EXHIBIT 4.7
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FIRST SUPPLEMENTAL INDENTURE
dated as of February 12, 2001
to
TRUST INDENTURE AND SECURITY AGREEMENT
dated as of February 12, 2001
between
[NAME OF LESSOR LLC]
and
FIRST UNION NATIONAL BANK
not in its individual capacity except as expressly stated
herein, but solely as indenture trustee
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AHOLD LEASE U.S.A., INC.
Leveraged Lease of [Supermarket/Warehouse/Office Building] located in
[Location of Leased Property]
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE, dated as of February 12,
2001 (the "First Supplemental Indenture"), to the Trust Indenture and Security
Agreement, dated as of February 12, 2001 (the "Original Indenture," together
with any supplemental indentures including this First Supplemental Indenture,
the "Indenture"), between [NAME OF LESSOR LLC], a Delaware limited liability
company (the "Lessor"), and FIRST UNION NATIONAL BANK, not in its individual
capacity but solely as indenture trustee (the "Indenture Trustee").
RECITALS:
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A. The Lessor has heretofore executed and delivered the
Original Indenture to the Indenture Trustee to provide for the issuance from
time to time of notes to be issued in one or more series (the "Notes");
B. Sections 2.13 and 10.1 of the Original Indenture provide,
among other things, that the Lessor and the Indenture Trustee may enter into
indentures supplemental to the Original Indenture for, among other things, the
purpose of establishing the form and terms of Notes of any series as permitted
by Sections 2.13 and 10.1 of the Original Indenture;
C. The Lessor (i) desires the issuance of two series of Notes,
one to be designated as "Series A-1 Notes" (the "Series A-1 Notes") and the
other to be designated as "Series A-2 Notes" (the "Series A-2 Notes", and
collectively with the Series A-1 Notes, the "Series A Notes") and (ii) has
requested the Indenture Trustee to enter into this First Supplemental Indenture
for the purpose of establishing the form and terms of the Series A Notes;
D. All action on the part of the Lessor necessary to authorize
the issuance of the Series A Notes under the Original Indenture and this First
Supplemental Indenture has been duly taken; and
E. All acts and things necessary to make the Series A Notes,
when executed by the Lessor and authenticated and delivered by the Indenture
Trustee as provided in the Original Indenture, the legal, valid and binding
obligations of the Lessor, and to constitute a valid and binding supplemental
indenture according to its terms, have been done and performed, and the
execution of this First Supplemental Indenture and the creation and issuance
under the Indenture of the Series A Notes have in all respects been duly
authorized, and the Lessor, in the exercise of the legal right and power vested
in it, executes this First Supplemental Indenture and proposes to create,
execute, issue and deliver the Series A Notes;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH
that, in order to establish the form and terms of and to authorize the
authentication and delivery of the Series A Notes, and in consideration of the
premises, of the acceptance by the Indenture Trustee of the trust hereby created
and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, in order to secure (a) the payment of the
principal of, Premium, if any, on and interest on the Notes Outstanding
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from time to time hereunder according to their tenor and effect, (b) the prompt
payment of all amounts from time to time owing by, and the performance of all
obligations of, the Lessee under the Operative Agreements with respect to the
Property (the "Operative Agreements"), and the Guarantor under the Guarantee
with respect to the Property (the "Guarantee"), in each case, to the Indenture
Indemnitees, and (c) the performance and observance by the Lessor for the
benefit of the Noteholders from time to time of the Notes and the Indenture
Trustee of all the covenants, agreements and provisions contained herein, in the
Mortgage, in the Assignment of Leases and Rents and in the Notes, in each case
for the uses and purposes and subject to the terms and provisions hereof:
GRANTING CLAUSES:
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The Lessor hereby grants, conveys, assigns, transfers,
mortgages and pledges to the Indenture Trustee, to the extent that it
constitutes real property, and, to the extent that it does not constitute real
property grants, conveys, assigns, transfers, mortgages, pledges to and creates
a security interest in favor of the Indenture Trustee in, the following
described property, rights and privileges, whether now owned or held or
hereafter acquired (herein called the "Indenture Estate"), to wit, all right,
title and interest of the Lessor, now existing or hereafter arising, in and to:
Granting Clause First
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The entire right, title and interest of the Lessor in and to
the land described in Schedule A attached hereto (the "Site") together with (a)
all right, title and interest of Lessor in and to all buildings, structures and
other improvements, now standing or at any time hereafter constructed or placed
upon the Site, including, without limitation, all right, title and interest of
Lessor in and to all fixtures of every kind and nature on the Site or in any
such building, structure or other improvements (said buildings, structures,
other improvements and fixtures being herein collectively called the
"Improvements"), (b) all right, title and interest of Lessor in and to all and
singular the tenements, hereditaments, easements, rights of way, rights,
privileges and appurtenances in and to the Site, belonging or in any way
appertaining thereto, including, without limitation, all right, title and
interest of Lessor in, to and under any streets, ways, alleys, vaults, gores or
strips of land adjoining the Site, (c) all claims or demands of Lessor in law or
in equity, in possession or expectancy of, in and to the Site and the
Improvements and (d) all rents, income, revenues, issues, awards, proceeds and
profits from and in respect of the property described in this Granting Clause
First which are, subject to the provisions of Granting Clause Second, hereby
specifically assigned, transferred and set over to Indenture Trustee, it being
the intention of the parties hereto that, so far as may be permitted by law, all
property of the character hereinabove described which is now owned or held or is
hereafter acquired by Lessor and is affixed, attached and annexed to the Site
shall be and remain or become and constitute a portion of the Indenture Estate
and the security covered by and subject to the lien of the Mortgage. The Site
together with the Improvements and the other property described in this Granting
Clause First relating thereto are herein collectively called the "Property".
Granting Clause Second
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Lessor's interest in the Lease with respect to the Property
(the "Lease"), including the right to all extended terms and all extensions and
renewals of the terms thereof, together with all the right, title and interest
of Lessor as lessor under the Lease, including, without limitation, the present
and continuing right to make claim for, collect, receive and make receipt for
any and all of the rents, income, revenues, issues, awards, proceeds and profits
and other sums of money payable or receivable thereunder (except (i) sums
payable as rent or otherwise, including, without limitation, sums of money
receivable by Lessor thereunder by virtue of a release of existing easements or
other rights in the nature of easements or by virtue of a dedication or transfer
of unimproved portions of the Site) and (ii) Excepted Payments), the right (in
each case exclusive of Excepted Rights) to accept or reject any offers made
pursuant to the Lease to purchase any interest in the Property, to bring actions
and proceedings under the Lease or for the enforcement thereof and to do
anything which Lessor or any lessor is or may become entitled to do under the
Lease, provided that the assignment made by this Granting Clause Second and the
disposition of that portion of the Indenture Estate described in this Granting
Clause Second shall be subject to the provisions of this Indenture, and shall
not impair or diminish any obligation of Lessor under the Lease nor shall any
such obligation be imposed upon Indenture Trustee, together with Lessor's
interest, if any, in and to any and all other leases with respect to the
Property.
Granting Clause Third
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All of the fixtures, furnishings and fittings of every kind
and nature whatsoever, and all appurtenances and additions thereto and
substitutions or replacements thereof (together with, in each case, attachments,
components, parts and accessories) currently owned or subsequently acquired by
Lessor and now or subsequently attached to, or contained in or used or usable in
any way in connection with any operation or letting of, the Property, but
specifically excluding trade fixtures and other personal property of any tenant
on the Property (the "Fixtures").
Granting Clause Fourth
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All of the equipment and apparatus of every kind and nature
whatsoever, and all appurtenances and additions thereto and substitutions or
replacements thereof (together with, in each case, attachments, components,
parts and accessories) currently owned or subsequently acquired by Lessor,
including but without limiting the generality of the foregoing, all storm doors
and windows, heating, electrical, and mechanical equipment, lighting,
switchboards, plumbing, ventilating, air conditioning and air-cooling apparatus,
refrigerating, and incinerating equipment, escalators, elevators, building
cleaning systems (including window cleaning apparatus), communication systems
(including satellite dishes and antennae), sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security systems, motors,
engines, machinery, pipes, pumps, tanks, conduits and fittings of every kind and
description, but specifically excluding the property of any tenant on the
Property (the "Equipment").
Granting Clause Fifth
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All substitutes and replacements of, and all additions and
improvements to, the Improvements, the Fixtures and the Equipment, subsequently
acquired by Lessor or constructed, assembled or placed by Lessor on the Site,
immediately upon such acquisition, release, construction, assembling or
placement, including, without limitation, any and all building materials whether
stored at the Property or offsite, and, in each such case, without any further
mortgage, conveyance, assignment or other act by Lessor.
Granting Clause Sixth
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All estate, right, title and interest and other claim or
demand that Lessor now has or may hereafter acquire with respect to any damage
to the Site, the Improvements, the Fixtures or the Equipment and any and all
proceeds of insurance in effect with respect to the Site, the Improvements, the
Fixtures and the Equipment, and any and all awards made for the taking by
eminent domain, or by any proceeding or purchase in lieu thereof, of the Site,
the Improvements, the Fixtures or the Equipment, including without limitation
any awards resulting from a change of grade of streets or as the result of any
other damage to the Site, the Improvements, the Fixtures or the Equipment for
which compensation shall be given by any governmental authority subject to the
provisions of the Lease with respect to the collection and application of the
same.
Granting Clause Seventh
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All estate, right, title and interest of Lessor in and to all
rights, royalties and profits in connection with all minerals, oil and gas and
other hydrocarbon substances on or in the Property, development rights or
credits, air rights, water, water rights (whether riparian, appropriative or
otherwise and whether or not appurtenant) and water stock.
Granting Clause Eighth
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All renewals, substitutions, improvements, accessions,
attachments, additions, replacements and proceeds (including, without
limitation, all proceeds from the exercise of any termination or purchase option
or right under Articles 5, 14, 15 and 20 of the Lease, payment of any Stipulated
Loss Value, Premium or otherwise with respect to the Property, the Fixtures or
the Equipment), both cash and noncash, of each of the foregoing and all
conversions of the security constituted thereby.
Granting Clause Ninth
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Lessor's interest in the Guarantee, including without
limitation, the present and continuing right to make claim for, collect, receive
and make receipt for any and all payments under the Guarantee.
Granting Clause Tenth
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All proceeds of any of the foregoing.
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BUT EXCLUDING, HOWEVER, from the Indenture Estate any and all
Excepted Payments and Excepted Rights now existing or hereafter arising and the
rights to collect and enforce the same and subject to the following provisions:
(aa) Except during the period that the Indenture Trustee is
entitled to exercise rights and powers and pursue remedies as provided in
Article 7 of the Original Indenture, the Lessor at all times shall retain, to
the exclusion of the Indenture Trustee, all rights of the Lessor, now existing
or hereafter arising, to exercise any election or option or to make any decision
or determination or to give or receive any notice, consent, waiver or approval
or to take any other action under or in respect of the Granting Clause
Documents, as well as all rights, power and remedies on the part of the Lessor,
now existing or hereafter arising, and arising under the Granting Clause
Documents or by statute or at law or in equity or otherwise, arising out of any
Default or Event of Default; provided, however, that, except (A) insofar as the
same relates to Excepted Rights or Excepted Payments to which the Lessor, the
Owner Participant or any Affiliate thereof is entitled (but subject to the
proviso in Section 7.3(b) of the Original Indenture), or (B) to the extent that
any such amendment, modification, waiver, discharge, supplement or termination,
or consent to any thereof, would not result in a substantive change to any of
the terms and provisions listed in clauses (i) and (ii) below and in the case of
clause (iii) below which would not contradict or alter any such term or
provision in a manner that would be prohibited as otherwise set forth in this
paragraph (aa), the Lessor shall not, without Rating Agency Confirmation and, to
the extent required pursuant to the proviso of paragraph (cc) below, prior
written consent of the Indenture Trustee given with the consent of each
Noteholder, agree to any amendment to, or any modification, waiver, discharge,
supplement or termination of, or grant any consent under, any term or provision
of (i) the following provisions of the Lease: Article 2, Article 3 (if the
result thereof would be to shorten the term of the Lease to a period shorter
than the period ending with the latest maturity of any series of Notes), Section
5.2, Section 6.1 (if the result thereof would be that the sum of the Basic Rent
payable thereunder plus the Additional Rent payable pursuant to Section 6.2
thereof in respect of additional interest on the Series A Notes pursuant to
Section 1.4(b) (the "Rent Differential"), if any, would be insufficient to pay
principal or interest on the Notes as same became due and payable), Section 6.2
(if the result thereof would be that the Additional Rent payable thereunder
would be insufficient to pay any Premium payable in respect of the Notes or any
amount owing to the Indenture Trustee or other Indenture Indemnitee), Section
6.3 (if it affects any payment to the Indenture Trustee or other Indenture
Indemnitee), Section 6.4 (if it affects any payment to the Indenture Trustee or
other Indenture Indemnitee), Section 6.5, Article 7 (other than consents or
waivers by the Lessor which would not have an adverse effect on the repayment of
the Notes in the event of a casualty), Article 8 (if the result thereof would
permit a use not permitted by Applicable Law or would cause a violation of an
Environmental Covenant), Article 9 (other than consents and actions of the
Lessor set forth in such section), Article 11 (if the result thereof would
permit alterations that adversely affect the Fair Market Value, expected
residual value, condition, utility or useful life of the Leased Property or
cause the Leased Property to be characterized as "limited use property" as
defined by Revenue Procedure 76-30, and with respect to the Minimum Credit
Criteria), Section 11.3, Article 12, Article 14 (if the result thereof would be
to adversely affect or delay or decrease the amount of any redemption of any of
the Notes), Article 15 (if the result thereof would be to adversely affect or
delay or decrease the amount of any redemption of any of the Notes), Article
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16 (if the result thereof would be to diminish the rights of the Indenture
Trustee as assignee of the Lessor), Article 17 (if the result thereof would be
to diminish the rights of the Indenture Trustee), Article 18, Article 19 and
Article 20; (ii) the Guarantee; or (iii) the definitions contained in Appendix A
to the Participation Agreement relating to any of the provisions in clause (i)
above or the Guarantee.
(bb) During the period that the Indenture Trustee is entitled
to exercise rights and powers and pursue remedies as provided in Article 7 of
the Original Indenture as the result of an Indenture Event of Default caused by
an Event of Default, the Lessor (and in the case of clause (iii) below, the
Owner Participant) shall at all times (except as otherwise provided in clause
(iii) below) be entitled on a non-exclusive basis with the Indenture Trustee to
(i) enforce any covenant or obligation (including obligations in respect of the
payment of Rent) of the Lessee under the Lease; provided, that in so enforcing
any such covenant, the Lessor may not exercise any remedies under Article 20 of
the Lease other than as provided in clause (ii) below, unless such exercise is
required by law in order to effect the Lessor's rights under clause (ii) below;
(ii) declare the Lease in default and exercise remedies solely pursuant to
Section 20.6(b) of the Lease (and such other remedies as are required by law in
order to effect the rights of the Lessor under this clause); (iii) make demand
upon and exercise remedies to enforce against the Guarantor under the Guarantee
to perform its obligations thereunder until foreclosed from doing so by the
Indenture Trustee but such interest may not be foreclosed upon until the
earliest of (A) one year after the occurrence of any Default or Event of Default
with respect to the Guarantor of the type referred to in clause (c) or (d) of
Section 7.1 of the Original Indenture, (B) the discharge by the Guarantor of all
of its obligations under the Guarantee, (C) two years after the commencement of
any action, suit or proceeding to enforce the Guarantee and (D) the resolution
of any such action, suit or proceeding referred to in the immediately preceding
subclause (C); it being understood, however, that any right the Owner
Participant may have to make demand upon and exercise any remedies in respect of
any amounts which may be due the Lessor shall be extinguished upon the Lessor's
interest being foreclosed upon by the Indenture Trustee in accordance with the
terms of this clause (iii); and (iv) receive any notice under the Granting
Clause Documents; provided that any amount obtained by the Lessor (or the Owner
Participant) as a consequence of any of the above actions which is payable to
the Indenture Trustee or any Noteholder or to which the Indenture Trustee is
entitled under the terms of this Indenture shall (apart from Excepted Payments)
be received by the Lessor (or the Owner Participant, as the case may be) for the
benefit of, and immediately paid over to, the Indenture Trustee.
(cc) Subject to paragraph (aa) above, but otherwise without
the consent of the Indenture Trustee or any of the Noteholders, at any time and
from time to time, the respective parties to the Operative Agreements relating
to the Property may modify, amend or supplement any of such Operative Agreements
(other than the Security Documents delivered on the date hereof or delivered
pursuant to Article 10 of the Original Indenture and, except insofar as the same
relates to Excepted Rights or Excepted Payments, the Participation Agreement)
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or modifying in any manner the rights
of the respective parties thereunder or may give any consent or waiver
thereunder; provided, however, that no such modification, amendment, supplement,
consent or waiver shall without the consent of the Indenture Trustee given with
the consent of each Noteholder affected thereby, modify, amend or supplement, or
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give any consent in respect of or waive any provision of, the Lease in such
manner (i) as to reduce the amounts payable by the Lessee under the Lease, or by
the Guarantor under the Guarantee, in either case assigned to the Indenture
Trustee, or change the time for the payment thereof, in either case, so that
such payments are less than the amounts necessary to pay the principal of,
Premium, if any, on and interest on the Outstanding Notes when due (whether at
maturity, upon acceleration or otherwise); or (ii) as would release the Lessee
or the Guarantor from its obligation in respect of payment of Basic Rent,
Additional Rent (other than Excepted Payments), Stipulated Loss Value or any
other amount payable under the Lease (or the guarantee thereof under the
Guarantee) and intended to be used to pay the principal of, Premium, if any, or
interest on the Notes, in any manner inconsistent with clause (i) above.
(dd) Notwithstanding any of the foregoing, in the event that
the membership interest of the Owner Participant in the Lessor shall be acquired
by, or the Owner Participant shall be, the Lessee, the Guarantor or any
Affiliate of either of them, (i) all reservations of rights with respect to the
Indenture Estate by the Owner Participant or the Lessor (whether exclusive or
shared with the Indenture Trustee or otherwise) under the Indenture, including
without limitation those reserved in paragraphs (aa) through (cc) above, and in
Article 7 of the Original Indenture, other than the right to receive any
payments remaining after the Notes and all other amounts owing to the Indenture
Trustee and the Noteholders have been fully paid, shall be eliminated, and (ii)
Schedule 7 of the Participation Agreement shall apply for purposes of all
applicable Operative Agreements.
TO HAVE AND TO HOLD all the Indenture Estate unto the
Indenture Trustee, its successors and assigns FOREVER. The Lien and security
interest created hereby is created for the ratable benefit and security of the
Noteholders of the Outstanding Notes from time to time without any priority of
any one Note or series of Notes over any other except as otherwise expressly
provided in the Indenture, and for the uses and purposes and subject to the
terms and conditions set forth in the Indenture.
PROVIDED, HOWEVER, that if the principal of, Premium, if any,
on and interest on the Series A Notes, and all other amounts payable under or
secured by the Indenture shall have been paid pursuant to Section 3.1 of the
Original Indenture or otherwise and the Lessor shall have performed and complied
with all the covenants, agreements, terms and provisions of the Indenture, then
the Indenture and the rights hereby and thereby granted and assigned with
respect to the Series A Notes shall terminate with respect to the Series A
Notes.
IT IS HEREBY COVENANTED AND AGREED that all the Series A Notes
are to be issued and delivered, and that all property, rights and privileges
subject or to become subject to the Indenture, are to be held subject to the
further covenants, conditions, uses and trusts herein and therein set forth, and
the Lessor, intending to be legally bound hereby, hereby covenants and agrees
with the Indenture Trustee for itself and for the equal and proportionate
benefit and security of the Noteholders of the Outstanding Notes from time to
time, and the Indenture Trustee agrees to accept the trust and duties herein set
forth, as follows:
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ARTICLE 1
THE NOTES
SECTION 1.1 Definitions. Unless the context shall otherwise
require, each of the capitalized terms used in this First Supplemental Indenture
and not otherwise defined in this First Supplemental Indenture shall have the
meaning assigned to it in Appendix A to the Participation Agreement, dated as of
January 26, 2001, among the Owner Participant [and the other owner
participant(s) identified therein], the Lessor and the other lessors identified
therein, Ahold Lease U.S.A., Inc., the Seller of the Leased Property and the
other Sellers of property identified therein, and First Union National Bank, not
in its individual capacity except as expressly provided therein but solely as
Pass Through Trustee and Indenture Trustee (the "Participation Agreement"), as
any such meaning relates to the transactions contemplated under the
Participation Agreement with respect to the Property, and the rules of usage set
forth in Appendix A to the Participation Agreement shall apply thereto. As used
in this First Supplemental Indenture, (i) the term "parties" means,
collectively, the Lessor and the Indenture Trustee and (ii) the term
"Commencement Date" means for Series A-1 Notes or Series A-2 Notes, the date
specified in Schedule 1.4 hereto for such Series A Notes in the column headed
"Interest Accrual Commencement Date". Unless otherwise indicated, references in
this First Supplemental Indenture to articles, sections, paragraphs, clauses,
appendices, schedules and exhibits are to the same contained in or attached to
this First Supplemental Indenture.
SECTION 1.2 Designation of the Notes. There is hereby created
the Series A-1 Notes and the Series A-2 Notes. Such Series A Notes may forthwith
be executed by the Lessor and delivered to the Indenture Trustee for
authentication and delivery by the Indenture Trustee in accordance with the
provisions of Section 2.11 of the Original Indenture.
SECTION 1.3 Maximum Principal Amount. Except as otherwise
provided in the Indenture, the Series A Notes shall be limited to the aggregate
Relevant Principal Amount set forth in Schedule 1.3 hereto, and the Series A-1
Notes and the Series A-2 Notes shall be limited to the respective Relevant
Principal Amounts and shall have the respective Stated Maturities set forth in
Schedule 1.4 hereto.
SECTION 1.4 Maturities, Accretion and Interest Rates.
(a) The Series A-1 Notes and the Series A-2 Notes shall be
dated the date hereof, shall have Stated Maturities on January 2 in each of the
respective years set forth in Schedule 1.4 hereto, shall have aggregate Original
Issue Prices and Relevant Principal Amounts as respectively set forth in
Schedule 1.4 hereto and shall accrete Original Issue Discount prior to the
respective Commencement Date and, subject to Section 1.4(b) and Section 1.6,
shall bear interest on and after the respective Commencement Date at the rates
per annum specified in Schedule 1.4 hereto.
(b) The interest rate on Schedule 1.4 notwithstanding, from
and after the date on which an Illiquidity Event occurs, additional interest (in
addition to the interest otherwise payable with respect to the Series A Notes as
set forth in Schedule 1.4) shall accrue on each
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Series A Note until but not including the date on which such Illiquidity Event
shall cease to exist at the rate of 0.50% per annum, which additional interest
shall be payable in respect of such Series A Note at the times, in the manner
and subject to the same terms and conditions set forth in the Series A Note and
in the Indenture. The following definitions shall be applicable:
"Consummation Date" has the meaning set forth in the
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Illiquidity Event" means any of the following events:
(a) as of the Consummation Date, both (i) a Registered
Exchange Offer has not been consummated with respect to the Initial
Certificates and (ii) the Initial Certificates are not the subject of a
Shelf Registration Statement which has been filed with the Securities
and Exchange Commission; or
(b) a Shelf Registration Statement with respect to the Initial
Certificates or the New Certificates, as applicable, shall not have
been filed within 60 days after the date a Shelf Registration Statement
is required to be filed with respect to such Initial Certificates or
New Certificates; or
(c) except in the case of a suspension period relating to the
Shelf Registration Statement, the Initial Certificates or the New
Certificates are the subject of a Shelf Registration Statement which
was effective but which has ceased to be effective for any reason prior
to the end of the Shelf Registration Period and a new Shelf
Registration Statement with respect to such Initial Certificates or
such New Certificates shall not have been filed and become effective
within 90 days after such Shelf Registration Statement has ceased to be
effective.
An Illiquidity Event shall be deemed to cease to exist on the
date subsequent to the occurrence of such Illiquidity Event on which:
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(i) in the case of an Illiquidity Event described in clause
(a) above, the earlier of (x) a Registered Exchange Offer for such
Initial Certificates shall have commenced or (y) a Shelf Registration
Statement covering such Initial Certificates shall become effective; or
(ii) in the case of an Illiquidity Event described in clause
(b) above, the earlier of either (x) a Shelf Registration Statement
covering such Initial Certificates or New Certificates, as applicable,
shall be filed with the Securities and Exchange Commission or (y) the
Initial Certificates or the New Certificates, as applicable, are no
longer required to be registered pursuant to an effective Shelf
Registration Statement; or
(iii) in the case of an Illiquidity Event described in clause
(c) above, the earliest of (x) the Shelf Registration Statement
covering such Initial Certificates or New Certificates, as the case may
be, shall again become effective, (y) a new Shelf Registration
Statement with respect to such Initial Certificates or such New
Certificates shall be filed and become effective and (z) the Initial
Certificates or New Certificates are no longer required to be
registered pursuant to an effective Shelf Registration Statement.
"Initial Certificate" means a Pass Through Certificate issued
and authenticated under a Pass Through Trust Agreement, other than a New
Certificate.
"New Certificate" means a Pass Through Certificate issued in
exchange for an Initial Certificate pursuant to the Registration Rights
Agreement and authenticated under a Pass Through Trust Agreement.
"Registered Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Shelf Registration Period" has the meaning set forth in the
Registration Rights Agreement.
"Shelf Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
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SECTION 1.5 Denominations. The Series A Notes shall be issued
in denominations of $1,000 of Relevant Principal Amount or integral multiples
thereof, except that one Series A-1 Note and one Series A-2 Note may be in an
amount that is not an integral multiple of $1,000.
SECTION 1.6 Principal and Interest Payments. (a) (a) Each of
the Series A Notes shall bear interest on the Relevant Principal Amount
at the interest rate therefor specified in each such Series A Note from
time to time outstanding in respect of the period commencing on and
including the Commencement Date and ending on the date when the principal
amount of such Series A Note shall have been paid in full, payable on
each January 2 and July 2 in each year (the "Interest Payment Dates"),
commencing the respective dates specified in Schedule 1.4 hereto in the
column headed "Interest Payment Commencement Date"; provided, that if the
Accreted Value of such Series A Note is not paid when due (upon
redemption or acceleration or otherwise) during the Pre-Commencement Date
Period, interest on the Accreted Value of such Series A Note as at the
date such Accreted Value was not paid shall accrue (and be payable on
demand of the Noteholder of record of such Series A Note) at the same
interest rate per annum as is specified pursuant to Section 1.4 hereof
from such date until such Accreted Value shall have been paid in full;
provided, further, that additional interest accrued to any Interest
Payment Date as the result of any increase in the interest rate borne by
any Series A Note as provided in Section 1.4(b) hereof over what would
have accrued or accreted to such date shall be paid in cash to the
Noteholders of such Series A Note whether or not the Commencement Date
for such Series A Note has occurred; and provided, further, that any
other amounts payable to the Indenture Trustee or any Noteholder under
this Indenture, any Series A Note or any other Operative Agreement but
not paid in full when due (whether at Stated Maturity, by acceleration or
otherwise), including any Defaulted Installment and, to the extent
permitted by Applicable Law, Defaulted Interest, but excluding unpaid
Accreted Value (which shall accrue interest pursuant to the first proviso
of this paragraph), shall, for the period from and including the date
such amount becomes due and payable until such amount shall have been
paid in full, accrue interest at the applicable Late Rate.
(b) Original Issue Discount shall accrue on the Series A Notes
at the respective interest rates specified in Schedule 1.4, on a semiannual bond
equivalent basis using a 360-day year composed of twelve 30-day months during
the Pre-Commencement Period.
(c) The principal of each series of Series A Notes shall be
payable in installments, on each Installment Payment Date and at the applicable
Stated Maturity, in amounts equal to the Installment Payment Amount for each
Installment Payment Date and its Stated Maturity, as provided in Schedule 1.6
hereto.
(d) Payment on Series A Notes in respect of interest and
Installment Payment Amounts, if any, payable on any Interest Payment Date or on
any Installment Payment Date (other than the Stated Maturity of the relevant
Series A Notes) shall be on each Interest Payment Date or Installment Payment
Date (other than the Stated Maturity of the relevant Series A Notes), as the
case may be, to the Noteholder of record on the relevant Record Date. With
respect to the Series A Notes, "Record Date" for the interest or Installment
Payment Amounts payable on any
11
Interest Payment Date or Installment Payment Date, as the case may be, shall
mean December 15 or June 15 (whether or not a Business Day) next preceding the
related Interest Payment Date or the related Installment Payment Date or, in the
case of a redemption pursuant to Section 1.7 hereof, the calendar day (whether
or not a Business Day) which is 15 calendar days prior to the date for such
redemption.
(e) The principal of, Premium, if any, on and interest on the
Series A Notes shall be payable in immediately available funds at the principal
corporate trust office of the Indenture Trustee or at any office or agency
maintained for such purpose pursuant to Section 2.6 of the Original Indenture,
or as otherwise directed in the manner herein provided. Notwithstanding the
foregoing or any provision in any Series A Note to the contrary, the Indenture
Trustee will pay, or cause to be paid, if so requested by any Noteholder of
Series A Notes by written notice to the Lessor and the Indenture Trustee, all
amounts payable by the Lessor hereunder to such Noteholder of Series A Notes or
a nominee therefor by transferring by wire in immediately available funds to an
account maintained by such Noteholder of Series A Notes with a bank in the
United States the amount to be distributed to such Noteholder without any
presentment or surrender of any Series A Notes, except that any Noteholder of
Series A Notes shall surrender any Series A Note to the Indenture Trustee upon
payment in full of the principal amount of and interest on such Series A Note
and such other sums payable to such Noteholder hereunder or under such Series A
Note.
SECTION 1.7 Optional Redemption. All of the Series A-1 Notes
or all of the Series A-2 Notes, or both, are subject to redemption in whole, but
not in part, at the option of the Lessor, as provided in Section 15(b) of the
Participation Agreement. Notice of any such redemption shall be given in
accordance with Sections 6.2 and 6.4 of the Original Indenture. The Redemption
Price of each such Series A Note to be redeemed shall be equal to the aggregate
unpaid principal amount of such Series A Note together with accrued but unpaid
interest thereon to, but not including, the applicable Redemption Date, plus a
Premium, if any, thereon.
SECTION 1.8 Special Redemptions.
(a) If an Event of Loss or Total Taking with respect to the
Leased Property shall occur, the Series A Notes are subject to redemption as set
forth in Section 6.1(b)(i) of the Original Indenture.
(b) If the Lease shall be terminated pursuant to Section 5.1
thereof, the Series A Notes are subject to redemption as set forth in Section
6.1(b)(ii) of the Original Indenture. Each Outstanding Series A Note will be
redeemed in whole at a Redemption Price equal to the aggregate unpaid principal
amount thereof together with accrued but unpaid interest thereon to, but not
including, the applicable Redemption Date plus, a Premium, if any, thereon.
(c) The Series A Notes are also subject to purchase at the
option of the Lessor in accordance with the terms of Sections 7.10(c) of the
Original Indenture.
SECTION 1.9 Paying Agent and Note Registrar. The initial
Paying Agent and Note Registrar for the Series A Notes shall be the Indenture
Trustee.
12
SECTION 1.10 Form of the Series A Notes. The Series A Notes
shall be issued in substantially the form attached as Exhibit A.
SECTION 1.11 Certificate of Authentication. The form of the
certificate of authentication for the Series A Notes to be executed by the
Indenture Trustee shall be as set forth in Exhibit B. The alternate form of
certificate of authentication for the Series A Notes to be executed by an
Authenticating Agent on behalf of the Indenture Trustee shall be as set forth in
Section 8.10 of the Original Indenture.
SECTION 1.12 Principal Amount. All references in the Indenture
or in any Series A Note to the principal amount of such Series A Note in respect
of the Pre-Commencement Date Period therefor (including in connection with any
payment of principal thereof on a Redemption Date during the Pre-Commencement
Date Period or otherwise) shall be to the Accreted Value of such Series A Note
at such date; the Accreted Value and the principal amount of such Series A Note
as at the opening of business on the Commencement Date will, absent any prior
payment thereof, be equal to the Relevant Principal Amount of such Series A
Note.
SECTION 1.13 Other Terms. The Series A Notes shall have and be
subject to such other terms not inconsistent with the terms of this First
Supplemental Indenture as are set forth in the Original Indenture; provided,
however, that Section 6.3 of the Original Indenture shall not apply to the
Series A Notes.
ARTICLE 2
MISCELLANEOUS
SECTION 2.1 Satisfaction and Discharge. The Series A Notes
shall be subject to satisfaction and discharge as provided in Section 3.1 of the
Original Indenture.
SECTION 2.2 Execution as Supplemental Indenture. This First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First Supplemental Indenture forms a part thereof.
SECTION 2.3 Responsibility for Recitals, Etc. The recitals
contained herein and in the Series A Notes, except the Indenture Trustee's
certificate of authentication, shall be taken as the statements of the Lessor,
and the Indenture Trustee assumes no responsibility for the correctness of the
same.
SECTION 2.4 GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE
AND EACH SERIES A NOTE HAS BEEN NEGOTIATED AND DELIVERED IN THE STATE OF NEW
YORK AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK; PROVIDED THAT, TO THE EXTENT THAT THE LAW OF THE STATE IN
WHICH THE PROPERTY IS LOCATED REQUIRES THAT THE LAWS OF SUCH STATE APPLY TO ANY
ASPECT OF
13
THIS FIRST SUPPLEMENTAL INDENTURE, THEN TO THAT EXTENT, THE LAWS OF SUCH STATE
SHALL SO APPLY.
SECTION 2.5 Ratification of Indenture. As supplemented by this
First Supplemental Indenture, the Original Indenture is in all respects ratified
and confirmed and the Original Indenture as so supplemented by this First
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 2.6 Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original; but all such counterparts shall together
constitute but one and the same instrument.
SECTION 2.7 Separability Clause. In case any provision in this
First Supplemental Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 2.8 Notices. All notices hereunder shall be given as
set forth in Sections 1.5 and 1.6 of the Indenture.
[Signature page follows.]
14
IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized and their corporate seals to be hereunto affixed, all
as of the date and year first above written.
[NAME OF LESSOR LLC]
By: [OWNER PARTICIPANT],
as managing member
By:
---------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
not in its individual capacity except to
the extent set forth herein, but solely
as Indenture Trustee
By:
---------------------------------
Name:
Title:
15
EXHIBIT A
TO FIRST SUPPLEMENTAL INDENTURE
[FORM OF SERIES A NOTE FOR SERIES A-1 AND SERIES A-2]
FOR PURPOSES OF SECTIONS 1271 THROUGH 1275 OF THE UNITED STATES INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY
IS ___% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS FEBRUARY 12, 2001, THE YIELD
TO MATURITY IS ___% PER ANNUM, COMPOUNDED SEMIANNUALLY [, THE METHOD USED TO
DETERMINE THE YIELD IS ________________ ] AND THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD FROM FEBRUARY 12, 2001 TO [ ,
200_] IS ___% OF THE PRINCIPAL AMOUNT OF THIS SECURITY.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER SAID ACT.
$ ___________________ (Original Issue Price)
$ ___________________ (Relevant Principal Amount) No. _________
[NAME OF LESSOR LLC]
SERIES A-[1/2] NOTE STATED MATURITY: January 2, 20[__]
INTEREST RATE:
REGISTERED NOTEHOLDER:
[NAME OF LESSOR LLC], a Delaware limited liability company,
(hereinafter called the "Lessor," which term includes any successor obligor
under the Indenture referred to herein), of which the Owner Participant named in
Schedule B to such Indenture is the managing member (together with its permitted
successors and assigns, hereinafter called the "Owner Participant"), for value
received, hereby promises to pay to the registered Noteholder named above or
registered assigns, the principal sum in Dollars equal to the Relevant Principal
Amount specified above in installments on each Installment Payment Date as set
forth herein below with the final installment due and payable at Stated Maturity
specified above (provided, however, that if the obligations evidenced by this
Series A Note shall become due and payable (upon redemption or acceleration or
otherwise) during the Pre-Commencement Date Period, the principal amount thereof
to be paid shall be the Accreted Value as of such date of redemption,
acceleration or payment of this Series A Note) and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) at the interest rate per
annum specified above on the principal amount from time to time outstanding in
respect of the period commencing on and including the
A-1
Commencement Date and ending on the date when the principal amount hereof shall
have been paid in full, payable on each January 2 and July 2 in each year,
commencing on [January 2, 200_/July 2, 200_]; provided, further, that if the
Accreted Value of this Series A Note is not paid when due (upon redemption or
acceleration or otherwise) during the Pre-Commencement Date Period, interest on
the Accreted Value of this Series A Note as at the date such Accreted Value was
not paid shall accrue (and be payable on demand) at the interest rate per annum
specified above from such date until such Accreted Value shall have been paid in
full; and provided, further, that any amounts payable under this Series A Note
from and after the Commencement Date not paid in full when due (whether at
Stated Maturity, by acceleration or otherwise), including any Defaulted
Installment and, to the extent permitted by Applicable Law, any Defaulted
Interest but excluding unpaid Accreted Value (which shall accrue interest
pursuant to the second proviso of this paragraph), shall, for the period from
and including the date such amount was due and payable until such amount shall
have been paid in full, accrue interest at the applicable Late Rate. Original
Issue Discount (the difference between Original Issue Price and Relevant
Principal Amount of this Series A Note) shall accrue on this Series A Note at
the interest rate specified above, on a semiannual bond equivalent basis using a
360-day year composed of twelve 30-day months, during the Pre-Commencement Date
Period. The principal amount evidenced by this Series A Note at the date of its
issuance shall be deemed to be an amount equal to the Original Issue Price
specified above. From such date of issuance to the Commencement Date, the
principal amount evidenced hereby shall be the then-applicable Accreted Value of
this Series A Note. As at the Commencement Date, the principal amount evidenced
hereby, shall, absent any prior payment thereof, be the Relevant Principal
Amount specified above.
The Lessee and the Guarantor have entered into a Registration
Rights Agreement dated as of January 26, 2001 (as the same may from time to time
be amended, amended and restated, supplemented or otherwise modified in
accordance with the terms thereof and, where applicable, the terms of the other
Operative Agreements, the "Registration Rights Agreement") with the Initial
Purchasers described therein. Pursuant to such Registration Rights Agreement,
the Company and the Guarantor have agreed to use commercially reasonable efforts
(a) to cause on or prior to 270 days after the Closing Date (i) the Exchange
Offer Registration Statement to become effective and (ii) for the Registered
Exchange Offer pursuant thereto to have been completed or (b) to cause a Shelf
Registration Statement to become effective on or before 60 days after the
requirement to file such a Shelf Registration Statement is triggered under the
Registration Rights Agreement. From and after the date on which an Illiquidity
Event occurs, additional interest (in addition to the interest otherwise payable
with respect to this Note) shall accrue on this Note until but not including the
date on which such Illiquidity Event shall cease to exist, at the rate of 0.50%
per annum, which additional interest shall be payable hereon at the times, in
the manner and subject to the same terms and conditions set forth herein and in
the Indenture, except that any such additional interest shall be paid in cash
whether or not the Commencement Date for this Series A Note has occurred.
All amounts payable by the Lessor hereunder and under the
Trust Indenture and Security Agreement dated as of February 12, 2001, between
the Lessor and First Union National Bank, as Indenture Trustee (herein called
the "Indenture Trustee," which term includes any successor Indenture Trustee
under the Indenture), as supplemented by the First Supplemental Indenture, dated
as of February 12, 2001 (the Trust Indenture and Security Agreement (the
A-2
"Original Indenture"), together with all indentures supplemental thereto, herein
called the "Indenture"), shall be made only from assets subject to, or intended
to be subject to the Lien of the Indenture or any of the other Security
Documents, the income and proceeds received by the Indenture Trustee therefrom,
and all payments of principal, Premium, if any, on and interest shall be made in
accordance with the terms of the Indenture. The Noteholder hereof, by its
acceptance of this Series A Note, agrees that (a) except as otherwise expressly
provided in the Indenture, it will look solely to the assets subject to or
intended to be subject to the Lien of the Indenture or any of the other Security
Documents or the income and proceeds received by the Indenture Trustee therefrom
to the extent available for distribution to the Noteholder as provided in the
Indenture and (b) neither the Owner Participant nor, except as otherwise
expressly provided in the Indenture and the other Operative Agreements, the
Lessor, in its individual capacity, is liable to the Noteholder for any amounts
payable under this Series A Note or the Indenture.
The interest or Installment Payment Amount (other than that
payable on the Stated Maturity hereof) so payable, and punctually paid or duly
provided for, on the applicable Interest Payment Date or Installment Payment
Date, as the case may be, will, as provided in the Indenture, be paid to the
Person in whose name this Series A Note is registered at the close of business
on the Record Date for payment of such interest or Installment Payment Amount,
which shall be [December 15 or June 15] (whether or not a Business Day) next
preceding such Interest Payment Date or Installment Payment Date, as the case
may be. Any such interest or Installment Payment Amount not so punctually paid
or duly provided for shall forthwith cease to be payable to the registered
Noteholder on such Record Date and may be paid to the Person in whose name this
Series A Note is registered at the close of business on a subsequent Record Date
for the payment of such Defaulted Interest or Defaulted Installment to be fixed
by the Indenture Trustee (which date shall be not less than 10 Business Days
prior to the date for payment of such Defaulted Interest or Defaulted
Installment), notice of which shall be given to Noteholders entitled thereto not
less than 15 days preceding such subsequent Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Series A Notes may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture. Any such Defaulted Installment or Defaulted Interest shall accrue
interest at the Late Rate as specified above.
The principal of, Premium, if any, on and interest on this
Series A Note shall be payable in immediately available funds at the principal
corporate trust office of the Indenture Trustee or at any office or agency
maintained for such purpose pursuant to Section 2.6 of the Original Indenture,
or as otherwise directed in the manner provided in the Indenture.
Notwithstanding the foregoing or any provision herein to the contrary, the
Indenture Trustee will pay, or cause to be paid, if so requested by the
Noteholder of this Series A Note by written notice to the Lessor and the
Indenture Trustee, all amounts payable by the Lessor hereunder to such
Noteholder of this Series A Note or a nominee therefor by transferring by wire
in immediately available funds to an account maintained by such Noteholder with
a bank in the United States the amount to be distributed to such Noteholder
without any presentment or surrender of this Series A Note except that the
Noteholder shall surrender this Series A Note to the Indenture Trustee upon
payment in full of the principal amount of and interest on this Series A Note
and such other sums as may then be payable to such Noteholder under the
Indenture or under this Series A Note.
A-3
Capitalized terms used in this Series A Note which are not
otherwise defined herein shall have the meanings ascribed thereto in the
Indenture. Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its principal
corporate trust office) for a more complete statement of the terms and
provisions thereof, including a statement of the properties thereby conveyed,
pledged, mortgaged and assigned, the nature and extent of the security, the
respective rights thereunder of the Lessor, the Indenture Trustee and the
Noteholders and the terms upon which the Series A Notes are, and are to be,
executed and delivered, as well as a statement of the terms and conditions of
the trust created by the Indenture, to all of which terms and conditions in the
Indenture each Noteholder agrees by its acceptance of this Series A Note.
On each Installment Payment Date, the Noteholder hereof will
receive a payment of principal equal to the Installment Payment Percentage that
is set forth on Schedule A hereto for such Installment Payment Date multiplied
by the Relevant Principal Amount of this Series A Note.
As more fully provided in Article 6 of the Original Indenture,
the Series A Notes are subject to redemption, on not less than 25 days' notice,
under the circumstances set forth in the Indenture, at a redemption price equal
to the unpaid principal amount thereof, Premium, if any, on plus accrued
interest on the Series A Notes to the Redemption Date.
If an Indenture Event of Default shall occur and be
continuing, the principal amount remaining unpaid of and any interest accrued on
the Series A Notes may, and under certain circumstances shall (unless the
Indenture Trustee shall otherwise direct), subject in each instance to certain
rights of the Lessor or the Owner Participant (or both) contained or referred to
in the Indenture, be declared or automatically become immediately due and
payable in the manner and with the effect provided in Article 7 of the Original
Indenture. If, and only if, such an Indenture Event of Default constitutes an
Event of Default by the Lessee under the Lease, subject to the provisions of the
Indenture, including certain specified limitations, the Indenture Trustee may
declare the Lease to be in default, and may exercise one or more of the remedies
of the Lessor provided in the Lease to the extent provided in the Indenture. In
addition, this Note shall be deemed accelerated in the event the Lessor
exercises its rights under Section 20.6(b) of the Lease as permitted by
paragraph (bb) following the Granting Clauses, which acceleration shall be with
a Premium under the circumstances specified in Section 7.2(a) of the Original
Indenture.
The Lessor may cure any default by the Lessee under the Lease
arising from the failure of the Lessee to make any payment of Basic Rent or Rent
Differential under the Lease to the extent provided in Section 7.10(a) of the
Original Indenture. In the event of any default by the Lessee of any obligation
under the Lease (other than the obligation to pay Basic Rent or Rent
Differential), the Lessor or the Owner Participant may (but are not obligated
to, to the extent not prohibited by Applicable Law), remedy such default to the
extent such default may be remedied by the payment of money, all as more fully
provided in Article 7 of the Original Indenture.
The right of the Noteholder of this Series A Note to institute
action for any remedy under the Indenture, including the enforcement of payment
of any amount due hereon, is subject to certain restrictions specified in the
Indenture.
A-4
Following an Indenture Event of Default arising by reason of
an Event of Default, the Lessor may, subject to the conditions specified in the
Indenture, purchase all of the Notes in accordance with the terms of the
Indenture. The Noteholder hereof, by accepting this Series A Note, agrees,
subject to the provisions of the Indenture, that, upon payment to the Indenture
Trustee of the aggregate unpaid principal amount of the Outstanding Notes,
without Premium or penalty (unless the Lessor elects to purchase this Series A
Note prior to the earlier of (a) 180 days after the occurrence of any such
Indenture Event of Default and (b) any acceleration of this Series A Note other
than by reason of the Lessor's exercise of rights under Section 20.6(b) of the
Lease in accordance with the provisions of the Indenture), in which case the
Lessor shall pay the Premium, if any, on this Series A Note to the Indenture
Trustee), together with accrued but unpaid interest on this Series A Note to the
date of such payment (as well as any interest on overdue principal and, to the
extent permitted by Applicable Law, overdue interest) and any other amounts due
and payable to the Noteholders, and upon satisfaction of all of the conditions
contained in the Indenture pertaining to the purchase of the Notes by the
Lessor, such Noteholder shall be deemed to have sold this Series A Note to the
Lessor or its designee.
As provided in the Indenture and subject to certain
limitations therein set forth, this Series A Note is transferable on the Note
Register, upon surrender of this Series A Note for registration of transfer at
the office or agency of the Note Registrar to be maintained for that purpose,
duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Note Registrar duly executed by the Noteholder or his
attorney duly authorized in writing, and thereupon one or more new Series A
Notes of the same series with the same interest rate and Stated Maturity as the
Series A Notes so to be transferred, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Series A Notes are issuable only in registered form in
denominations of $1,000 or integral multiples thereof except that one Series A
Note of each series may be in a denomination other than an integral multiple of
$1,000. As provided in the Indenture and subject to certain limitations therein
set forth, the Series A Notes are exchangeable at the office or agency of the
Note Registrar maintained for that purpose for an equal aggregate principal
amount of Series A Notes of the same series with the same interest rate and
Stated Maturity and of a different authorized denomination or denominations, as
requested by the Series A Noteholder surrendering the same.
No service charge will be made to any Noteholder for any such
transfer or exchange, but the Note Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentation of this Series A Note for
registration or transfer, the Person in whose name this Series A Note is
registered shall be deemed to be the absolute owner hereof for the purpose of
receiving payment as herein provided and for all other purposes whether or not
this Series A Note shall be overdue, regardless of any notice to anyone to the
contrary.
THE SERIES A NOTE HAS BEEN DELIVERED IN THE STATE OF NEW YORK
AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
A-5
IN WITNESS WHEREOF, the Lessor has caused this instrument to
be duly executed and sealed.
Date: [NAME OF LESSOR LLC]
------------------------
By: [OWNER PARTICIPANT],
as managing member
By:
---------------------------------
Name:
Title:
A-6
SCHEDULE A
----------
Series A-1 Notes Installment Series A-1 Notes Installment
Payment Date Payment Percentage
---------------------------- ----------------------------
Series A-2 Notes Installment Series A-2 Notes Installment
Payment Date Payment Percentage
---------------------------- ----------------------------
A-7
CERTIFICATE OF AUTHENTICATION
This is one of the Series A-[1/2] Notes, due January 2, 20[__]
described in the within mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Indenture Trustee
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
A-8
EXHIBIT B
TO THE SUPPLEMENTAL INDENTURE
FORM OF CERTIFICATE OF AUTHENTICATION
This is one of the Series A-[1/2] Notes, due January 2, 20[__]
described in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Indenture Trustee
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
B-1
SCHEDULE A
TO THE SUPPLEMENTAL INDENTURE
DESCRIPTION OF SITE
Schedule A(1)
SCHEDULE 1.3 OF
THE SUPPLEMENTAL INDENTURE
SERIES A NOTES
Aggregate Relevant Principal Amount of Series A-1 Notes: $______________________
Aggregate Relevant Principal Amount of Series A-2 Notes: $______________________
Aggregate Relevant Principal Amount of Series A Notes: $______________________
Schedule 1.3(1)
SCHEDULE 1.4
TO THE SUPPLEMENTAL INDENTURE
SERIES A-1 AND SERIES A-2
Relevant
Stated Principal Amount Original Issue OIP as Percentage
Note Maturity ("RPA") Price ("OIP") of RPA
---------- -------- ---------------- -------------- -----------------
Series A-1 20__ $__________ $____________ ________%
Series A-2 20__ $__________ $____________ ________%
Pre-Commencement
Date Period Interest Accrual Interest Payment Interest
Accretion Rate Commencement Date Commencement Date Rate
---------------- ----------------- ----------------- --------
___________% _______,200__ [July 2, 200_/ 7.82%
January 2, 200_]
___________% _______,200__ [July 2, 200_/ 8.62%
January 2, 200_]
Schedule 1.4(1)
SCHEDULE 1.6
TO FIRST SUPPLEMENTAL INDENTURE
Installment Payment Dates and
Installment Payment Percentages
-------------------------------
Series A-1 Notes due January 2, 20[__]
Installment Payment Installment Payment Installment Payment
Date Percentage Amount
------------------- ------------------- -------------------
------------------- ------------------- -------------------
Total 100.00000000% $[ ]
Schedule 1.6(1)
Series A-2 Notes due January 2, 20[__]
Installment Payment Installment Payment Installment Payment
Date Percentage Amount
------------------- ------------------- -------------------
------------------- ------------------- -------------------
Total 100.00000000% $[ ]
Schedule 1.6(2)
