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TRUST INDENTURE AND SECURITY AGREEMENT
dated as of December 15, 1999
among
FIRST SECURITY TRUST COMPANY OF NEVADA
not in its individual
capacity except as otherwise expressly provided herein,
but solely as Nonaffiliated Partner Trustee under the
Trust Agreement dated as of December 15, 1999 with
Beneficiaries,
BJ SERVICES EQUIPMENT II, L.P.,
a Delaware Limited Partnership
and
STATE STREET BANK AND TRUST COMPANY,
as Indenture Trustee.
Well Services Equipment
<PAGE>
(BJ Services Trust No. 1999-1)
<PAGE>
CONTENTS
<TABLE>
SECTION PAGE
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1. SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.1 Grant of Security Interest . . . . . . . . . . . . . . . . . . . . . . .2
1.2 Excluded Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.3 HABENDUM CLAUSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
1.4 Attachment of Security Interest. . . . . . . . . . . . . . . . . . . . .8
1.5 Effect of Assignment . . . . . . . . . . . . . . . . . . . . . . . . . .8
1.6 Appointment of Indenture Trustee . . . . . . . . . . . . . . . . . . . .8
1.7 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . .9
1.8 Representations and Warranties . . . . . . . . . . . . . . . . . . . . .9
2. THE NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 Notes; Title, Dating and Terms . . . . . . . . . . . . . . . . . . . . 10
2.2 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . 10
2.3 Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.4 Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . 11
2.5 Indenture Trustee as Agent; Ownership of Notes . . . . . . . . . . . . 12
2.6 Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . . . . . . . 13
2.7 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.8 Payment on Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.9 Payment from Indenture Estate Only; Nonrecourse Obligations;
Excess Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.10 Execution and Delivery of Notes upon Original Issuance . . . . . . . . 16
2.11 Security for and Parity of Notes . . . . . . . . . . . . . . . . . . . 16
2.12 Application of Payments to Notes . . . . . . . . . . . . . . . . . . . 17
2.13 Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . . . 17
2.14 Late Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.15 Definition of Premium. . . . . . . . . . . . . . . . . . . . . . . . . 17
2.16 Special Rights of Holders. . . . . . . . . . . . . . . . . . . . . . . 19
3. RECEIPT, DISTRIBUTION AND APPLICATION OF FUNDS IN THE INDENTURE ESTATE . . . 19
3.1 Payment Upon Delivery of Units . . . . . . . . . . . . . . . . . . . . 19
3.2 Payments Upon Event of Loss, Obsolescence or ET Right or
Special P.O. Right; Certain Prepayments. . . . . . . . . . . . . . . . 20
3.3 Application of Priority Distributions. . . . . . . . . . . . . . . . . 20
i
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SECTION PAGE
3.4 Application of Certain Amounts Upon Event of Loss. . . . . . . . . . . 21
3.5 Amounts During Indenture Event of Default. . . . . . . . . . . . . . . 21
3.6 Amounts for Which Application is Provided in Other Basic
Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.7 Amounts for Which No Application is Otherwise Provided . . . . . . . . 23
3.8 Excepted Property. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.9 Notice of Nonpayment . . . . . . . . . . . . . . . . . . . . . . . . . 23
4. COVENANTS OF NONAFFILIATED PARTNER TRUSTEE AND PARTNERSHIP . . . . . . . . . 24
5. DISPOSITION, SUBSTITUTION AND RELEASE OF PROPERTY INCLUDED IN THE
INDENTURE ESTATE DURING CONTINUATION OF PARTNERSHIP. . . . . . . . . . . . . 24
5.1 Disposition, Substitution and Release of Property Included in
the Indenture Estate During Continuation of Partnership. . . . . . . . 24
5.2 Possession of Units. . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.3 Release of Units . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.4 Release of Units - Consent of Holders. . . . . . . . . . . . . . . . . 27
5.5 Protection of Purchaser. . . . . . . . . . . . . . . . . . . . . . . . 27
6. PREPAYMENT OF NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.1 Prepayment of Notes upon Event of Loss, Obsolescence, ET Date
or Special P.O. Date . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.2 Notice of Prepayment to Holders. . . . . . . . . . . . . . . . . . . . 29
6.3 Deposit of Prepayment Price. . . . . . . . . . . . . . . . . . . . . . 30
6.4 Notes Payable on Prepayment Date . . . . . . . . . . . . . . . . . . . 30
7. NONAFFILIATED PARTNER TRUSTEE AND INDENTURE TRUSTEE. . . . . . . . . . . . . 30
7.1 Prepayment of Moneys for Note Payments Held by Indenture
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.2 No Representations or Warranties as to Units or Documents. . . . . . . 31
8. DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.1 Indenture Events of Default. . . . . . . . . . . . . . . . . . . . . . 31
8.2 Acceleration; Rescission and Annulment; Limitations. . . . . . . . . . 33
8.3 Other Remedies Available to Indenture Trustee. . . . . . . . . . . . . 33
8.4 Waiver of Nonaffiliated Partner Trustee and Partnership. . . . . . . . 43
8.5 Waiver of Existing Defaults. . . . . . . . . . . . . . . . . . . . . . 44
8.6 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8.7 Limitation on Suits by Holders . . . . . . . . . . . . . . . . . . . . 44
ii
<PAGE>
SECTION PAGE
8.8 Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . 44
8.9 Indenture Trustee May File Proofs of Claim . . . . . . . . . . . . . . 45
9. INDENTURE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.1 Rights and Duties of Indenture Trustee . . . . . . . . . . . . . . . . 45
9.2 Individual Rights of Indenture Trustee . . . . . . . . . . . . . . . . 46
9.3 Funds May Be Held by Indenture Trustee; Investments. . . . . . . . . . 47
9.4 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.5 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.6 Replacement of Indenture Trustee . . . . . . . . . . . . . . . . . . . 49
9.7 Successor Indenture Trustee by Merger, etc.. . . . . . . . . . . . . . 50
9.8 Eligibility; Disqualification. . . . . . . . . . . . . . . . . . . . . 50
9.9 Trustee's Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.10 Withholding Taxes; Information Reporting . . . . . . . . . . . . . . . 51
9.11 Co-Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10. SATISFACTION AND DISCHARGE; TERMINATION OF OBLIGATIONS . . . . . . . . . . . 52
10.1 Satisfaction and Discharge of Agreement; Termination of
Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.2 Survival of Certain Obligations. . . . . . . . . . . . . . . . . . . . 52
10.3 Moneys to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . 52
10.4 Moneys to Be Returned to Nonaffiliated Partner Trustee . . . . . . . . 52
11. AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.1 Amendments to This Indenture Without Consent of Holders. . . . . . . . 52
11.2 Supplements to Partnership Agreement, Guaranty, Services
Agreement and O&M Agreement Without Holder Consent . . . . . . . . . . 53
11.3 Amendments With Consent of Holders . . . . . . . . . . . . . . . . . . 54
11.4 Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . 55
11.5 Indenture Trustee Protected. . . . . . . . . . . . . . . . . . . . . . 55
11.6 Opinion of Counsel Conclusive as to
Supplements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12. ACTIONS TO BE TAKEN UPON EXERCISE OF CERTAIN RIGHTS. . . . . . . . . . . . . 56
12.1 Actions to Be Taken upon Exercise of Certain Rights. . . . . . . . . . 56
13. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
13.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
13.2 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
iii
<PAGE>
SECTION PAGE
13.3 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . 58
13.4 Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . 58
13.5 Indenture for Benefit of Nonaffiliated Partner Trustee,
Indenture Trustee, Beneficiaries and Holders . . . . . . . . . . . . . 58
13.6 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
13.7 No Oral Modifications or Continuing Waivers. . . . . . . . . . . . . . 58
13.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 59
13.9 Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . 59
13.10 No Legal Title to Indenture Estate in Holders. . . . . . . . . . . . . 59
13.11 Capacity in Which Acting . . . . . . . . . . . . . . . . . . . . . . . 59
13.12 Directly or Indirectly . . . . . . . . . . . . . . . . . . . . . . . . 59
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S-1
</TABLE>
iv
<PAGE>
Attachments
Exhibit A Note
Exhibit B Indenture Supplement No. 1
v
<PAGE>
TRUST INDENTURE AND SECURITY AGREEMENT dated as of December 15, 1999
among FIRST SECURITY TRUST COMPANY OF NEVADA, a Nevada banking corporation,
not in its individual capacity except as otherwise expressly provided herein,
but solely as Nonaffiliated Partner Trustee, BJ SERVICES EQUIPMENT II, L.P.,
a Delaware Limited Partnership and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, as Indenture Trustee hereunder.
R E C I T A L S:
A. Beneficiaries and First Security Trust Company of Nevada, a
Nevada banking corporation, have entered into the Trust Agreement whereby,
among other things, (i) Nonaffiliated Partner Trustee has established a
certain trust for the use and benefit of Beneficiaries, to be subject,
however, to the Lien of the Indenture created pursuant hereto and (ii)
Nonaffiliated Partner Trustee has been authorized and directed to execute and
deliver this Indenture.
B. Before the Commencement Date, General Partner and
Organizational Limited Partner formed Partnership pursuant to the Initial
Partnership Agreement, and General Partner contributed the Initial Units to
Partnership.
C. Nonaffiliated Partner Trustee, Indenture Trustee and other
parties have entered into the Participation Agreement providing for the
commitment of the Note Purchasers to purchase Notes in an aggregate amount
not to exceed $90,000,000.
D. Subject to the terms of the Participation Agreement,
Nonaffiliated Partner Trustee on the Commencement Date will enter into the
Partnership Agreement (which amends and restates the Initial Partnership
Agreement) with General Partner, Affiliated Partner and Organizational
Limited Partner and will make a capital contribution to Partnership.
E. The proceeds of the Notes are to be used by Nonaffiliated
Partner Trustee to finance a portion of the Nonaffiliated Partner Trustee's
capital contribution to Partnership on the Commencement Date.
F. The parties desire by this Indenture, among other things, (i)
to provide for the issuance by Nonaffiliated Partner Trustee of the Notes in
accordance with this Indenture, (ii) to provide for the assignment, mortgage
and pledge by Nonaffiliated Partner Trustee to Indenture Trustee, as part of
the Indenture Estate hereunder, among other things, of Nonaffiliated Partner
Trustee's
<PAGE>
Partnership Interest and of certain of Nonaffiliated Partner Trustee's right,
title and interest under certain Basic Documents and certain payments and
other amounts received hereunder or thereunder, and (iii) to provide for the
assignment, mortgage and pledge by Partnership to Indenture Trustee, as part
of the Indenture Estate hereunder, among other things, of all of
Partnership's right title and interest in and to the Units (but not the Other
Equipment and certain of Partnership's right, title and interest under
certain Basic Documents and certain payments and other amounts received with
respect thereto, all in accordance with the terms hereof, as security for,
among other things, the payment and performance of the Notes and
Nonaffiliated Partner Trustee's other obligations to Holders and to Indenture
Trustee, for the ratable benefit and security of Holders.
G. The Holders (i) by entering into the Participation Agreement,
have made it possible for Nonaffiliated Partner Trustee to make its capital
contribution to Partnership and, accordingly, have conferred financial and
other benefits on Partnership and Partners and (ii) would not enter into the
transactions contemplated by the Basic Documents without the grant by
Partnership and Nonaffiliated Partner Trustee of the Liens provided hereunder.
H. All things necessary to make this Indenture the legal, valid
and binding obligation of Nonaffiliated Partner Trustee, Partnership and
Indenture Trustee, for the uses and purposes herein set forth, in accordance
with its terms, have been done and performed and have happened.
I. For all purposes of this Indenture, except as otherwise defined
herein or unless the context otherwise requires:
(a) capitalized terms used herein shall have the meanings
assigned to them in APPENDIX A attached hereto and made a part hereof;
(b) the words "herein", "hereof" and "hereunder", and other
words of similar import, refer to this Indenture as a whole and not to any
particular Section or other subdivision hereof; and
(c) all references in this Indenture to Sections and
Exhibits refer to Sections and Exhibits of this Indenture unless otherwise
indicated.
-2-
<PAGE>
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. SECURITY
1.1 GRANT OF SECURITY INTEREST.
To secure the prompt payment of the principal of, Premium, if any,
and interest on the Notes from time to time Outstanding in accordance with their
terms and to secure the payment, performance and observance by Nonaffiliated
Partner Trustee and Partnership of all the agreements, covenants and provisions
for the benefit of the Holders and Indenture Trustee contained herein and in the
Basic Documents to which Partnership or Nonaffiliated Partner Trustee is,
respectively, a party (collectively, the "Secured Obligations") and for the uses
and purposes and subject to the terms and provisions hereof,
(i) Nonaffiliated Partner Trustee does hereby grant, bargain,
sell, assign, transfer, convey, pledge and confirm, unto Indenture
Trustee, its successors and assigns, for the security and benefit of the
Indenture Trustee, for itself, and for the Holders from time to time a
security interest in and lien on, all estate, right, title and interest
of Nonaffiliated Partner Trustee in, to and under the following described
property, agreements, rights, interests and privileges, whether now owned
or hereafter acquired, arising or existing (which collectively,
including, without limitation, all property hereafter specifically
subjected to the Lien of this Indenture by Nonaffiliated Partner Trustee
by any instrument supplemental hereto, but excluding the Excepted
Property, are herein called the "Nonaffiliated Partner Trustee Indenture
Estate"):
(A) the Partnership Agreement and Nonaffiliated Partner
Trustee's Partnership Interest under the Partnership Agreement
(including all instruments or certificates owned or held by or
established in favor of Nonaffiliated Partner Trustee with respect
to such Partnership Interest) and all rights, authority, powers
and privileges of Nonaffiliated Partner Trustee as a holder of
such Partnership Interest and all payments and distributions
thereunder of whatever kind or character and whether in cash or
other property, at any time made or distributable to Nonaffiliated
Partner Trustee
-3-
<PAGE>
thereunder or in respect thereof, whether due or to become due
and whether representing profits, distributions, repayment of
capital contributions or otherwise (including all amounts of
Priority Distributions, Supplemental Priority Distributions,
Special Distributions, Disposition Amount, ET Amount, Special
P.O. Amount and payments of any kind required to be made to
Nonaffiliated Partner Trustee thereunder), including, without
limitation, the immediate and continuing right of Nonaffiliated
Partner Trustee to receive and collect all distributions and
any other payments or other amounts and the right of
Nonaffiliated Partner Trustee to exercise any election or
option or to make any decision or determination or to give or
receive any notice, consent, waiver or approval or to consent to
any amendment, modification or waiver or to make any claims or
demands under or to take any other action provided under or in
respect of the Partnership Agreement, the Services Agreement or
the O&M Agreement or to accept surrender of any Unit or Units,
including all the rights and powers of Nonaffiliated Partner
Trustee to the exclusion of General Partner and any other
Partner, to declare the O&M Agreement and the Services Agreement
to be in default, to terminate such agreements and exercise all
rights and remedies thereunder and under the Partnership
Agreement, including, without limitation, the commencement,
conduct and consummation of legal, administrative and other
proceedings as permitted thereunder or by law, the liquidation of
Partnership, and all rights and powers of Nonaffiliated Partner
Trustee to the exclusion of General Partner and any other Partner
following a BJ Event of Default to amend, modify or waive such
agreements and to exercise the other rights contained in Section
7 of the Partnership Agreement;
(B) all rights, authority, powers and privileges of, and
all payments and distributions payable to, Nonaffiliated Partner
Trustee under Sections 5.11 through 5.18 and Section 5.22 of the
Participation Agreement;
(C) without limiting the foregoing clause (A) or (B),
all rents, issues, profits, revenues and other income of the
property subjected or required to be subjected to the Lien of this
Indenture which relate to such Partnership Interest, including,
without limitation,
-4-
<PAGE>
the immediate and continuing right to receive any of the
foregoing;
(D) all moneys and securities now or hereafter paid or
deposited or required to be paid or deposited to or with Indenture
Trustee by or for the account of Nonaffiliated Partner Trustee
pursuant to any term of any Basic Document and held or required to
be held by Indenture Trustee hereunder that relate to Partnership,
the Units or to the Notes;
(E) the Guaranty, including, without limitation, all
covenants and warranties in favor of Nonaffiliated Partner Trustee
and all other rights and remedies of Nonaffiliated Partner Trustee
thereunder, whether now owned or hereafter acquired; and
(F) all proceeds of the foregoing (Nonaffiliated Partner
Trustee, concurrently, with the delivery hereof, having delivered
to Indenture Trustee originals of the executed Partnership
Agreement, O&M Agreement, Services Agreement, Guaranty and the
relevant Partnership Agreement Supplement and O&M Agreement
Supplement and executed counterparts of the Trust Agreement); and
(ii) Partnership does hereby grant, bargain, sell, assign,
transfer, convey, pledge and confirm, unto Indenture Trustee, its
successors and assigns, for the security and benefit of the Indenture
Trustee, for itself, and for the Holders from time to time a security
interest in and lien on, all estate, right, title and interest of
Partnership in, to and under the following described property,
agreements, rights, interests and privileges, whether now owned or
hereafter acquired, arising or existing (which collectively, including,
without limitation, all property hereafter specifically subjected to the
Lien of this Indenture by Partnership by any instrument supplemental
hereto, but excluding the Excepted Property, are herein called the
"Partnership Indenture Estate" and together with the Nonaffiliated
Partner Trustee Indenture Estate herein called the "Indenture Estate"):
(A) the Units and all replacements thereof and
substitutions therefor in which Partnership shall from time to
time acquire an interest under the Contribution Agreements and the
Partnership Agreement, as more
-5-
<PAGE>
particularly described in the Indenture Supplement, Partnership
Agreement Supplement and O&M Agreement Supplement executed and
delivered with respect to such Units;
(B) without limiting the foregoing clause(A), all rents,
issues, profits, revenues and other income of the property
subjected or required to be subjected to the Lien of this
Indenture which relate to the Contribution Agreements, the Units
or the Notes, including, without limitation, the immediate and
continuing right to receive any of the foregoing;
(C) all insurance proceeds, sale proceeds or proceeds
arising out of a taking, condemnation, requisition or
appropriation by any government authority with respect to
Partnership, the Units or any Unit, including, without limitation,
the immediate and continuing right to receive any of the
foregoing;
(D) all moneys and securities now or hereafter paid or
deposited or required to be paid or deposited to or with Indenture
Trustee by or for the account of Partnership pursuant to any term
of any Basic Document and held or required to be held by Indenture
Trustee hereunder that relate to the Units or to the Notes;
(E) all Contribution Agreements, including, without
limitation, all covenants and warranties in favor of Partnership
and all other rights and remedies of Partnership thereunder,
whether now owned or hereafter acquired; and
(F) all proceeds of the foregoing (Partnership,
concurrently, with the delivery hereof, having delivered to
Indenture Trustee originals of the executed Partnership Agreement,
O&M Agreement, Services Agreement, Contribution Agreements,
Guaranty and the relevant Partnership Agreement Supplement and O&M
Agreement Supplement and executed counterparts of the Trust
Agreement);
excluding however, all Excepted Property. Such mortgage, charge, hypothec,
security interest and assignment shall attach to the Partnership Agreement, the
O&M Agreement and the Services Agreement and the amounts due and to become due
thereunder upon the
-6-
<PAGE>
execution and delivery of this Agreement, the Participation Agreement, the
Partnership Agreement, the O&M Agreement and the Services Agreement; such
security interest shall attach to the Units specifically described in a
supplement hereto upon the execution and delivery of such supplement. The
mortgage, charge, hypothec, security interest and assignment granted hereunder
shall in all events be subject to the terms and conditions of this Indenture
and the rights of Nonaffiliated Partner Trustee and Partnership, respectively
hereunder.
There shall be excluded from the foregoing grant of security interest
and assignment all Excepted Property. It is further expressly agreed and
stipulated that the foregoing grant shall not include any Other Equipment,
including any Replacement Items.
1.2 EXCLUDED RIGHTS.
(a) Notwithstanding the foregoing assignment, Nonaffiliated
Partner Trustee and Partnership, respectively, shall have the right, not to the
exclusion of Indenture Trustee:
(i) to receive from Partnership, General Partner,
Affiliated Partner, Service Taker and Operator, respectively, duplicate copies
of all notices, documents, reports and other information that Partnership,
General Partner, Affiliated Partner, Service Taker and Operator are required or
permitted to give to Nonaffiliated Partner Trustee or Partnership under the
Partnership Agreement, the Services Agreement, the O&M Agreement, the
Participation Agreement or any other Basic Document;
(ii) to inspect the Units and Partnership's, General
Partner's, Affiliated Partner's, Service Taker's, and Operator's respective
records with respect thereto and with respect to the Partnership Agreement, O&M
Agreement and the Services Agreement;
(iii) to provide or carry insurance in addition to that
required to be carried by Operator pursuant to the O&M Agreement so long as
such additional insurance does not adversely affect Operator's insurance or the
cost thereof or impair the collectibility of such insurance carried by
Operator; and
(iv) in the case only of Nonaffiliated Partner Trustee,
subject to the limitations of Section 8.3(e)(i)(5), to make advances to protect
or preserve the Units, and to pay, purchase, contest or compromise any
insurance premium, encumbrance, charge, tax, lien or other sum that in the
reasonable judgment of
-7-
<PAGE>
Nonaffiliated Partner Trustee appears to affect the Units to enable it to
exercise its rights under this Indenture.
(b) If no Indenture Event of Default exists, Nonaffiliated
Partner Trustee and Partnership shall have the right:
(i) jointly with and not to the exclusion of Indenture
Trustee, to consent or withhold consent to any amendment, modification or waiver
of any provision of the Partnership Agreement, Sections 5.11 through 5.18 and
5.22 of the Participation Agreement, any provision of the O&M Agreement, any
provision of the Services Agreement to which Nonaffiliated Partner Trustee has
the right to join or consent pursuant to Section 11.2 of the Services Agreement,
it being the intention of the parties that consent of Nonaffiliated Partner
Trustee and Indenture Trustee shall be required for any such amendment,
modification or waiver;
(ii) to the exclusion of Indenture Trustee, but jointly
with Nonaffiliated Partner Trustee and Partnership, to adjust the Priority
Distributions, Disposition Values, Disposition Amount pursuant to and in
accordance with Section 2.7 of the Participation Agreement, and to amend the
Partnership Agreement to reflect any such adjustment, if such adjustment or
amendment does not reduce the amounts payable under the Partnership Agreement on
any date below that necessary to pay in full, when due, the principal of,
Premium, if any, and the interest on the Notes due or to become due on such
date; and
(iii) to the exclusion of Indenture Trustee, but jointly
with Nonaffiliated Partner Trustee and Partnership to determine the "Fair Market
Value" pursuant to Section 5.17 of the Participation Agreement.
(c) During the continuance of an Indenture Event of Default and
until Indenture Trustee forecloses on the Indenture Estate, Nonaffiliated
Partner Trustee shall have the right, jointly with and not to the exclusion of
Indenture Trustee, to consent or withhold consent to any amendment, modification
or waiver of Sections 3.1, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15.1, 15.2, 15.3,
17, 19, 20, 22, 23.1 and 23.8 of the O&M Agreement, Sections 3.1, 4, 5, 6, 7.1,
7.2, 7.3, 9, 10, 12 and 13.1 of the Services Agreement, Sections 2.4, 3, 4, 6,
7, 9, 10, 11, 13.1, 13.2 and 13.5 of the Partnership Agreement and Sections 5.11
through 5.18 and 5.22 of the Participation Agreement, it being the intention of
the parties that consent of both Nonaffiliated Partner Trustee and
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Indenture Trustee shall be required for any such amendment, modification or
waiver.
(d) Subject to Section 1.2(b)(iii), Nonaffiliated Partner
Trustee and Indenture Trustee shall jointly determine the "Fair Market Value"
pursuant to the Basic Documents.
1.3 HABENDUM CLAUSE
TO HAVE AND TO HOLD all and singular the property described in
Section 1.1 (exclusive of Excepted Property, Other Equipment and Replacement
Items) unto Indenture Trustee, its successors and assigns, in trust for the
benefit and security of the Holders from time to time, without any preference,
priority or distinction of any one Note over any other Note under this
Indenture, and for the benefit and security of Indenture Trustee and for the
uses and purposes and subject to the terms and provisions set forth in this
Indenture.
1.4 ATTACHMENT OF SECURITY INTEREST.
This Indenture, as supplemented from time to time, is intended to and
shall create and grant to Indenture Trustee a security interest in each of the
Units (but not the Other Equipment or Replacement Items or the Excepted
Property), which security interest shall attach on the Commencement Date or
other date on which Partnership acquires an interest in such Units. The
security interests created by this Indenture and the Indenture Supplements and
granted to Indenture Trustee hereunder and thereunder in the Indenture Estate
other than the Units shall likewise attach on the Commencement Date.
1.5 EFFECT OF ASSIGNMENT.
Anything herein contained to the contrary notwithstanding, Nonaffiliated
Partner Trustee or Partnership, as the case may be, shall remain liable under
each of the Basic Documents to which it is a party to perform all of the
obligations assumed by it thereunder, all in accordance therewith and Indenture
Trustee and the Holders shall have no obligation or liability under any of the
Basic Documents to which Nonaffiliated Partner Trustee or Partnership, as the
case may be, is a party by reason of or arising out of any assignment hereunder,
nor shall Indenture Trustee (except as to Indenture Trustee, if Indenture
Trustee becomes Nonaffiliated Partner Trustee under the Partnership Agreement)
or the Holders be required or obligated in any manner to perform or
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fulfill any obligations of Nonaffiliated Partner Trustee or Partnership, as the
case may be, under or pursuant to any of the Basic Documents to which
Nonaffiliated Partner Trustee or Partnership, as the case may be, is a party
or, except as herein expressly provided, to make any payment, or to make any
inquiry as to the nature or sufficiency of any payment received by it, or
present or file any claim, or take any action to collect or enforce the payment
of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
1.6 APPOINTMENT OF INDENTURE TRUSTEE.
Subject to the terms and conditions hereof, Nonaffiliated Partner Trustee
and Partnership do each hereby constitute Indenture Trustee the true and lawful
attorney of Nonaffiliated Partner Trustee or Partnership, as the case may be,
irrevocably, with full power (in the name of Nonaffiliated Partner Trustee or
Partnership, as the case may be, or otherwise) to ask, require, demand, receive,
compound and give acquittance for any and all moneys and claims for moneys due
and to become due to Nonaffiliated Partner Trustee or Partnership, as the case
may be, (other than with respect to the Excepted Property) under or arising out
of the Partnership Agreement, the Services Agreement or the O&M Agreement to
endorse any checks or other instruments or orders in connection therewith, to
file any claims or take any action or institute any proceedings which Indenture
Trustee may deem to be necessary or advisable in the premises. Nonaffiliated
Partner Trustee and Partnership have agreed, in the Partnership Agreement, that
Partnership shall make all Priority Distributions, Supplemental Priority
Distributions and Special Distributions distributable to Nonaffiliated Partner
Trustee directly to Indenture Trustee in accordance with this Indenture (for so
long as the Lien of this Indenture shall not have been discharged). Promptly on
receipt thereof, Nonaffiliated Partner Trustee or Partnership, as the case may
be, shall transfer to Indenture Trustee any and all moneys from time to time
received by it constituting part of the Indenture Estate, for distribution by
Indenture Trustee pursuant to this Indenture, except that Nonaffiliated Partner
Trustee shall accept for distribution pursuant to the Trust Agreement or
Partnership Agreement, as the case may be, any amounts distributed to it by
Indenture Trustee as expressly provided in this Indenture and any Excepted
Property.
1.7 FURTHER ASSURANCES.
Nonaffiliated Partner Trustee and Partnership each agrees that, at any
time and from time to time, upon the written request
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of Indenture Trustee, Nonaffiliated Partner Trustee or Partnership, as the case
may be, will, at General Partner's expense as provided in the Participation
Agreement, promptly and duly execute, acknowledge and deliver or cause to be
duly executed, acknowledged and delivered to Indenture Trustee any and all such
further acts, deeds, conveyances, transfers and assurances as Indenture Trustee
may reasonably request for the perfection or protection of the Lien being
herein provided for in the Indenture Estate, whether now owned or hereafter
acquired. All property described or referred to in Section 1.1 hereafter
acquired by Nonaffiliated Partner Trustee or Partnership, as the case may be,
shall, without further act, assignment or conveyance by Nonaffiliated Partner
Trustee, Partnership or Indenture Trustee, become subject to the Lien of this
Indenture as fully and completely as if originally described herein.
1.8 REPRESENTATIONS AND WARRANTIES.
Nonaffiliated Partner Trustee does hereby warrant and represent that it
has the right, power and authority under the Trust Agreement and Partnership
Agreement, and Partnership does hereby warrant and represent that it has the
right, power and authority under the Partnership Agreement, to grant a Lien on,
and a security interest in, all property comprising the Indenture Estate and
that it has not granted, bargained, sold, assigned, transferred, conveyed or
pledged a security interest in or lien on, and hereby covenants that it will not
grant, bargain, sell, assign, transfer, convey or pledge a security interest in,
or lien on, so long as this Indenture remains in effect, any of its right, title
or interest in the Indenture Estate to anyone other than Indenture Trustee.
Nonaffiliated Partner Trustee will warrant and defend such security interest
against all Persons claiming by, through or under Nonaffiliated Partner Trustee.
Partnership will warrant and defend such security interest against all Persons
claiming by, through or under Partnership.
SECTION 2. THE NOTES.
2.1 NOTES; TITLE, DATING AND TERMS.
(a) The Notes shall be substantially in the form set forth in
EXHIBIT A or in the form or forms set forth in the Indenture Supplement. The
Notes shall be (i) dated the original date of issuance, (ii) issued in such
maturities, aggregate principal amounts, subject to repayment or redemption in
the aggregate and bear interest as the same are specified in Exhibit B
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to the Indenture Supplement, and (iii) each subject to repayment or redemption
as specified herein and therein. Accrued interest on each Note shall be
payable on each Payment Date until the principal thereof is paid or made
available for payment in full.
(b) The Notes shall be issued in registered form only. The
Notes may not be prepaid or redeemed (or purchased in lieu of prepayment or
redemption), in whole or in part, except as provided in this Indenture.
(c) All computations of interest accruing on any Note shall be
made on the basis of a year of 360 days consisting of twelve 30-day months.
(d) The aggregate outstanding principal amount of the Notes
shall not exceed at any time $90,000,000. The Notes shall have the same Payment
Dates as to both principal and interest.
(e) The principal of, Premium (as defined in Section 2.15), if
any, and interest on the Notes shall be payable in immediately available funds
at the principal corporate trust office of Indenture Trustee.
(f) All payments in respect of the Notes shall be made in
United States dollars.
2.2 EXECUTION AND AUTHENTICATION.
(a) Notes shall be executed on behalf of Nonaffiliated Partner
Trustee by manual signature of the president, a senior vice president, a vice
president, an assistant vice president, its treasurer, its secretary, an
assistant secretary, an assistant treasurer or other authorized officer of
Nonaffiliated Partner Trustee.
(b) Immediately after the execution of the Notes, Nonaffiliated
Partner Trustee shall deliver such Notes to Indenture Trustee for authentication
and, subject to the provisions of Section 2.10, Indenture Trustee shall
authenticate the Notes by manual signature upon written orders of Nonaffiliated
Partner Trustee. Notes shall be authenticated on behalf of Indenture Trustee by
any authorized officer or signatory of Indenture Trustee.
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(c) A Note shall not be valid or obligatory for any purpose
or entitled to any security or benefit hereunder until executed on behalf of
Nonaffiliated Partner Trustee by the manual signature of the officer of
Nonaffiliated Partner Trustee specified in Section 2.2(a) and until
authenticated on behalf of Indenture Trustee by the manual signature of the
authorized officer or signatory of Indenture Trustee specified in Section
2.2(b). Such signatures shall be conclusive evidence that such Note has been
duly executed, authenticated and issued under this Indenture and any
Indenture Supplement.
(d) The authentication by Indenture Trustee of any Note
issued hereunder shall not be construed as a representation or warranty by
Indenture Trustee as to the validity or security of this Indenture or such
Note, and Indenture Trustee shall in no respect be liable or answerable for
the use made of such Note or the proceeds thereof.
2.3 REGISTER. Indenture Trustee shall maintain an office where the
Notes may be presented for registration of transfer or for exchange. At such
office, the registrar (the "Registrar") shall keep a register (the
"Register") with respect to the Notes and their transfer and exchange. The
names and addresses of Holders, the transfers of the Notes and the names and
addresses of the transferees of all Notes shall be registered in the
Register. Indenture Trustee may appoint one or more co-registrars (the
"Co-Registrars") for the Notes and Indenture Trustee may terminate the
appointment of any Co-Registrar at any time upon written notice. The term
"Registrar" includes any Co-Registrar.
2.4 TRANSFER AND EXCHANGE. At the option of a Holder and subject
to Section 2.3 and Section 6.2 of the Participation Agreement, Notes may be
presented for exchange or surrendered for transfer for an equal aggregate
principal amount of other Notes, having the same date of original issue,
Payment Dates, Debt Rate and Maturity Date as the Notes so to be exchanged or
transferred at the office of the Registrar. Whenever any Note or Notes are
so presented or surrendered, Nonaffiliated Partner Trustee shall execute and
deliver to Indenture Trustee, and Indenture Trustee shall authenticate and
deliver to the Holder, the replacement Note or Notes which such Holder or the
transferee, as the case may be, is entitled to receive. Each replacement
Note shall bear a notation by Indenture Trustee of (a) the aggregate amounts
of principal of, and Premium, if any, on such replacement Note that were paid
to any Holder of the replaced Note at any time prior to the delivery of the
replacement Note, and (b) the date to which
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interest on such replacement Note had been paid to any Holder of the replaced
Note prior to the delivery of the replacement Note.
Any Note issued in connection with an exchange or transfer of existing
Notes shall be in a principal amount not less than the lesser of (a) the
then outstanding principal amount of the Note presented for exchange or
transfer and (b) $1,000,000, subject to Section 6.2 of the Participation
Agreement.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of Nonaffiliated Partner Trustee,
evidencing the same obligations, and entitled to the same security and
benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall (if so required by Indenture Trustee or Nonaffiliated Partner
Trustee) be duly endorsed by, or be accompanied by a written instrument of
transfer or exchange in form satisfactory to, Indenture Trustee and
Nonaffiliated Partner Trustee, duly executed by the requesting Holder or such
Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes.
The Registrar shall not be required (a) to register the transfer of
or to exchange any Note during a period beginning at the opening of business
10 days before the day of the scheduled prepayment (or purchase in lieu of
prepayment where applicable) of Notes pursuant to Section 6.1 or 8.3(e) and
ending at the close of business on the scheduled date of prepayment (or
purchase) or (b) to register the transfer of or to exchange any Note called
for prepayment (or purchase in lieu of prepayment where applicable) pursuant
to such Section 6.1 or 8.3(e).
2.5 INDENTURE TRUSTEE AS AGENT; OWNERSHIP OF NOTES.
(a) Indenture Trustee is hereby appointed the agent of
Nonaffiliated Partner Trustee for the payment, registration, transfer and
exchange of Notes. Subject to the provisions of Section 2.8, Notes may be
presented for payment at, and notices or demands with respect to the Notes or
this Indenture may be served
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or made at, the principal corporate trust office of Indenture Trustee.
Indenture Trustee shall promptly notify Nonaffiliated Partner Trustee of any
such presentment, notice or demand; provided, however, that the failure of
Indenture Trustee to so notify Nonaffiliated Partner Trustee shall not affect
the obligations of Nonaffiliated Partner Trustee hereunder or under the Notes
or, absent gross negligence or wilful misconduct, give rise to any liability
of Indenture Trustee to Nonaffiliated Partner Trustee or to any other Person
for any such failure.
(b) Ownership of the Notes shall be proved by the Register
kept by the Registrar. Prior to due presentment for registration of transfer
of any Note, Nonaffiliated Partner Trustee and Indenture Trustee shall deem
and treat the Person in whose name any Note is registered as the absolute
owner of such Note for the purpose of receiving payment of principal of,
Premium, if any, and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and neither Nonaffiliated
Partner Trustee nor Indenture Trustee shall be affected by notice to the
contrary.
2.6 MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If any Note is
mutilated, destroyed, lost or stolen, Nonaffiliated Partner Trustee shall,
upon the written request of the relevant Holder, issue and execute, and
Indenture Trustee shall authenticate and deliver to the relevant Holder in
replacement thereof, a new Note of the same date of original issue and having
the same Payment Dates, Debt Rate and Maturity Date, payable to the same
Holder in the same principal amount and dated the same date as the Note so
mutilated, destroyed, lost or stolen. If the Note being replaced has become
mutilated, such Note shall be surrendered to Indenture Trustee. If the Note
being replaced has been destroyed, lost or stolen, the relevant Holder shall
furnish to Nonaffiliated Partner Trustee and Indenture Trustee (i) such
security or indemnity as may be required by them to save Nonaffiliated
Partner Trustee and Indenture Trustee harmless and (ii) evidence
satisfactory to Nonaffiliated Partner Trustee and Indenture Trustee of the
destruction, loss or theft of such Note and of the ownership thereof. If the
original Holder or such other Person that is an institutional investor is the
owner of any such destroyed, lost or stolen Note, then the affidavit of the
President, any Vice President, Assistant Vice President, Treasurer or
Secretary of the original Holder or such other Person setting forth the fact
of destruction, loss or theft and of its ownership of the Note, at the time
thereof, shall be accepted as satisfactory evidence thereof, and no indemnity
shall be required as a condition to the execution
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and delivery of a new Note other than the written agreement of such original
Holder or other Person reasonably satisfactory to Nonaffiliated Partner
Trustee and Indenture Trustee to indemnify (including for any costs and
expenses, including reasonable attorneys' fees) Nonaffiliated Partner Trustee
and Indenture Trustee for any claims or actions against them resulting from
the issuance of such new Note or the reappearance of the old Note. Each Note
issued pursuant to this Section 2.6 shall bear a notation by Indenture
Trustee of (a) the aggregate amounts of principal of, and Premium, if any,
on, such mutilated, destroyed, lost or stolen Note that were paid to any
Holder thereof at any time before the delivery of such new Note and (b) the
date to which interest on such mutilated, destroyed, lost or stolen Note had
been paid to any Holder thereof at or prior to the time of such delivery.
2.7 CANCELLATION. All Notes surrendered for the purpose of
payment, redemption, transfer or exchange shall be delivered to Indenture
Trustee for cancellation or, if surrendered to Indenture Trustee, shall be
canceled by it, and no Notes shall be issued in lieu thereof except as
expressly required or permitted by this Indenture. Indenture Trustee shall
deliver a certificate to Nonaffiliated Partner Trustee specifying any
cancellation of Notes that has been made. All such canceled Notes shall be
held by Indenture Trustee until this Indenture is discharged, at which time
Indenture Trustee shall either deliver such canceled Notes in a manner
necessary to effect the discharge and release of this Indenture or, if no
such delivery is necessary, such Notes shall be delivered to or disposed of
as directed by Nonaffiliated Partner Trustee.
2.8 PAYMENT ON NOTES.
(a) The principal of, the Premium, if any, interest on, and
any other amounts payable with respect to, the Notes shall be payable at the
principal office of Indenture Trustee, in lawful money of the United States
of America without surrender or presentation of such Note and without any
notation being made thereon. The Holder (or the Person for whom such Holder
is a nominee) will, before selling, transferring or otherwise disposing of
such Note, present such Note to Indenture Trustee for transfer and notation
as provided in Section 2.4. Any payment or prepayment of amounts due on the
Notes in accordance with the terms thereof and hereof which is due on a date
that is not a Business Day shall be payable, at the election of Nonaffiliated
Partner Trustee, on the next following Business Day without penalty or
reduction of, or increase in, the amount of interest that is payable thereon.
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(b) Notwithstanding Section 2.8(a), if any Note is held by
the original Note Purchaser, a permitted successor or assign that is an
institutional investor or a nominee thereof, Indenture Trustee shall, if
requested in writing by such Holder, pay interest on such Note and pay or
prepay the principal thereof and the Premium, if any, thereon and shall pay
all other amounts due with respect to such Note, by check, duly mailed, by
first-class mail, postage prepaid, or delivered to such Holder at its address
appearing on the Register. Upon written notice from any Holder that is an
original Note Purchaser, a permitted successor or assign that is an
institutional investor or a nominee thereof, which notice shall be given not
less than 30 days before the payment or prepayment of the Notes (and Section
2.16 shall constitute such written notice and wire transfer instructions
until otherwise designated in the case of the Note Purchasers), Indenture
Trustee will pay interest on such Note and pay or prepay the principal
thereof and the Premium, if any thereon, by wire transfer of immediately
available funds to such institution in the continental United States as such
Holder may designate in such notice, such wire transfers to be made on each
date on which such payment or prepayment is due if, and only so long as, such
institution has facilities for the receipt of a wire transfer. Indenture
Trustee will transmit any such wire transfer from its offices not later than
1:00 p.m. (New York time) on each date on which payment or prepayment is due
if, and only so long as, available funds therefor have been received by
Indenture Trustee by 11:00 a.m. (New York time) on such date or, if Indenture
Trustee has not received such available funds, Indenture Trustee will
transmit such wire transfer promptly upon receipt of such available funds.
(c) A Holder shall have no further interest in, or other
right with respect to, the Indenture Estate when and if the principal amount
of, Premium, if any, and interest on all Notes held by such Holder and all
other sums payable to such Holder and secured hereunder are paid in full.
2.9 PAYMENT FROM INDENTURE ESTATE ONLY; NONRECOURSE OBLIGATIONS;
EXCESS AMOUNTS.
(a) All amounts payable by Indenture Trustee and
Nonaffiliated Partner Trustee under the Notes, this Indenture and the
relevant Indenture Supplement shall be made only from the income and proceeds
of the Indenture Estate and each Holder by its acceptance of its Note agrees
that (i) it will look solely to such Indenture Estate for the payment of such
amounts, to the extent
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available for distribution to it as herein provided, and (ii) none of
Nonaffiliated Partner Trustee, any Beneficiary, Indenture Trustee or any of
their permitted successors or assigns, is or shall be personally liable to
any Holder for any amount payable under such Note or this Indenture, except,
in the case of Nonaffiliated Partner Trustee and Indenture Trustee and any of
their permitted successors or assigns, as expressly provided in this
Indenture. Notwithstanding any other provision of this Indenture, including
Section 9, First Security shall be liable hereunder in its individual
capacity for its own willful misconduct or gross negligence or, in the case
of the holding or transfer of funds, the failure to act with the same care as
it uses in the handling of its own funds.
(b) First Security is entering into this Indenture solely as
Nonaffiliated Partner Trustee under the Trust Agreement and not in its
individual capacity, and in no case whatsoever shall First Security, or any
entity acting as successor trustee under the Trust Agreement, be personally
liable for, or for any loss in respect of, any statements, representations,
warranties, agreements or obligations hereunder or thereunder; provided that
First Security shall be liable hereunder (i) for the performance of its
agreements under Sections 3.5(c), 5.5 and 5.9 of the Participation Agreement,
and (ii) for its own willful misconduct or gross negligence or, in the case of
the holding and transfer of funds, the failure to act with the same care as
it uses in the handling of its own funds. If a successor Nonaffiliated
Partner Trustee is appointed in accordance with the terms of Section 8 of the
Trust Agreement and the Participation Agreement, such successor Nonaffiliated
Partner Trustee shall, without any further act, succeed to all of the rights,
duties, immunities and obligations hereunder, and its predecessor
Nonaffiliated Partner Trustee and First Security shall be released from all
further duties and obligations hereunder, without prejudice to any claims
against such predecessor Nonaffiliated Partner Trustee or First Security, for
any default by such predecessor Nonaffiliated Partner Trustee or First
Security, respectively, in the performance of its obligations hereunder prior
to such appointment.
(c) If (i) all or any part of the Trust Estate becomes the
property of, or any Beneficiary becomes, a debtor subject to the reorganization
provisions of the Bankruptcy Reform Act of 1978 or any successor provision,
(ii) pursuant to such reorganization provisions, First Security or any
Beneficiary is required, by reason of First Security or any Beneficiary being
held to have recourse liability to the Holders or Indenture Trustee,
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directly or indirectly, to make payment on account of the principal of,
Premium, if any, or interest on the Notes and (iii) any Holder or Indenture
Trustee actually receives any Excess Amount (as defined below) which reflects
any payment by First Security or any Beneficiary on account of clause (ii)
above, then such Holder or Indenture Trustee, as the case may be, shall
promptly refund to First Security or such Beneficiary (whichever shall have
made such payment) such Excess Amount. For purposes of this Section 2.9,
"Excess Amount" means the amount by which any payment required to be made by
First Security or any Beneficiary under clause (ii) above exceeds the amount
which would have been received by the Holder(s) or Indenture Trustee if First
Security or such Beneficiary had not become subject to the recourse liability
referred to in clause (ii) above.
2.10 EXECUTION AND DELIVERY OF NOTES UPON ORIGINAL ISSUANCE.
Nonaffiliated Partner Trustee shall issue, execute and deliver to Indenture
Trustee, and Indenture Trustee shall authenticate and deliver to Holders, the
Notes for original issuance only upon payment by Holders pursuant to the
Participation Agreement of an amount equal to the aggregate original
principal amount of the Notes.
2.11 SECURITY FOR AND PARITY OF NOTES. It is the intention of the
parties hereto that all Notes issued and Outstanding hereunder rank on a
parity with each other Note and, that as to each other Note, they be secured
equally and ratably by the collateral described in this Indenture and any
Indenture Supplement without preference, priority or distinction of any one
thereof over any other by reason of difference in time of issuance, or
otherwise, and that each such Note be entitled to the same benefits and
security in this Indenture and any Indenture Supplement as each other such
Note.
2.12 APPLICATION OF PAYMENTS TO NOTES. In the case of each Note,
each payment of principal of, and Premium, if any, and interest on such Note,
shall be applied, first, to the payment of accrued but unpaid interest on
such Note (including any interest at the Late Rate on overdue principal,
Premium and (to the extent permitted by applicable law) interest) to the date
of such payment, second, the balance, if any, remaining thereafter to the
payment of the principal amount due and payable on such Note, and third, the
balance, if any, remaining thereafter, to the payment of Premium, if any,
then due and payable on such Note, provided that such Note shall not be
subject to prepayment or redemption by Nonaffiliated Partner Trustee except
as provided in Sections 6.1 and 8.3(e).
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2.13 INTENTIONALLY OMITTED.
2.14 LATE RATE. If Nonaffiliated Partner Trustee, any Beneficiary
or a Person designated by any of them elects or is required to redeem,
prepay, pay or purchase any Note (in whole or in part) under any provision of
this Indenture or any other Basic Document, and such redemption, prepayment
or purchase is not consummated on the date originally scheduled therefor
(unless, following General Partner's election to remove the Unit or Units
from the Lien of the Indenture pursuant to Section 5.16 of the Participation
Agreement, to exercise its ET Right pursuant to Section 9.1 of the
Partnership Agreement, or to exercise its Special P.O. Right pursuant to
Section 9.4 of the Partnership Agreement, Nonaffiliated Partner Trustee
provides written notice to Indenture Trustee and each Holder no later than
eight Business Days before such originally scheduled prepayment date to the
effect that such termination or purchase will not occur and accordingly it
will not be prepaying the Notes on such date), the Notes shall accrue
interest at the Late Rate from such originally scheduled date for prepayment
to the date of payment, payable on demand.
2.15 DEFINITION OF PREMIUM. As used herein "Premium" means as at any
date a payment thereof is due (the "payment date") in connection with payment
or prepayment in respect of any of the Notes the excess of (i) the present
value as at the payment of the Prepaid Cash Flows, discounted semiannually at
an annual rate which is equal to the Treasury Rate plus 0.50% over (ii) the
aggregate principal amount of such Notes then to be paid or prepaid. To the
extent that the Treasury Rate plus 0.50% at the time of determination of the
Premium is equal to or higher than the rate of interest then borne by such
Notes, the Premium shall be zero.
The following terms shall have the following meanings:
"PREPAID CASH FLOWS" -- for each date on which a payment of
principal or interest, or both, is scheduled to become due on the Notes,
an amount determined by subtracting (x) the amount of such payment
scheduled to become due on such date after giving effect to any
prepayment of principal that was originally scheduled to be paid on the
date as to which the determination is being made from (y) the amount of
such payment (exclusive of interest accrued to the date of such
prepayment) which would have become due on such date but for such
prepayment.
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"STATISTICAL RELEASE" -- the then most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Federal Reserve System and which
establishes yields on actively traded U.S. government securities adjusted
to constant maturities or, if such statistical release is not published
at the time of any determination hereunder, such other reasonably
comparable index which shall be designated by a Majority In Interest.
"TREASURY RATE" -- the yield to maturity of actually traded United
States Treasury obligations with a constant maturity (rounded to the
nearest month) corresponding to the remaining Weighted Average Life to
Maturity of the Prepaid Cash Flows as set forth on page 5 of the Telerate
or, if not available, on page "USD" of the Bloomberg Financial Markets
Screen (or, if not available, any other nationally recognized trading
screen reporting on-line intraday trading in United States government
securities) at 10:00 a.m. (New York City time) on the second Business Day
before the date fixed for prepayment, or in the event no such nationally
recognized trading screen reporting on-line intraday trading in United
States government securities is available, the arithmetic mean of the two
most recent yields under the heading "week ending" published in the
Statistical Release opposite the caption "Treasury Constant Maturities"
for the maturity (rounded to the nearest month) corresponding to the
Weighted Average Life to Maturity of the Prepaid Cash Flows. If no
maturity exactly corresponding to the remaining Weighted Average Life to
Maturity of the Prepaid Cash Flows shall appear therein, yields for the
two most closely corresponding published maturities shall be calculated
pursuant to the foregoing sentence and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis
(rounding to the nearest month). If such rates shall not have been so
published, the Treasury Rate in respect of such determination date shall
be calculated pursuant to the next preceding sentence on the basis of the
arithmetic mean of the arithmetic means of the secondary market ask
rates, as of approximately 3:30 p.m. (New York City time) on the last
Business Days of each of the two weeks preceding the payment date, for
the actively traded U.S. Treasury security or securities with a maturity
or maturities most closely corresponding to the remaining Weighted
Average Life to Maturity of the Prepaid Cash Flows as at such payment or
prepayment date, as reported by three primary United States
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government securities dealers in New York City of national standing
selected in good faith by Operator.
"WEIGHTED AVERAGE LIFE TO MATURITY" -- with respect to the Prepaid
Cash Flows, as at the payment or prepayment date for the determination of
the Treasury Rate, the number of years obtained by dividing the then
Remaining Dollar-years of such Prepaid Cash Flows by the principal amount
of Notes then being paid or prepaid. The term "REMAINING DOLLAR-YEARS"
of the Prepaid Cash Flows means the product obtained by (x) multiplying
(A) the principal portion of each Prepaid Cash Flow (including the
payment at final maturity), by (B) the number of years (calculated to
the nearest one-twelfth) between the time of determination and the date
of such Prepaid Cash Flow, and (y) totaling all the products obtained in
the computations described in clause (x).
2.16 SPECIAL RIGHTS OF HOLDERS. Notwithstanding any provision to the
contrary in this Agreement, the Indenture or the Notes relating to the manner
and place of payment, all amounts payable to a Holder with respect to any Notes
held by such Holder or a nominee for such Holder shall be paid by Indenture
Trustee to such Holder (without any presentment thereof and without any notation
of the payment being made thereon) by check, duly mailed, by first-class mail,
postage prepaid, or delivered to such Holder at the address for payments for
such Holder or, if a wire transfer to a bank account is designated in Schedule 1
to the Participation Agreement or in a written notice from such Holder to
Nonaffiliated Partner Trustee and Indenture Trustee, by wire transfer of
immediately available funds to the bank so designated for credit to the account
and marked for attention as so designated so long as such bank has facilities
for the receipt of a wire transfer, or in any other manner or to any other
address in the United States as may be designated by such Holder in a written
notice from such Holder to Nonaffiliated Partner Trustee and Indenture Trustee.
In the case of any wire transfer, Indenture Trustee will transfer funds from the
office of Indenture Trustee not later than 1:00 p.m. New York time on the date
any payment or prepayment of principal, Premium, if any, or interest on the
Notes is due if funds therefor have been received by Indenture Trustee in cash
or in solvent credits acceptable to it by 11:00 a.m., New York time, or if not
so received by such time, Indenture Trustee shall transfer such funds promptly
upon its receipt of such cash or solvent credits. Each Holder agrees that, if
such Holder shall sell or transfer any Notes, such Holder will notify Indenture
Trustee of the name and address of the transferee and such Holder will, before
the delivery
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of such Notes, make a notation on such Notes of the date to which interest
has been paid thereon and of the amount of any payments or prepayments made
on account of the principal thereof.
SECTION 3. RECEIPT, DISTRIBUTION AND APPLICATION OF FUNDS IN THE INDENTURE
ESTATE.
3.1 PAYMENT UPON DELIVERY OF UNITS. On the Commencement Date,
Indenture Trustee, on behalf of Nonaffiliated Partner Trustee, shall apply
the proceeds of the sale of the Notes to the financing of a portion of
Nonaffiliated Partner Trustee's capital contribution to Partnership on the
Commencement Date in accordance with the provisions of the Participation
Agreement.
3.2 PAYMENTS UPON EVENT OF LOSS, OBSOLESCENCE OR ET RIGHT OR
SPECIAL P.O. RIGHT; CERTAIN PREPAYMENTS.
(a) Except as otherwise provided in Section 3.5, if the
Notes are prepaid in whole or in part in accordance with Section 6.1(a),
6.1(b), 6.1(c), 8.3(e)(iii) or 8.3(e)(iv), Indenture Trustee will apply on
the Prepayment Date any amounts then held by it in the Indenture Estate with
respect to such Notes and received by it from or on behalf of Nonaffiliated
Partner Trustee, Guarantor or any other Person (other than in respect of
Excepted Property or Other Equipment, in the following order of priority:
FIRST, so much thereof as is required to pay the Prepayment Price
on the Outstanding Notes which are being prepaid in whole or in part
pursuant to Section 6.1(a), 6.1(b), 6.1(c), 8.3(e)(iii) or 8.3(e)(iv), as
the case may be, on the Prepayment Date shall be applied to the
prepayment (or purchase, in lieu of prepayment, of the Notes, if
applicable) of such Notes in accordance with the appropriate aforesaid
Section on the Prepayment Date for application in accordance with the
ordering set forth in Section 2.12;
SECOND, so much thereof as is required to pay all other accrued
and unpaid Secured Obligations;
THIRD, so much thereof as was received by Indenture Trustee with
respect to the amounts due to it pursuant to Section 9.5 shall be applied
to pay Indenture Trustee such amounts; and
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FOURTH, the balance, if any, thereof remaining shall be
distributed to Nonaffiliated Partner Trustee to be held or distributed in
accordance with the Trust Agreement.
3.3 APPLICATION OF PRIORITY DISTRIBUTIONS. Except as otherwise
provided in Section 3.5, each Priority Distribution received by Indenture
Trustee from or on behalf of Nonaffiliated Partner Trustee, Guarantor or any
other Person together with any other amount received by Indenture Trustee
with respect to interest on Priority Distributions not made on the relevant
Distribution Date shall be distributed by Indenture Trustee in the following
order of priority:
FIRST, so much of such aggregate amount as is required to pay in
full the principal and interest then due on all Outstanding Notes shall
be distributed to the Holders entitled thereto for application in
accordance with the ordering set forth in Section 2.12; and
SECOND, the balance, if any, of such aggregate amount remaining
thereafter shall be distributed to Nonaffiliated Partner Trustee for
distribution in accordance with the terms of the Trust Agreement.
3.4 APPLICATION OF CERTAIN AMOUNTS UPON EVENT OF LOSS. Except as
otherwise provided in Section 3.5, any amounts received directly by Indenture
Trustee from Nonaffiliated Partner Trustee or through Partnership, Service
Taker or Operator from any Government Authority or other Person in connection
with an Event of Loss, to the extent such amounts are not at the time to be
paid to or retained by Partnership pursuant to Section 11 or 12 of the O&M
Agreement or Section 5.14 or 5.15 of the Participation Agreement (other than
with respect to Excepted Property or Other Equipment, shall, except as
otherwise provided in the next sentence, be applied in accordance with
Section 3.2 in reduction of Partnership's obligations to distribute a
Supplemental Priority Distribution in an amount equal to Disposition Amount
and other amounts referred to or described in Section 5.12 of the
Participation Agreement and Section 6.1(c) of the Partnership Agreement and
the remainder, if any, shall, except as provided in the next sentence, be
distributed to Nonaffiliated Partner Trustee to be distributed in accordance
with the terms of the Trust Agreement. Any portion of any such amount
referred to in the preceding sentence that is not to be so paid or retained
by Partnership pursuant to the O&M Agreement and the Participation Agreement,
solely because a BJ Default or BJ Event of Default
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exists, shall be held by Indenture Trustee, and at such time as no BJ Default
or BJ Event of Default exists, such portion shall be paid to Partnership,
unless Indenture Trustee (as assignee from Nonaffiliated Partner Trustee of
certain rights with respect to the O&M Agreement) theretofore declares the
O&M Agreement to be in default or terminates the O&M Agreement pursuant to
Section 15 thereof, in which event such portion shall be distributed
forthwith upon such declaration or termination in accordance with Section 3.5.
3.5 AMOUNTS DURING INDENTURE EVENT OF DEFAULT. All distributions
and payments (except with respect to Excepted Property) received and amounts
held or realized by Indenture Trustee with respect to Nonaffiliated Partner
Trustee's Partnership Interest or Partnership's interest in any Unit subject
to the Lien of this Indenture while an Indenture Event of Default exists
(including any amounts thereafter realized by Indenture Trustee from the
exercise of any remedies pursuant to Section 8), as well as all
distributions, payments or amounts then held or thereafter received by
Indenture Trustee as part of the Indenture Estate while such Indenture Event
of Default exists, shall be distributed by Indenture Trustee in the following
order of priority:
FIRST, so much of such distributions, payments or amounts as is
required to pay Indenture Trustee all amounts then due it pursuant to
Section 9.5 shall be applied to pay Indenture Trustee such amounts;
SECOND, so much of such distributions, payments or amounts as is
required to pay the expenses (including, without limitation, all fees,
taxes, assessments, insurance and other proper charges)(i) of any sale,
taking or other proceeding, (ii) of or in connection with the use,
operation, storage, leasing, controlling or managing the Indenture Estate
and of all maintenance, insurance, repairs, replacements, alterations,
additions or improvements of any property included in the Indenture
Estate, (iii) of or in connection with realizing on any of the
collateral in the Indenture Estate, including, in the case of each of
clauses (i), (ii) and (iii) all reasonable attorneys' fees and expenses,
court costs and any other reasonable expenditures incurred or advances
made by Indenture Trustee or any Holder in the protection, exercise or
enforcement of any right, power or remedy or taking of any other action
permitted by this Indenture or by law upon such Indenture Event of
Default, all
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of the foregoing to the extent incurred in accordance with
Section 8.3(c);
THIRD, so much of such distributions, payments or amounts
remaining as is required to pay the principal then due and payable of all
of the Notes then Outstanding and accrued interest then due and payable
on all such Notes then Outstanding payable to the applicable Holders,
whether by declaration of acceleration pursuant to Section 8.2 or
otherwise, shall be applied to the payment of such principal and interest
due and payable for application in accordance with the ordering set forth
in Section 2.12; and in case such distributions, payments or amounts are
insufficient to pay in full the whole amount aforesaid, then to the
payment of such principal and interest, in accordance with the ordering
(except as to Premium) set forth in Section 2.12, without any preference,
priority or distinction of one such Note over another, ratably according
to the aggregate amount so payable for principal and interest, at the
date fixed by Indenture Trustee for the distribution of such
distributions, payments or amounts;
FOURTH, the balance, if any, of such distributions, payments or
amounts remaining thereafter shall be distributed to Nonaffiliated
Partner Trustee for distribution under the Trust Agreement;
except that, anything in this Section 3 to the contrary notwithstanding, after
Indenture Trustee has knowledge of an Indenture Event of Default (including,
without limitation, a BJ Event of Default), all amounts (other than with respect
to Excepted Property or Other Equipment that, but for the provisions of this
Section 3.5, would otherwise be distributable by Indenture Trustee to
Nonaffiliated Partner Trustee, shall be held by Indenture Trustee as part of the
Indenture Estate, and if (i) such amounts shall have been retained by Indenture
Trustee for more than 180 days, (ii) the unpaid principal amount of all Notes
have not been declared to be immediately due and payable and (iii) in the case
of an Indenture Event of Default arising solely out of a BJ Event of Default,
Indenture Trustee does not commence the exercise of any one or more of the
available remedies if any, referred to in Section 6.1(d), 11.1, 11.3 or 11.4 of
the Partnership Agreement, Section 5.22 of the Participation Agreement, Section
7.1 of the Services Agreement or Section 15.1 of the O&M Agreement (the choice
of which remedy or remedies to exercise to be made by Indenture Trustee in its
sole good faith discretion) to the extent such
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remedy or remedies are then available and may be exercised by Indenture
Trustee (the determination of which remedy or remedies, if any, are then
available and may be exercised by Indenture Trustee to be made by Indenture
Trustee in its sole good faith discretion), such amounts shall be distributed
to Nonaffiliated Partner Trustee in accordance with the other applicable
provisions of this Section 3.
3.6 AMOUNTS FOR WHICH APPLICATION IS PROVIDED IN OTHER BASIC
DOCUMENTS. Except as otherwise provided in this Indenture, any distribution
or payment received by Indenture Trustee for which provision as to the
application thereof is made in another Basic Document shall be distributed to
the Person for whose benefit such distributions or payments were made in
accordance with the terms of such Basic Document.
3.7 AMOUNTS FOR WHICH NO APPLICATION IS OTHERWISE PROVIDED. Except
as otherwise provided in Section 3.5 or 3.6, any distribution or payment
received by Indenture Trustee for which no provision as to the application
thereof is made elsewhere in this Indenture or in another Basic Document
shall be distributed in accordance with Section 3.5, except that any
distribution or payment received and amounts realized by Indenture Trustee
with respect to Nonaffiliated Partner Trustee's interest in Partnership or
the Units to the extent received or realized at any time after the conditions
set forth in Section 10 for the satisfaction and discharge of this Indenture
are satisfied, as well as any other amounts remaining as part of the
Indenture Estate after such satisfaction, shall be distributed by Indenture
Trustee to Nonaffiliated Partner Trustee for distribution under the Trust
Agreement.
3.8 EXCEPTED PROPERTY. Indenture Trustee shall deliver any
Excepted Property received by it to whomsoever is lawfully entitled to the
same.
3.9 NOTICE OF NONPAYMENT. By 2:00 p.m., New York time, on the
Distribution Date of any Priority Distribution, Indenture Trustee shall
notify the Holders, Nonaffiliated Partner Trustee, Beneficiaries and General
Partner, by telephone, which notice shall be confirmed in writing by
facsimile transmission, if Indenture Trustee has not received such Priority
Distribution; but the failure of Indenture Trustee so to notify such parties
shall not affect the obligations of Nonaffiliated Partner Trustee hereunder
or under the Notes or of Partnership under the Partnership Agreement or the
Participation Agreement or give rise to any
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liability of Indenture Trustee to such parties or any other Person for any
such failure.
SECTION 4. COVENANTS OF NONAFFILIATED PARTNER TRUSTEE AND PARTNERSHIP.
4.1 Nonaffiliated Partner Trustee hereby covenants and agrees that:
(a) it will, subject to Section 2.9, pay or cause to be paid
when due all amounts of principal of, Premium, if any, and interest on the
Notes and all other amounts due hereunder (in any case, without duplication
of amounts theretofore paid to Indenture Trustee in respect thereof);
(b) if any responsible officer of Nonaffiliated Partner
Trustee has actual knowledge of an Indenture Event of Default or Indenture
Default or an Event of Loss, Nonaffiliated Partner Trustee will give prompt
written notice thereof to Indenture Trustee and Operator;
(c) it will not, in its capacity as Nonaffiliated Partner
Trustee, engage in any business or other activity (including the incurrence
of indebtedness for money borrowed), except as contemplated hereby or by the
other Basic Documents; and
(d) it will not, except with respect to Excepted Property or
except as expressly permitted hereunder, declare a default, or exercise any
remedies under, or terminate, modify or accept a surrender of, or offer or
agree to any termination, modification or surrender of, the Services
Agreement, the O&M Agreement or the Partnership Agreement.
4.2 Partnership hereby covenants and agrees that if any responsible
officer of General Partner or Affiliated Partner has actual knowledge of an
Indenture Event of Default or Indenture Default or an Event of Loss,
Partnership will give prompt written notice thereof to Indenture Trustee and
Operator.
SECTION 5. DISPOSITION, SUBSTITUTION AND RELEASE OF PROPERTY INCLUDED IN THE
INDENTURE ESTATE DURING CONTINUATION OF PARTNERSHIP.
5.1 DISPOSITION, SUBSTITUTION AND RELEASE OF PROPERTY INCLUDED IN
THE INDENTURE ESTATE DURING CONTINUATION OF PARTNERSHIP. So long as
Partnership is in existence and the
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Partnership Agreement, the O&M Agreement and the Services Agreement are in
effect:
(a) MODIFICATIONS. Operator has the obligation, or the
right, to make certain Modifications to the Units. Any Optional Modification
that is a Non-Severable Modification and any Required Modification shall
become subject to the Lien of this Indenture and the relevant Indenture
Supplement. Any Optional Modifications that are Severable Modifications
shall not become subject to the Lien of this Indenture. Indenture Trustee
shall promptly execute an appropriate written instrument or instruments to
confirm the absence of a security interest in any Optional Modification that
is a Severable Modification; provided that Indenture Trustee receives a
written request from Partnership therefor addressed to Indenture Trustee and
Nonaffiliated Partner Trustee certifying that the Modifications are Severable
Modifications which are not Required Modifications.
(b) SUBSTITUTION OF UNITS. Upon the occurrence of (y) an
Event of Loss, or (z) an optional substitution of a Unit pursuant to Section
5.11 of the Participation Agreement, Section 7.2(d) of the Partnership
Agreement and Section 8.4 of the O&M Agreement, Partnership and Operator may
substitute a replacement for such Unit, upon satisfaction of the conditions
provided therefor in Section 5.11 or 5.12, as the case may be, of the
Participation Agreement. Any Unit substituted as permitted under Section 5.11
or 5.12 of the Participation Agreement shall become subject to the Lien of
this Indenture. Nonaffiliated Partner Trustee and Indenture Trustee shall
execute, concurrently with any such substitution pursuant to said Section
5.11 or 5.12, an Indenture Supplement substantially in the form of EXHIBIT B
with respect to any such Unit substituted in accordance with Section 5.11 or
5.12 of the Participation Agreement. Upon satisfaction of the conditions
contained herein and in the Participation Agreement, Indenture Trustee shall
execute and deliver to Operator, Partnership and Nonaffiliated Partner
Trustee an instrument releasing its Lien in and to such replaced Unit and
shall execute for recording in public offices, at the expense of Partnership,
such instruments in writing as Nonaffiliated Partner Trustee or Operator
shall reasonably request and as shall be reasonably acceptable to Indenture
Trustee in order to make clear upon public records that such Lien with
respect to such replaced Unit has been released under the laws of the
applicable jurisdiction.
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5.2 POSSESSION OF UNITS. So long as no BJ Event of Default exists,
Partnership shall be permitted to remain in full possession, enjoyment and
control of the Units and to manage, operate and use the same and each part
thereof with the rights and franchises appertaining thereto, including,
without limitation, the right to grant to Operator and Service Taker and
their respective permitted successors and assigns possession, enjoyment and
control of the Units; provided that the possession, enjoyment, control and
use thereof shall at all times be subject, insofar as Partnership is
concerned, to the observance and performance of the terms of this Indenture.
Without limiting the generality of the foregoing, it is expressly understood
and agreed that providing Services to Service Taker and the use and
possession of the Units by Operator under and subject to the Services
Agreement and the O&M Agreement, respectively, shall not constitute a
violation of this Section 5.2.
5.3 RELEASE OF UNITS. So long as no Indenture Default or Indenture
Event of Default exists, Indenture Trustee shall execute a release in respect
of any Unit in the following instances:
(a) in the case of a Reduction Election with respect to a
Unit or Units pursuant to Section 5.16 of the Participation Agreement and
Section 7.2(e) of the Partnership Agreement, upon receipt by Indenture
Trustee of (i) written notice of such Reduction Election pursuant to Section
5.16 of the Participation Agreement and (ii) all amounts payable to it
pursuant to Section 6.1(b) in connection with such Reduction Election;
(b) in the case of the exercise by General Partner of its ET
Right pursuant to Section 9.1 of the Partnership Agreement or its Special
P.O. Right pursuant to Section 9.4 of the Partnership Agreement, upon receipt
by Indenture Trustee of (i) written notice of such exercise pursuant to
Section 9.1 or 9.4 of the Partnership Agreement and (ii) all amounts payable
to it pursuant to Section 6.1(c) in connection with such exercise of the ET
Right or the Special P.O. Right;
(c) when designated by Partnership for a cash settlement
after the occurrence of an Event of Loss pursuant to Section 5.12 of the
Participation Agreement, upon receipt by Indenture Trustee of (i) written
notice thereof pursuant to Section 5.12 of the Participation Agreement and
(ii) all amounts payable to it pursuant to Section 6.1(a) in connection with
such Event of Loss; and
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(d) in the case of a Unit to be replaced in connection with
an optional substitution (the "Replaced Unit") of a Unit pursuant to Section
5.11 of the Participation Agreement and Section 7.2(d) of the Partnership
Agreement or Section 5.12 of the Participation Agreement and Section 7.2(c)
of the Partnership Agreement, as the case may be, upon the compliance with
the terms of such Section 5.11 or 5.12, as the case may be, of the
Participation Agreement and the attachment of the Lien of the Indenture to
the Unit being delivered to Partnership in substitution for the Replaced Unit.
Subject to the succeeding sentence, each such release shall be
executed only upon receipt by Indenture Trustee of the applicable amount
described in this Section 5.3 and the written request of General Partner
accompanied by an Officer's Certificate of General Partner setting forth the
basis for such request and stating that General Partner has complied with the
applicable provisions of the Participation Agreement, together with such
additional evidence of such compliance as Indenture Trustee may reasonably
request in writing. Upon written request of Nonaffiliated Partner Trustee,
in the case of Units returned to Nonaffiliated Partner Trustee, pursuant to
Section 5.17(b) of the Participation Agreement in connection with a Reduction
Election pursuant to Section 5.16 thereof, a release shall be executed upon
receipt by Indenture Trustee of the amount described in Section 5.3(a).
5.4 RELEASE OF UNITS - CONSENT OF HOLDERS. Partnership may sell or
otherwise dispose of any Unit then subject to the security interest of this
Indenture and Indenture Trustee shall release the same from the security
interest hereof, to the extent and on the terms, and upon compliance with,
the conditions provided for in any written consent given thereto at any time
or from time to time by all Holders. The provisions of this Section 5.4 are
in addition to the provisions of Section 5.3.
5.5 PROTECTION OF PURCHASER. No purchaser in good faith of
property purporting to be released hereunder shall be bound to ascertain the
authority of Indenture Trustee to execute the release, or to inquire as to
any facts required by the provisions hereof for the exercise of such
authority; nor shall any purchaser in good faith of any Unit be under an
obligation to ascertain or inquire into the conditions upon which any such
sale is hereby authorized.
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SECTION 6. PREPAYMENT OF NOTES.
6.1 PREPAYMENT OF NOTES UPON EVENT OF LOSS, OBSOLESCENCE, ET DATE OR
SPECIAL P.O. DATE.
(a) If an Event of Loss occurs with respect to a Unit and
such Unit is not replaced pursuant to Section 5.12 of the Participation
Agreement, the principal on each Outstanding Note shall be prepaid in part,
together with interest on the principal so prepaid, at a Prepayment Price
equal to the sum of (1) as to principal thereof, an amount equal to the
product obtained by multiplying the aggregate Current Principal Amount of
each Outstanding Note as of the Prepayment Date (after deducting therefrom
the related scheduled principal payment, if any, due and paid to Indenture
Trustee on the Prepayment Date) by a fraction, the numerator of which shall
be the Equipment Value of such Unit and the denominator of which shall be the
Equipment Value of the Units then subject to the Lien of this Indenture
immediately prior to such Prepayment Date, plus (2) as to interest, the
aggregate amount of interest accrued and unpaid in respect of the principal
amount to be prepaid pursuant to clause (1) above to but not including the
Prepayment Date after giving effect to the application of any Priority
Distribution or Supplemental Priority Distribution distributable in
accordance with Section 6.1(b) or 6.1(c) of the Partnership Agreement
received by Indenture Trustee on or prior to the date of such prepayment.
Each prepayment made pursuant to subclause (1) of this clause shall be (A)
applied to the prepayment of such Notes being prepaid so that each of the
remaining installments of principal of each such Note shall be reduced in the
proportion that the principal amount of the prepayment bears to the unpaid
principal amount of such Notes immediately before the prepayment and (B)
made ratably over the Notes, without preference, priority or distinction of
any one such Note over any other. The Prepayment Date for Notes to be
prepaid, in whole or in part, pursuant to this Section 6.1(a) shall be the
Settlement Date related to the Event of Loss giving rise to the prepayment.
(b) At any time on a Payment Date occurring after the fifth
anniversary of the Commencement Date, if General Partner determines that any
Units then subject to the Lien of this Indenture are obsolete or surplus to the
needs of Partnership in accordance with Section 5.16 of the Participation
Agreement and either (y) Nonaffiliated Partner Trustee has given notice to
Indenture Trustee pursuant to Section 5.18 of the Participation Agreement of its
election to retain such Units and to prepay the
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Notes on the Reduction Date as provided below, or (z) Nonaffiliated Partner
Trustee has not given such notice and Partnership has not withdrawn its
notice as provided in Section 5.16 of the Participation Agreement, principal
on each Outstanding Note shall be prepaid in part, together with interest on
the principal so prepaid at a Prepayment Price equal to the sum of (1) as to
principal thereof, an amount equal to the product obtained by multiplying the
Current Principal Amount of each Outstanding Note as of the Prepayment Date
(after deducting therefrom the related scheduled principal payment, if any,
due and paid to Indenture Trustee on the Prepayment Date) by a fraction, the
numerator of which shall be the Equipment Value of such Unit or Units and the
denominator of which shall be the Equipment Value of the Units then subject
to the Lien of this Indenture immediately before such Prepayment Date, plus
(2) as to interest, the aggregate amount of interest accrued and unpaid in
respect of the principal amount to be prepaid pursuant to clause (1) above
to, but not including, the Prepayment Date after giving effect to the
application of any Priority Distribution paid to Indenture Trustee on or
before the date of such prepayment, plus (3) the Premium. Each prepayment
made pursuant to subclause (1) of this clause (b) shall be (A) applied to the
prepayment of such Notes being prepaid so that each of the remaining
installments of principal of each such Note shall be reduced in the
proportion that the principal amount of the prepayment bears to the unpaid
principal amount of such Notes in the aggregate immediately prior to the
prepayment and (B) made ratably over the Notes, without preference, priority
or distinction of any one such Note over any other. The Prepayment Date for
Notes to be prepaid pursuant to this Section 6.1(b) shall be the Payment Date
that occurs on the Reduction Date.
(c) Upon (i) the election of General Partner or its designee to
exercise its fixed price purchase option pursuant to Section 9.1 or 9.4 of the
Partnership Agreement or (ii) the election of the General Partner to prepay the
Outstanding Notes on the ET Date or the Special P.O. Date, as the case may be,
notwithstanding that the General Partner or its designee has not elected to
exercise the ET Right, the Outstanding Notes shall be prepaid at a Prepayment
Price equal to the sum of (1) Current Principal Amount thereof, plus (2) accrued
but unpaid interest thereon to, but not including, the applicable Prepayment
Date, plus (3) if such fixed price purchase option is exercised on the Special
P.O. Date (but not otherwise) the Premium, plus (4) any other accrued and unpaid
Secured Obligations, if any. The Prepayment Date for Notes to be prepaid
pursuant to this Section 6.1(c) shall be the Special P.O. Date or the ET Date,
respectively.
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(d) Upon the existence of the conditions described in
Section 8.3(e)(iii) and the request of Nonaffiliated Partner Trustee or
Beneficiaries and delivery of notice, all pursuant to Section 8.3(e)(iii),
each Outstanding Note shall be purchased on the date specified in the notice
at a Prepayment Price equal to the sum of (1) the Current Principal Amount
thereof, plus (2) accrued but unpaid interest thereon to, but not including,
the applicable Prepayment Date.
(e) Upon the existence of the conditions described in
Section 8.3(iv) and the request of Nonaffiliated Partner Trustee or
Beneficiaries and delivery of notice, all pursuant to Section 8.3(e)(iv),
each Outstanding Note shall be purchased at a Prepayment Price equal to the
sum of (1) the Current Principal Amount thereof, plus (2) accrued but
unpaid interest thereon to, but not including, the applicable Prepayment
Date, plus (3) the Premium.
6.2 NOTICE OF PREPAYMENT TO HOLDERS. Notice of prepayment,
redemption or purchase with respect to any Notes contemplated by Section 6.1
shall be given by Indenture Trustee, in the manner provided in Section 13.1,
not less than five nor more than ten Business Days before the applicable
Prepayment Date, to each Holder of such Note to be prepaid or purchased, at
such Holder's address appearing in the Register.
All notices of prepayment shall state:
(1) the Prepayment Date;
(2) whether the Notes are to be prepaid in whole or in part;
(3) the Section and clause of this Indenture pursuant to which
the prepayment is being made;
(4) that, with respect to prepayments in whole of the Notes, on
the Prepayment Date, the Prepayment Price will become due and payable
with respect to the Notes, and that, if any of the Notes are then
Outstanding, interest on such Notes shall cease to accrue on and after
such Prepayment Date;
(5) that, with respect to prepayments in part of Notes on the
Prepayment Date, the Prepayment Price will become due and payable on such
Notes, and that interest with respect to that portion of the Prepayment
Price attributable to the
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principal amount of such Notes shall cease to accrue on and after the
applicable Prepayment Date; and
(6) the Prepayment Price, including in reasonable detail the
calculation of the estimated Premium, if any, to be paid in connection
therewith.
6.3 DEPOSIT OF PREPAYMENT PRICE. On or before the Prepayment Date,
Nonaffiliated Partner Trustee (or any Person on behalf of Nonaffiliated
Partner Trustee) shall, to the extent an amount equal to the Prepayment Price
with respect to the Notes to be prepaid, redeemed or purchased on the
Prepayment Date shall not then be held in the Indenture Estate, deposit or
cause to be deposited with Indenture Trustee by 11:00 a.m. (New York time) on
the Prepayment Date in immediately available funds the Prepayment Price with
respect to the Notes to be prepaid or purchased.
6.4 NOTES PAYABLE ON PREPAYMENT DATE. If notice of prepayment,
redemption or purchase is given in accordance with Section 6.2, the Notes or
portions thereof shall, on the Prepayment Date, become due and payable at the
principal corporate trust office of Indenture Trustee, and from and after the
related Prepayment Date (unless there is a default in the payment of the
Prepayment Price), all Notes then Outstanding shall cease to bear interest as
to any portion the principal of which is prepaid.
If any Note called in whole or in part for prepayment or purchase is
not so paid, the principal amount thereof shall, until paid, continue to bear
interest from the applicable Prepayment Date at the Late Rate as of such
Prepayment Date through the date upon which such Note or such portion is paid.
SECTION 7. NONAFFILIATED PARTNER TRUSTEE AND INDENTURE TRUSTEE.
7.1 PREPAYMENT OF MONEYS FOR NOTE PAYMENTS HELD BY INDENTURE
TRUSTEE. Any money held by Indenture Trustee in trust for any payment of the
principal of, Premium, if any, or interest on any Note (but not any money
constituting Excepted Property or relating to Other Equipment and not any
moneys representing the balance, if any, after giving effect to applications
pursuant to clauses "first" through "third", of Section 3.5, which balance,
if any, is to be distributed upon the terms and conditions provided in clause
"fourth" of Section 3.5) and remaining unclaimed for more than two years and
eleven months (or such lesser time as Indenture Trustee is satisfied, after
60 days written notice from Nonaffiliated Partner Trustee or General Partner
on behalf of
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Partnership, is one month before the escheat period provided under applicable
law) after the due date for such payment, shall be paid to Nonaffiliated
Partner Trustee; and the Holders entitled to payment thereon shall
thereafter, as unsecured general creditors, look only to Nonaffiliated
Partner Trustee for payment thereof, and all liability of Indenture Trustee
with respect to such trust money shall thereupon cease, except that Indenture
Trustee, before being required to make any such repayment, shall, at the
written direction of Nonaffiliated Partner Trustee with a copy to General
Partner on behalf of Partnership, cause to be mailed to each such Holder
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 mailing, any
unclaimed balance of such money then remaining will be repaid to
Nonaffiliated Partner Trustee as provided herein.
7.2 NO REPRESENTATIONS OR WARRANTIES AS TO UNITS OR DOCUMENTS.
NEITHER NONAFFILIATED PARTNER TRUSTEE IN ITS INDIVIDUAL CAPACITY OR OTHERWISE
NOR INDENTURE TRUSTEE MAKES OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION,
DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE UNITS OR THE
OTHER EQUIPMENT OR AS TO THEIR TITLE THERETO, OR ANY OTHER REPRESENTATION OR
WARRANTY WITH RESPECT TO THE UNITS OR THE OTHER EQUIPMENT WHATSOEVER OR ANY
REPRESENTATION OR WARRANTY AS TO THE VALIDITY OR ENFORCEABILITY OF ANY BASIC
DOCUMENT, except that (i) First Security makes the representations and
warranties contained in Sections 3.1(h) and 3.1(k) of the Participation
Agreement and Nonaffiliated Partner Trustee hereby represents and warrants
that on the Commencement Date Nonaffiliated Partner Trustee received whatever
right, title and interest was conveyed to it by Partnership and First
Security represents, warrants and covenants that such right, title and
interest and the Units are on the Commencement Date, and thereafter shall be,
free of Nonaffiliated Partner Trustee Liens attributable to First Security
and (ii) ITC represents and warrants that it has not breached its covenant
contained in Section 5.9 of the Participation Agreement.
SECTION 8. DEFAULTS AND REMEDIES.
8.1 INDENTURE EVENTS OF DEFAULT. The following events shall
constitute "Indenture Events of Default" under this Indenture (whether any
such event is voluntary or involuntary or comes about or is effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
government body):
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(a) default in the payment of any installment of principal,
interest or Premium, if any, in respect of any Note when and as the same
shall become due and payable (whether on the due date thereof, a date fixed
for prepayment, by acceleration or otherwise), and which is not thereafter
paid within five Business Days after the same becomes due and payable;
(b) the existence of a BJ Event of Default;
(c) default in the due observance or performance of any
other covenant or agreement to be observed or performed by Nonaffiliated
Partner Trustee (in its individual capacity or as Nonaffiliated Partner
Trustee) under the Notes or hereunder or to be observed or performed by
Nonaffiliated Partner Trustee (in its individual capacity or as Nonaffiliated
Partner Trustee) or any Beneficiary for the benefit of any Holder under the
Participation Agreement or the Trust Agreement, and any such default
continues unremedied for 30 days after Nonaffiliated Partner Trustee and
Beneficiaries receive notice thereof from Indenture Trustee specifying the
default and demanding that the same be remedied; except that, if such failure
is capable of being remedied and such remedy does not involve the payment of
money alone, no such failure shall constitute an Indenture Event of Default
hereunder while Nonaffiliated Partner Trustee (in its individual capacity or
as Nonaffiliated Partner Trustee)or any Beneficiary is diligently proceeding
to remedy such failure, but in no event shall such failure continue
unremedied for a period of the lesser of 90 days from the date of such notice
and the number of days remaining in the Transaction Term;
(d) any representation or warranty made by Nonaffiliated
Partner Trustee (in its individual capacity or as Nonaffiliated Partner
Trustee) herein, or by Nonaffiliated Partner Trustee or any Beneficiary in
the Participation Agreement or in any certificate or other statement
furnished by Nonaffiliated Partner Trustee (in its individual capacity or as
Nonaffiliated Partner Trustee) or any Beneficiary to Indenture Trustee or any
Holder in connection with the transactions contemplated by the Participation
Agreement is incorrect in any material respect as of the date of the issuance
or making thereof;
(e) Nonaffiliated Partner Trustee, the Trust Estate or any
Beneficiary becomes insolvent or bankrupt or generally fails to pay, or admits
in writing its inability to pay, its debts as they come due, or makes a general
assignment for the benefit of creditors, or applies for, consents to or
acquiesces in the
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appointment of a trustee, custodian or receiver or other similar official for
Nonaffiliated Partner Trustee, Trust Estate or Beneficiary;
(f) a trustee, custodian or receiver or other similar
official is appointed for Nonaffiliated Partner Trustee, the Trust Estate or
any Beneficiary and is not discharged within 60 days after such appointment;
(g) any bankruptcy, reorganization, arrangement, insolvency
or liquidation case or proceeding, or other case or proceeding for relief
under any bankruptcy law or similar law for the relief of debtors, is
instituted by or against Nonaffiliated Partner Trustee, the Trust Estate or
any Beneficiary and, if instituted against Nonaffiliated Partner Trustee, the
Trust Estate or any Beneficiary is allowed against Nonaffiliated Partner
Trustee or any Beneficiary or is consented to or is not dismissed within 60
days after such institution.
8.2 ACCELERATION; RESCISSION AND ANNULMENT; LIMITATIONS. If an
Indenture Event of Default exists, Indenture Trustee by written notice to
Nonaffiliated Partner Trustee, Partnership and each Beneficiary, may, and upon
written request of a Majority In Interest of Holders shall, declare the
principal of all the Notes to be due and payable; except that the principal of
all Notes, together with accrued interest thereon from the date in respect of
which interest was last paid hereunder to the date payment of such principal has
been made, and all other accrued and unpaid Secured Obligations will
automatically become due and payable without any action of Indenture Trustee or
the Holders in the case of an Indenture Event of Default under Section 8.1(e),
(f) or (g), unless such Indenture Event of Default with respect to a Beneficiary
is remedied or the defaulting Beneficiary transfers its Beneficial Interest
pursuant to Section 8.3(e)(i)(4). Upon such declaration, the principal of all
Notes, together with accrued interest thereon from the date in respect of which
interest was last paid hereunder to the date payment of such principal has been
made and all other accrued and unpaid Secured Obligations shall be immediately
due and payable as a result of such declaration or automatic acceleration. At
any time after such declaration or automatic acceleration, as the case may be,
and before the sale or disposition of the Indenture Estate, a Majority In
Interest of Holders, by written notice to Indenture Trustee, Nonaffiliated
Partner Trustee, Partnership and each Beneficiary, may rescind such a
declaration or automatic acceleration, as the case may be, and thereby annul its
consequences if (a) an amount sufficient to pay all principal of
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and interest (including interest at the Late Rate on overdue payments) on
such Notes, to the extent each such amount is due or past due without regard
to the acceleration hereof, if any, in respect of the Outstanding Notes and
all other sums then due and payable to Indenture Trustee has been deposited
with Indenture Trustee, (b) the rescission would not conflict with any
judgment or decree and (c) all existing Indenture Defaults and Indenture
Events of Default under this Indenture are cured or waived except nonpayment
of principal of, or interest on, the Notes which have become due solely
because of such acceleration. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
8.3 OTHER REMEDIES AVAILABLE TO INDENTURE TRUSTEE.
(a) If an Indenture Event of Default exists, then and in
every such case Indenture Trustee, as trustee of an express trust and as
assignee hereunder of Nonaffiliated Partner Trustee's Partnership Interest or
as holder of a security interest in the Units or otherwise, may, and when
required pursuant to Section 9 shall, exercise (subject to the following
sentence and Sections 8.3(e) and 8.3(f)), any or all of the rights and powers
and pursue any and all of the remedies accorded to Nonaffiliated Partner
Trustee under the Partnership Agreement and the Participation Agreement and
to Partnership and Nonaffiliated Partner Trustee under the O&M Agreement, the
Services Agreement and this Section 8, may recover judgment in its own name
as Indenture Trustee against the Indenture Estate and may take possession of
all or any part of the Indenture Estate and may exclude Nonaffiliated Partner
Trustee, Partnership, any Partner, Operator, Service Taker and Beneficiaries
and all Persons claiming under any of them wholly or partly therefrom.
Notwithstanding any other provision of this Indenture or any other of the
Basic Documents to the contrary, Indenture Trustee shall not be entitled
pursuant to Section 8.3(b) or otherwise to sell any of the Partnership
Indenture Estate or exercise other remedies against the Partnership Indenture
Estate or to exercise BJ Remedies (as defined below) until such time, if any,
as a BJ Event of Default exists. Notwithstanding any other provision of this
Indenture or any other of the Basic Documents, Indenture Trustee shall not be
entitled to exercise any remedy hereunder as a result of an Indenture Event
of Default that arises solely by reason of one or more events or
circumstances that constitute a BJ Event of Default unless Indenture Trustee
as security assignee of Nonaffiliated Partner Trustee declares the O&M
Agreement to be in default and simultaneously, to the extent it is then
entitled to do so hereunder and under the Partnership
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Agreement, O&M Agreement and Participation Agreement and is not then stayed
or otherwise prevented from doing so by operation of law, exercises one or
more of the rights or remedies (each right or remedy, a "BJ Remedy") in
Section 6.1(d), 11.1, 11.3 or 11.4 of the Partnership Agreement, Section 15.1
of the O&M Agreement involving a termination of the O&M Agreement or any
other remedy in Section 15.1 of the O&M Agreement or Section 5.22 of the
Participation Agreement; except, that if Indenture Trustee is stayed or
otherwise prevented by operation of law from exercising such BJ Remedies, it
shall in any event refrain from so foreclosing or otherwise exercising BJ
Remedies hereunder (i) for 180 days after the commencement of such stay or
other circumstances preventing the exercise of BJ Remedies or (ii) if
Guarantor or an Affiliate of Guarantor with court approval assumes (and is
performing the obligations of each Bankrupt BJ Entity under) the Basic
Documents to which each Bankrupt BJ Entity is a party in accordance with
Section 365 of the Bankruptcy Code and, if an Affiliate of Guarantor so
assumes, Guarantor remains liable for all its obligations under the Guaranty
to the same extent as if such assumption had not occurred.
(b) Subject to Sections 8.3(a), 8.3(e) and 8.3(f), if an
Indenture Event of Default exists, Indenture Trustee may, if at the time such
action is lawful and subject to compliance with any mandatory legal
requirements, either with or without taking possession, and either before or
after taking possession, and without instituting any legal proceedings
whatsoever, and having first given notice of such action by registered mail to
Nonaffiliated Partner Trustee, Partnership and each Beneficiary once at least 15
days before the date of such action, and any other notice required by law, sell
and dispose of the Indenture Estate, or any part thereof, or interest therein,
at a private sale or sales or a public auction to the highest bidder, in each
case, in one lot as an entirety or in separate lots, and either for cash or on
credit and on such terms as Indenture Trustee may determine, and at any place
(whether or not it is the location of the Indenture Estate or any part thereof)
and time designated in the notice above referred to. Notwithstanding any
provision herein or in any other Basic Document to the contrary, Indenture
Trustee shall not sell any of the Partnership Indenture Estate or exercise other
remedies against the Partnership Indenture Estate or exercise BJ Remedies unless
a BJ Event of Default exists. Notwithstanding any provision herein to the
contrary or in any other Basic Document, Indenture Trustee shall not sell any of
the Indenture Estate or exercise other remedies against the Indenture Estate
seeking to deprive Beneficiaries of their interest therein as a result of an
Indenture
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Event of Default that arises solely by reason of one or more events or
circumstances that constitute a BJ Event of Default unless a declaration of
acceleration has been made pursuant to Section 8.2, Indenture Trustee as
security assignee of Nonaffiliated Partner Trustee declares the O&M Agreement
to be in default and Indenture Trustee is simultaneously exercising, to the
extent it is then entitled to do so hereunder and under the Partnership
Agreement, the Participation Agreement and the O&M Agreement and is not then
stayed or otherwise prevented from doing so by operation of law, one or more
BJ Remedies; and no private sale may be made to BJ USA or any of its
Affiliates; except, that if Indenture Trustee is so stayed or otherwise
prevented by operation of law from exercising such BJ Remedies, it shall in
any event refrain from so foreclosing or otherwise exercising remedies
hereunder (i) for 180 days after the commencement of such stay or other
circumstances preventing the exercise of BJ Remedies or (ii) if Guarantor or
an Affiliate of Guarantor with court approval assumes (and is performing the
obligations of each Bankrupt BJ Entity under) the Basic Documents to which
each Bankrupt BJ Entity is a party in accordance with Section 365 of the
Bankruptcy Code and, if an Affiliate of Guarantor so assumes, Guarantor
remains liable for all its obligations under the Guaranty as if such
assumption had not occurred. Any such sale or sales may be adjourned from
time to time by announcement at the time and place appointed for such sale or
sales, or for any such adjourned sale or sales, without further notice, and
Indenture Trustee and any Holder may bid and become the purchaser at any such
sale. Indenture Trustee may exercise such right without possession or
production of the Notes or proof of ownership thereof, and as representative
of Holders may exercise such right without notice to Holders or including
Holders as parties to any suit or proceeding relating to foreclosure of any
property in the Indenture Estate. Nonaffiliated Partner Trustee and
Partnership each hereby irrevocably constitutes Indenture Trustee the true
and lawful attorney-in-fact of Nonaffiliated Partner Trustee (in the name of
Nonaffiliated Partner Trustee or otherwise) and Partnership (in the name of
Partnership or otherwise), as the case may be, for the purpose of
effectuating any sale, assignment, transfer or delivery upon enforcement of
the Lien created under this Indenture, whether pursuant to foreclosure or
power of sale or otherwise, to execute and deliver all such bills of sale,
assignments and other instruments as Indenture Trustee may consider necessary
or appropriate, with full power of substitution, Nonaffiliated Partner
Trustee and Partnership each hereby ratifying and confirming all that such
attorney or any substitute shall lawfully do by virtue hereof. Nevertheless,
if so requested by Indenture Trustee or any purchaser, Nonaffiliated Partner
Trustee
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and Partnership each shall ratify and confirm any such sale, assignment,
transfer or delivery, by executing and delivering to Indenture Trustee or
such purchaser all bills of sale, assignments, releases and other proper
instruments to effect such ratification and confirmation as may be designated
in any such request.
(c) Subject to Sections 8.3(a), 8.3(e) and 8.3(f), if an
Indenture Event of Default exists, Nonaffiliated Partner Trustee or Partnership,
or both, shall, at the request of Indenture Trustee upon enforcement of the Lien
created under this Indenture, promptly execute and deliver to Indenture Trustee
such instruments of title or other documents as Indenture Trustee may deem
necessary or advisable to enable Indenture Trustee or an agent or representative
designated by Indenture Trustee, at such time and place or places as Indenture
Trustee may specify, to obtain possession of all or any part of the Indenture
Estate. If Nonaffiliated Partner Trustee or Partnership for any reason fails to
execute and deliver such instruments and documents after such request by
Indenture Trustee, Indenture Trustee shall be entitled to a judgment for
specific performance of the covenants contained in the foregoing sentence,
conferring upon Indenture Trustee the right to immediate possession and
requiring Nonaffiliated Partner Trustee or Partnership, as the case may be, to
execute and deliver such instruments and documents to Indenture Trustee.
Subject to Sections 8.3(a), 8.3(e) and 8.3(f), Indenture Trustee shall also be
entitled to pursue all or any part of the Indenture Estate wherever it may be
found and may enter any of the premises of Nonaffiliated Partner Trustee or
Partnership or any other Person wherever the Indenture Estate may be or be
supposed to be and search for the Indenture Estate and take possession of any
item of the Indenture Estate pursuant to this Section 8.3(c). Subject to
Sections 8.3(a), 8.3(e) and 8.3(f), Indenture Trustee may, from time to time, at
the expense of the Indenture Estate, make all such expenditures for maintenance,
insurance, repairs, replacements, alterations, additions and improvements to and
of the Indenture Estate, as it may deem proper. In each such case, Indenture
Trustee shall have the right to use, operate, store, lease, control or manage
the Indenture Estate and to exercise all rights and powers of Nonaffiliated
Partner Trustee or Partnership relating to the Indenture Estate as Indenture
Trustee shall deem appropriate, including the right to enter into any and all
such agreements with respect to the use, operation, storage, leasing, control or
management of the Indenture Estate or any part thereof; and Indenture Trustee
shall be entitled to collect and receive directly all tolls, rents, payments,
distributions (including Priority Distributions, Supplemental Priority
Distributions and Special
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Distributions other than Excepted Property), issues, profits, products,
revenues and other income of the Indenture Estate and every part thereof,
without prejudice, however, to the right of Indenture Trustee under any
provision of this Indenture to collect and receive cash held by, or required
to be deposited with, Indenture Trustee hereunder. In accordance with the
terms of this Section 8.3(c), such tolls, rents, payments, distributions
(including Priority Distributions, Supplemental Priority Distributions and
Special