy
remoteness of the Issuer.
Section 4.36 Removal of Independent Consultants.
The Issuer shall not remove or otherwise replace any of the
Independent Consultants; provided, that any Independent Consultant
may be
replaced or removed by the Issuer at any time (i) in the event that
any such
Independent Consultant shall have become incapable of acting or
performing its
services, or otherwise fails to perform its function as the
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Independent Consultant in the manner contemplated by this Indenture
and the
other Financing Documents, or shall have been adjudged bankrupt or
insolvent, or
a receiver of such Independent Consultant or of its property shall
have been
appointed, or any public office shall have taken control or charge
of such
Independent Consultant or its property or affairs for the purpose
of
rehabilitation, conservation or liquidation at any time or (ii) so
long as the
Issuer shall have certified to the Trustee (which certification
shall have been
delivered by an Authorized Representative of the Issuer) that the
replacement
Independent Consultant being retained to perform the services of
the removed or
replaced Independent Consultant is properly qualified to perform
such services
at least to the same degree, extent and quality as the replaced or
removed
Independent Consultant and the same could not reasonably be
expected to
materially adversely affect the rights of the Holders.
Section 4.37 Payments for Consent.
The Issuer shall not, and shall not permit any of its Subsidiaries
to,
directly or indirectly, pay or cause to be paid any consideration
to or for the
benefit of any holder of Senior Secured Obligations for or as an
inducement to
any consent, waiver or amendment of any of the terms or provisions
of any
Financing Document unless such consideration is offered to be paid
and is paid
to all Holders of Senior Secured Notes that consent, waive or agree
to amend in
the time frame set forth in the solicitation documents relating to
such consent,
waiver or agreement.
Section 4.38 Limitation on Issuance and Sale of Capital Stock of
Subsidiaries.
The Issuer shall not permit any of its Subsidiaries to transfer,
convey, sell or otherwise dispose of Capital Stock in any of its
Subsidiaries to
any Person, other than the Issuer or one of the Guarantors in
accordance with
Section 4.10 herein; provided that the Collateral, after giving
effect to such
transfer, conveyance, sale or disposition shall continue to have
the same
priority and perfection following such transfer, conveyance, sale
or
disposition.
Section 4.39 Maintenance of Qualifying Facility Status.
The Issuer shall, and shall cause each of its Operating
Subsidiaries
to, operate and maintain each Plant as a Qualifying Facility.
Section 4.40 Payment of taxes and claims.
The Issuer shall and shall cause each of its Subsidiaries to pay
and
discharge (a) all taxes, assessments and governmental charges or
levies imposed
upon it, or upon its income or profits, or upon any of its
properties before
they shall become delinquent, (b) all lawful claims (including
claims for labor,
materials and supplies) which, if unpaid, could reasonably be
expected to give
rise to a Lien upon any of its properties; and (c) except as
prohibited under
the Financing Documents, all of its other Indebtedness as it shall
become due;
provided, however, neither the Issuer nor its Subsidiaries shall be
required to
pay any such tax, assessment, charge, levy, claim or Indebtedness
which is being
contested in good faith by appropriate proceedings, as to which
adequate
reserves have been established in accordance with GAAP, unless the
failure to
make such payment (i) could reasonably be expected to give
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rise to an immediate right to foreclose on a Lien securing such
amounts or (ii)
could reasonably be expected to have a Material Adverse Effect.
Section 4.41 Preservation of Liens.
The Issuer shall take all actions and shall cause it Subsidiaries
to
take all actions necessary to preserve the validity, perfection and
priority of
the Liens and security interests in the Collateral created pursuant
to the
Security Documents.
Section 4.42 Title Report.
In connection with the Material Real Property Interests, the Issuer
shall provide to the Collateral Agent a title report and title
policy, including
endorsements, or title opinion in form and substance satisfactory
to the
Collateral Agent and in connection with the Deeds of Trust,
evidence that the
Deeds of Trust have been filed for recording; provided, that such
title policies
may contain a survey exception.
Section 4.43 Additional Capacity.
The Issuer shall not, and shall not permit its Subsidiaries to, use
or
permit any Person to use any portion of the Geothermal Resource for
purposes
other than the operation and maintenance of the Projects unless:
(i) such use is in connection with the operation and maintenance of
a
new Project (other than the Heber 1 Project, the Heber 2 Project
and the
Gould Project) that is constructed following the Closing Date on
the site
of any of the Projects existing on the Closing Date and owned by
the Issuer
or any of its Subsidiaries;
(ii) (a) construction of such new Project commences prior to the
two-year anniversary of the Closing Date and is completed within
two years
following the commencement of construction, and the Generating
Capacity of
such new Project, when taken together with the aggregate Generating
Capacity of all of the other Projects, shall not exceed 109 MW, or
(b) to
the extent that such new Project is to be constructed following the
two-year anniversary of the Closing Date, prior to the occurrence
of any
such construction, the Geothermal Consultant shall have delivered a
certificate to the Trustee certifying that the generation of any
proposed
capacity by the new Project will have no adverse effect on the
Geothermal
Resource such that the Projects would be unable to generate
electricity
through the Final Maturity Date at the same levels as immediately
prior to
the generation of such proposed additional capacity;
(iii) any revenues received in connection with the operation of
such
new Project shall be deposited into the Revenue Account in
accordance with
Section 4.12 herein and in accordance with the Depositary
Agreement;
(iv) all costs associated with the construction of such new Project
shall have been funded by capital contributions or Subordinated
Debt from
Ormat Nevada only and the Collateral Agent shall have received a
Lien on
all of the assets of such new Project
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in accordance with the Security Documents and all Material Project
Documents related thereto;
(v) all necessary Governmental Approvals required to be obtained in
connection with the ownership, construction, operation and
maintenance of
such new Project shall have been obtained in accordance with
requirements
of Applicable Law;
(vi) the construction and operation of such new Project shall not
(a)
conflict with or cause a default under any Material Project
Document
(including with respect to such new Project), (b) conflict with or
cause a
violation of any Applicable Law or (c) conflict with or cause a
breach of
or default under any Governmental Approvals and other consents and
approvals required in connection with the Issuer's business
(including with
respect to such new Project); and
(vii) the Issuer shall have delivered a certificate to the
Collateral
Agent certifying as to the matters described in clauses (i) through
(vi)
above.
Section 4.44 Use of Proceeds.
The Issuer shall not use the proceeds of the Initial Notes for any
purpose other than to (i) repay, in full, the Issuer's outstanding
loan with
Beal Bank S.S.B, (ii) fund the Debt Service Reserve Account and
(iii) pay the
costs, fees and expenses incurred in connection with the issuance
of the Initial
Notes.
Section 4.45 Fitch Rating.
The Issuer, so long as any Initial Notes shall remain Outstanding,
shall maintain a rating of the Initial Notes by Fitch.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01 Events of Default.
The following events constitute an "Event of Default" under this
Indenture:
(a) (1) the failure to pay or cause to be paid any principal on the
Senior Secured Notes after the same becomes due and payable or (2)
the
failure to pay or cause to be paid any interest, premium, if any,
fees or
any other obligations on the Senior Secured Notes for five or more
days
after the same becomes due and payable, whether, with respect to
each of
sub-clauses (1) and (2), by scheduled maturity or required
prepayment or by
acceleration or otherwise;
(b) any representation or warranty made by the Issuer, any
Subsidiary
or Ormat Nevada under any Financing Document shall prove to have
been
untrue or misleading as of the time made, confirmed or furnished
and the
fact, event or
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circumstance that gave rise to such inaccuracy has had or could
reasonably
be expected to result in a Material Adverse Effect and such fact,
event or
circumstance shall continue to be uncured for 30 or more days from
the date
a Responsible Officer of the Issuer, such Subsidiary or Ormat
Nevada, as
the case may be, obtains knowledge thereof; provided, that if the
Issuer,
such Subsidiary or Ormat Nevada, as the case may be, commences
efforts to
cure such fact, event or circumstance within such 30-day period,
the
Issuer, such Subsidiary or Ormat Nevada, as the case may be, may
continue
to effect such cure and such misrepresentation will not be deemed
an Event
of Default for an additional 90 days so long as the Issuer, such
Subsidiary
or Ormat Nevada, as the case may be, is diligently pursuing such
cure;
(c) the failure by the Issuer or any Subsidiary to perform or
observe
any covenant contained in Sections 4.06, 4.07, 4.09, 4.10, 4.11,
4.15,
4.16, 4.18, 4.19, 4.20, 4.23, 4.27 and 4.32 and such failure shall
continue
uncured for 30 or more days after a Responsible Officer of the
Issuer, any
Subsidiary or Ormat Nevada, as the case may be, obtains knowledge
thereof;
(d) the failure by the Issuer, any Subsidiary or Ormat Nevada to
perform or observe any of the other covenants in the Financing
Documents
that the Issuer, such Subsidiary or Ormat Nevada is a party to
(other than
such failures described in clause (a) or (c) above) and such
failure shall
continue uncured for 30 or more days after a Responsible Officer of
the
Issuer, any Subsidiary or Ormat Nevada, as the case may be, obtains
knowledge thereof; provided that if the Issuer, any Subsidiary or
Ormat
Nevada, as the case may be, commence efforts to cure such default
within
such 30-day period, the Issuer, any Subsidiary or Ormat Nevada, as
the case
may be, may continue to effect such cure of the default and such
default
will not be deemed an Event of Default for an additional 90 days so
long as
the Issuer, any Subsidiary or Ormat Nevada, as the case may be, is
diligently pursuing such cure; provided further that any failure by
the
Issuer to comply with its obligations pursuant to Section 4.45
resulting
solely from the termination of the rating of the Initial Notes by
Fitch for
reasons not otherwise, in part or in whole, attributable to the
Issuer, the
Guarantor or any Affiliate thereof, shall not constitute an Event
of
Default hereunder;
(e) the Issuer or any Subsidiary of the Issuer:
(i) admits in writing its inability, or is generally unable, to
pay its debts as the debts become due or makes a general assignment
for the benefit of creditors; or
(ii) commences any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution
or
composition of it or its debts under any applicable liquidation,
conservatorship, bankruptcy, moratorium, arrangement, adjustment,
insolvency, reorganization or similar laws affecting the rights or
remedies of creditors generally, as in effect from time to time
(collectively, "Debtor Relief Law"); or
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(iii) in any involuntary case, proceeding or other action
commenced against it which seeks to have an order for relief
(injunctive or otherwise) entered against it, as debtor, or seeks
reorganization, arrangement, adjustment, liquidation, dissolution
or
composition of it or its debts under any Debtor Relief Law, (A)
fails
to obtain a dismissal of such case, proceeding or other action
within
ninety (90) days of its commencement, or (B) converts the case from
one chapter of the Bankruptcy Reform Act of 1978, as amended, to
another chapter, or (C) is the subject of an order for relief that
remains unstayed and in effect for a period of ninety (90) days; or
(iv) has a trustee, receiver, custodian or other official
appointed for or to take possession of all or any part of its
property
or has any court take jurisdiction of any of its property, which
action remains undismissed for a period of ninety (90) days;
(f) the entry of one or more final and non-appealable judgment or
judgments for the payment of money in excess of $10.0 million
(exclusive of
judgment amounts covered by insurance) against the Issuer or any
Subsidiary, which remain unpaid or unstayed for a period of 60 or
more
consecutive days;
(g) an event of default under any Permitted Indebtedness (other
than
Indebtedness referred to in clause (a) above) that results in
Indebtedness
in excess of $10.0 million becoming due and payable prior to its
stated
maturity;
(h) any Governmental Approval required for the operation of any
Project or any material portion thereof owned by the Issuer or any
Subsidiary is revoked, terminated, withdrawn or ceases to be in
full force
and effect if such revocation, termination, withdrawal or cessation
has had
or could reasonably be expected to have a Material Adverse Effect
and such
revocation, termination, withdrawal or cessation is not cured
within 60
days following the occurrence thereof;
(i) any Material Project Document or Third Party Consent or any
material provision thereof (i) ceases to be valid and binding and
in full
force and effect prior to its stated expiration date other than as
a result
of an amendment or termination permitted under this Indenture or
(ii) a
party thereto fails to perform or observe any of its covenants or
obligations thereunder or makes any material misrepresentation
thereunder
and such event has had or could reasonably be expected to have a
Material
Adverse Effect; provided, that, in any such event no such event
shall be an
Event of Default if within 180 days from the occurrence of any such
event,
(a) such Material Project Document or Third Party Consent or
material
provision thereof is reinstated as a valid and binding agreement
among the
parties thereto, (b) any breaching party resumes performance and
otherwise
cures such misrepresentation or failure to perform or observe its
covenants
or obligations under the Material Project Documents or Third Party
Consents
or (c) in the case of Material Project Documents, the Issuer enters
into
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an Additional Project Document in replacement thereof, as permitted
under
this Indenture;
(j) any of the Security Documents or any other Financing Document
ceases to be in full force and effect or any Lien granted therein
ceases to
be a valid and perfected Lien in favor of the Secured Parties on
the
Collateral described therein with the priority purported to be
created
thereby; provided, however, that the Issuer shall have 10 days
after a
Responsible Officer of the Issuer, any Subsidiary or Ormat Nevada,
as the
case may be, obtains knowledge thereof to cure any such cessation
or to
furnish to the Trustee, the Collateral Agent or the Depositary all
documents or instruments required to cure any such cessation;
(k) the occurrence of a Change of Control; or
(l) the failure of Ormat Technologies to make all payment, when
due,
pursuant to the Production Tax Credit Agreement.
Section 5.02 Enforcement of Remedies.
(a) If one or more Events of Default have occurred and are
continuing,
then, subject to the terms of the Intercreditor Agreement:
(i) in the case of an Event of Default described in clause (e)
above
with respect to the Issuer, the entire outstanding principal amount
of the
Senior Secured Notes, all interest accrued and unpaid thereon, and
all
premium, if any, and other amounts payable under this Indenture, if
any,
shall automatically become due and payable without presentment,
demand,
protest or notice of any kind; or
(ii) in the case of an Event of Default described in:
(A) clause (a) above, upon the written direction of the Holders
of no less than 25% in aggregate principal amount of the
Outstanding
Senior Secured Notes, the Trustee shall declare the outstanding
principal amount of the Senior Secured Notes to be accelerated and
due
and payable and all interest accrued and unpaid thereon, and all
premium, if any, and other amounts payable under this Indenture, if
any, to be due and payable; or
(B) clause (b), (c), (d), (e) (with respect to the Subsidiaries),
(f), (g), (h), (i), (j), (k) or (l) above, upon the written
direction
of the Required Holders, the Trustee shall declare the outstanding
principal amount of the Senior Secured Notes to be accelerated and
due
and payable and all interest accrued and unpaid thereon, and all
premium, if any, and other amounts payable under this Indenture, if
any, to be due and payable.
(b) At any time after the principal of the Senior Secured Notes has
become due and payable upon a declared acceleration, and before any
judgment or
decree for the
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payment of the money so due, or any portion thereof, has been
entered, the
Required Holders, by written notice to the Issuer and the Trustee,
shall rescind
and annul such declaration and its consequences if:
(i) there has been paid to or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on the Senior Secured Notes,
(B) the principal of and premium, if any, on any Senior Secured
Notes that have become due (including overdue principal) other than
by
such declaration of acceleration and interest thereon at the
respective rates provided in the Senior Secured Notes for overdue
principal;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the respective rates provided in
the
Senior Secured Notes for overdue interest; and
(D) all sums paid or advanced by the Trustee and the Collateral
Agent and the reasonable compensation, expenses, disbursements, and
advances of the Trustee, the Depositary, the Collateral Agent and
their respective agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal
of the Senior Secured Notes that has become due solely by such
acceleration, have been cured or waived in accordance with this
Indenture.
(c) If an Event of Default has occurred and is continuing and an
acceleration has occurred, the Trustee may (as the Required Holders
request)
direct the Collateral Agent to take possession of any or all of the
Collateral
or to exercise any or all other rights of the Secured Parties under
the Security
Documents.
If an Event of Default occurs and is continuing and is actually
known
to a Responsible Officer of the Trustee, the Trustee will mail to
each Holder
notice of the Event of Default within 30 days after obtaining such
knowledge.
Except in the case of an Event of Default in payment of principal
of, interest
or premium, if any, on any Senior Secured Note, the Trustee may
withhold the
notice to the Holders if the Trustee in good faith determines that
withholding
the notice is in the interest of the Holders.
If an Event of Default relating to failure to pay amounts owed on
the
Senior Secured Notes has occurred and is continuing, the Trustee
may declare the
principal amount of the Outstanding Senior Secured Notes, all
interest accrued
and unpaid thereon, and all premium, if any, and other amounts
payable under the
Senior Secured Notes and this Indenture, if any, to be due and
payable
notwithstanding the absence of written direction from Holders of at
least 25% in
aggregate principal amount of the Outstanding Senior Secured Notes
directing the
Trustee in writing to accelerate the principal maturity of the
Senior Secured
Notes, unless the Required Holders direct the Trustee not to
accelerate the
maturity of such Senior Secured
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Notes, if in the good faith exercise of its discretion the Trustee
determines
that such action is necessary to protect the interests of the
Holders.
In addition, if one or more of the Events of Default referred to in
clause (a)(ii)(B) of this Section 5.02 has occurred and is
continuing, the
Trustee may declare the entire principal amount of the Outstanding
Senior
Secured Notes, all interest accrued and unpaid thereon, and all
premium, if any,
and other amounts payable under the Senior Secured Notes and this
Indenture, if
any, to be due and payable notwithstanding the absence of written
direction from
the Required Holders directing the Trustee to accelerate the
maturity of the
Senior Secured Notes, unless the Required Holders direct the
Trustee not to
accelerate the maturity of the Senior Secured Notes, if in the good
faith
exercise of its discretion the Trustee determines that such action
is necessary
to protect the interests of the Holders.
Section 5.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal,
interest and
premium, if any, on the Senior Secured Notes or to enforce the
performance of
any provision of the Senior Secured Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any
of the Senior Secured Notes or does not produce any of them in the
proceeding. A
delay or omission by the Trustee or any Holder of a Senior Secured
Note in
exercising any right or remedy accruing upon an Event of Default
shall not
impair the right or remedy or constitute a waiver of or
acquiescence in the
Event of Default. All remedies are cumulative to the extent
permitted by law.
Section 5.04 Waiver of Past Defaults.
Required Holders by notice to the Trustee may on behalf of the
Holders
of all of the Senior Secured Notes waive an existing Default or
Event of Default
and its consequences hereunder, except a continuing Default or
Event of Default
in the payment of the principal of, premium, if any, or interest
on, the Senior
Secured Notes; provided, however, that the Required Holders may
rescind an
acceleration and its consequences, including any related payment
default that
resulted from such acceleration. Upon any such waiver, such Default
shall cease
to exist, and any Event of Default arising therefrom shall be
deemed to have
been cured for every purpose of this Indenture; but no such waiver
shall extend
to any subsequent or other Default or impair any right consequent
thereon.
Section 5.05 Control by Majority.
The Required Holders have the right to direct the time, place and
method of conducting any proceeding for any right or remedy
available to the
Trustee or exercising any trust or power conferred on the Trustee
in this
Indenture.
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Section 5.06 Limitation on Suits.
A Holder of a Senior Secured Note may pursue a remedy with respect
to
this Indenture or the Senior Secured Notes only if:
(a) the Holder of a Senior Secured Note gives to the Trustee
written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of
the
then outstanding Senior Secured Notes make a written request to the
Trustee
to pursue the remedy;
(c) such Holder of a Senior Secured Note or Holders of Senior
Secured
Notes offer and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after
receipt of the request and the offer and, if requested, the
provision of
indemnity;
(e) during such 60-day period the Holders of a majority in
principal
amount of the then outstanding Senior Secured Notes do not give the
Trustee
a direction inconsistent with the request; and
(f) the pursuit of such remedy is not prohibited by the
Intercreditor
Agreement.
A Holder of a Senior Secured Note may not use this Indenture to
prejudice the rights of another Holder of a Senior Secured Note or
to obtain a
preference or priority over another Holder of a Senior Secured
Note.
Section 5.07 Rights of Holders of Senior Secured Notes to Receive
Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Senior Secured Note to receive payment of
principal, premium, if
any, and interest on the Senior Secured Notes, on or after the
respective due
dates expressed in the Senior Secured Notes (including in
connection with an
offer to purchase), or to bring suit for the enforcement of any
such payment on
or after such respective dates, shall not be impaired or affected
without the
consent of such Holder.
Section 5.08 Collection Suit by Trustee.
If an Event of Default specified in Section 5.01(a) occurs and is
continuing, the Trustee is authorized to recover judgment in its
own name and as
trustee of an express trust against the Issuer for the whole amount
of principal
of, premium, if any, and interest remaining unpaid on the Senior
Secured Notes
and interest on overdue principal and, to the extent lawful,
interest and such
further amount as shall be sufficient to cover the costs and
expenses of
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collection, including the reasonable compensation, expenses,
disbursements and
advances of the Trustee, its agents and counsel.
Section 5.09 Trustee May File Proofs of Claim.
Subject to the terms of the Intercreditor Agreement, the Trustee is
authorized to file such proofs of claim and other papers or
documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any
claim for the reasonable compensation, expenses, disbursements and
advances of
the Trustee, its agents and counsel) and the Holders of the Senior
Secured Notes
allowed in any judicial proceedings relative to the Issuer (or any
other obligor
upon the Senior Secured Notes), its creditors or its property and
shall be
entitled and empowered to collect, receive and distribute any money
or other
property payable or deliverable on any such claims and any
custodian in any such
judicial proceeding is hereby authorized by each Holder to make
such payments to
the Trustee, and in the event that the Trustee shall consent to the
making of
such payments directly to the Holders, to pay to the Trustee any
amount due to
it for the reasonable compensation, expenses, disbursements and
advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under
Section 6.07 hereof. To the extent that the payment of any such
compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, and
any other amounts due the Trustee under Section 6.07 hereof out of
the estate in
any such proceeding, shall be denied for any reason, payment of the
same shall
be secured by a Lien on, and shall be paid out of, any and all
distributions,
dividends, money, securities and other properties that the Holders
may be
entitled to receive in such proceeding whether in liquidation or
under any plan
of reorganization or arrangement or otherwise. Nothing herein
contained shall be
deemed to authorize the Trustee to authorize or consent to or
accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or
composition affecting the Senior Secured Notes or the rights of any
Holder, or
to authorize the Trustee to vote in respect of the claim of any
Holder in any
such proceeding.
Section 5.10 Priorities.
If the Trustee collects any money pursuant to this Article, it
shall
be applied, subject to the Intercreditor Agreement and the
Collateral Agency
Agreement, to amounts owed with respect to all Senior Secured Notes
and will be
applied ratably to the Holders of Senior Secured Notes in the
following order
from time to time (to the extent such order does not conflict with
Section 5 of
the Collateral Agency Agreement), on the date or dates fixed by the
Trustee: (i)
first, to the payment of all amounts due to the Trustee or any
predecessor
Trustee under this Indenture; (ii) second; (A) in case the unpaid
principal
amount of the Outstanding Senior Secured Notes has not become due,
to the
payment of any overdue interest, (B) in case the unpaid principal
amount of a
portion of the Outstanding Senior Secured Notes has become due,
first to the
payment of accrued interest on all Outstanding Senior Secured Notes
for overdue
principal, premium, if any, and overdue interest, and next to the
payment of the
overdue principal on all Senior Secured Notes or (C) in case the
unpaid
principal amount of all the Outstanding Senior Secured Notes has
become due,
first to the payment of the whole amount then due and unpaid upon
the
Outstanding Senior Secured Notes for principal, premium, if any,
and interest,
together with interest for overdue principal, premium, if any, and
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overdue interest; and (iii) third, in case the unpaid principal
amount of all
the Outstanding Senior Secured Notes has become due, and all of the
outstanding
principal, premium, if any, interest and other amounts owed in
connection with
the Senior Secured Notes have been fully paid, any surplus then
remaining will
be paid to the Issuer, or to whomsoever may be lawfully entitled to
receive the
same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment
to
Holders of Senior Secured Notes pursuant to this Section 5.10.
Section 5.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken
or omitted by
it as a Trustee, a court in its discretion may require the filing
by any party
litigant in the suit of an undertaking to pay the costs of the
suit, and the
court in its discretion may assess reasonable costs, including
reasonable
attorneys' fees, against any party litigant in the suit, having due
regard to
the merits and good faith of the claims or defenses made by the
party litigant.
This Section does not apply to a suit by the Trustee, a suit by a
Holder of a
Senior Secured Note pursuant to Section 5.07 hereof, or a suit by
Holders of
more than 10% in principal amount of the then outstanding Senior
Secured Notes.
ARTICLE VI
TRUSTEE
Section 6.01 Duties of Trustee.
(a) If an Event of Default actually known to a Responsible Trust
Officer has occurred and is continuing, the Trustee shall exercise
such of the
rights and powers vested in it by this Indenture, and use the same
degree of
care and skill in its exercise, as a prudent man would exercise or
use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform
only
those duties that are specifically set forth in this Indenture and
no
others, and no implied covenants or obligations shall be read into
this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of
the opinions expressed therein, upon certificates or opinions
furnished to
the Trustee and conforming to the requirements of this Indenture.
However,
the Trustee shall examine the certificates and opinions to
determine
whether or not they conform to the requirements of this Indenture.
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(c) The Trustee may not be relieved from liabilities for its own
grossly negligent action, its own negligent failure to act, or its
own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this
Section;
(ii) the Trustee shall not be liable for any error of judgment made
in
good faith by a Responsible Trust Officer, unless it is proved that
the
Trustee was grossly negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of
this Indenture that in any way relates to the Trustee is subject to
paragraphs
(a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend
or risk its own funds or incur any liability. The Trustee shall be
under no
obligation to exercise any of its rights and powers under this
Indenture at the
request of any Holders, unless such Holder shall have offered to
the Trustee
security and indemnity satisfactory to it against any loss,
liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received
by it except as the Trustee may agree in writing with the Issuer.
Money held in
trust by the Trustee need not be segregated from other funds except
to the
extent required by law.
Section 6.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by
it
to be genuine and to have been signed or presented by the proper
Person. The
Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require
and shall be entitled to an Officer's Certificate or an Opinion of
Counsel or
both. The Trustee shall not be liable for any action it takes or
omits to take
in good faith in reliance on such Officers' Certificate or Opinion
of Counsel.
The Trustee may consult with counsel and the advice, promptly
confirmed in
writing thereafter, of such counsel or any Opinion of Counsel shall
be full and
complete authorization and protection from liability in respect of
any action
taken, suffered or omitted by it hereunder in good faith and in
reliance
thereon.
(c) The Trustee may act through its attorneys, custodians, nominees
and agents and shall not be responsible for the misconduct or
negligence of any
agent, attorney, custodian or nominee appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or
omits
to take in good faith that it believes to be authorized or within
the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuer shall be
sufficient if
signed by an Officer of the Issuer.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of
any of the Holders unless such Holders shall have offered to the
Trustee
security or indemnity satisfactory to the Trustee against the
costs, expenses
and liabilities that might be incurred by it in compliance with
such request or
direction.
(g) In no event shall the Trustee be required to take notice of any
default or breach hereof or any Event of Default hereunder, except
for Events of
Default specified in Section 5.01(a) hereof, unless and until the
Trustee shall
have received from a Holder or from the Issuer express written
notice of the
circumstances constituting the breach, default or Event of Default
and stating
that said circumstances constitute an Event of Default hereunder.
(h) If the Trustee is acting as Paying Agent, Registrar, Collateral
Agent, Depositary, Securities Intermediary or Intercreditor Agent
hereunder, the
rights and protections afforded to the Trustee pursuant to this
Article VI
(other than the Trustee's right to require, and entitlement to, an
Opinion of
Counsel pursuant to Section 6.02(b) hereof) will also be afforded
to such Paying
Agent, Registrar, Collateral Agent, Depositary, Securities
Intermediary and
Intercreditor Agent.
Section 6.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Senior Secured Notes and may otherwise deal
with the Issuer
or any Affiliate of the Issuer with the same rights it would have
if it were not
Trustee. However, in the event that the Trustee acquires any
conflicting
interest it must eliminate such conflict within 90 days, apply to
the SEC for
permission to continue as trustee or resign. Any Agent may do the
same with like
rights and duties. The Trustee is also subject to Sections 6.10 and
6.11 hereof.
Section 6.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation
as to the validity or adequacy of this Indenture or the Senior
Secured Notes, it
shall not be accountable for the Issuer's use of the proceeds from
the Senior
Secured Notes or any money paid to the Issuer or upon the Issuer's
direction
under any provision of this Indenture, it shall not be responsible
for the use
or application of any money received by any Paying Agent other than
the Trustee,
and it shall not be responsible for any statement or recital herein
or any
statement in the Security Documents, the Senior Secured Notes or
any other
document in connection with the sale of the Senior Secured Notes or
pursuant to
this Indenture other than its certificate of authentication.
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The Trustee makes no representations as to and shall not be
responsible for the existence, genuineness, value, sufficiency or
condition of
any of the Collateral or as to the security afforded or intended to
be afforded
thereby, hereby or by any Security Document, or for the validity,
perfection,
priority or enforceability of the Liens or security interests in
any of the
Collateral created or intended to be created by any of the Security
Documents,
whether impaired by operation of law or by reason of any action or
omission to
act on its part hereunder, except to the extent such action or
omission
constitutes gross negligence or willful misconduct on the part of
the Trustee,
for the validity of the title of the Issuer to the Collateral, for
insuring the
Collateral or for the payment of taxes, charges, assessments or
Liens upon the
Collateral or otherwise as to the maintenance of the Collateral.
References to the Trustee in this Section 6.04 shall include the
Trustee in its role as a Collateral Agent.
Section 6.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it
is
actually known to a Responsible Trust Officer, or if appropriate
notice is
provided in writing in accordance with Section 6.02(g), as
applicable, the
Trustee shall mail to Holders of Senior Secured Notes a notice of
the Default or
Event of Default within 30 days after it occurs. Except in the case
of a Default
or Event of Default in payment of principal of, premium, if any, or
interest on
any Senior Secured Note, the Trustee may withhold the notice if and
so long as a
committee of its Responsible Trust Officers in good faith
determines that
withholding the notice is in the interests of the Holders of the
Senior Secured
Notes.
Section 6.06 Reports by Trustee to Holders of the Senior Secured
Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date hereof, and for so long as any Senior Secured
Notes remain
outstanding, the Trustee shall mail to the Holders of the Senior
Secured Notes a
brief report dated as of such reporting date that complies with TIA
Section
313(a) (but if no event described in TIA Section 313(a) has
occurred within the
twelve months preceding the reporting date, no report need be
transmitted). The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee
shall also
transmit by mail all reports as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the Holders
of
Senior Secured Notes shall be mailed to the Issuer and filed with
the SEC and
each stock exchange on which the Senior Secured Notes are listed in
accordance
with TIA Section 313(d). The Issuer shall promptly notify the
Trustee in writing
when the Senior Secured Notes are listed on any stock exchange.
Section 6.07 Compensation and Indemnity.
(a) The Issuer shall pay to the Trustee from time to time
reasonable
compensation for its acceptance of this Indenture and services
hereunder as is
now or hereafter agreed to in writing by the Issuer and the
Trustee. The
Trustee's compensation shall not be limited by any law on
compensation of a
trustee of an express trust. The Issuer shall reimburse
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the Trustee promptly upon request for all reasonable and properly
documented
disbursements, advances and expenses incurred or made by it in
addition to the
compensation for its services. Such expenses shall include the
reasonable and
properly documented fees, disbursements and expenses of the
Trustee's agents and
counsel.
(b) The Issuer shall indemnify the Trustee against any and all
losses,
liabilities, damages or expenses incurred by it arising out of or
in connection
with the acceptance or administration of its duties under this
Indenture and the
other Financing Documents, including the costs and expenses of
enforcing this
Indenture against the Issuer (including this Section 6.07) and
defending itself
against any claim (whether asserted by the Issuer or any Holder or
any other
person) or liability in connection with the exercise or performance
of any of
its powers or duties hereunder or in connection with the storage,
use, presence,
disposal or release of any Hazardous Substance on, under or about
any properties
encumbered by the Deeds of Trust, except to the extent any such
loss, liability
or expense may be attributable to its gross negligence or bad
faith. The Trustee
shall notify the Issuer promptly of any claim for which it may seek
indemnity.
Failure by the Trustee to so notify the Issuer shall not relieve
the Issuer of
its obligations hereunder. The Issuer shall defend the claim and
the Trustee
shall cooperate in the defense. The Trustee may have separate
counsel
(reasonably acceptable to the Issuer) and the Issuer shall pay the
reasonable
fees and expenses of such counsel. The Issuer need not pay for any
settlement
made without its consent, which consent shall not be unreasonably
withheld.
(c) The obligations of the Issuer under this Section 6.07 shall
survive the satisfaction and discharge of this Indenture.
(d) To secure the Issuer's payment obligations in this Section, the
Trustee shall have a Lien prior to the Senior Secured Notes on all
money or
property held or collected by the Trustee, except that held in
trust to pay
principal, interest and premium, if any, on particular Senior
Secured Notes.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.01(e) hereof occurs, the
expenses and
the compensation for the services (including the fees and expenses
of its agents
and counsel) are intended to constitute expenses of administration
under any
Bankruptcy Law.
(f) The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
(g) The provisions of this Section 6.07 shall extend to the Trustee
acting in the capacities of Paying Agent and Registrar, Collateral
Agent,
Depositary, Securities Intermediary and Intercreditor Agent under
this Indenture
and the other Financing Documents; provided, that nothing contained
herein or in
any such other Financing Document shall allow duplicate recoveries
by any such
entity in any one capacity for the same occurrence or cause of
action.
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Section 6.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee's
acceptance of appointment as provided in this Section.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by giving thirty (30) days written
notice to the
Issuer. The Required Holders may remove the Trustee by so notifying
the Trustee
and the Issuer in writing. The Issuer may remove the Trustee if:
(i) the Trustee fails to meet the eligibility criteria set forth in
this Indenture;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any
bankruptcy law;
(iii) no Default or Event of Default on the Issuer's part has
occurred
and is continuing and the Trustee has failed to observe or perform
any of
its material obligations under the Financing Documents;
(iv) a custodian or public officer takes charge of the Trustee or
its
property; or
(v) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the
office of Trustee for any reason, the Issuer shall promptly appoint
a successor
Trustee. Within one year after the successor Trustee takes office,
the Holders
of a majority in principal amount of the then outstanding Senior
Secured Notes
may appoint a successor Trustee to replace the successor Trustee
appointed by
the Issuer.
(d) The Issuer shall give notice of each resignation and removal of
the Trustee and each appointment of a successor to all Holders.
(e) If a successor Trustee does not take office within 60 days
after
the retiring Trustee resigns or is removed, the retiring Trustee,
the Issuer, or
the Holders of Senior Secured Notes of at least 10% in principal
amount of the
then outstanding Senior Secured Notes may petition any court of
competent
jurisdiction for the appointment of a successor Trustee.
(f) If the Trustee, after written request by any Holder of a Senior
Secured Note who has been a Holder of a Senior Secured Note for at
least six
months, fails to comply with Section 6.10, such Holder of a Senior
Secured Note
may petition any court of competent jurisdiction for the removal of
the Trustee
and the appointment of a successor Trustee.
(g) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon,
the
resignation or removal of the retiring Trustee shall become
effective, and the
successor Trustee shall have all the rights, powers and
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duties of the Trustee under this Indenture. The successor Trustee
shall mail a
notice of its succession to Holders of the Senior Secured Notes.
The retiring
Trustee shall promptly transfer all property held by it as Trustee
to the
successor Trustee, provided all sums owing to the Trustee hereunder
have been
paid and subject to the Lien provided for in Section 6.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section
6.08, the
Issuer's obligations under Section 6.07 hereof shall continue for
the benefit of
the retiring Trustee.
(h) If a Trustee is removed with or without cause, all fees and
expenses (including the reasonable fees and expenses of counsel) of
the Trustee
incurred in the administration of the trust or in performing of the
duties
hereunder shall be paid to the Trustee.
Section 6.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all
or substantially all of its corporate trust business to, another
corporation,
the successor corporation without any further act shall be the
successor
Trustee.
Section 6.10 Eligibility; Disqualification.
There will at all times be a Trustee under this Indenture, which
shall
be a corporation having either (a) a combined capital and surplus
of at least
$50.0 million, or (b) a combined capital and surplus of at least
$10.0 million
and being a Wholly-Owned Subsidiary of a corporation having a
combined capital
and surplus of at least $50.0 million, in each case subject to
supervision or
examination by a federal or state or District of Columbia authority
and having a
corporate trust office in New York, New York, to the extent there
is such an
institution eligible and willing to serve.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is
subject to
TIA Section 310(b).
Section 6.11 Preferential Collection of Claims Against the Issuer.
The Trustee is subject to TIA Section 311(a), excluding any
creditor
relationship listed in TIA Section 311(b). A Trustee who has
resigned or been
removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
Section 6.12 Receipt of Documents.
In no event shall receipt by the Trustee of financial and other
reports from the Issuer as provided in this Indenture, review of
which could
lead to the conclusion that an Event of Default exists hereunder,
result,
without further action, in the occurrence of an Event of Default,
or impose upon
the Trustee the obligation to review and examine the same, it being
understood
that all such information shall be received by the Trustee as
repository for
said information and documents with no obligation on the part of
the Trustee to
review the same.
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ARTICLE VII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 7.01 Option to Effect Legal Defeasance or Covenant
Defeasance.
The Issuer may, at its option evidenced by a resolution set forth
in
an Officers' Certificate, at any time, elect to have either Section
7.02 or 7.03
hereof be applied to all outstanding Senior Secured Notes and all
obligations of
the Guarantors with respect to their Guarantees upon compliance
with the
conditions set forth below in this Article VII.
Section 7.02 Legal Defeasance and Discharge.
Upon the Issuer's exercise under Section 7.01 hereof of the option
applicable to this Section 7.02, the Issuer shall, subject to the
satisfaction
of the conditions set forth in Section 7.04 hereof, be deemed to
have been
discharged from its obligations with respect to all outstanding
Senior Secured
Notes and the Guarantors shall be deemed to be discharged from all
of their
obligations with respect to their Guarantees and the Collateral
Agent shall
release all of its liens on the Collateral other than pursuant to
Section
7.04(a) hereof, on the date the conditions set forth below are
satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that
the Issuer shall be deemed to have paid and discharged the entire
Indebtedness
represented by the outstanding Senior Secured Notes and the
Guarantees, which
shall thereafter be deemed to be "outstanding" only for the
purposes of Section
7.05 hereof and the other Sections of this Indenture referred to in
(a) and (b)
below, and to have satisfied all its other obligations under such
Senior Secured
Notes, the Guarantees and this Indenture (and the Trustee, on
demand of and at
the expense of the Issuer, shall execute proper instruments
acknowledging the
same), except for the following provisions which shall survive
until otherwise
terminated or discharged hereunder: (a) the rights of Holders of
outstanding
Senior Secured Notes to receive payments in respect of the
principal of, or
interest or premium, if any, on such Senior Secured Notes when such
payments are
due from the trust referred to below, (b) the Issuer's obligations
with respect
to the Senior Secured Notes concerning issuing temporary Senior
Secured Notes,
registration of Senior Secured Notes, replacing mutilated,
destroyed, lost or
stolen Senior Secured Notes and the maintenance of an office or
agency for
payment and money for security payments held in trust, (c) the
rights, powers,
trusts, duties and immunities of the trustee, and the Issuer's and
the
Guarantors' obligations in connection therewith, and (d) this
Article VII.
Subject to compliance with this Article VII, the Issuer may
exercise its option
under this Section 7.02 notwithstanding the prior exercise of its
option under
Section 7.03 hereof.
Section 7.03 Covenant Defeasance.
Upon the Issuer's exercise under Section 7.01 hereof of the option
applicable to this Section 7.03, the Issuer shall and the
Guarantors shall,
subject to the satisfaction of the conditions set forth in Section
7.04 hereof,
be released from their obligations under any of the covenants
contained in this
Indenture other than under Sections 4.01, 4.02, 4.03, 4.05 and
clauses (i) and
(ii) of Section 4.23 hereof with respect to the outstanding Senior
Secured Notes
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and may terminate the Liens of the Security Documents on the
Collateral to the
extent that such Liens run to the benefit of the Trustee, the
Holders or other
agents under any of the Security Documents on and after the date
the conditions
set forth in Section 7.04 are satisfied (hereinafter, "Covenant
Defeasance"),
and the Senior Secured Notes and all obligations of the Guarantors
with respect
to the Guarantees shall thereafter be deemed not "outstanding" for
the purposes
of any direction, waiver, consent or declaration or act of Holders
(and the
consequences of any thereof) in connection with such covenants, but
shall
continue to be deemed "outstanding" for all other purposes
hereunder (it being
understood that such Senior Secured Notes and all obligations of
the Guarantors
with respect to the Guarantees shall not be deemed outstanding for
accounting
purposes). For this purpose, Covenant Defeasance means that, with
respect to the
outstanding Senior Secured Notes, the Issuer and the Guarantors may
omit to
comply with and shall have no liability in respect of any term,
condition or
limitation set forth in any such covenant, whether directly or
indirectly, by
reason of any reference elsewhere herein to any such covenant or by
reason of
any reference in any such covenant to any other provision herein or
in any other
document and such omission to comply shall not constitute a Default
or an Event
of Default under Section 5.01 hereof, but, except as specified
above, the
remainder of this Indenture and such Senior Secured Notes shall be
unaffected
thereby. In addition, upon the Issuer's exercise under Section 7.01
hereof of
the option applicable to this Section 7.03 hereof, subject to the
satisfaction
of the conditions set forth in Section 7.04 hereof, Sections
5.01(b) through
5.01(d) and Sections 5.01(g) through 5.01(l) hereof shall not
constitute Events
of Default.
Section 7.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 7.02 or 7.03 hereof to the outstanding Senior Secured
Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Issuer must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars,
non-callable
Government Securities, or a combination thereof, in such amounts as
shall
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium,
if any,
and interest on the outstanding Senior Secured Notes on the stated
date for
payment thereof or on the applicable Redemption Date, as the case
may be,
and the Issuer must specify whether the Senior Secured Notes are
being
defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 7.02 hereof, the
Issuer
shall have delivered to the Trustee an Opinion of Counsel in the
United
States reasonably acceptable to the Trustee confirming that (A) the
Issuer
has received from, or there has been published by, the Internal
Revenue
Service a ruling or (B) since the date hereof, there has been a
change in
the applicable federal income tax law, in either case to the effect
that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders
of the outstanding Senior Secured Notes will not recognize income,
gain or
loss for federal income tax purposes as a result of such Legal
Defeasance
and will be subject to federal
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income tax on the same amounts, in the same manner and at the same
times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 7.03 hereof, the
Issuer
shall have delivered to the Trustee an Opinion of Counsel in the
United
States reasonably acceptable to the Trustee confirming that the
Holders of
the outstanding Senior Secured Notes will not recognize income,
gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts,
in the same manner and at the same times as would have been the
case if
such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or
Event of
Default resulting from the incurrence of Indebtedness all or a
portion of
the proceeds of which will be used to defease the Senior Secured
Notes
pursuant to this Article 7 concurrently with such incurrence);
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the
Issuer is
a party or by which the Issuer is bound;
(f) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuer
with the
intent of preferring the Holders over any other creditors of the
Issuer or
with the intent of defeating, hindering, delaying or defrauding any
other
creditors of the Issuer; and
(g) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant
Defeasance have been complied with.
Section 7.05 Deposited Money and Government Securities to be Held
in
Trust; Other Miscellaneous Provisions.
Subject to Section 7.06 hereof, all money and non-callable
Government
Securities (including the proceeds thereof) deposited with the
Trustee (or other
qualifying trustee, collectively for purposes of this Section 7.05,
the
"Trustee") pursuant to Section 7.04 hereof in respect of the
outstanding Senior
Secured Notes shall be held in trust and applied by the Trustee, in
accordance
with the provisions of such Senior Secured Notes and this
Indenture, to the
payment, either directly or through any Paying Agent (including the
Issuer
acting as Paying Agent) as the Trustee may determine, to the
Holders of such
Senior Secured Notes of all sums due and to become due thereon in
respect of
principal, premium, if any, and interest, but such money need not
be segregated
from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or
other charge imposed on or assessed against the cash or
non-callable Government
Securities deposited pursuant to Section 7.04 hereof or the
principal and
interest received in respect
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thereof other than any such tax, fee or other charge which by law
is for the
account of the Holders of the outstanding Senior Secured Notes.
Anything in this Article VII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon
the request of
the Issuer any money or non-callable Government Securities held by
it as
provided in Section 7.04 hereof which, in the opinion of a
nationally recognized
investment bank or firm of independent public accountants expressed
in a written
certification thereof delivered to the Trustee (which may be the
opinion
delivered under Section 7.04(a) hereof), are in excess of the
amount thereof
that would then be required to be deposited to effect an equivalent
Legal
Defeasance or Covenant Defeasance.
Section 7.06 Repayment to Issuer.
Any money deposited with the Trustee or any Paying Agent, or then
held
by the Issuer, in trust for the payment of the principal of,
premium, if any, or
interest on any Senior Secured Note and remaining unclaimed for two
years after
such principal, and premium, if any, or interest has become due and
payable
shall be paid to the Issuer on its request or (if then held by the
Issuer) shall
be discharged from such trust; and the Holder of such Senior
Secured Note shall
thereafter, as a secured creditor, look only to the Issuer for
payment thereof,
and all liability of the Trustee or such Paying Agent with respect
to such trust
money, and all liability of the Issuer as trustee thereof, shall
thereupon
cease; provided, however, that the Trustee or such Paying Agent,
before being
required to make any such repayment, may at the expense of the
Issuer cause to
be published once, in the New York Times and The Wall Street
Journal (national
edition), notice that such money remains unclaimed and that, after
a date
specified therein, which shall not be less than 30 days from the
date of such
notification or publication, any unclaimed balance of such money
then remaining
shall be repaid to the Issuer.
Section 7.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with
Section 7.02 or
7.03 hereof, as the case may be, by reason of any order or judgment
of any court
or governmental authority enjoining, restraining or otherwise
prohibiting such
application, then the Issuer's obligations under this Indenture and
the Senior
Secured Notes shall be revived and reinstated as though no deposit
had occurred
pursuant to Section 7.02 or 7.03 hereof until such time as the
Trustee or Paying
Agent is permitted to apply all such money in accordance with
Section 7.02 or
7.03 hereof, as the case may be; provided, however, that, if the
Issuer makes
any payment of principal of, premium, if any, or interest on any
Senior Secured
Note following the reinstatement of its obligations, the Issuer
shall be
subrogated to the rights of the Holders of such Senior Secured
Notes to receive
such payment from the money held by the Trustee or Paying Agent.
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ARTICLE VIII
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01 Without Consent of Holders of Senior Secured Notes.
Notwithstanding Section 8.02 of this Indenture, the Issuer and the
Trustee may amend or supplement this Indenture and any of the other
Financing
Documents without the consent of any Holder of a Senior Secured
Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to add additional covenants of the Issuer or its Subsidiaries,
to
surrender rights conferred upon the Issuer or its Subsidiaries, or
to
confer additional benefits upon the Holders;
(c) to increase the assets securing the Issuer's obligations under
this Indenture;
(d) to allow any Subsidiary to execute a supplemental indenture,
Series Supplemental Indenture and/or Guarantee with respect to the
Senior
Secured Notes;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the Trust
Indenture Act;
(f) to make any change not inconsistent with the terms of this
Indenture that does not adversely affect the legal rights
thereunder of any
Holder of the Senior Secured Notes; or
(g) to establish the form and terms of the Senior Secured Notes of
any
series permitted by Sections 2.01 and 2.03.
Upon the request of the Issuer accompanied by a resolution of the
Issuer's Board of Directors authorizing the execution of any such
amended or
supplemental Indenture or amendments to the other Financing
Documents, and upon
receipt by the Trustee of the documents described in Section 6.02
hereof, the
Trustee and the Collateral Agent shall join with the Issuer in the
execution of
any amended or supplemental indenture and any amendment to any of
the other
Financing Documents authorized or permitted by the terms of this
Indenture and
to make any further appropriate agreements and stipulations that
may be therein
contained, but the Trustee and the Collateral Agent shall not be
obligated to
enter into such amended or supplemental Indenture or amendments to
the Financing
Documents that affects its own rights, duties, immunities, or
indemnities under
this Indenture or otherwise.
Section 8.02 With Consent of Holders of Senior Secured Notes.
Except as provided below in this Section 8.02, the Issuer and the
Trustee may amend or supplement this Indenture (including Section
4.23 hereof)
and the other Financing
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Documents with the consent of the Required Holders voting as a
single class
(including consents obtained in connection with a tender offer or
exchange offer
for, or purchase of, the Senior Secured Notes), and, subject to
Sections 5.04
and 5.07 hereof, any existing Default or Event of Default (other
than a Default
or Event of Default in the payment of the principal of, premium, if
any, or
interest on the Senior Secured Notes, except a payment default
resulting from an
acceleration that has been rescinded) or compliance with any
provision of this
Indenture or the other Financing Documents may be waived with the
consent of the
Required Holders voting as a single class (including consents
obtained in
connection with a tender offer or exchange offer for, or purchase
of, the Senior
Secured Notes); provided, however, that if there shall be Senior
Secured Notes
of more than one series Outstanding hereunder and if a proposed
supplemental
indenture shall directly affect the rights of the Holders of one or
more, but
less than all, of such series, then the consent only of the Holders
of not less
than a majority in aggregate principal amount of the Outstanding
Senior Secured
Notes of all series so directly affected, considered as one class,
shall be
required. Section 2.08 hereof shall determine which Senior Secured
Notes are
considered to be "outstanding" for purposes of this Section 8.02.
Upon the request of the Issuer accompanied by a resolution of the
Issuer's Board of Directors authorizing the execution of any such
amended or
supplemental Indenture, and upon the filing with the Trustee of
evidence
satisfactory to the Trustee of the consent of the Holders of Senior
Secured
Notes as aforesaid, and upon receipt by the Trustee of the
documents described
in Section 6.02 hereof, the Trustee shall join with the Issuer in
the execution
of such amended or supplemental Indenture and amendments to the
other Financing
Documents unless such amended or supplemental Indenture or
amendments to the
Financing Documents directly affects the Trustee's own rights,
duties,
immunities or indemnities under this Indenture or otherwise, in
which case the
Trustee may in its discretion, but shall not be obligated to, enter
into such
amended or supplemental Indenture or such amendments.
It shall not be necessary for the consent of the Holders of Senior
Secured Notes under this Section 8.02 to approve the particular
form of any
proposed amendment or waiver, but it shall be sufficient if such
consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuer shall mail to the Holders of Senior Secured
Notes affected
thereby a notice briefly describing the amendment, supplement or
waiver. 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
amended or
supplemental Indenture or waiver or amendments to the Financing
Documents.
Subject to Sections 5.04 and 5.07 hereof, the Required Holders may
waive
compliance in a particular instance by the Issuer with any
provision of this
Indenture or the Senior Secured Notes. However, without the consent
of all
Holders of Outstanding Senior Secured Notes directly affected
thereby, an
amendment or waiver under this Section 8.02 may not (with respect
to any such
Senior Secured Notes held by a non-consenting Holder):
(a) modify the principal, interest or premium, if any, payable upon
the Senior Secured Notes;
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(b) modify the dates on which principal, interest and premium, if
any,
on any Senior Secured Notes are paid;
(c) release any Guarantor from its obligations under a Guarantee;
(d) modify the dates of maturity of any Senior Secured Notes; and
(e) make any change in the preceding procedures for amendment,
supplement or waiver.
This Indenture and the other Security Documents may be amended or
supplemented to provide for the release of Collateral, by the
Issuer and the
Trustee, with the consent of Holders of not less than 66?% of the
Outstanding
Senior Secured Notes.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for
the benefit of one or more particular series of Senior Secured
Notes, or which
modifies the rights of the Holders of Senior Secured Notes of such
series with
respect to such covenant or other provision, shall be deemed not to
affect the
rights under this Indenture of the Holders of Senior Secured Notes
of any other
series.
Upon the request of the Issuer accompanied by a resolution of the
Issuer's Board of Directors authorizing the execution of any such
amended or
supplemental indenture or amendments to the other Financing
Documents, and upon
receipt by the Trustee of the documents described in Section 6.02
hereof, the
Trustee and the Collateral Agent shall join with the Issuer in the
execution of
any amended or supplemental indenture and any amendment to any of
the other
Financing Documents authorized or permitted by the terms of this
Indenture and
to make any further appropriate agreements and stipulations that
may be therein
contained, but the Trustee and the Collateral Agent shall not be
obligated to
enter into such amended or supplemental Indenture or amendments to
the Financing
Documents that affects its own rights, duties, immunities, or
indemnities under
this Indenture or otherwise.
It shall not be necessary for any act of Holders under this Section
to
approve the particular form of any proposed supplemental indenture,
but it shall
be sufficient if such act shall approve the substance thereof.
Section 8.03 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent
to it by a Holder of a Senior Secured Note is a continuing consent
by the Holder
of a Senior Secured Note and every subsequent Holder of a Senior
Secured Note or
portion of a Senior Secured Note that evidences the same debt as
the consenting
Holder's Senior Secured Note, even if notation of the consent is
not made on any
Senior Secured Note. However, any such Holder of a Senior Secured
Note or
subsequent Holder of a Senior Secured Note may revoke the consent
as to its
Senior Secured Note if the Trustee receives written notice of
revocation before
the date the waiver, supplement or amendment becomes effective. An
amendment,
supplement or waiver becomes effective in accordance with its terms
and
thereafter binds every Holder.
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Section 8.04 Notation on or Exchange of Senior Secured Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Senior Secured Note thereafter
authenticated. The
Issuer in exchange for all Senior Secure
