1
EXHIBIT 4.1
================================================================================
CALPINE CORPORATION
and
THE BANK OF NEW YORK, Trustee
--------------------------------------------------------------------------------
Indenture
Dated as of March __, 1999
--------------------------------------------------------------------------------
$_____________
___% Senior Notes Due 20__
2
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
SECTION 1.1 Definitions 1
SECTION 1.2 Other Definitions 22
SECTION 1.3 Incorporation by Reference of Trust Indenture Act 23
SECTION 1.4 Rules of Construction 23
ARTICLE 2 THE SECURITIES 24
SECTION 2.1 Form and Dating 24
SECTION 2.2 Execution and Authentication 25
SECTION 2.3 Registrar and Paying Agent 26
SECTION 2.4 Paying Agent To Hold Money in Trust 26
SECTION 2.5 Securityholder Lists 27
SECTION 2.6 Transfer and Exchange 27
SECTION 2.7 Replacement Securities 29
SECTION 2.8 Outstanding Securities 30
SECTION 2.9 Determination of Holders' Action 30
SECTION 2.10 Temporary Securities 31
SECTION 2.11 Cancellation 31
SECTION 2.12 Defaulted Interest 31
ARTICLE 3 COVENANTS 32
SECTION 3.1 Payment of Securities 32
SECTION 3.2 Maintenance of Office or Agency 32
SECTION 3.3 Limitation on Restricted Payments 33
SECTION 3.4 Limitation on Incurrence of Indebtedness 36
SECTION 3.5 Limitation on Payment Restrictions Affecting Subsidiaries 38
SECTION 3.6 Limitation on Sale/Leaseback Transactions 39
SECTION 3.7 Limitation on Liens 40
SECTION 3.8 Change of Control 43
SECTION 3.9 Compliance Certificate 45
SECTION 3.10 SEC Reports 45
SECTION 3.11 Transactions with Affiliates 46
SECTION 3.12 Sales of Assets 47
SECTION 3.13 Corporate Existence 51
SECTION 3.14 Payment of Taxes and Other Claims 52
SECTION 3.15 Notice of Defaults and Other Events 52
SECTION 3.16 Maintenance of Properties and Insurance 52
SECTION 3.17 Limitation on Issuance of Capital Stock and Incurrence
of Indebtedness of Restricted Subsidiaries 53
SECTION 3.18 Limitation on Changes in the Nature of the Business 53
SECTION 3.19 Limitation on Subsidiary Investments 54
3
ARTICLE 4 CONSOLIDATION, MERGER AND SALE 54
SECTION 4.1 Merger and Consolidation of Company 54
SECTION 4.2 Successor Substituted 56
ARTICLE 5 DEFAULTS AND REMEDIES 57
SECTION 5.1 Events of Default 57
SECTION 5.2 Acceleration 60
SECTION 5.3 Other Remedies 60
SECTION 5.4 Waiver of Past Defaults 60
SECTION 5.5 Control by Majority 61
SECTION 5.6 Limitation on Suits 61
SECTION 5.7 Rights of Holders To Receive Payment 62
SECTION 5.8 Collection Suit by Trustee 62
SECTION 5.9 Trustee May File Proofs of Claim 62
SECTION 5.10 Priorities 63
SECTION 5.11 Undertaking for Costs 63
SECTION 5.12 Waiver of Stay or Extension Laws 64
ARTICLE 6 TRUSTEE 64
SECTION 6.1 Duties of Trustee 64
SECTION 6.2 Rights of Trustee 65
SECTION 6.3 Individual Rights of Trustee 66
SECTION 6.4 Trustee's Disclaimer 66
SECTION 6.5 Notice of Defaults 67
SECTION 6.6 Reports by Trustee to Holders 67
SECTION 6.7 Compensation and Indemnity 67
SECTION 6.8 Replacement of Trustee 69
SECTION 6.9 Successor Trustee by Merger, etc 70
SECTION 6.10 Eligibility; Disqualification 70
SECTION 6.11 Preferential Collection of Claims Against Company 70
ARTICLE 7 SATISFACTION AND DISCHARGE OF INDENTURE 70
SECTION 7.1 Discharge of Liability on Securities; Defeasance 70
SECTION 7.2 Termination of Company's Obligations 71
SECTION 7.3 Defeasance and Discharge of Indenture 71
SECTION 7.4 Defeasance of Certain Obligations 74
SECTION 7.5 Application of Trust Money 76
SECTION 7.6 Repayment to Company 77
SECTION 7.7 Reinstatement 77
ARTICLE 8 AMENDMENTS AND SUPPLEMENTS 78
SECTION 8.1 Without Consent of Holders 78
SECTION 8.2 With Consent of Holders 79
SECTION 8.3 Compliance with Trust Indenture Act 80
SECTION 8.4 Revocation and Effect of Consents 80
4
SECTION 8.5 Notation on or Exchange of Securities 80
SECTION 8.6 Trustee To Sign Amendments 80
SECTION 8.7 Fixing of Record Dates 81
ARTICLE 9 REDEMPTION 81
SECTION 9.1 Not Redeemable 82
ARTICLE 10 MISCELLANEOUS 82
SECTION 10.1 Trust Indenture Act Controls 82
SECTION 10.2 Notices 82
SECTION 10.3 Communication by Holders with Other Holders 83
SECTION 10.4 Certificate and Opinion as to Conditions Precedent 83
SECTION 10.5 Statements Required in Certificate or Opinion 84
SECTION 10.6 Rules by Trustee and Agents 84
SECTION 10.7 Legal Holidays 84
SECTION 10.8 Successors; No Recourse Against Others 85
SECTION 10.9 Duplicate Originals 85
SECTION 10.10 Other Provisions 85
SECTION 10.11 Governing Law 85
SIGNATURES 86
5
Page
----
EXHIBIT A -- Form of Security .......................................... A-1
6
INDENTURE dated as of March ___, 1999, between Calpine Corporation, a
Delaware corporation (the "Company"), and The Bank of New York, a New York
banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the holders of the Company's ___% Senior
Notes Due 20___:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time at which such Person became a Subsidiary and not incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary. Acquired
Indebtedness shall be deemed to be Incurred on the date the acquired Person
becomes a Subsidiary.
"Additional Assets" means (i) any property or assets related to the
Line of Business which will be owned and used by the Company or a Restricted
Subsidiary; (ii) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or another Restricted Subsidiary or (iii) Capital Stock constituting a minority
interest in any Person that at such time is a Restricted Subsidiary.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 3.11 and 3.12 only, "Affiliate" shall also mean any
beneficial owner of 5% or more of the total Voting Shares (on a Fully Diluted
Basis) of the Company or of rights or warrants to purchase such stock (whether
or not currently exercisable) and any Person who would be an Affiliate of any
such beneficial owner pursuant to the
7
first sentence hereof. For purposes of Section 3.3, "Affiliate" shall also mean
any Person of which the Company owns 5% or more of any class of Capital Stock or
rights to acquire 5% or more or any class of Capital Stock and any Person who
would be an Affiliate of any such Person pursuant to the first sentence hereof.
"Agent" means any Registrar, Paying Agent, authenticating agent,
co-registrar or additional paying agent.
"Asset Sale" means any sale, transfer or other disposition (including
by way of merger, consolidation or sale leaseback transactions, but excluding
(except as provided for in the provisions described in the last paragraph of
Section 3.12(b)) those permitted by Article IV hereof and those permitted by
Section 3.6 hereof) in one or a series of transactions by the Company or any
Restricted Subsidiary to any Person other than the Company or any Wholly Owned
Subsidiary, of (i) all or any of the Capital Stock of the Company or any
Restricted Subsidiary, (ii) all or substantially all of the assets of any
operating unit, Facility, division or line of business of the Company or any
Restricted Subsidiary or (iii) any other property or assets or rights to acquire
property or assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the Securities, compounded annually) of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease
has been extended).
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the
sum of the products of (A) the numbers of years from the date of determination
to the dates of each successive scheduled principal payment of such Indebtedness
or scheduled redemption or similar payment with respect to such Indebtedness or
Preferred Stock multiplied by (B) the amount of such payment by (ii) the sum of
all such payments.
"Bank Credit Agreement" means the Credit Agreement, dated September
25, 1996, among the Company, certain commercial lending institutions
2
8
named therein and The Bank of Nova Scotia, as agent for the lenders, as amended,
refinanced, renewed or extended from time to time.
"Board of Directors" means the Board of Directors of the Company or
any authorized committee thereof.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation or any
and all equivalent ownership interests in a Person (other than a corporation).
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person; the Stated
Maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty; and "Capitalized Lease
Obligations" means the rental obligations, as aforesaid, under such lease.
"Change of Control" means the occurrence of any of the following
events: (i) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than Parent or an underwriter engaged in a firm
commitment underwriting on behalf of the Company, is or becomes the beneficial
owner (as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act,
except that for purposes of this clause (i) a person shall be deemed to have
beneficial ownership of all shares that such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 40% of the total Voting Shares of
the Company; (ii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together with
any new directors whose election by the Board of Directors or whose nomination
for election by the stockholders was approved by a vote of 66-2/3% of the
directors of the Company then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors then in office; (iii) all or substantially all of the
Company's and its Restricted Subsidiaries' assets are sold, leased, exchanged or
otherwise transferred to any Person or group of Persons acting in
3
9
concert; or (iv) the Company is liquidated or dissolved or adopts a plan of
liquidation.
"Change of Control Triggering Event" means (A) if a Rating Agency
maintains a rating of the Securities at the time a Change of Control occurs, the
occurrence of a Change of Control and the occurrence of a Rating Decline or (B)
if no Rating Agency maintains a rating of the Securities at the time a Change of
Control occurs, the occurrence of a Change of Control.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in the Indenture until a
successor replaces it pursuant to the terms and conditions of the Indenture and
thereafter means the successor.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters to (ii) the Consolidated Interest
Expense (excluding interest capitalized in connection with the construction of a
new Facility which interest is capitalized during the construction of such
Facility) for such four fiscal quarters; provided, however, that if the Company
or any Restricted Subsidiary has Incurred any Indebtedness since the beginning
of such period that remains outstanding or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, or both, both EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving effect on a pro forma basis to (x) such
new Indebtedness as if such Indebtedness had been Incurred on the first day of
such period and (y) the repayment, redemption, repurchase, defeasance or
discharge of any Indebtedness repaid, redeemed, repurchased, defeased or
discharged with the proceeds of such new Indebtedness as if such repayment,
redemption, repurchase, defeasance or discharge had been made on the first day
of such period; provided, further, that if within the period during which EBITDA
or Consolidated Interest Expense is measured, the Company or any of its
Restricted Subsidiaries shall have made any Asset Sales, (x) the EBITDA for such
period shall be reduced by an amount equal to the EBITDA (if positive) directly
attributable to the assets or Capital Stock which are the subject of such Asset
Sales for such period, or increased by an amount equal to the EBITDA (if
negative), directly attributable thereto for such period and (y) the
Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness for which
4
10
neither Company nor any Restricted Subsidiary shall continue to be liable as a
result of any such Asset Sale or repaid, redeemed, defeased, discharged or
otherwise retired in connection with or with the proceeds of the assets or
Capital Stock which are the subject of such Asset Sales for such period; and
provided, further, that if the Company or any Restricted Subsidiary shall have
made any acquisition of assets or Capital Stock (occurring by merger or
otherwise) since the beginning of such period (including any acquisition of
assets or Capital Stock occurring in connection with a transaction causing a
calculation to be made hereunder) the EBITDA and Consolidated Interest Expense
for such period shall be calculated, after giving pro forma effect thereto (and
without regard to clause (iv) of the proviso to the definition of "Consolidated
Net Income"), as if such acquisition of assets or Capital Stock took place on
the first day of such period. For all purposes of this definition, if the date
of determination occurs prior to the completion of the first four full fiscal
quarters following the Issue Date, then "EBITDA" and "Consolidated Interest
Expense" shall be calculated after giving effect on a pro forma basis to the
Offering as if the Offering occurred on the first day of the four full fiscal
quarters that were completed preceding such date of determination.
"Consolidated Current Liabilities," as of the date of determination,
means the aggregate amount of liabilities of the Company and its Consolidated
Restricted Subsidiaries which may properly be classified as current liabilities
(including taxes accrued as estimated), after eliminating (i) all inter-company
items between the Company and any Consolidated Subsidiary and (ii) all current
maturities of long-term Indebtedness, all as determined in accordance with GAAP.
"Consolidated Income Tax Expense" means, for any period, as applied to
the Company, the provision for local, state, federal or foreign income taxes on
a Consolidated basis for such period determined in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, as applied to
the Company, the sum of (a) the total interest expense of the Company and its
Consolidated Restricted Subsidiaries for such period as determined in accordance
with GAAP, including, without limitation, (i) amortization of debt issuance
costs or of original issue discount on any Indebtedness and the interest portion
of any deferred payment obligation, calculated in accordance with the effective
interest method of accounting, (ii) accrued interest, (iii) noncash interest
payments, (iv) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing, (v) interest
actually paid by the Company
5
11
or any such Subsidiary under any guarantee of Indebtedness or other obligation
of any other Person and (vi) net costs associated with Interest Rate Agreements
(including amortization of discounts) and Currency Agreements, plus (b) all but
the principal component of rentals in respect of Capitalized Lease Obligations
paid, accrued, or scheduled to be paid or accrued by the Company or its
Consolidated Restricted Subsidiaries, plus (c) one-third of all Operating Lease
Obligations paid, accrued and/or scheduled to be paid by the Company and its
Consolidated Restricted Subsidiaries, plus (d) capitalized interest, plus (e)
dividends paid in respect of Preferred Stock of the Company or any Restricted
Subsidiary held by Persons other than the Company or a Wholly Owned Subsidiary,
plus (f) cash contributions to any employee stock ownership plan to the extent
such contributions are used by such employee stock ownership plan to pay
interest or fees to any person (other than the Company or a Restricted
Subsidiary) in connection with loans incurred by such employee stock ownership
plan to purchase Capital Stock of the Company.
"Consolidated Net Income (Loss)" means, for any period, as applied to
the Company, the Consolidated net income (loss) of the Company and its
Consolidated Restricted Subsidiaries for such period, determined in accordance
with GAAP, adjusted by excluding (without duplication), to the extent included
in such net income (loss), the following: (i) all extraordinary gains or losses;
(ii) any net income of any Person if such Person is not a Domestic Subsidiary,
except that (A) the Company's equity in the net income of any such Person for
such period shall be included in Consolidated Net Income (Loss) up to the
aggregate amount of cash actually distributed by such Person during such period
to the Company or a Restricted Subsidiary as a dividend or other distribution
and (B) the equity of the Company or a Restricted Subsidiary in a net loss of
any such Person for such period shall be included in determining Consolidated
Net Income (Loss); (iii) the net income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary of such income is not at the time thereof permitted,
directly or indirectly, by operation of the terms of its charter or by-laws or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary or its
stockholders; (iv) any net income (or loss) of any Person combined with the
Company or any of its Restricted Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of such combination; (v) any gain
(but not loss) realized
6
12
upon the sale or other disposition of any property, plant or equipment of the
Company or its Restricted Subsidiaries (including pursuant to any
sale-and-leaseback arrangement) which is not sold or otherwise disposed of in
the ordinary course of business and any gain (but not loss) realized upon the
sale or other disposition by the Company or any Restricted Subsidiary of any
Capital Stock of any Person, provided that losses shall be included on an
after-tax basis; and (vi) the cumulative effect of a change in accounting
principles; and further adjusted by subtracting from such net income the tax
liability of any parent of the Company to the extent of payments made to such
parent by the Company pursuant to any tax sharing agreement or other arrangement
for such period.
"Consolidated Net Tangible Assets" means, as of any date of
determination, as applied to the Company, the total amount of assets (less
accumulated depreciation or amortization, allowances for doubtful receivables,
other applicable reserves and other properly deductible items) which would
appear on a Consolidated balance sheet of the Company and its Consolidated
Restricted Subsidiaries, determined on a Consolidated basis in accordance with
GAAP, and after giving effect to purchase accounting and after deducting
therefrom, to the extent otherwise included, the amounts of: (i) Consolidated
Current Liabilities; (ii) minority interests in Consolidated Subsidiaries held
by Persons other than the Company or a Restricted Subsidiary; (iii) excess of
cost over fair value of assets of businesses acquired, as determined in good
faith by the Board of Directors; (iv) any revaluation or other write-up in value
of assets subsequent to December 31, 1993 as a result of a change in the method
of valuation in accordance with GAAP; (v) unamortized debt discount and expenses
and other unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or developmental expenses
and other intangible items; (vi) treasury stock; and (vii) any cash set apart
and held in a sinking or other analogous fund established for the purpose of
redemption or other retirement of Capital Stock to the extent such obligation is
not reflected in Consolidated Current Liabilities.
"Consolidated Net Worth" means, at any date of determination, as
applied to the Company, stockholders' equity as set forth on the most recently
available Consolidated balance sheet of the Company and its Consolidated
Restricted Subsidiaries (which shall be as of a date no more than 60 days prior
to the date of such computation), less any amounts attributable to Redeemable
Stock or Exchangeable Stock, the cost of treasury stock and the principal amount
of any promissory notes receivable from the sale of Capital Stock of the Company
or any Subsidiary.
"Consolidation" means, with respect to any Person, the consolidation
of accounts of such Person and each of its subsidiaries if and to the extent the
7
13
accounts of such Person and such subsidiaries are consolidated in accordance
with GAAP. The term "Consolidated" shall have a correlative meaning.
"Controlled Non-Subsidiary Investment" means any Investment of the
type specified in clause (iv) of Section 3.3(a) which is made by the Company or
its Restricted Subsidiaries in an Affiliate other than a Subsidiary; provided
that (i) at the time such Investment is made, no Default or Event of Default
shall have occurred and be continuing (or would result therefrom); (ii) after
giving effect to the Investment and to the Incurrence of any Indebtedness in
connection therewith on a pro forma basis, the Consolidated Coverage Ratio is at
least 1.75:1; (iii) after giving effect to the Investment, the aggregate
Investment made by the Company and its Subsidiaries in Controlled Non-Subsidiary
Investments does not exceed $100,000,000; (iv) the Person in which the
Investment is made is engaged only in the business described in Section 3.18
including Unrelated Businesses to the extent permitted by Section 3.18; (v) the
Company, directly or through its Restricted Subsidiaries is entitled to (A) in
the case of an Investment in Capital Stock, receive dividends or other
distributions on its Investment at the same time as or prior to, and on a basis
pro rata with, any other holder or holders of Capital Stock of such Person and
(B) in the case of an Investment other than in Capital Stock, receive interest
thereon at a rate per annum not less than the rate on the Securities, and, on
the liquidation or dissolution of such Person, receive repayment of the
principal thereof prior to the payment of any dividends or distributions on
Capital Stock of such Person; (vi) the Company directly or through its
Restricted Subsidiaries, either (x) controls, under an operating and management
agreement or otherwise, the day to day management and operation of such Person
and any Facility of the Person in which the Investment is made or (y) has
significant influence over the management and operation of such Person and any
Facility of such Person in all material respects (significant influence to
include the right to control or veto any material act or decision) in connection
with such management or operation; and (vii) any encumbrances or restrictions on
the ability of the Person in which the Investment is made to make the payments,
distributions, losses, advances or transfers referred to in clauses (i) through
(iii) under Section 3.5, in the written opinion of the President or Chief
Financial Officer of the Company (x) is required in order to obtain necessary
financing, (y) is customary for such financings and (z) applies only to the
assets of or revenues of the Person in whom the Investment is made.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to
8
14
protect the Company or any Restricted Subsidiary against fluctuations in
currency values to or under which the Company or any Restricted Subsidiary is a
party or a beneficiary on the Issue Date or becomes a party or beneficiary
thereafter.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" means any interest on any Security which is
payable, but is not punctually paid or duly provided for on any Interest Payment
Date.
"Depository" means The Depository Trust Company, its nominees, and
their respective successors until a successor Depository shall have become such
pursuant to the applicable provisions of this Indenture and thereafter
"Depository" shall mean or include each Person who is then a Depository
hereunder.
"Domestic Subsidiary" means a Restricted Subsidiary that is not a
Foreign Subsidiary.
"EBITDA" means, for any period, as applied to the Company, the sum of
Consolidated Net Income (Loss) (but without giving effect to adjustments,
accruals, deductions or entries resulting from purchase accounting,
extraordinary losses or gains and any gains or losses from any Asset Sales),
plus the following to the extent included in calculating Consolidated Net Income
(Loss): (a) Consolidated Income Tax Expense, (b) Consolidated Interest Expense,
(c) depreciation expense, (d) amortization expense and (e) all other non-cash
items reducing Consolidated Net Income, less all non-cash items increasing
Consolidated Net Income, in each case for such period; provided that, if the
Company has any Subsidiary that is not a Wholly Owned Subsidiary, EBITDA shall
be reduced (to the extent not otherwise reduced by GAAP) by an amount equal to
(A) the consolidated net income (loss) of such Subsidiary (to the extent
included in Consolidated Net Income (Loss)) multiplied by (B) the quotient of
(1) the number of shares of outstanding common stock of such Subsidiary not
owned on the last day of such period by the Company or any Wholly Owned
Subsidiary of the Company divided by (2) the total number of shares of
outstanding common stock of such Subsidiary on the last day of such period.
"Exchangeable Stock" means any Capital Stock which by its terms is
exchangeable or convertible at the option of any Person other than the Company
9
15
into another security (other than Capital Stock of the Company which is neither
Exchangeable Stock nor Redeemable Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Facility" means a power generation facility or energy producing
facility, including any related fuel reserves.
"Foreign Asset Sale" means an Asset Sale in respect of the Capital
Stock or assets of a Foreign Subsidiary or a Restricted Subsidiary of the type
described in Section 936 of the Code to the extent that the proceeds of such
Asset Sale are received by a Person subject in respect of such proceeds to the
tax laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"Foreign Subsidiary" means a Restricted Subsidiary that is
incorporated in a jurisdiction other than the United States of America or a
State thereof or the District of Columbia.
"Fully Diluted Basis" means after giving effect to the exercise of any
outstanding options, warrants or rights to purchase Voting Shares and the
conversion or exchange of any securities convertible into or exchangeable for
Voting Shares.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect and, to the extent optional, adopted by the
Company on the Issue Date, consistently applied, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board.
"guarantee" means, as applied to any obligation, contingent or
otherwise, of any Person, (i) a guarantee, direct or indirect, in any manner, of
any part or all of such obligation (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) and (ii) an
agreement, direct or indirect, contingent or otherwise, the practical effect of
which is to insure in any way the payment or performance (or payment of damages
in the event of nonper-
10
16
formance) of any part or all of such obligation, including the payment of
amounts drawn down under letters of credit.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Incur" means, as applied to any obligation, to create, incur, issue,
assume, guarantee or in any other manner become liable with respect to,
contingently or otherwise, such obligation, and "Incurred," "Incurrence" and
"Incurring" shall each have a correlative meaning; provided, however, that any
Indebtedness or Capital Stock of a Person existing at the time such Person
becomes (after the Issue Date) a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at
the time it becomes a Subsidiary; and provided, further, that any amendment,
modification or waiver of any provision of any document pursuant to which
Indebtedness was previously Incurred shall not be deemed to be an Incurrence of
Indebtedness as long as (i) such amendment, modification or waiver does not (A)
increase the principal or premium thereof or interest rate thereon, (B) change
to an earlier date the Stated Maturity thereof or the date of any scheduled or
required principal payment thereon or the time or circumstances under which such
Indebtedness may or shall be redeemed, (C) if such Indebtedness is contractually
subordinated in right of payment to the Securities, modify or affect, in any
manner adverse to the Holders, such subordination, (D) if the Company is the
obligor thereon, provide that a Restricted Subsidiary shall be an obligor, (E)
if such Indebtedness is Non-Recourse Debt, cause such Indebtedness to no longer
constitute Non-Recourse Debt or (F) violate, or cause the Indebtedness to
violate, the provisions of Sections 3.5 or 3.7 and (ii) such Indebtedness would,
after giving effect to such amendment, modification or waiver as if it were an
Incurrence, comply with clause (i) of the first proviso to the definition of
"Refinancing Indebtedness."
"Indebtedness" of any Person means, without duplication, (i) the
principal of and premium (if any such premium is then due and owing) in respect
of (A) indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable; (ii) all Capitalized
Lease Obligations of such Person; (iii) all obligations of such Person Incurred
as the deferred purchase price of property, all conditional sale obligations of
such Person and all obligations of such Person under any title retention
agreement; (iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit,
11
17
banker's acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations
described in (i) through (iii) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later than
the tenth Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit); (v) Redeemable Stock
of such Person and, in the case of any Subsidiary, any other Preferred Stock, in
either case valued at, in the case of Redeemable Stock, the greater of its
voluntary or involuntary maximum fixed repurchase price exclusive of accrued and
unpaid dividends or, in the case of Preferred Stock that is not Redeemable
Stock, its liquidation preference exclusive of accrued and unpaid dividends;
(vi) contractual obligations to repurchase goods sold or distributed; (vii) all
obligations of such Person in respect of Interest Rate Agreements and Currency
Agreements; (viii) all obligations of the type referred to in clauses (i)
through (vii) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable, directly
or indirectly, as obligor, guarantor or otherwise, including by means of any
guarantee; and (ix) all obligations of the type referred to in clauses (i)
through (viii) of other Persons secured by any Lien on any property or asset of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; provided,
however, that Indebtedness shall not include trade accounts payable arising in
the ordinary course of business. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Redeemable Stock
as if such Redeemable Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Redeemable Stock,
such fair market value to be determined in good faith by the Board of Directors.
The amount of Indebtedness of any Person at any date shall be, with respect to
unconditional obligations, the outstanding balance at such date of all such
obligations as described above and, with respect to any contingent obligations
(other than pursuant to clause (vi) above, which shall be included to the extent
reflected on the balance sheet of such Person in accordance with GAAP) at such
date, the maximum liability determined by such Person's board of directors, in
good faith, as, in light of the facts and circumstances existing at the time,
reasonably likely to be Incurred upon the occurrence of the contingency giving
rise to such obligation.
12
18
"Indenture" means this Indenture as amended or supplemented from time
to time in accordance with the applicable provisions hereunder.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or
arrangement designed to protect against fluctuations in interest rates to or
under which the Company or any of its Restricted Subsidiaries is a party or
beneficiary on the Issue Date or becomes a party or beneficiary thereunder.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan or other extension of credit or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), or any other investment in any
other Person, or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or assets issued or owned by
any other Person (whether by merger, consolidation, amalgamation, sale of assets
or otherwise). For purposes of the definition of "Unrestricted Subsidiary" and
the provisions set forth in Section 3.3, (i) "Investment" shall include the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of any Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted Subsidiary and
shall exclude the fair market value of the net assets of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary and (ii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer, in each case as determined by the Board of Directors in good
faith. For purposes of determining the aggregate amount of Investments in
Controlled Non-Subsidiary Investments, the amount of such Investments shall be
reduced by an amount equal to the net payments of interest on Indebtedness,
dividends, repayments of interest on Indebtedness, dividends, repayments of
loans or advances, or other transfers of assets, in each case to the Company or
any Restricted Subsidiary from any Person in whom a Controlled Non-Subsidiary
Investment has been made, not to exceed in the case of any Controlled
Non-Subsidiary Investment the amount of Investments previously made by the
Company or any Restricted Subsidiary in such Person.
13
19
"Investment Grade" means, with respect to the Securities, a rating of
Baa3 or higher by Moody's together with a rating of BBB- or higher by S&P,
provided that neither of such entities shall have announced or informed the
Company that it is reviewing the rating of the Securities in light of
downgrading the rating thereof.
"Issue Date" means the date on which the Securities are originally
issued under this Indenture.
"Lien" means any mortgage, lien, pledge, charge, or other security
interest or encumbrance of any kind (including any conditional sale or other
title retention agreement and any lease in the nature thereof).
"Line of Business" means the ownership, acquisition, development,
construction, improvement and operation of Facilities.
"Magic Valley Generating Station" means [TO COME]
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Available Cash" means, with respect to any Asset Sale, the cash
or cash equivalent payments received by the Company or a Subsidiary in
connection with such Asset Sale (including any cash received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as or when received and also including the proceeds of other property
received when converted to cash or cash equivalents) net of the sum of, without
duplication, (i) all reasonable legal, title and recording tax expenses,
reasonable commissions, and other reasonable fees and expenses incurred directly
relating to such Asset Sale, (ii) all local, state, federal and foreign taxes
required to be paid or accrued as a liability by the Company or any of its
Restricted Subsidiaries as a consequence of such Asset Sale, (iii) payments made
to repay Indebtedness which is secured by any assets subject to such Asset Sale
in accordance with the terms of any Lien upon or other security agreement of any
kind with respect to such assets, or which must by its terms, or by applicable
law, be repaid out of the proceeds from such Asset Sale and (iv) all
distributions required by any contract entered into other than in contemplation
of such Asset Sale to be paid to any holder of a minority equity interest in
such Restricted Subsidiary as a result of such Asset Sale, so long as such
distributions do not exceed such minority holder's pro rata portion
14
20
(based on such minority holder's proportionate equity interest) of the cash or
cash equivalent payments described above, net of the amounts set forth in
clauses (i)-(iii) above.
"Net Cash Proceeds" means, with respect to any issuance or sale of
Capital Stock by any Person, the cash proceeds to such Person of such issuance
or sale net of attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultancy and other fees
actually incurred by such Person in connection with such issuance or sale and
net of taxes paid or payable by such Person as a result thereof.
"Non-Convertible Capital Stock" means, with respect to any
corporation, any Capital Stock of such corporation which is not convertible into
another security other than non-convertible common stock of such corporation;
provided, however, that Non-Convertible Capital Stock shall not include any
Redeemable Stock or Exchangeable Stock.
"Non-Recourse Debt" means Indebtedness of the Company or any
Restricted Subsidiary that is Incurred to acquire, construct or develop a
Facility provided that such Indebtedness is without recourse to the Company or
any Restricted Subsidiary or to any assets of the Company or any such Restricted
Subsidiary other than such Facility and the income from and proceeds of such
Facility.
"Offering" means the public offering and sale of the Securities
pursuant to the Underwriting Agreement dated as of March __, 1999 among the
Company, Credit Suisse First Boston Corporation, and ____________________.
"Officer" means the Chairman, the President, any Vice President, the
Chief Operating Officer, the Chief Financial Officer, the Treasurer, the
Secretary, any Assistant Treasurer, any Assistant Secretary or the Controller of
the Company.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the President, the Treasurer or a Vice President of the
Company. Each Officers' Certificate (other than certificates provided pursuant
to TIA Section 314(a)(4)) shall include the statements provided for in TIA
Section 314(e).
15
21
"Operating Lease Obligations" means any obligation of the Company and
its Restricted Subsidiaries on a Consolidated basis incurred or assumed under or
in connection with any lease of real or personal property which, in accordance
with GAAP, is not required to be classified and accounted for as a capital
lease.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel, if so acceptable, may be an employee of
or counsel to the Company or the Trustee. Each such Opinion of Counsel shall
include the statements provided for in TIA Section 314(e).
"Other Senior Notes" means all of the series of ___% Senior Notes Due
200_, the ___% Senior Notes Due 20__, and the ___% Senior Notes Due 20__, that
are issued under and pursuant to the terms of one or more indentures executed
the date hereof by the Company and the Trustee, as may be amended or
supplemented from time to time.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Principal" of a Security means the principal of the Security plus, if
applicable, the premium on the Security.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended.
"PURPA" means the Public Utility Regulatory Policies Act of 1978, as
amended.
"Rating Agencies" is defined to mean S&P and Moody's.
16
22
"Rating Category" is defined to mean (i) with respect to S&P, any of
the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or
equivalent successor categories), and (ii) with respect to Moody's, any of the
following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent
successor categories). In determining whether the rating of the Securities has
decreased by one or more gradations, gradations within Rating Categories (+ and
for S&P; 1, 2 and 3 for Moody's) shall be taken into account (e.g., with respect
to S&P, a decline in a rating from BB+ to BB, as well as from BB- to B+, will
constitute a decrease of one gradation).
"Rating Decline" is defined to mean the occurrence of (i) or (ii)
below on, or within 90 days after, the earliest of (A) the Company having become
aware that a Change of Control has occurred, (B) the date of public notice of
the occurrence of a Change of Control or (C) the date of public notice of the
intention by Parent or the Company to approve, recommend or enter into, any
transaction which, if consummated, would result in a Change of Control (which
period shall be extended so long as the rating of the Securities is under
publicly announced consideration or possible downgrade by either of the Rating
Agencies), (i) a decrease of the rating of the Securities by either Rating
Agency by one or more rating gradations or (ii) the Company shall fail to
promptly advise the Rating Agencies, in writing, of such occurrence or any
subsequent material developments or shall fail to use its best efforts to
obtain, from at least one Rating Agency, a written, publicly announced
affirmation of its rating of the Securities, stating that it is not downgrading,
and is not considering downgrading, the Securities.
"Redeemable Stock" means any class or series of Capital Stock of any
Person that (a) by its terms, by the terms of any security into which it is
convertible or exchangeable or otherwise is, or upon the happening of an event
or passage of time would be, required to be redeemed (in whole or in part) on or
prior to the first anniversary of the Stated Maturity of the Securities, (b) is
redeemable at the option of the holder thereof at any time on or prior to the
first anniversary of the Stated Maturity of the Securities (other than on a
Change of Control or Asset Sale, provided that such Change of Control or Asset
Sale shall not yet have occurred) or (c) is convertible into or exchangeable for
Capital Stock referred to in clause (a) or clause (b) above or debt securities
at any time prior to the first anniversary of the Stated Maturity of the
Securities.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances, replaces, renews, repays or extends (including pursuant to any
17
23
defeasance or discharge mechanism) (collectively, "refinances," and "refinanced"
shall have a correlative meaning) any Indebtedness of the Company or a
Restricted Subsidiary existing on the Issue Date or Incurred in compliance with
the Indenture (including Indebtedness of the Company that refinances
Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted
Subsidiary that refinances Indebtedness of another Restricted Subsidiary)
including Indebtedness that refinances Refinancing Indebtedness; provided,
however, that (i) if the Indebtedness being refinanced is contractually
subordinated in right of payment to the Securities, the Refinancing Indebtedness
shall be contractually subordinated in right of payment to the Securities to at
least the same extent as the Indebtedness being refinanced, (ii) if the
Indebtedness being refinanced is Non-Recourse Debt, such Refinancing
Indebtedness shall be Non-Recourse Debt, (iii) the Refinancing Indebtedness is
scheduled to mature either (a) no earlier than the Indebtedness being refinanced
or (b) after the Stated Maturity of the Securities, (iv) the Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being refinanced and (v) such Refinancing Indebtedness is in an aggregate
principal amount (or if issued with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or if
issued with original issue discount, the aggregate accreted value) then
outstanding (plus fees and expenses, including any premium, swap breakage and
defeasance costs) under the Indebtedness being refinanced; and provided,
further, that Refinancing Indebtedness shall not include (x) Indebtedness of a
Subsidiary of the Company that refinances Indebtedness of the Company or (y)
Indebtedness of the Company or a Restricted Subsidiary that refinances
Indebtedness of an Unrestricted Subsidiary.
"Related Assets" means electric power plants that, on the Issue Date,
produce electricity solely by utilizing steam from steam fields owned and
operated by a Restricted Subsidiary that is a Wholly Owned Subsidiary on the
Issue Date.
"Related Asset Indebtedness" means Non-Recourse Debt of a Restricted
Subsidiary that is a Wholly Owned Subsidiary on the Issue Date, the proceeds of
which are used by such Restricted Subsidiary to finance the acquisition of
Related Assets by such Restricted Subsidiary; provided, however, that (i) such
Related Asset Indebtedness is Incurred contemporaneously with a Refinancing of
all of the Non-Recourse Debt of such Restricted Subsidiary then outstanding and
(ii) the principal amount of such Related Asset Indebtedness shall not exceed
the purchase price of the Related Assets plus reasonable out-of-pocket
transaction costs
18
24
and expenses of the Company and its Restricted Subsidiaries required to acquire,
or finance the acquisition of, such Related Assets.
"Restricted Subsidiary" means any Subsidiary of the Company that is
not designated an Unrestricted Subsidiary by the Board of Directors.
"S&P" means Standard and Poor's Corporation and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Subsidiary transfers
such property to a Person and leases it back from such Person, other than leases
for a term of not more than 36 months or between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Securities" means all series of the ___% Senior Notes Due 20__ that
are issued under and pursuant to the terms of this Indenture and any indenture
or indentures supplemental hereto, as amended or supplemented from time to time.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Senior Indebtedness" means (i) all obligations consisting of the
principal of and premium, if any, and accrued and unpaid interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not post-filing interest is
allowed in such proceeding), whether existing on the Issue Date or thereafter
Incurred, in respect of (A) Indebtedness of the Company for money borrowed and
(B) Indebtedness evidenced by notes, debentures, bonds or other similar
instruments for the payment of which the Company is responsible or liable; (ii)
all Capitalized Lease Obligations of the Company; (iii) all obligations of the
Company (A) for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (B) under Interest Rate
Agreements and Currency Agreements entered into in respect of any obligations
described in clauses (i) and (ii) or (C) issued or assumed as the deferred
purchase price of property, and all conditional sale obligations of the Company
and all obligations of the Company under any title retention agreement; (iv) all
guarantees of the Company with respect to obligations of other persons of the
type referred to in clauses (ii) and (iii)
19
25
and with respect to the payment of dividends of other Persons; and (v) all
obligations of the Company consisting of modifications, renewals, extensions,
replacements and refundings of any obligations described in clauses (i), (ii),
(iii) or (iv); unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such obligations
are subordinated in right of payment to the Securities, or any other
Indebtedness or obligation of the Company; provided, however, that Senior
Indebtedness shall not be deemed to include (1) any obligation of the Company to
any Subsidiary, (2) any liability for Federal, state, local or other taxes or
(3) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities).
"Significant Subsidiary" means any Subsidiary (other than an
Unrestricted Subsidiary) that would be a "Significant Subsidiary" of the Company
within the meaning of Rule 1-02 under Regulations S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency).
"Subordinated Indebtedness" means any Indebtedness of the Company
(whether outstanding on the Issue Date or thereafter Incurred) which is
contractually subordinated or junior in right of payment to the Securities or
any other Indebtedness of the Company.
"Subsidiary" means, as applied to any Person, any corporation, limited
or general partnership, trust, association or other business entity of which an
aggregate of at least 50% of the outstanding Voting Shares or an equivalent
controlling interest therein, of such Person is, at the time, directly or
indirectly, owned by such Person and/or one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date first above written.
"Trustee" means the party named as such above until a successor
replaces it and thereafter means the successor.
20
26
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters or to whom any corporate trust
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrelated Business" means any business other than the Line of
Business.
"Unrestricted Subsidiary" means (i) any Subsidiary that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors in the manner provided below and (ii) any subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, the Company or any other Subsidiary that is not a
Subsidiary of the Subsidiary to be so designated; provided, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, that such designation would be
permitted pursuant to Section 3.3. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided,
however, that immediately after giving effect to such designation (x) the
Company could Incur $1.00 of additional Indebtedness pursuant to Section 3.4(a)
and (y) no Default or Event of Default shall have occurred and be continuing.
Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the board resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions; provided, however, that the
failure to so file such resolution and/or Officers' Certificate with the Trustee
shall not impair or affect the validity of such designation.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable before the maturity thereof.
21
27
"Voting Shares," with respect to any corporation, means the Capital
Stock having the general voting power under ordinary circumstances to elect at
least a majority of the board of directors (irrespective of whether or not at
the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Wholly Owned Subsidiary" means a Subsidiary (other than an
Unrestricted Subsidiary) all the Capital Stock of which (other than directors'
qualifying shares) is owned by the Company or another Wholly Owned Subsidiary.
"Working Capital Credit Agreement" means the Line of Credit Note,
dated as of June 4, 1993, between the Company and The Bank of California, N.A.,
as amended, refinanced, renewed or extended from time to time.
SECTION 1.2 Other Definitions.
TERM DEFINED IN SECTION
---- ------------------
"Application Period" ....................................... 3.12
"Asset Sale Offer" ......................................... 3.12
"Asset Sale Offer Amount" .................................. 3.12
"Asset Sale Purchase Date" ................................. 3.12
"Bankruptcy Law" ........................................... 5.1
"Change of Control Offer" .................................. 3.8
"Change of Control Purchase Date" .......................... 3.8
"Custodian" ................................................ 5.1
"Event of Default" ......................................... 5.1
"Global Securities" ........................................ 2.1
"Legal Holiday" ............................................ 10.7
"Notice of Default" ........................................ 5.1
"Offer Period" ............................................. 3.12
"Paying Agent" ............................................. 2.3
"Registrar" ................................................ 2.3
"Restricted Payment"........................................ 3.3(a)
"Successor Corporation"..................................... 4.1(i)
SECTION 1.3 Incorporation by Reference of
22
28
Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Holder or Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings assigned to them.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) generally accepted accounting principles" means, and any
accounting term not otherwise defined has the meaning assigned to it
and shall be construed in accordance with, GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
23
29
(e) provisions apply to successive events and transactions;
(f) "including" means including, without limitation;
(g) unsecured debt shall not be deemed to be subordinate or
junior to secured debt merely by virtue of its nature as unsecured
debt;
(h) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with generally accepted accounting principles
and accretion of principal on such security shall be deemed to be the
Incurrence of Indebtedness; and
(i) the principal amount (if any) of any Preferred Stock shall be
the greatest of (i) the stated value, (ii) the redemption price or
(iii) the liquidation preference of such Preferred Stock.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A annexed hereto, which is part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of
its authentication.
The terms and provisions contained in the form of Security annexed
hereto as Exhibit A shall constitute, and are expressly made, a part of this
Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
The Securities shall be issued initially in the form of one or more
permanent global Securities in registered form, substantially in the form as
above recited (the "Global Securities"), deposited with or on behalf of the
Trustee, as
24
30
custodian for the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. Each Global Security shall bear such legend
as may be required or reasonably requested by the Depository.
The definitive Securities shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.2 Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be impressed, affixed, imprinted
or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue in an
aggregate principal amount of $__________, upon a written order of the Company
signed by two Officers. Such order shall specify the amount of the Securities to
be authenticated and the date on which the original issue of Securities is to be
authenticated. The aggregate principal amount of Securities outstanding at any
time is unlimited.
The Trustee shall initially act as authenticating agent and may
subsequently appoint another Person acceptable to the Company as authenticating
agent to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
Provided that the authentication agent has entered into an agreement with the
Company concerning
25
31
the authentication agent's duties, the Trustee shall not be liable for any act
or any failure of the authenticating agent to perform any duty either required
herein or authorized herein to be performed by such person in accordance with
this Indenture.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent and the term "Registrar" includes any co-registrar.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall promptly notify the Trustee of the name and address of
any such agent and any change in the address of such agent. If the Company fails
to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 6.7. The
Company or any Subsidiary or Affiliate of the Company may act as Paying Agent,
Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
SECTION 2.4 Paying Agent To Hold Money in Trust.
On or prior to 11:00 a.m., eastern standard time, on each due date of
the principal and interest on any Security the Company shall deposit with the
Paying Agent a sum of money, in immediately available funds, sufficient to pay
such principal and interest in funds available when such becomes due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders
26
32
or the Trustee all money held by the Paying Agent for the payment of principal
of or interest on the Securities (whether such money has been paid to it by the
Company or any other obligor on the Securities) and shall notify the Trustee of
any default by the Company (or any other obligor on the Securities) in making
any such payment. If the Company or a Subsidiary or an affiliate of the Company
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund for the benefit of the Securityholders. If
the Company defaults in its obligation to deposit funds for the payment of
principal and interest the Trustee may, during the continuation of such default,
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed by it. Upon doing so, the Paying
Agent (other than the Company or a Subsidiary or Affiliate of the Company) shall
have no further liability for the money delivered to the Trustee.
SECTION 2.5 Securityholder Lists.
The Trustee shall preserve in as current a form as reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of the Securityholders, and the Company shall otherwise comply with
TIA Section 312(a).
SECTION 2.6 Transfer and Exchange.
The Securities shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of Section 8-401(1)
of the Uniform Commercial Code are met (and the Registrar shall be entitled to
assume such requirements have been met unless it receives written notice to the
contrary) and, if so required by the Trustee or the Company, if the Security
presented is accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Company, duly executed by the registered
owner or by his or her attorney duly authorized in writing. When Securities are
presented to the Registrar or a co-registrar with a request to exchange them for
an equal principal amount of Securities of other authorized denominations, the
Registrar shall make the exchange as
27
33
requested if the same requirements are met. To permit registration of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-registrar's request. The Depository shall,
by acceptance of a Global Security, agree that transfers of beneficial interests
in such Global Security may be effected only through a book-entry system
maintained by the Depository (or its agent), and that ownership of a beneficial
interest in the Global Security shall be required to be reflected in a book
entry.
No service charge shall be made for any registration of transfer or
exchange of the Securities, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar governmental
charge payable upon exchange pursuant to Section 2.10 or 8.5 of this Indenture).
Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
Notwithstanding any other provisions of this Section 2.6, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities may not be transferred except as a whole by the Depository to a
nominee of such Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository or by such Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
If the Depository notifies the Company that it is unwilling or unable
to continue as Depository for the Global Securities or if at any time the
Depository shall no longer be eligible under the next sentence of this
paragraph, the Company shall appoint a successor Depository with respect to the
Securities. Each Depository appointed pursuant to this Section 2.6 must, at the
time of its appointment and at all times while it serves as Depository, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation. The Company will execute, and the Trustee will
authenticate and deliver upon a written order of the
28
34
Company signed by two Officers, Securities in definitive registered form in any
authorized denominations representing such Securities in exchange for such
Global Security or Securities if (i) the Depository notifies the Company that it
is unwilling or unable to continue as Depository for the Global Securities or if
at any time the Depository shall no longer be eligible to serve as Depository
and a successor Depository for the Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility or (ii) an Event of Default has occurred and is continuing.
The Company may at any time and in its sole discretion determine that
the Securities shall no longer be represented by a Global Security or
Securities. In such event the Company will execute, and the Trustee will
authenticate and deliver upon a written order of the Company signed by two
Officers, Securities in definitive registered form in any authorized
denominations representing such Securities in exchange for such Global Security
or Securities.
Upon the exchange of a Global Security for Securities in definitive
registered form without coupons, in authorized denominations, such Global
Security shall be cancelled by the Trustee. Securities in definitive registered
form issued in exchange for a Global Security pursuant to this Section 2.6 shall
be registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered.
All Securities issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
SECTION 2.7 Replacement Securities.
If a mutilated Security is surrendered to the Registrar or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken and the Holder furnishes to the Company and the Trustee
evidence to their satisfaction of such loss, destruction or wrongful taking, the
Company shall issue and the Trustee shall, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, authenticate a
29
35
replacement Security if the requirements of Section 8-405 of the Uniform
Commercial Code are met (and the Registrar shall be entitled to assume such
requirements have been met unless it receives written notice to the contrary)
and if there is delivered to the Company and the Trustee such security or
indemnity as may be required to save each of them harmless, satisfactory to the
Company or the Trustee, as the case may be. The Company and the Trustee may
charge the Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
SECTION 2.8 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If all the principal and interest on any Securities are considered
paid under Section 3.1, such Securities cease to be outstanding under this
Indenture and interest on such Securities shall cease to accrue.
If the Paying Agent (other than the Company or a Subsidiary or an
Affiliate of the Company) holds in accordance with this Indenture on a maturity
date money sufficient to pay all principal and interest due on that date then on
and after that date such Securities cease to be outstanding and interest on them
ceases to accrue (unless there shall be a default in such payment).
Subject to Section 2.9, a Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security.
SECTION II.9 Determination of Holders' Action.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, waiver or consent,
Securities owned by or pledged to the Company, any other obligor upon the
30
36
Securities or any Affiliate of the Company, or such other obligor shall be
disregarded and deemed not to be outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned or pledged shall be so disregarded.
SECTION 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee, upon the
written order of the Company signed by two Officers, shall authenticate
definitive Securities in exchange for temporary Securities. Until such exchange,
temporary Securities shall be entitled to the same rights, benefits and
privileges as definitive Securities.
SECTION 2.11 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment or cancellation and shall return such cancelled
Securities to the Company. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
SECTION 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay Defaulted Interest, plus any interest payable on the Defaulted
Interest to the extent permitted by law, in any lawful manner. It may pay the
Defaulted Interest to the Persons who are Securityholders on a subsequent
special record date which date shall be at least five Business Days prior to the
payment date. The Company shall fix the special record date and payment date. At
least 15 days before the special record date, the Company (or the Trustee, in
the name of and at the expense of the Company) shall mail to Securityholders a
notice that states the special record date, payment date and amount of interest
to be paid.
31
37
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Securities.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities. The Company shall pay
interest on overdue principal at the rate borne by the Securities; it shall pay
interest on overdue installments of interest at the rate borne by the Securities
to the extent lawful. Principal and interest shall be considered paid on the
date due if the Trustee or the Paying Agent (other than the Company or a
Subsidiary or an Affiliate of the Company) has received from or on behalf of the
Company on or prior to 11:00 a.m., eastern standard time, on that date, in
immediately available funds, money sufficient to pay all principal and interest
then due.
SECTION 3.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2 of this Indenture.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
32
38
SECTION 3.3 Limitation on Restricted Payments.
(a) So long as any of the Securities are outstanding, the Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, (i) declare or pay any dividend on or make any distribution or
similar payment of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving the Company) to
the direct or indirect holders of its Capital Stock (other than dividends or
distributions payable solely in its NonConvertible Capital Stock or rights to
acquire its Non-Convertible Capital Stock and dividends or distributions payable
solely to the Company or a Restricted Subsidiary and other than pro rata
dividends paid by a Subsidiary with respect to a series or class of its Capital
Stock the majority of which is held by the Company or a Wholly Owned Subsidiary
that is not a Foreign Subsidiary), (ii) purchase, redeem, defease or otherwise
acquire or retire for value any Capital Stock of the Company or of any direct or
indirect parent of the Company, or, with respect to the Company, exercise any
option to exchange any Capital Stock that by its terms is exchangeable solely at
the option of the Company (other than into Capital Stock of the Company which is
neither Exchangeable Stock nor Redeemable Stock), (iii) purchase, repurchase,
redeem, defease or otherwise acquire or retire for value, prior to scheduled
maturity or scheduled repayment thereof or scheduled sinking fund payment
thereon, any Subordinated Indebtedness (other than the purchase, repurchase or
other acquisition of Subordinated Indebtedness purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity,
in each case due within one year of the date of acquisition) or (iv) make any
Investment, other than a Controlled Non-Subsidiary Investment or a payment
described in clause (vi) of the second sentence of Section 3.11, in any
Unrestricted Subsidiary or any Affiliate of the Company other than a Restricted
Subsidiary or a Person which will become a Restricted Subsidiary as a result of
any such Investment (each such payment described in clauses (i)-(iv) of this
paragraph, a "Restricted Payment"), unless at the time of and after giving
effect to the proposed Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing (or would result therefrom);
(2) the Company would be permitted to Incur an additional $1 of
Indebtedness pursuant to the provisions of Section 3.4(a); and
33
39
(3) the aggregate amount of all such Restricted Payments subsequent to
the Issue Date shall not exceed the sum of:
(A) 50% of aggregate Consolidated Net Income accrued during the period
(treated as one accounting period) from January 1, 1994 to the end of the
most recent fiscal quarter for which financial statements are available (or
if such Consolidated Net Income is a deficit, minus 100% of such deficit),
and minus 100% of the amount of any write-downs, write-offs, other negative
reevaluations and other negative extraordinary charges not otherwise
reflected in Consolidated Net Income during such period;
(B) if the Securities are Investment Grade immediately following the
Restricted Payment in connection with which this calculation is made, an
additional 25% of Consolidated Net Income for any period of one or more
consecutive completed fiscal quarters ending with the last fiscal quarter
completed prior to the date of such Restricted Payment during which the
Securities were Investment Grade for the entire period;
(C) the aggregate Net Cash Proceeds received by the Company after
January 1, 1994 from the sale of Capital Stock (other than Redeemable Stock
or Exchangeable Stock) of the Company to any person other than the Company,
any of its Subsidiaries or an employee stock ownership plan;
(D) the amount by which the principal amount of, and any accrued
interest on, Indebtedness of the Company or its Restricted Subsidiaries is
reduced on the Company's Consolidated balance sheet upon the conversion or
exchange (other than by a Subsidiary) subsequent to the Issue Date of any
Indebtedness of the Company or any Restricted Subsidiary converted or
exchanged for Capital Stock (other than Redeemable Stock or Exchangeable
Stock) of the Company (less the amount of any cash, or the value of any
other property, distributed by the Company or any Restricted Subsidiary
upon such conversion or exchange);
(E) an amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other
transfers of assets, in each case to the Company or any Restricted
Subsidiary from Unrestricted Subsidiaries, or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case
as provided in the definition of
34
40
"Investments"), not to exceed in the case of any Unrestricted Subsidiary
the amount of Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary; and
(F) $25 million.
(b) The failure to satisfy the conditions set forth in clauses (2) and
(3) of Subsection 3.3(a) shall not prohibit any of the following as long as the
condition set forth in clause (1) of Subsection 3.3(a) is satisfied (except as
set forth below):
(i) notwithstanding clause (1) of Section 3.3(a), the occurrence
or existence of a Default at the time of payment of dividends paid
within 60 days after the date of declaration thereof if at such date
of declaration such dividend would have complied with Subsection
3.3(a); shall not prohibit the payment of such dividends;
(ii) any purchase, redemption, defeasance, or other acquisition
or retirement for value of Capital Stock or Subordinated Indebtedness
of the Company made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock of the Company (other
than Redeemable Stock or Exchangeable Stock and other than stock
issued or sold to a Subsidiary or to an employee stock ownership
plan), provided, however, that notwithstanding clause (1) of
Subsection 3.3(a), the occurrence or existence of a Default or Event
of Default shall not prohibit, for purposes of this Section, the
making of such purchase, redemption, defeasance or other acquisition
or retirement, and provided, further, such purchase, redemption,
defeasance or other acquisition or retirement shall not be included in
the calculation of Restricted Payments made for purposes of clause (3)
of Subsection 3.3(a) and provided, further, that the Net Cash Proceeds
from such sale shall be excluded from sub-clause (C) of clause (3) of
Subsection 3.3(a);
(iii) any purchase, redemption, defeasance or other acquisition
or retirement for value of Subordinated Indebtedness of the Company
made by exchange for, or out of the proceeds of the substantially
concurrent Incurrence of for cash (other than to a Subsidiary), new
Indebtedness of the Company, provided, however, that (A) such new
Indebtedness shall be contractually subordinated in right of payment
to the Securities at least to
35
41
the same extent as the Indebtedness being so redeemed, repurchased,
defeased, acquired or retired, (B) if the Indebtedness being
purchased, redeemed, defeased or acquired or retired for value is
Non-Recourse Debt, such new Indebtedness shall be Non-Recourse Debt,
(C) such new Indebtedness has a Stated Maturity either (1) no earlier
than the Stated Maturity of the Indebtedness redeemed, repurchased,
defeased, acquired or retired or (2) after the Stated Maturity of the
Securities and (D) such Indebtedness has an Average Life equal to or
greater than the Average Life of the Indebtedness redeemed,
repurchased, defeased, acquired or retired, and provided, further,
that such purchase, redemption, defeasance or other acquisition or
retirement shall not be included in the calculation of Restricted
Payments made for purposes of clause (3) of Subsection 3.3(a);
(iv) any purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness upon a Change of
Control or an Asset Sale to the extent required by the indenture or
other agreement pursuant to which such Subordinated Indebtedness was
issued, but only if the Company (A) in the case of a Change of
Control, has made an offer to repurchase the Securities as described
under Section 3.8 or (B) in the case of an Asset Sale, has applied the
Net Available Cash from such Asset Sale in accordance with the
provisions described under Section 3.12; and
SECTION 3.4 Limitation on Incurrence of Indebtedness.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness, except that the
Company may Incur Indebtedness if, after giving effect thereto, the Consolidated
Coverage Ratio would be greater than 2:1.
(b) Notwithstanding the foregoing, this Section shall not limit the
ability of the Company or any Restricted Subsidiary to Incur the following
Indebtedness:
(i) Refinancing Indebtedness (except with respect to Indebtedness
referred to in clause (ii), (iii) or (iv) below);
(ii) in addition to any Indebtedness otherwise permitted to be
Incurred hereunder, Indebtedness of the Company at any one time
outstanding in an aggregate principal amount not to exceed $50,000,000
and
36
42
provided that the proceeds of such Indebtedness shall not be used for
the purpose of making any Restricted Payments pursuant to clause (i)
or (ii) of Section 3.3(a);
(iii) Indebtedness of the Company which is owed to and held by a
Wholly Owned Subsidiary and Indebtedness of a Wholly Owned Subsidiary
which is owed to and held by the Company or a Wholly Owned Subsidiary;
provided, however, that any subsequent issuance or transfer of any
Capital Stock which results in any such Wholly Owned Subsidiary
ceasing to be a Wholly Owned Subsidiary or any transfer of such
Indebtedness (other than to the Company or a Wholly Owned Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the Company or by a Wholly Owned Subsidiary, as the
case may be;
(iv) Indebtedness of the Company under the Bank Credit Agreement
which, when taken together with the aggregate amount of Indebtedness
Incurred pursuant to clause (viii) of this subsection, is not in
excess of $50,000,000, and Indebtedness of the Company under the
Working Capital Credit Agreement not in excess of $50,000,000;
(v) Acquired Indebtedness; provided, however, that the Company
would have been able to Incur such Indebtedness at the time of the
Incurrence thereof pursuant to Section 3.4(a);
(vi) Indebtedness of the Company or a Restricted Subsidiary
outstanding on the Issue Date (other than Indebtedness referred to in
clause (iv) above and Indebtedness being repaid or retired with the
proceeds of the Offering);
(vii) Non-Recourse Debt of a Restricted Subsidiary (other than a
Restricted Subsidiary existing on the Issue Date), the proceeds of
which are used to acquire, develop, improve or construct a new
Facility of such Restricted Subsidiary;
(viii) guarantees by the Company of Indebtedness of Restricted
Subsidiaries which, but for such guarantees, would be permitted to be
Incurred pursuant to clause (vii) of this Section 3.4(b), provided
that the aggregate principal amount of Indebtedness Incurred pursuant
to this clause (viii), when taken together with outstanding
Indebtedness Incurred under
37
43
the Bank Credit Agreement pursuant to clause (iv) of this Section
3.4(b), is not in excess of $50,000,000;
(ix) Related Asset Indebtedness, provided that at the time of the
Incurrence thereof, giving pro forma effect to the Incurrence thereof,
Xxxxx'x and S&P shall have affirmed their respective ratings of the
Securities in effect prior to the Incurrence of such Related Asset
Indebtedness; and
(x) the Securities and the Other Senior Notes which have been
issued on the date hereof.
(c) Notwithstanding Sections 3.4(a) and (b), the Company shall not
Incur any Indebtedness if the proceeds thereof are used, directly or indirectly,
to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated
Indebtedness unless such repayment, prepayment, redemption, defeasance,
retirement, refunding or refinancing is not prohibited by Section 3.3 or unless
such Indebtedness shall be contractually subordinated to the Securities at least
to the same extent as such Subordinated Indebtedness.
SECTION 3.5 Limitation on Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any Subsidiary to, create
or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to (i)
pay dividends to or make any other distributions on its Capital Stock, or pay
any Indebtedness or other obligations owed to the Company or any other
Restricted Subsidiary, (ii) make any Investments in the Company or any other
Restricted Subsidiary or (iii) transfer any of its property or assets to the
Company or any other Restricted Subsidiary; provided, however, that the
foregoing shall not apply to:
(a) any encumbrance or restriction existing pursuant to this Indenture
or any other agreement or instrument as in effect or entered into on the Issue
Date;
(b) any encumbrance or restriction with respect to a Subsidiary
pursuant to an agreement relating to any Acquired Indebtedness; provided,
how-
38
44
ever, that such encumbrance or restriction was not Incurred in connection with
or in contemplation of such Subsidiary becoming a Subsidiary;
(c) any encumbrance or restriction pursuant to an agreement effecting
a refinancing of Indebtedness referred to in clause (a) or (b) above or
contained in any amendment or modification with respect to such Indebtedness;
provided, however, that the encumbrances and restrictions contained in any such
agreement, amendment or modification are no less favorable in any material
respect with respect to the matters referred to in clauses (i), (ii) and (iii)
above than the encumbrances and restrictions with respect to the Indebtedness
being refinanced, amended or modified;
(d) in the case of clause (iii) above, customary non-assignment
provisions of (A) any leases governing a leasehold interest, (B) any supply,
license or other agreement entered into in the ordinary course of business of
the Company or any Subsidiary or (C) any security agreement relating to a Lien
permitted by Section 3.7(l), that, in the reasonable determination of the
President or Chief Financial Officer of the Company (x) is required in order to
obtain such financing referred to in Section 3.7(l) and (y) is customary for
such financings;
(e) any restrictions with respect to a Subsidiary imposed pursuant to
an agreement entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary pending the closing of
such sale or disposition;
(f) any encumbrance imposed pursuant to the terms of Indebtedness
incurred pursuant to Section 3.4(b)(vii), provided that such encumbrance in the
written opinion of the President or Chief Financial Officer of the Company, (x)
is required in order to obtain such financing, (y) is customary for such
financings and (z) applies only to the assets of or revenues of the applicable
Facility; or
(g) any encumbrance or restriction existing by reason of applicable
law.
SECTION 3.6 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into any Sale/Leaseback Transaction unless (i) the Company or such
Subsidiary would be entitled to create a Lien on such property securing
Indebtedness in an amount equal to the Attributable Debt with respect to such
transaction
39
45
without equally and ratably securing the Securities pursuant to Section 3.7 or
(ii) the net proceeds of such sale are at least equal to the fair value (as
determined by the Board of Directors) of such property and the Company or such
Subsidiary shall apply or cause to be applied an amount in cash equal to the net
proceeds of such sale to the retirement, within 30 days of the effective date of
any such arrangement, of Senior Indebtedness or Indebtedness of a Restricted
Subsidiary; provided, however, that in addition to the transactions permitted
pursuant to the foregoing clauses (i) and (ii), the Company or any Restricted
Subsidiary may enter into a Sale/Leaseback Transaction as long as the sum of (x)
the Attributable Debt with respect to such Sale/Leaseback Transaction and all
other Sale/Leaseback Transactions entered into pursuant to this proviso, plus
(y) the amount of outstanding Indebtedness secured by Liens Incurred pursuant to
the final proviso to Section 3.7, does not exceed 10% of Consolidated Net
Tangible Assets as determined based on the consolidated balance sheet of the
Company as of the end of the most recent fiscal quarter for which financial
statements are available; and provided, further, that a Restricted Subsidiary
that is not a Restricted Subsidiary on the Issue Date may enter into a
Sale/Leaseback Transaction with respect to property owned by such Restricted
Subsidiary, the proceeds of which are used to acquire, develop, construct, or
repay (within 365 days of the commencement of commercial operation of such
Facility) Indebtedness Incurred to acquire, develop or construct, a new Facility
of such Restricted Subsidiary, as long as neither the Company nor any other
Restricted Subsidiary shall have any obligation or liability in connection
therewith.
SECTION 3.7 Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, incur or permit to exist any Lien of any nature
whatsoever on any of its properties (including, without limitation, Capital
Stock), whether owned at the date of such Indenture or thereafter acquired,
other than (a) pledges or deposits made by such Person under workers'
compensation, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
statutory or regulatory obligations of such Person or deposits of cash of United
States Government bonds to secure surety, appeal or performance bonds to which
such Person is a party, or deposits as security for contested taxes or import
duties or for the payment of rent,
40
46
in each case Incurred in the ordinary course of business; (b) Liens imposed by
law such as carriers', warehousemen's and mechanics' Liens, in each case,
arising in the ordinary course of business and with respect to amounts not yet
due or being contested in good faith by appropriate legal proceedings promptly
instituted and diligently conducted and for which a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made; or other Liens arising out of judgments or awards against such Person with
respect to which such Person shall then be diligently prosecuting appeal or
other proceedings for review; (c) Liens for property taxes not yet subject to
penalties for non-payment or which are being contested in good faith and by
appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made; (d) Liens in favor of issuers or
surety bonds or letters of credit issued pursuant to the request of and for the
account of such Person in the ordinary course of its business; provided,
however, that such letters of credit may not constitute Indebtedness; (e) minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, rights of way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to the use
of real properties or liens incidental to the conduct of the business of such
Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness or other extensions of credit and which do not in
the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person; (f)
Liens securing Indebtedness Incurred to finance the construction or purchase of,
or repairs, improvements or additions to, property, which shall include, without
limitation, Liens on the stock of the Restricted Subsidiary that has purchased
or owns such property, provided, however, that the Lien may not extend to any
other property owned by the Company or any Restricted Subsidiary at the time the
Lien is incurred, and the Indebtedness secured by the Lien may not be issued
more than 270 days after the later of the acquisition, completion of
construction, repair, improvement, addition or commencement of full operation of
the property subject to the Lien; (g) Liens existing on the Issue Date (other
than Liens relating to Indebtedness or other obligations being repaid or liens
that are otherwise extinguished with the proceeds of the Offering); (h) Liens on
property or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided, however, that any such Lien may not extend to any other
property owned by the Company or any Restricted Subsidiary; (i) Liens on
property at the time the Company or a Subsidiary acquires the property,
including any acquisition by means of a merger or consolidation with or into the
Company or a Subsidiary; provided, however,
41
47
that such Liens are not incurred in connection with, or in contemplation of,
such merger or consolidation; and provided, further, that the Lien may not
extend to any other property owned by the Company or any Restricted Subsidiary;
(j) Liens securing Indebtedness or other obligations of a Subsidiary owing to
the Company or a Wholly Owned Subsidiary; (k) Liens incurred by a Person other
than the Company or any Subsidiary on assets that are the subject of a
Capitalized Lease Obligation to which the Company or a Subsidiary is a party;
provided, however, that any such Lien may not secure Indebtedness of the Company
or any Subsidiary (except by virtue of clause (ix) of the definition of
"Indebtedness") and may not extend to any other property owned by the Company or
any Restricted Subsidiary; (l) Liens incurred by a Restricted Subsidiary on its
assets to secure Non-Recourse Debt Incurred pursuant to Section 3.4(b)(vii),
provided that such Lien (A) is Incurred at the time of the initial Incurrence of
such Indebtedness and (B) does not extend to any assets or property of the
Company or any other Restricted Subsidiary; (m) Liens not in respect of
Indebtedness arising from Uniform Commercial Code financing statements for
informational purposes with respect to leases Incurred in the ordinary course of
business and not otherwise prohibited by this Indenture; (n) Liens not in
respect of Indebtedness consisting of the interest of the lessor under any lease
Incurred in the ordinary course of business and not otherwise prohibited by this
Indenture; (o) Liens which constitute banker's liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds maintained
with any bank or other financial institution, whether arising by operation of
law or pursuant to contract; (p) Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (f), (g),
(h) and (i), provided, however, that (x) such new Lien shall be limited to all
or part of the same property that secured the original Lien (plus improvements
on such property) and (y) the Indebtedness secured by such Lien at such time is
not increased (other than by an amount necessary to pay fees and expenses,
including premiums, related to the refinancing, refunding, extension, renewal or
replacement of such Indebtedness); (q) Liens by which the Securities are secured
equally and ratably with other Indebtedness pursuant to this Section 3.7; in any
such case without effectively providing that the Securities shall be secured
equally and ratably with (or prior to) the obligations so secured for so long as
such obligations are so secured; and (r) Liens on assets relating to the Magic
Valley Generating Station; provided, however, that the Company may incur other
Liens to secure Indebtedness as long as the sum of (x) the amount of outstanding
Indebtedness secured by Liens incurred pursuant to this proviso plus (y) the
Attributable Debt
42
48
with respect to all outstanding leases in connection with Sale/Leaseback
Transactions entered into pursuant to the first proviso to Section 3.6 does not
exceed 10% of Consolidated Net Tangible Assets as determined with respect to the
Company as of the end of the most recent fiscal quarter for which financial
statements are available.
SECTION 3.8 Change of Control.
In the event of a Change of Control Triggering Event, the Company
shall make an offer to purchase (the "Change of Control Offer") the Securities
then outstanding at a purchase price equal to one hundred one percent (101%) of
the principal amount (excluding any premium) thereof plus accrued and unpaid
interest to the Change of Control Purchase Date (as defined below) on the terms
set forth in this Section. The date on which the Company shall purchase the
Securities pursuant to this Section (the "Change of Control Purchase Date")
shall be no earlier than 30 days, nor later than 60 days, after the notice
referred to below is mailed, unless a longer period shall be required by law.
The Company shall notify the Trustee in writing promptly after the occurrence of
any Change of Control Triggering Event of the Company's obligation to offer to
purchase all of the Securities.
Notice of a Change of Control Offer shall be mailed by the Company to
the Holders of the Securities at their last registered address (with a copy to
the Trustee and the Paying Agent) within thirty (30) days after a Change in
Control Triggering Event has occurred. The Change of Control Offer shall remain
open from the time of mailing until a date not more than five (5) Business Days
before the Change of Control Purchase Date. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Securities
(in whole or in part) pursuant to the Change of Control Offer. The notice, which
shall govern the terms of the Change of Control Offer, shall state:
(a) that the Change of Control Offer is being made pursuant to
this Section;
(b) the purchase price and the Change of Control Purchase Date;
(c) that any Security not surrendered or accepted for payment
will continue to accrue interest;
43
49
(d) that any Security accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of
Control Purchase Date;
(e) that any Holder electing to have a Security purchased (in
whole or in part) pursuant to a Change of Control Offer will be
required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent at the address specified in the notice (or otherwise
make effective delivery of the Security pursuant to book-entry
procedures and the related rules of the applicable depositories) at
least five (5) Business Days before the Change of Control Purchase
Date; and
(f) that any Holder will be entitled to withdraw his or her
election if the Paying Agent receives, not later than three (3)
Business Days prior to the Change of Control Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security the Holder
delivered for purchase and a statement that such Holder is withdrawing
his or her election to have the Security purchased.
On the Change of Control Purchase Date, the Company shall (i) accept
for payment Securities or portions thereof surrendered and properly tendered,
and not withdrawn, pursuant to the Change of Control Offer, (ii) deposit with
the Paying Agent, no later than 11:00 a.m. eastern standard time, money, in
immediately available funds, sufficient to pay the purchase price of all
Securities or portions thereof so accepted and (iii) deliver to the Trustee, no
later than 11:00 a.m. eastern standard time, Securities so accepted together
with an Officers' Certificate stating that such Securities have been accepted
for payment by the Company. The Paying Agent shall promptly, and in any event
within one (1) Business Day following the deposit and delivery specified in
clauses (ii) and (iii) of the immediately preceding sentence, mail or deliver to
Holders of Securities so accepted payment in an amount equal to the purchase
price. Holders whose Securities are purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section.
44
50
To the extent that the provisions of any securities laws or regulations conflict
with provisions of this Section, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
SECTION 3.9 Compliance Certificate.
The Company shall, within 120 days after the close of each fiscal year
following the issuance of the Securities, file with the Trustee an Officer's
Certificate, provided that one Officer executing the same shall be the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, covering the period from the date of issuance of the
Securities to the end of the fiscal year in which the Securities were issued, in
the case of the first such certificate, and covering the preceding fiscal year
in the case of each subsequent certificate, and stating whether or not, to the
knowledge of each such executing Officer, the Company has complied with and
performed and fulfilled all covenants on its part contained in this Indenture
and is not in default in the performance or observance of any of the terms or
provisions contained in this Indenture, and, if any such signer has obtained
knowledge of any default by the Company in the performance, observance or
fulfillment of any such covenant, term or provision specifying each such default
and the nature thereof. For the purpose of this Section 3.9, compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.
SECTION 3.10 SEC Reports.
The Company shall, to the extent required by TIA Section 314(a), file
with the Trustee, within 15 days after the filing with the SEC, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. In the event the Company is at any time
no longer subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, it shall, for so long as the Securities remain outstanding, file
with the Trustee and the SEC and mail to each Securityholder at such
Securityholder's registered address, within 15 days after the Company would have
been required to file such documents with the SEC, copies of the annual reports
and of the information, documents and other reports which the Company would have
been required to file with the SEC if the
45
51
Company had continued to be subject to such Sections 13 or 15(d). The Company
also shall comply with the other provisions of TIA Section 314(a).
SECTION 3.11 Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into, permit to exist, renew or extend any
transaction or series of transactions (including, without limitation, the sale,
purchase, exchange or lease of any assets or property or the rendering of any
services) with any Affiliate of the Company unless (i) the terms of such
transaction or series of transactions are (A) no less favorable to the Company
or such Restricted Subsidiary, as the case may be, than would be obtainable in a
comparable transaction or series of related transactions in arm's-length
dealings with an unrelated third party and (B) set forth in writing, if such
transaction or series of transactions involve aggregate payments or
consideration in excess of $1,000,000, and (ii) with respect to a transaction or
series of transactions involving the sale, purchase, lease or exchange of
property or assets having a value in excess of $5,000,000, such transaction or
series of transactions has been approved by a majority of the disinterested
members of the Board of Directors or, if there are no disinterested members of
the Board of Directors, the Board of Directors of the Company shall have
received a written opinion of a nationally recognized investment banking firm
stating that such transaction or series of transactions is fair to the Company
or such Restricted Subsidiary from a financial point of view. The foregoing
provisions do not prohibit (i) the payment of reasonable fees to directors of
the Company and its subsidiaries who are not employees of the Company or its
subsidiaries; (ii) any transaction between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries otherwise permitted by the terms
of the Indenture; (iii) the payment of any Restricted Payment which is expressly
permitted to be paid pursuant to Section 3.3(b); (iv) any issuance of securities
or other reasonable payments, awards or grants, in cash or otherwise, pursuant
to, or the funding of, employment arrangements approved by the Board of
Directors; (v) the grant of stock options or similar rights to employees and
directors of the Company pursuant to plans approved by the Board of Directors;
(vi) loans or advances to employees in the ordinary course of business; (vii)
any repurchase, redemption or other retirement of Capital Stock of the Company
held by employees of the Company or any of its Subsidiaries upon death,
disability or termination of employment at a price not in excess of the fair
market value thereof approved by the Board of Directors; (viii) any transaction
between or among the Company and any Subsidiary in the ordinary course of
business and consistent with
46
52
past practices of the Company and its Subsidiaries; (ix) payments pursuant to
Existing Agreements and payments of principal, interest and commitment fees
under the Bank Credit Agreement; and (x) any agreement to do any of the
foregoing. Any transaction which has been determined, in the written opinion of
an independent nationally recognized investment banking firm, to be fair, from a
financial point of view, to the Company or the applicable Restricted Subsidiary
shall be deemed to be in compliance with this Section.
SECTION 3.12 Sales of Assets.
(a) Neither the Company nor any Restricted Subsidiary shall consummate
any Asset Sale unless (i) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the fair market
value, as determined in good faith by the Board of Directors, of the shares or
assets subject to such Asset Sale, (ii) at least 60% of the consideration
thereof received by the Company or such Restricted Subsidiary is in the form of
cash or cash equivalents which are promptly converted into cash by the Person
receiving such payment and (iii) an amount equal to 100% of the Net Available
Cash is applied by the Company (or such Subsidiary, as the case may be) as set
forth herein. The Company shall not permit any Unrestricted Subsidiary to make
any Asset Sale unless such Unrestricted Subsidiary receives consideration at the
time of such Asset Sale at least equal to the fair market value of the shares or
assets so disposed of as determined in good faith by the Board of Directors.
(b) Within three hundred sixty-five (365) days (such 365 days being
the "Application Period") following the consummation of an Asset Sale, the
Company or such Restricted Subsidiary shall apply the Net Available Cash from
such Asset Sale as follows: (i) first, to the extent the Company or such
Restricted Subsidiary elects, to reinvest in Additional Assets (including by
means of an investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted Subsidiary); (ii)
second, to the extent of the balance of such Net Available Cash after
application in accordance with clause (i), and to the extent the Company or such
Restricted Subsidiary elects (or is required by the terms of any Senior
Indebtedness or any Indebtedness of such Restricted Subsidiary), to prepay,
repay or purchase Senior Indebtedness (other than Securities) or Indebtedness
(other than any Preferred Stock) of a Restricted Subsidiary (in each case other
than Indebtedness owed to the Company or an Affiliate of the Company); (iii)
third, to the extent of the balance of such Net Available Cash after application
in accordance with clauses (i) and (ii), and to the
47
53
extent the Company or such Restricted Subsidiary elects, to purchase Securities;
and (iv) fourth, to the extent of the balance of such Net Available Cash after
application in accordance with clauses (i), (ii) and (iii), to make an offer to
purchase Securities pursuant to and subject to the conditions of Section
3.12(c); provided, however, that in connection with any prepayment, repayment or
purchase of Indebtedness pursuant to clause (ii), (iii) or (iv) above, the
Company or such Restricted Subsidiary shall retire such Indebtedness and cause
the related loan commitment (if any) to be permanently reduced in an amount
equal to the principal amount so prepaid, repaid or purchased. To the extent
that any Net Available Cash from any Asset Sale remains after the application of
such Net Available Cash in accordance with this paragraph, the Company or such
Restricted Subsidiary may utilize such remaining Net Available Cash in any
manner not otherwise prohibited by the Indenture.
To the extent that any or all of the Net Available Cash of any Foreign
Asset Sale is prohibited or delayed by applicable local law from being
repatriated to the United States, the portion of such Net Available Cash so
affected shall not be required to be applied at the time provided above, but may
be retained by the applicable Restricted Subsidiary so long, but only so long,
as the applicable local law will not permit repatriation to the United States
(the Company hereby agreeing to promptly take or cause the applicable Restricted
Subsidiary to promptly take all actions required by the applicable local law to
permit such repatriation). Once such repatriation of any of such affected Net
Available Cash is permitted under the applicable local law, such repatriation
shall be immediately effected and such repatriated Net Available Cash will be
applied in the manner set forth in this Section as if such Asset Sale had
occurred on the date of such repatriation.
Notwithstanding the foregoing, to the extent that the Board of
Directors determines, in good faith, that repatriation of any or all of the Net
Available Cash of any Foreign Asset Sale would have a material adverse tax
consequence to the Company, the Net Available Cash so affected may be retained
outside of the United States by the applicable Restricted Subsidiary for so long
as such material adverse tax consequence would continue.
Notwithstanding the foregoing, this Section shall not apply to, or
prevent any sale of assets, property, or Capital Stock of Subsidiaries to the
extent that the fair market value (as determined in good faith by the Board of
Directors) of such asset, property or Capital Stock, together with the fair
market value of all other assets, property, or Capital Stock of Subsidiaries
sold, transferred or other-
48
54
wise disposed of in Asset Sales during the twelve month period preceding the
date of such sale, does not exceed 5% of Consolidated Net Tangible Assets as
determined as of the end of the most recent fiscal quarter for which financial
statements are available, (it being understood that this provision shall only
apply with respect to the fair market value of such asset, property or Capital
Stock in excess of 5% of consolidated Net Tangible Assets), and no violation of
this provision shall be deemed to have occurred as a consequence thereof.
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company as an entirety to a Person in a transaction
permitted under Article IV, the Successor Corporation shall be deemed to have
sold the properties and assets of the Company not so transferred for purposes of
this Section 3.12, and shall comply with the provisions of this Section 3.12
with respect to such deemed sale as if it were an Asset Sale.
(c) Subject to the last sentence of this paragraph, in the event of an
Asset Sale that requires the purchase of Securities pursuant to clause (iii) of
the first paragraph of Section 3.12(b), the Company will be required to purchase
Securities tendered pursuant to an offer by the Company for the Securities (the
"Asset Sale Offer") at a purchase price of not less than their principal amount
plus accrued interest to the Asset Sale Purchase Date in accordance with the
procedures (including proration in the event of oversubscription) set forth in
Section 3.12(d). If the aggregate purchase price of Securities tendered pursuant
to the Asset Sale Offer is less than the Net Available Cash allotted to the
purchase of the Securities, the Company shall apply the remaining Net Available
Cash in accordance with the last sentence of the first paragraph of Section
3.12(b). The Company shall not be required to make an Asset Sale Offer for
Securities pursuant to this Section if the Net Available Cash available therefor
(after application of the proceeds as provided in Section 3.12(b)(i) and (ii))
is less than $1,000,000 for any particular Asset Sale (which lesser amounts
shall not be carried forward for purposes of determining whether an Asset Sale
Offer is required with respect to the Net Available Cash from any subsequent
Asset Sale).
(d) (1) Promptly, and in any event prior to the 360th day after the
later of the date of each Asset Sale as to which the Company must make an Asset
Sale Offer or the receipt of Net Available Cash therefrom, the Company shall be
obligated to deliver to the Trustee and send, by first-class mail to each
Holder, a written notice stating that the Holder may elect to have his
Securities purchased by the Company either in whole or in part (subject to
proration as hereinafter de-
49
55
scribed in the event the Asset Sale Offer is oversubscribed) in integral
multiples of $1,000 of principal amount, at the applicable purchase price. The
notice shall specify a purchase date not less than 30 days, nor more than 60
days, after the date of such notice (the "Asset Sale Purchase Date") and shall
contain the information required in a notice for a Change of Control Offer, to
the extent applicable.
(2) Not later than the date upon which written notice of an Asset Sale
Offer is delivered to the Trustee as provided below, the Company shall deliver
to the Trustee an Officers' Certificate as to (i) the amount of the Asset Sale
Offer (the "Asset Sale Offer Amount"), (ii) the allocation of the Net Available
Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made
and (iii) the compliance of such allocation with the provisions of Section
3.12(a). On such date, the Company shall also deposit with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust)
funds in an amount equal to the Asset Sale Offer Amount to be held for payment
in accordance with the provisions of this Section. Upon the expiration of the
period for which the Asset Sale Offer remains open (the "Offer Period"), the
Company shall deliver, or cause to be delivered, to the Trustee the Securities
or portions thereof which have been properly tendered to and are to be accepted
by the Company. Paying Agent shall promptly, and in any event within one (1)
Business Day following the Asset Sale Purchase Date, mail or deliver payment to
each tendering Holder in the amount of the purchase price. In the event that the
aggregate purchase price of the Securities delivered, or caused to be delivered,
by the Company to the Trustee is less than the Asset Sale Offer Amount, the
Paying Agent shall deliver the excess to the Company immediately after the
expiration of the Offer Period and the delivery to the Trustee of the
Securities, or portions thereof that have been properly tendered to and are to
be accepted for payment by the Company.
(3) Holders electing to have a Security purchased will be required to
surrender the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security duly completed, to the Company or the
Paying Agent, as specified in, and at the address specified in, the notice at
least ten Business Days prior to the Asset Sale Purchase Date. Holders will be
entitled to withdraw their election if the Trustee or the Paying Agent receives,
not later than three Business Days prior to the Asset Sale Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security which was delivered for purchase by
the Holder and a statement that such Holder is withdrawing his election to have
such Security purchased. If at the expiration of the Offer Period the aggregate
principal amount
50
56
of Securities surrendered by Holders exceeds the Asset Sale Offer Amount, the
Company shall select the Securities to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000, or integral multiples thereof, shall be
purchased) and shall notify the Trustee of its selection in a writing signed by
two Officers. Holders whose Securities are purchased only in part will be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which
are to be accepted for purchase, the Company will also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this Section. A Security shall
be deemed to have been accepted for purchase at the time the Paying Agent,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 3.13 Corporate Existence.
Except as permitted under Article IV, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate existence of each Restricted Subsidiary in
accordance with the respective organizational documents of the Company and of
each Restricted Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and the Restricted Subsidiaries necessary or
appropriate to carry out their businesses; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or the
corporate existence of any Restricted Subsidiary, if the preservation thereof is
no longer desirable in the conduct of the business of the Company and the
Restricted Subsidiaries taken as a whole; and provided, further, that any
Restricted Subsidiary may consolidate with, merge into, or sell, convey,
transfer, lease or otherwise dispose of all or part of its property and assets
to the Company or any Wholly Owned Subsidiary to the extent otherwise permitted
under this Indenture.
51
57
SECTION 3.14 Payment of Taxes and Other Claims.
The Company shall pay or discharge, or cause to be paid or discharged,
before any material penalty accrues thereon all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary; provided, however, that the Company shall not be required
to pay or discharge, or cause to be paid or discharged, any such tax,
assessment, charge or claim the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which adequate
reserves, if the same shall be required in accordance with GAAP, have been made.
SECTION 3.15 Notice of Defaults and Other Events.
In the event that any Indebtedness of the Company or any Significant
Subsidiary having an outstanding principal amount of $1,000,000 or more
individually or $2,500,000 or more in the aggregate has been or could be
declared due and payable before its maturity because of the occurrence of any
event of default under such Indebtedness (including any Default under this
Indenture), the Company, promptly after it becomes aware thereof, will give
written notice thereof to the Trustee.
SECTION 3.16 Maintenance of Properties and Insurance.
The Company shall cause all properties used or useful in the conduct
of its business or the business of each Restricted Subsidiary and material to
the Company and the Restricted Subsidiaries taken as a whole to be maintained
and kept in normal condition, repair and working order and supplied with all
necessary equipment; provided, however, that nothing in this Section 3.16 shall
prevent the Company or any Restricted Subsidiary from discontinuing the use,
operation or maintenance of any of such properties or disposing of any of them,
if such discontinuance or disposal is, in the judgment of an Officer (or other
employee of the Company or any Restricted Subsidiary) of the Company or such
Restricted Subsidiary having managerial responsibility for any such property,
appropriate.
The Company shall provide or cause to be provided, for itself and the
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly
52
58
situated and owning like properties, including, but not limited to,
product liability insurance and public liability insurance with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, of such kinds, and in such amounts, with such
deductibles and by such methods as the Company in good faith shall determine to
be reasonable and appropriate in the circumstances.
SECTION 3.17 Limitation on Issuance of Capital Stock and Incurrence of
Indebtedness of Restricted Subsidiaries.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to issue or sell, and shall not permit any Person other than the
Company or a Wholly Owned Subsidiary to own (except to the extent that any such
Person may own on the Issue Date), any shares of such Restricted Subsidiary's
Capital Stock (including options, warrants or other rights to purchase shares of
Capital Stock) except, to the extent otherwise permitted by the Indenture, (i)
to the Company or another Restricted Subsidiary that is a Wholly Owned
Subsidiary of the Company, or (ii) if, immediately after giving effect to such
issuance and sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary for purposes of the Indenture; provided, however, that a
Restricted Subsidiary that has an interest in a Facility may sell shares of
Non-Convertible Stock that is not Preferred Stock if, after giving effect to
such sale, the Company or a Wholly Owned Subsidiary continues to hold at least a
majority of each class of Capital Stock of such Restricted Subsidiary. The
Company shall not permit any Restricted Subsidiary, directly or indirectly, to
Incur Indebtedness other than pursuant to Section 3.4(b).
SECTION 3.18 Limitation on Changes in the Nature of the Business.
The Company and its Subsidiaries shall engage only in the business of
acquiring, constructing, managing, developing, improving, owning and operating
Facilities, as well as any other activities reasonably related to the foregoing
activities (including acquiring and holding reserves), including but not limited
to investing in Facilities; provided that up to 10% of the Company's
Consolidated total assets may be used in Unrelated Businesses without
constituting a violation of this Section. In addition, the Company will, and
will cause its Subsidiaries, to conduct their respective businesses in a manner
so as to maintain the exemption of the Company and its Subsidiaries from
treatment as a public utility holding company under PUHCA or an electric utility
or public utility under any federal,
53
59
state or local law; provided, however, to the extent that any such law is
amended following the Issue Date in such a manner that would (absent application
of this proviso) make compliance with this Section 3.18 result in a material
adverse effect on the Company's results of operations or financial condition,
then the Company shall not be required to comply with this Section 3.18, but
only to the extent of actions or failures to act that would (absent application
of this proviso) constitute violations of this Covenant solely as a result of
such amendment.
SECTION 3.19 Limitation on Subsidiary Investments.
The Company will not permit any Subsidiary with an interest in a
Facility to make any investment in or merge with any other person with an
interest in a power generation facility or, except in connection with the
acquisition of Related Assets by such Subsidiary, in an Unrelated Business.
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
SECTION 4.1 Merger and Consolidation of Company.
The Company shall not in a single transaction or through a series of
related transactions consolidate with or merge with or into any other
corporation or sell, assign, convey, transfer or lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety to any
Person or group of affiliated Persons, unless:
(i) either (A) the Company shall be the continuing Person, or (B)
the Person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which the properties and assets
of the Company as an entirety are transferred (the "Successor
Corporation") shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form and substance
reasonably satisfactory to the Trustee, all the obligations of the
Company under this Indenture and the Securities;
54
60
(ii) immediately before and immediately after giving effect to
such transaction on a pro forma basis (and treating any Indebtedness
which becomes an obligation of the Company (or the Successor
Corporation if the Company is not the continuing obligor under this
Indenture) or any Restricted Subsidiary as a result of such
transaction as having been Incurred by such Person at the time of such
transaction), no Default shall have occurred and be continuing;
(iii) the Company shall have delivered, or caused to be
delivered, to the Trustee an Officers' Certificate and, as to legal
matters, an Opinion of Counsel, each in form and substance reasonably
satisfactory to the Trustee, each stating that such consolidation,
merger or transfer and such supplemental indenture comply with this
Indenture and that all conditions precedent herein provided for
relating to such transaction have been complied with;
(iv) immediately after giving effect to such transaction on a pro
forma basis (and treating any Indebtedness which becomes an obligation
of the Company (or the Successor Corporation if the Company is not the
continuing obligor under this Indenture) or a Restricted Subsidiary in
connection with or as a result of such transaction as having been
Incurred by such Person at the time of such transaction), the Company
(or the Successor Corporation if the Company is not the continuing
obligor under this Indenture) shall have Consolidated Net Worth in an
amount which is not less than the Consolidated Net Worth of the
Company immediately prior to such transaction; and
(v) immediately after giving effect to such transaction on a pro
forma basis (and treating any Indebtedness which becomes an obligation
of the Company (or the Successor Corporation if the Company is not the
continuing obligor under the Indenture) or a Restricted Subsidiary in
connection with or as a result of such transaction as having been
Incurred by such Person at the time of such transaction), the
Consolidated Coverage Ratio of the Company (or the Successor
Corporation if the Company is not the continuing obligor under the
Indenture) is at least 1.10:1, or, if less, equal to the Consolidated
Coverage Ratio of the Company immediately prior to such transaction;
provided that, if the Consolidated Coverage
55
61
Ratio of the Company before giving effect to such transaction is
within the range set forth in column (A) below, then the pro forma
Consolidated Coverage Ratio of the Company (or the Successor
Corporation if the Company is not the continuing obligor under the
Indenture) shall be at least equal to the lesser of (1) the ratio
determined by multiplying the percentage set forth in column (B) below
by the Consolidated Coverage Ratio of the Company prior to such
transaction and (2) the ratio set forth in column (C) below:
(A) (B) (C)
1.11:1 to 1.99:1......................................... 100% 1.6:1
2.00:1 to 2.99:1......................................... 90% 2.1:1
3.00:1 to 3.99:1......................................... 80% 2.4:1
4.00:1 or more........................................... 70% 2.5:1
Notwithstanding the foregoing paragraphs (ii), (iv) and (v), any
Restricted Subsidiary (other than a Subsidiary having an interest in a Facility)
may consolidate with, merge into or transfer all or part of its properties and
assets to the Company or any Wholly Owned Subsidiary or Wholly Owned
Subsidiaries (other than a Subsidiary or Subsidiaries which have an interest in
a Facility) and no violation of this Section shall be deemed to have occurred as
a consequence thereof, as long as the requirements of paragraphs (i) and (iii)
are satisfied in connection therewith.
SECTION 4.2 Successor Substituted.
(a) Upon any such consolidation or merger, or any conveyance,
transfer, or disposition of all or substantially all of the properties or assets
of the Company in accordance with Section 4.1, but not in the case of a lease,
the Successor Corporation shall succeed to and be substituted for the Company
under this Indenture and the Securities, and the Company shall thereupon be
released from all obligations hereunder and under the Securities and the
Company, as the predecessor corporation, may thereupon or at any time thereafter
be dissolved, wound up or liquidated. The Successor Corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, all or any of the Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee; and, upon the
order of the Successor Corporation instead of the Company and subject to all the
terms, conditions and limitations prescribed in this Indenture, the Trustee
shall authenticate and shall deliver any Securities which the Successor
Corporation thereafter
56
62
shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all such Securities had
been issued at the date of the execution hereof.
(b) In the case of any consolidation, merger or transfer described in
Section 4.2(a) above, such changes in form (but not in substance) may be made in
the Securities thereafter to be issued as may be appropriate.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.1 Events of Default.
An "Event of Default" means any of the following events:
(a) default in the payment of interest on any Security when the
same becomes due and payable, and such default continues for a period
of 30 days;
(b) default in the payment of the principal of any Security when
the same becomes due and payable at maturity or otherwise or a failure
to purchase Securities when required pursuant to this Indenture or the
Securities;
(c) default in performance of any other covenants or agreements
in the Securities or this Indenture and the default continues for 30
days after the date on which written notice of such default is given
to the Company by the Trustee or to the Company and the Trustee by
Holders of at least 25% in principal amount of the Securities then
outstanding hereunder;
(d) there shall have occurred either (i) a default by the Company
or any Subsidiary under any instrument or instruments under which
there is or may be secured or evidenced any Indebtedness of the
Company or any Subsidiary of the Company (other than the Securities)
having an outstanding principal amount of $2,000,000 (or its foreign
57
63
currency equivalent) or more individually or $5,000,000 (or its
foreign currency equivalent) or more in the aggregate that has caused
the holders thereof to declare such Indebtedness to be due and payable
prior to its Stated Maturity or (ii) a default by the Company or any
Subsidiary in the payment when due of any portion of the principal
under any such instrument, and such unpaid portion exceeds $2,000,000
(or its foreign currency equivalent) individually or $5,000,000 (or
its foreign currency equivalent) in the aggregate and is not paid, or
such default is not cured or waived, within any grace period
applicable thereto, unless such Indebtedness is discharged within 20
days of the Company or a Restricted Subsidiary becoming aware of such
default; provided, however, that the foregoing shall not apply to any
default on Non-Recourse Indebtedness;
(e) any final judgment or order (not covered by insurance) for
the payment of money shall be rendered against the Company or any
Significant Subsidiary in an amount in excess of $2,000,000 (or its
foreign currency equivalent) individually or $5,000,000 (or its
foreign currency equivalent) in the aggregate for all such final
judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) and shall
not be discharged, and there shall be any period of 30 consecutive
days following entry of the final judgment or order in excess of
$2,000,000 (or its foreign currency equivalent) individually or that
causes the aggregate amount for all such final judgments or orders
outstanding against all such Persons to exceed $5,000,000 (or its
foreign currency equivalent) during which a stay of enforcement of
such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
(f) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
58
64
(v) admits in writing its inability to generally pay its debts as
such debts become due;
or takes any comparable action under any foreign laws relating to
insolvency;
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(ii) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of its property, or
(iii) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws; and the order or decree
remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11 of the United States Code or
any similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Any notice of Default given by the Trustee or Securityholders under
this Section must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default."
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice of any event which with the giving of notice
or the lapse of time or both would become an Event of Default under clause (c),
(d), (e) or (g) hereof.
Subject to the provisions of Section 6.1 and 6.2, the Trustee shall
not be charged with knowledge of any Event of Default unless written notice
59
65
thereof shall have been given to the Trustee by the Company, the Paying Agent,
any Holder or an agent of any Holder.
SECTION 5.2 Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (f) and (g) of Section 5.1 with respect to the Company) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in principal amount of the Securities by notice to the Company and the Trustee,
may declare the principal of and accrued and unpaid interest on all the
Securities to be due and payable. Upon such declaration the principal and
interest shall be due and payable immediately. If an Event of Default specified
in clause (f) or (g) of Section 5.1 with respect to the Company occurs, the
principal of and interest on all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholders. The Holders of a majority in principal
amount of the Securities by notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration. No such rescission shall affect any subsequent or other Default or
Event of Default or impair any consequent right.
SECTION 5.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal or interest on
the Securities or to enforce the performance of any provision of the Securities
or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 5.4 Waiver of Past Defaults.
60
66
The Holders of a majority in principal amount of the Securities by
notice to the Trustee may waive an existing Default and its consequences except
(a) a Default in the payment of the principal of or interest on any Security or
(b) a Default in respect of a provision that under Section 8.2 cannot be amended
without the consent of each Securityholder affected. When a Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any consequent right.
SECTION 5.5 Control by Majority
The Holders of a majority in principal amount of the Securities may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture, or, subject to Section 6.1, that the Trustee determines is
unduly prejudicial to the rights of other Securityholders, or would involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification reasonably satisfactory to it against all risk, losses and
expenses caused by taking or not taking such action. Subject to Section 6.1, the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of the
Securityholders pursuant to this Indenture, unless such Securityholders shall
have provided to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred in
compliance with such request or direction.
SECTION 5.6 Limitation on Suits.
A Securityholder may pursue a remedy with respect to this Indenture or
the Securities only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
61
67
(c) such Holder or Holders offer to the Trustee security
reasonably satisfactory to it or indemnity against any loss, liability
or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity;
and
(e) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 5.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal and interest on the
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 5.8 Collection Suit by Trustee.
If an Event of Default specified in Section 5.1(a) or (b) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount of principal and
interest remaining unpaid (together with interest on such unpaid interest to the
extent lawful) and the amounts provided for in Section 6.7.
SECTION 5.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents and take such other actions including participating as a member or
otherwise in any committees of creditors appointed in the matter as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the amounts provided in Section 6.7) and the Securityholders allowed
in any judicial proceedings relative to the Company, its creditors or its
property and,
62
68
unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 6.7. To the
extent that the payment of any such amount due to the Trustee under Section 6.7
out of the estate in any such proceeding shall be denied for any reason, payment
of the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders of the Securities may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
SECTION 5.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.7;
Second: to Securityholders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall give written notice to each Securityholder and the
Trustee of the record date, the payment date and amount to be paid.
SECTION 5.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the
63
69
suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 5.7,
or a suit by Holders of more than 10% in principal amount of the Securities.
SECTION 5.12 Waiver of Stay or Extension Laws.
The Company shall not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
hereby expressly waives all benefit or advantage of any such law, and shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE VI
TRUSTEE
SECTION 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent Person
would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the
64
70
Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of
this Section.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.2, 5.4 or 5.5.
(iv) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any risk, loss, liability or expense.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee, in its capacity as Trustee and Registrar and Paying
Agent, shall not be liable to the Company, the Securityholders or any other
Person for interest on any money received by it, including, but not limited to,
money with respect to principal of or interest on the Securities, except as the
Trustee may agree with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
SECTION 6.2 Rights of Trustee.
65
71
(a) The Trustee may rely on any document reasonably believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate, an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on any
such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers provided, however, that the Trustee's conduct does not constitute wilful
misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice of such counsel.
(f) The Trustee shall not be obligated to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or any other paper or document.
SECTION 6.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer.
66
72
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities other than its authentication. The Trustee shall have no duty to
ascertain or inquire as to the performance of the Company's covenants in Article
III hereof.
SECTION 6.5 Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and if it
is actually known to a Trust Officer of the Trustee, the Trustee shall mail to
Securityholders a notice of the Default or Event of Default within 90 days after
a Trust Officer of the Trustee has actual knowledge of the occurrence thereof.
Except in the case of a Default in any payment on any Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of
Securityholders.
SECTION 6.6 Reports by Trustee to Holders.
Within 60 days after the reporting date stated in Section 10.10, the
Trustee shall mail to Securityholders a brief report dated as of such date that
complies with TIA Section 313(a) if required by that Section. The Trustee also
shall comply with TIA Section 313(b)(2).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which the Securities are
listed. The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as the parties shall agree. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket disbursements, expenses and advances incurred by it.
Such expenses shall include the reasonable compensation and out-of-pocket
disbursements and expenses of the Trustee's agents and counsel.
67
73
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss, liability or expense, including reasonable attorneys' fees,
disbursements and expenses, incurred by it arising out of or in connection with
the administration of this trust and the performance of its duties hereunder
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 6.7 and any Lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Company's obligations pursuant to Article VII of this Indenture and the
termination of this Indenture.
SECTION 6.8 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign at any time by so notifying the Company. The
Holders of a majority in principal amount of the Securities may, by written
68
74
notice to the Trustee, remove the Trustee by so notifying the Trustee and the
Company. The Company, by notice to the Trustee, shall remove the Trustee if:
(a) the Trustee fails to comply with Section 6.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the Lien
provided for in Section 6.7.
SECTION 6.9 Successor Trustee by Merger, etc.
69
75
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 6.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA Section
310(b). Nothing herein shall prevent the Trustee from filing with the SEC the
application referred to in the second-to-last paragraph of TIA Section 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), except with respect
to any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed is subject to TIA Section 311(a) to the extent
indicated.
ARTICLE VII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 7.1 Discharge of Liability on Securities; Defeasance.
If (i) the Company delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.7) for cancellation or
(ii) all outstanding Securities have become due and payable and the Company
irrevocably deposits with the Trustee as trust funds solely for the benefit of
the Holders for that purpose funds sufficient to pay at maturity the principal
of and all accrued interest on all outstanding Securities (other than Securities
replaced pursuant to Section 2.7), and if in either case the Company pays all
other sums payable hereunder by the Company, then, subject to Sections 7.2 and
7.7, this Indenture shall cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers' Certificate and an Opinion of Counsel and at
the cost and expense of the Company.
SECTION 7.2 Termination of Company's Obligations.
70
76
Except as otherwise provided in this Section 7.2, the Company may
terminate its obligations under the Securities and this Indenture if:
(i) the Securities mature within one year, (ii) the Company
irrevocably deposits in trust with the Trustee or Paying Agent (other than the
Company or a Subsidiary or Affiliate of the Company) under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
as trust funds solely for the benefit of the Holders for that purpose, money or
U.S. Government Obligations that, through the payment of interest and principal
in respect thereof in accordance with its terms, will provide, not later than
one (1) Business Day prior to the applicable payment date, money sufficient (in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee), without
consideration of any reinvestment of interest, to pay principal and interest on
the Securities to maturity, and to pay all other sums payable by it hereunder,
(iii) no Default shall have occurred and be continuing on the date of such
deposit, (iv) such deposit will not result in or constitute a Default or result
in a breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound and (v)
the Company has delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, in each case stating that all conditions precedent provided for
herein relating to the satisfaction and discharge of this Indenture have been
complied with; provided that the Trustee or Paying Agent shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal and interest with
respect to the Securities.
With respect to the foregoing, the Company's obligations in Sections
2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 3.1, 3.2, 6.7, 6.8, 7.5 and 7.6 shall
survive until the Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 6.7, 6.8 and 7.6 shall survive. After any such
irrevocable deposit and fulfillment of the other requirements of this Section
7.2, the Trustee upon request shall acknowledge in writing the discharge of the
Company's obligations under the Securities and this Indenture except for those
surviving obligations specified above.
SECTION 7.3 Defeasance and Discharge of Indenture.
71
77
The Company will be deemed to have paid and will be discharged from
any and all obligations in respect of the Securities on the 123rd day after the
date of the deposit referred to in clause (i) hereof, and the provisions of this
Indenture will no longer be in effect with respect to the Securities, in each
case subject to the penultimate paragraph of this Section 7.3, and the Trustee,
at the reasonable request of and at the expense of the Company, shall execute
proper instruments acknowledging the same, except as to (a) rights of
registration of transfer and exchange, (b) substitution of apparently mutilated,
defaced, destroyed, lost or stolen Securities, (c) rights of Holders to receive
payments of principal thereof and interest thereon, (d) the Company's
obligations under Section 3.2, (e) the rights, obligations and immunities of the
Trustee hereunder including, without limitation, those arising under Section 6.7
hereof, (f) the rights of the Holders as beneficiaries of this Indenture with
respect to the property so deposited with the Trustee payable to all or any of
them and (g) the rights, obligations and immunities which survive as provided in
the penultimate paragraph of this Section 7.3; provided that the following
conditions shall have been satisfied:
(i) with reference to this Section 7.3, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirement of Section
6.10) or Paying Agent (other than the Company or a Subsidiary or
Affiliate of the Company) and conveyed all right, title and interest
for the benefit of the Holders, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders, in and to, (A) money
in an amount, (B) U.S. Government Obligations that, through the
payment of interest and principal in respect thereof in accordance
with their terms, will provide, not later than one Business Day before
the due date of any payment referred to in this clause (i), money in
an amount or (C) a combination thereof in an amount sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, without consideration of any
reinvestment of interest and after payment of all federal, state and
local taxes or other fees, charges and assessments in respect thereof
payable by the Trustee or Paying Agent, the principal of and interest
on the outstanding Securities when due; provided that the Trustee or
Paying Agent shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government Obligations to the
payment of such principal and interest with respect to the Securities;
72
78
(ii) such deposit will not result in or constitute a Default or
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound;
(iii) no Default shall have occurred and be continuing on the
date of such deposit or during the period ending on the 123rd day
after such date of deposit;
(iv) the Company shall have delivered to the Trustee (A) either
(1) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of
the Company's exercise of its option under this Section 7.3 and will
be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such
option had not been exercised or (2) an Opinion of Counsel (who may
not be an employee of the Company) to the same effect as the ruling
described in clause (1) accompanied by a ruling to that effect
published by the Internal Revenue Service, unless there has been a
change in the applicable federal income tax law since the date of this
Indenture such that a ruling from the Internal Revenue Service is no
longer required and (B) an Opinion of Counsel to the effect that (1)
the creation of the defeasance trust does not violate the Investment
Company Act of 1940, (2) after the passage of 123 days following the
deposit (except, with respect to any trust funds for the account of
any Holder who may be deemed to be an "insider" for purposes of Title
11 of the United States Code, after one year following the deposit),
the trust funds will not be subject to the effect of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the New York Debtor
and Creditor Law in a case commenced by or against the Company under
either such statute, and either (x) the trust funds will no longer
remain the property of the Company (and therefore, will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally) or (y) if a
court were to rule under any such law in any case or proceeding that
the trust funds remained property of the Company, (I) assuming such
trust funds remained in the possession of the Trustee prior to such
court ruling to the extent not paid to Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security
interest in such trust funds that is
73
79
not avoidable in bankruptcy or otherwise except for the effect of
Section 552(b) of the United States Bankruptcy Code on interest on the
trust funds accruing after the commencement of a case under such
statute and (II) the Holders will be entitled to receive adequate
protection of their interests in such trust funds if such trust funds
are used in such case or proceeding; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 7.3 have been complied with.
Notwithstanding the foregoing clause (i), prior to the end of the 123-
day period referred to in clause (iv)(B)(2) above, none of the Company's
obligations under this Indenture shall be discharged. Subsequent to the end of
such 123-day period with respect to this Section 7.3, the Company's obligations
in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 3.1, 3.2, 6.7, 6.8, 7.6 and 7.7
shall survive until the Securities are no longer outstanding. Thereafter, only
the Company's obligations in Sections 6.7, 7.6 and 7.7 shall survive. If and
when a ruling from the Internal Revenue Service or Opinion of Counsel referred
to in clause (iv)(A) above is able to be provided specifically without regard
to, and not in reliance upon, the continuance of the Company's obligations under
Section 3.1, then the Company's obligations under such Section 3.1 shall cease
upon delivery to the Trustee of such ruling or Opinion of Counsel and compliance
with the other conditions precedent provided for herein relating to the
defeasance contemplated by this Section 7.3.
After any such irrevocable deposit and the fulfillment of the other
requirements of this Section 7.3, the Trustee upon request shall acknowledge in
writing the discharge of the Company's obligations under the Securities and this
Indenture except for those surviving obligations in the immediately preceding
paragraph.
SECTION 7.4 Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or condition
set forth in clauses (iv) and (v) of Section 4.1 and Sections 3.3 through 3.19,
and clause (c) of Section 5.1 with respect to clauses (iv) and (v) of Section
4.1 and Section 3.3 through 3.19, and clauses (d) and (e) of Section 5.1 shall
be
74
80
deemed not to be Events of Default, in each case with respect to the
outstanding Securities if:
(i) with reference to this Section 7.4, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
6.10) or Paying Agent (other than the Company or a Subsidiary or
Affiliate of the Company) and conveyed all right, title and interest
for the benefit of the Holders, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders, in and to, (A) money
in an amount, (B) U.S. Government Obligations that, through the
payment of interest and principal in respect thereof in accordance
with their terms, will provide, not later than one Business Day before
the due date of any payment referred to in this clause (i), money in
an amount or (C) a combination thereof in an amount, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, without consideration of the
reinvestment of such interest and after payment of all federal, state
and local taxes or other fees, charges and assessments in respect
thereof payable by the Trustee or Paying Agent, the principal of and
interest on the outstanding Securities when due; provided that the
Trustee or Paying Agent shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations
to the payment of such principal and interest with respect to the
Securities;
(ii) such deposit will not result in or constitute a Default or
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound;
(iii) no Default shall have occurred and be continuing on the
date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of
Counsel who is not employed by the Company to the effect that (A) the
creation of the defeasance trust does not violate the Investment
Company Act of 1940, (B) the Holders have a valid first-priority
security interest in the trust funds, (C) the Holders will not
recognize income, gain or loss for
75
81
federal income tax purposes as a result of such deposit and defeasance
of certain obligations and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred and
(D) after the passage of 123 days following the deposit (except, with
respect to any trust funds for the account of any Holder who may be
deemed to be an "insider" for purposes of the United States Bankruptcy
Code, after one year following the deposit), the trust funds will not
be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law
in a case commenced by or against the Company under either such
statute, and either (1) the trust funds will no longer remain the
property of the Company (and therefore, will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (2) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company, (x) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to Holders, the Trustee will hold, for
the benefit of the Holders, a valid and perfected security interest in
such trust funds that is not avoidable in bankruptcy or otherwise
except for the effect of Section 552(b) of the United States
Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute and (y) the Holders will be
entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding;
and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 7.4 have been complied with.
SECTION 7.5 Application of Trust Money.
Subject to Section 7.7 of this Indenture, the Trustee or Paying Agent
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 7.2, 7.3 or 7.4 of this Indenture, as the case may be, and
shall apply the deposited money and the money from U.S. Government Obligations
in accordance with this Indenture to the payment of principal of and interest on
the Securities. The Trustee shall be under no obligation to invest such money or
U.S. Government Obligations except as it may agree with the Company and in no
event
76
82
shall the Trustee have any liability for, or in respect of, any such investment
made as agreed with the Company.
SECTION 7.6 Repayment to Company.
Subject to Sections 6.7, 7.2, 7.3 and 7.4 of this Indenture, the
Trustee and the Paying Agent shall promptly pay to the Company upon written
request any excess money held by them at any time and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years; provided, however, that the Company shall if requested by the Trustee or
the Paying Agent, give the Trustee or such Paying Agent indemnification
reasonably satisfactory to it against any and all liability which may be
incurred by it by reason of such payment; and provided, further, that the
Trustee or such Paying Agent before being required to make any payment may cause
to be published at the request and expense of the Company once in a newspaper of
general circulation in the City of New York or mail to each Holder entitled to
such money at such Holder's address as set forth in the Security Register notice
that such money remains unclaimed and that after a date specified therein (which
shall be at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
SECTION 7.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 7.2, 7.3 or 7.4 of this
Indenture, as the case may be, by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 7.2, 7.3 or 7.4 of this
Indenture, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 7.2, 7.3 or 7.4 of this Indenture, as the case may be; provided
that, if the Company has made any payment of principal of or interest on any
Securities because of the reinstatement of
77
83
its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE VIII
AMENDMENTS AND SUPPLEMENTS
SECTION 8.1 Without Consent of Holders.
The Company and the Trustee may amend this Indenture or the Securities
or enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) without
notice to or the consent of any Securityholder for one or more of the following
purposes:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to comply with Article IV;
(c) to provide for uncertificated Securities in addition to
certificated Securities; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section
163(f) of the Internal Revenue Code of 1986, as amended, or in a
manner such that the uncertificated Securities are described in
Section 163(f)(2)(B) of the Code;
(d) to add additional guarantees with respect to the Securities
or to secure the Securities;
(e) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(f) to comply with the requirements of the SEC in connection with
qualification of the Indenture under the TIA;
(g) to make any change that does not adversely affect the rights
of any Securityholder; or
78
84
(h) to provide for the issuance of additional Securities under
this Indenture subject to the limitations set forth in Section 3.4
hereof.
After an amendment or supplement under this Section becomes effective,
the Company shall mail to Securityholders a notice briefly describing such
amendment or supplement. The failure to give such notice to all Securityholders,
or any defect therein, shall not impair or affect the validity of an amendment
or supplement under this Section.
SECTION 8.2 With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities with the written consent of the Holders of a majority in
principal amount of the Securities. However, without the consent of each
Securityholder affected, an amendment or supplement under this Section may not:
(a) reduce the amount of Securities the Holders of which must
consent to an amendment or supplement;
(b) reduce the rate of or change the time for payment of interest
on any Security;
(c) reduce the principal of or change the Stated Maturity of any
Security;
(d) provide that the Securities will be redeemable prior to
maturity;
(e) make any Security payable in currency or consideration other
than that stated in the Security;
(f) make any change in Section 5.4, Section 5.7 or this second
sentence of this Section 8.2.
It shall not be necessary for the consent of the Holders under this
Section 8.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
79
85
After an amendment or supplement under this Section becomes effective,
the Company shall mail to Securityholders a notice briefly describing such
amendment or supplement. The failure to give such notice to all Securityholders,
or any defect therein, shall not impair or affect the validity of an amendment
or supplement under this Section.
SECTION 8.3 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities
shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.
SECTION 8.4 Revocation and Effect of Consents.
Until an amendment or supplement under this Article or a waiver under
Article VI becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective.
After an amendment or supplement becomes effective, it shall bind
every Securityholder.
SECTION 8.5 Notation on or Exchange of Securities.
If an amendment changes the terms of a Security, the Trustee may
require the Holder of the Security to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security regarding the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to
make the appropriate notation or to issue a new Security shall not affect the
validity of such amendment.
SECTION 8.6 Trustee To Sign Amendments.
80
86
The Trustee shall sign any supplemental indenture which sets forth an
amendment or supplement authorized pursuant to this Article if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need not sign it. In
signing such supplemental indenture the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such supplemental
indenture is authorized or permitted by this Indenture and, with respect to an
amendment or supplement pursuant to Section 8.2, evidence of the consents of
Holders required in connection therewith.
SECTION 8.7 Fixing of Record Dates.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to take any action under this
Indenture by vote or consent. Except as provided herein, such record date shall
be the later of 30 days prior to the first solicitation of such consent or vote
or the date of the most recent list of Securityholders furnished to the Trustee
pursuant to Section 2.5 prior to such solicitation. If a record date is fixed,
those Persons who were Securityholders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such Persons continue to be Holders after such record date;
provided, however, that unless such vote or consent is obtained from the Holders
(or their duly designated proxies) of the requisite principal amount of
outstanding Securities prior to the date which is the 120th day after such
record date, any such vote or consent previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
ARTICLE IX
REDEMPTION
SECTION 9.1 Not Redeemable. The Securities are not redeemable prior to
maturity.
81
87
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of TIA Sections 310 to 317, inclusive, through
operation of TIA Section 318(c), such imposed duties shall control.
SECTION 10.2 Notices.
Any notice or communication shall be in writing and delivered in
person, or mailed by first-class mail (certified, return receipt requested),
addressed as follows:
if to the Company:
Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications. Any
notice to the Trustee under this Indenture shall be deemed given only when
received by the Trustee at the address specified in this Section 10.2.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to the Securityholder's address shown on the register kept by
the
82
88
Registrar. Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 10.3 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent (including any covenants compliance
with which constitutes a condition precedent), if any, provided for in
this Indenture relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel (which may rely upon an Officers' Certificate as to factual
matters), all such conditions precedent have been complied with.
SECTION 10.5 Statements Required in Certificate or Opinion.
83
89
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture other
than certificates provided pursuant to Section 3.9 shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 10.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.7 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York or the
State(s) in which the offices of the Trustee and the Paying Agent are located.
If a payment date is a Legal Holiday, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period. If a regular record date is a Legal Holiday, the
regular record date shall not be affected.
SECTION 10.8 Successors; No Recourse Against Others.
84
90
(a) All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
(b) All liability of the Company described in the Securities insofar
as it relates to any director, officer, employee or stockholder, as such, of the
Company is waived and released by each Securityholder.
SECTION 10.9 Duplicate Originals.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 10.10 Other Provisions.
The first certificate pursuant to Section 3.09 shall be for the fiscal
year ending on December 31, 1999.
The reporting date for Section 6.6 is April 15 of each year. The first
reporting date is April 15, 1999.
SECTION 10.11 Governing Law.
The laws of the State of New York govern this Indenture and the
Securities, without regard to the conflicts of laws rules thereof.
85
91
SIGNATURES
CALPINE CORPORATION
By______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By______________________________________
Name:
Title:
Dated: March __, 1999
86
92
EXHIBIT A
================================================================================
(Form of Face of Security)
THIS SECURITY IS ISSUED IN GLOBAL FORM AND REGISTERED IN THE NAME OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") OR A NOMINEE
THEREOF. UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM IN ACCORDANCE WITH THE TERMS HEREOF AND OF THE
INDENTURE (AS DEFINED BELOW), THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
93
CALPINE CORPORATION
___% SENIOR NOTE DUE 20__
No. ___ $_____________
CUSIP:
ISIN:
Calpine Corporation, a Delaware corporation, promises to pay to Cede &
Co., or registered assigns, the principal sum of ____________ Dollars on
___________, 20__.
Interest Payment Dates: __________ 1 and ___________ 1
Record Dates: ___________ 15 and ___________ 15
Additional provisions of this Security are set forth on the reverse
hereof.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Date:_____________
CALPINE CORPORATION
By______________________________________
Name:
Title:
By______________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION:
The Bank of New York, as
Trustee, certifies that
this is one of the Securities
referred to in the Indenture.
By: _________________________ Dated: _________________________________
Authorized Signature
A-2
94
(Form of Reverse of Security)
CALPINE CORPORATION
___% SENIOR NOTE DUE 20__
(1) Interest. Calpine Corporation, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture referred to
below, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at ___% per annum (shown above). The Company
will pay interest semiannually on __________ 1 and __________ 1 of each year.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from ___________, 1999.
Interest will be computed on the basis of a 360-day year consisting of twelve
30-day months.
(2) Method of Payment. The Company will pay interest on the Securities
(except Defaulted Interest) to the persons who are registered Holders of
Securities at the close of business on the record date next preceding the
interest payment date even though Securities are canceled after the record date
and on or before the interest payment date. Holders must surrender Securities to
a Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
principal and interest by check payable in such money. It may mail an interest
check to a Holder's registered address.
(3) Paying Agent, Registrar. Initially, The Bank of New York, a New
York banking corporation (the "Trustee"), will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-registrar
without notice. The Company may act as Paying Agent, Registrar or co-registrar.
(4) Indenture. The Company issued the Securities under an Indenture
dated as of March __, 1999 (the "Indenture") between the Company and the
Trustee. The Securities are unsecured general obligations of the Company and may
be issued in an unlimited principal amount. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"). Capitalized terms used herein but not defined herein are used as defined
in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
such terms.
(5) Redemption. The Company may not redeem the Securities prior to
maturity.
A-3
95
(6) Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any
Security or portion of a Security 15 days before an interest payment date.
(7) Put Provisions. Upon a Change of Control Triggering Event, any
Holder of Securities will have the right to cause the Company to repurchase all
or any part of the Securities of such Holder at a repurchase price equal to 101%
of the principal amount of the Securities to be repurchased plus accrued
interest to the date of repurchase as provided in, and subject to the terms of,
the Indenture.
(8) Defeasance. Subject to certain conditions, the Company at any time
may terminate some or all of its obligations under the Securities and the
Indenture if the Company deposits with the Trustee money and/or U.S. Government
Obligations for the payment of principal and interest on the Securities to
maturity.
(9) Persons Deemed Owners. The registered Holder of a Security may be
treated as its owner for all purposes, except that interest (other than
Defaulted Interest) will be paid to the person that was the registered Holder on
the relevant record date for such payment of interest.
(10) Amendments and Waivers. Subject to certain exceptions, (i) the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of a majority in principal amount of the Securities; and (ii) any
existing default may be waived with the consent of the Holders of a majority in
principal amount of the Securities. Without the consent of any Securityholder,
the Indenture or the Securities may be amended or supplemented to cure any
ambiguity, omission, defect or inconsistency, to provide for assumption of
Company obligations to Securityholders or to provide for uncertificated
Securities in addition to or in place of certificated Securities, to provide for
guarantees with respect to, or security for, the Securities, or to comply with
the TIA or to add additional covenants or surrender Company rights, or to make
any change that does not adversely affect the rights of any Securityholder.
(11) Remedies. If an Event of Default occurs and is continuing, the
Trustee or Holders of at least 25% in principal amount of the Securities may
declare all the Securities to be due and payable immediately. Securityholders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require an indemnity before it enforces the Indenture
or the Securities. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from
A-4
96
Securityholders notice of any continuing default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company must furnish an annual compliance certificate to the
Trustee.
(12) Trustee Dealings with Company. Subject to the provisions of the
TIA, the Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not Trustee. The Trustee will initially be The Bank of New York.
(13) No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
(14) Authentication. This Security shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.
(15) Abbreviations. Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities. No representation is made as to the accuracy of such
numbers as printed on the Securities and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE, WHICH HAS IN IT THE TEXT OF THIS
SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: SECRETARY, CALPINE
CORPORATION, 00 XXXX XXX XXXXXXXX XXXXXX, XXX XXXX, XXXXXXXXXX 00000.
A-5
97
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Insert assignee's soc. sec or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Dated:____________ Signed:
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
OPTION OF HOLDER TO ELECT PURCHASE FORM
If you wish to elect to have this Security purchased by the Company
pursuant to Section 3.8 or 3.12 of the Indenture, check this box: [ ]
If you wish to elect to have only part of this Security purchased by the
Company pursuant to Section 3.8 or 3.12 of the Indenture, state the amount: $
*As set forth in the Indenture, any purchase pursuant to Section 3.12 is
subject to proration in the event the offer is oversubscribed.
Dated:____________ Signed:
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program
A-6
98
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-7
