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EXHIBIT 4.8
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NRG ENERGY, INC.
and
THE BANK OF NEW YORK,
as Trustee
INDENTURE
Dated as of March 20, 2000
pound sterling 160,000,000
Reset Senior Notes Due March 15, 2020
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TABLE OF CONTENTS
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ARTICLE IDEFINITIONS
Section 1.1 Certain Terms Defined...........................................................................1
ARTICLE II ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
Section 2.1 Authentication and Delivery of Securities......................................................11
Section 2.2 Execution of Securities........................................................................11
Section 2.3 Certificate of Authentication..................................................................12
Section 2.4 Form, Denomination and Date of Securities......................................................12
Section 2.5 Mutilated, Defaced, Destroyed, Lost and Stolen Securities......................................13
Section 2.6 Cancellation of Securities; Destruction Thereof................................................14
Section 2.7 Transfer Agent and Paying Agent................................................................14
ARTICLE III TERMS OF THE SECURITIES
Section 3.1 Issue of Securities............................................................................14
Section 3.2 Interest through the Initial Reset Date........................................................15
Section 3.3 Conversion Event...............................................................................15
Section 3.4 Interest after Initial Reset Date..............................................................16
Section 3.5 Mandatory Tender...............................................................................17
Section 3.6 Redemption.....................................................................................18
ARTICLE IV COVENANTS OF THE ISSUER AND THE TRUSTEE
Section 4.1 Payment of Principal and Interest..............................................................19
Section 4.2 Offices for Payments, etc......................................................................20
Section 4.3 Appointment to Fill Vacancy in Office of Trustee...............................................20
Section 4.4 Paying Agents..................................................................................20
Section 4.5 Certificate to Trustee.........................................................................21
Section 4.6 Securityholder's Lists.........................................................................21
Section 4.7 Reports by the Issuer..........................................................................22
Section 4.8 Limitation on Liens............................................................................22
Section 4.9 Payment of Additional Amounts..................................................................22
Section 4.10 Repurchase of Securities Upon a Change of Control..............................................24
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
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ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default..........................26
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt..................................29
Section 5.3 Application of Proceeds........................................................................31
Section 5.4 Suits for Enforcement..........................................................................32
Section 5.5 Restoration of Rights on Abandonment of Proceedings............................................32
Section 5.6 Limitations of Suits by Securityholders........................................................32
Section 5.7 Powers and Remedies Cumulative, Delay or Omission Not Waiver of Default........................33
Section 5.8 Control by Securityholders.....................................................................33
Section 5.9 Waiver of Past Defaults........................................................................34
Section 5.10 Rights of Holders to Receive Payment...........................................................34
ARTICLE VI CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default...................34
Section 6.2 Certain Rights of the Trustee..................................................................35
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof................................................................37
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc.......................................37
Section 6.5 Moneys Held by Trustee.........................................................................37
Section 6.6 Compensation and Indemnification of Trustee and Its Prior Claim................................37
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc.........................................38
Section 6.8 Persons Eligible for Appointment as Trustee....................................................38
Section 6.9 Resignation and Removal; Appointment of Successor Trustee......................................38
Section 6.10 Acceptance of Appointment by Successor Trustee.................................................39
Section 6.11 Merger, Conversion, Consolidation or Succession to Business of Trustee.........................40
ARTICLE VII CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders....................................................41
Section 7.2 Proof of Execution of Instruments and of Holding of Securities Record Date.....................41
Section 7.3 Holders to Be Treated as Owners................................................................41
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding..............................................42
Section 7.5 Right of Revocation of Action Taken............................................................42
ARTICLE VIII SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders.....................................43
Section 8.2 Supplemental Indentures With Consent of Securityholders........................................44
Section 8.3 Effect of Supplemental Indenture...............................................................45
Section 8.4 Documents to Be Given to Trustee...............................................................45
Section 8.5 Notation of Securities in Respect of Supplemental Indentures...................................45
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE
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Section 9.1 Covenant Not to Merge, Consolidate, Sell or Transfer Assets Except Under Certain
Conditions.....................................................................................46
Section 9.2 Successor Corporation Substituted..............................................................47
Section 9.3 Opinion of Counsel to Trustee; Officers' Certificate...........................................47
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture........................................................48
Section 10.2 Application by Trustee of Funds Deposited for Payment of Securities............................49
Section 10.3 Repayment of Moneys Held by Paying Agent.......................................................49
Section 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years..................................................................................49
Section 10.5 Defeasance and Discharge of Indenture..........................................................49
Section 10.6 Defeasance of Certain Obligations..............................................................51
ARTICLE XI MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Shareholders, Officers and Directors of Issuer Exempt from
Individual Liability...........................................................................52
Section 11.2 Provisions of the Indenture for the Sole Benefit of Parties
and Securityholders............................................................................52
Section 11.3 Successors and Assigns of Issuer Bound by Indenture............................................53
Section 11.4 Notices and Demands on Issuer, Trustee and Securityholders.....................................53
Section 11.5 Rule 144A Information..........................................................................54
Section 11.6 Officers' Certificates and Opinions of Counsel, Statements to Be Contained Therein.............54
Section 11.7 Payments Due on Saturdays, Sundays and Holidays................................................55
Section 11.8 New York Law to Govern.........................................................................55
Section 11.9 Consent to Jurisdiction........................................................................56
Section 11.10 Counterparts...................................................................................56
Section 11.11 Effect of Headings.............................................................................56
Exhibit A.......................................................................................................A-1
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INDENTURE, dated as of March 20, 2000, between NRG ENERGY,
INC., a Delaware corporation (herein called the "Issuer"), and THE BANK OF NEW
YORK, a New York banking corporation, as trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issuance of
pound sterling 160,000,000 aggregate principal amount of its Reset Senior Notes
Due March 15, 2020 (the "Securities") and, to provide, among other things, for
the authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make the Securities, when
executed by the Issuer and authenticated and delivered by the Trustee as in this
Indenture provided, the valid, binding and legal obligations of the Issuer, and
to constitute these presents a valid indenture and agreement according to its
terms, have been done and performed;
NOW, THEREFORE, in consideration of the premises and of the
acceptance and purchase of the Securities by the Holders (as defined herein)
thereof, the Issuer and the Trustee mutually covenant and agree for the equal
and proportionate benefit of the respective Holders from time to time of the
Securities as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Certain Terms Defined.
The following terms (except as otherwise expressly provided)
for all purposes of this Indenture shall have the respective meanings specified
in this Section 1.1. All accounting terms used herein and not expressly defined
shall have the meanings given to them in accordance with GAAP (as defined
herein). The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article include the
plural as well as the singular.
"Additional Amounts" has the meaning specified in Section 4.9.
"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 specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling", and "controlled" have meanings correlative to the
foregoing.
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"Authenticating Agent" means any Person authorized to
authenticate and deliver Securities on behalf of the Trustee pursuant to Section
2.1.
"Bearer Security" means any Security that is payable to
bearer.
"Board of Directors" means the Board of Directors of the
Issuer.
"Board Resolution" means a copy of a resolution certified by a
Director of the Issuer to have been duly adopted by the Board of Directors or
any committee of such Board duly authorized to act on behalf of such Board, and
to be in full force and effect on the date of such certification.
"Business Day" means each day that is not a Saturday, Sunday
or a day on which banking institutions and foreign exchange markets in New York
City or London, or in any place of payment of the Securities, are authorized or
obligated by law to remain closed.
"Callholder" means Bank of America, N.A., as holder of the
call option under the Call Option Agreement.
"Call Option Agreement" means the confirmation, dated March
20, 2000, between the Pass-Through Trustee and the Callholder, pursuant to the
ISDA Master Agreement, providing a call option to the Callholder.
"Certificate Change of Control Offer" means a "Change of
Control Offer" as defined in Section 3.4 of the Trust Agreement.
"Certificates" means the 8.70% Remarketable or Redeemable
Securities ("ROARS") Due March 15, 2005 issued by the NRG Energy Pass-Through
Trust 2000-1 and authorized by, and authenticated and delivered under, the Trust
Agreement.
"Certificate Repurchase Date" shall be the repurchase date of
the Certificates pursuant to a Change of Control Offer, as set forth in the
Trust Agreement.
"Change of Control" means the occurrence of one or more of the
following events: (i) NSP (or its successors) shall cease to own a majority of
the outstanding Voting Stock of the Issuer, (ii) at any time following the
occurrence of the event described in clause (i), a Person or group (as that term
is used in Section 13(d)(3) of the Exchange Act) of Persons (other than NSP)
shall have become the beneficial owner directly or indirectly, or shall have
acquired the absolute power to direct the vote, of more than 35% of the
outstanding Voting Stock of the Issuer or (iii) during any twelve-month period,
individuals who at the beginning of such period constitute the Board of
Directors (together with any new directors whose election or nomination was
approved by a majority of the directors then in office who were either directors
at the beginning of such period or who were previously so approved) shall cease
for any reason to con-
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stitute a majority of the Board of Directors. Notwithstanding the foregoing, a
Change of Control shall be deemed not to have occurred if one or more of the
above events occurs or circumstances exist and, after giving effect thereto, the
Securities are rated Investment Grade. For purposes of clause (i), NSP's
"successors" shall be deemed to include NSP, as the "surviving corporation," as
that term is used in the Agreement and Plan of Merger, dated as of March 24,
1999, by and between NSP and New Century Energies, Inc., if the merger
contemplated by such agreement is consummated substantially in accordance with
the terms specified therein.
"Change of Control Offer" has the meaning set forth in Section
4.10(b).
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it, then the body performing
such duties at such time.
"Consolidated Current Liabilities" mean such liabilities of
the Issuer on a consolidated basis as shall be determined in accordance with
GAAP to constitute current liabilities.
"Consolidated Net Tangible Assets" means, as of the date of
determination thereof, the total amount of all Issuer's assets determined on a
consolidated basis in accordance with GAAP as of such date less the sum of (a)
Consolidated Current Liabilities and (b) Intangible Assets.
"Conversion Event" means the occurrence of an Event of Default
at any time prior to (but excluding) the Initial Reset Date, that results in the
outstanding principal amount of the Securities being due and payable
immediately.
"Corporate Trust Office" means the principal office of the
Trustee in The City of New York, at which at any particular time its corporate
trust business shall be administered, which at the date hereof is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
"Currency Swap" means the Currency Swap Agreement between the
Swap Counterparty and the Pass-Through Trustee, pursuant to an ISDA Master
Agreement between such parties dated March 20, 2000.
"discharged" means, with respect to the Securities, the
discharge of the entire indebtedness represented by, and all obligations of the
Issuer under, the Securities and the satisfaction of all the obligations of the
Issuer under this Indenture relating to the Securities, except (A) the rights of
Holders of the Securities to receive, from the trust fund described in Section
10.1 hereof, payment of the principal of, and premium, if any, and interest, if
any, on the Securities when such payments are due, (B) the Issuer's obligations
with respect to the Securities
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with respect to registration, transfer, exchange and maintenance of a place of
payment and (C) the rights, powers, trusts, duties, protections and immunities
of the Trustee under this Indenture.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debt in the United States.
"Dollar Swap Payment" means a semi-annual Dollar payment made
by the Swap Counterparty to the Pass-Through Trustee on behalf of the holders of
Certificates which is calculated at an annual interest rate of 8.70% on the
basis of a 360-day year consisting of twelve months of 30-days each due on the
lesser of $250,000,000 aggregate notional amount or a notional amount equal to
the outstanding principal amount of the Certificates following a partial
repurchase pursuant to a Certificate Change of Control Offer.
"DTC" means The Depository Trust Company (or a nominee
thereof) or its successors.
"Event of Default" means any event or condition specified as
such in Section 5.1 hereof that shall have continued for the period of time, if
any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Final Reset Date" means March 15, 2006, unless such date is
not a Business Day, in which case the next succeeding day that is a Business
Day.
"Fixed Rate Determination Date" means the 5th Business Day
prior to the Fixed Rate Reset Date.
"Fixed Rate Reset Date" means the Reset Date corresponding to
the Floating Rate Period Termination Date or the Initial Reset Date, as
applicable.
"Floating Period Interest Rate" means, with respect to any
Floating Rate Reset Period, the per annum interest rate with respect to the
Securities for such Floating Rate Reset Period determined by the Remarketing
Agent in accordance with the Remarketing Agreement.
"Floating Rate Option" means the right of the Issuer to, at
its option, reset the interest rate on the Securities on any Reset Date to the
Floating Period Interest Rate for each Floating Rate Reset Period.
"Floating Rate Period" means the period from and including the
Initial Reset Date to but excluding the Floating Rate Period Termination Date.
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"Floating Rate Period Termination Date" means the Final Reset
Date or an earlier Reset Date if the Issuer elects to earlier terminate the
Floating Rate Period, provided that the Issuer gives notice of such election to
the Trustee and the Remarketing Agent no later than the 12th Business Day prior
to such earlier Reset Date in accordance with the Remarketing Agreement.
"Floating Rate Purchase Price" means the purchase price to be
paid for the Securities as determined on the on the Floating Rate Spread
Determination Date, which shall be equal to (i) the principal amount of the
Securities plus (ii) the Senior Note Premium.
"Floating Rate Reset Period" means the period from and
including the Initial Reset Date to but excluding the next succeeding Reset Date
and thereafter the period from and including such next succeeding Reset Date to
but excluding the next succeeding Reset Date; provided, however, that the final
Floating Rate Reset Period shall extend to but exclude the Floating Rate Period
Termination Date.
"Floating Rate Spread Determination Date" means the 5th
Business Day prior to the Initial Reset Date.
"GAAP" means generally accepted accounting principles in the
U.S. applied on a basis consistent with the principles, methods, procedures and
practices employed in the preparation of the Issuer's audited financial
statements, 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 or in such other statements by such other entity as
approved by a significant segment of the accounting profession.
"Gross-Up Taxes" has the meaning set forth in Section 4.9.
"Holder," "Holder of Securities," "Securityholder" and other
similar terms mean the registered holder of any Security.
"Indebtedness" has the meaning set forth in Section 4.8.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented.
"Initial Reset Date" means March 15, 2005 (unless such date is
not a Business Day, in which case the next succeeding day that is a Business
Day).
"Intangible Assets" means, as of the date of determination
thereof, all assets of the Issuer properly classified as intangible assets as
determined on a consolidated basis in accordance with GAAP.
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"Interest Accrual Period" means the period from and including
the preceding Interest Payment Date (or, in the case of the first such period,
from and including the date of initial issuance of the Securities) to but
excluding the current Interest Payment Date.
"Interest Amount" has the meaning set forth in Section 3.2(c).
"Interest Payment Date" means, in the case of interest
accruing on the Securities (i) during the period from and including the date of
initial issuance of the Securities to but excluding the Initial Reset Date, each
March 15 and September 15 in such period and the Initial Reset Date (unless any
such date is not a Business Day and a Conversion Event has not occurred, in
which case the next succeeding day that is a Business Day), (ii) during the
period from and including the Fixed Rate Reset Date to but excluding the final
maturity of the Securities, each March 15 and September 15 and (iii) during each
Floating Rate Reset Period in the Floating Rate Period, the Reset Date next
succeeding such Floating Rate Reset Period.
"Interest Rate to Maturity" means the per annum interest rate
with respect to the Securities from and including the Fixed Rate Reset Date to
but excluding the final maturity of the Securities equal to the rate determined
by the Remarketing Agent pursuant to the Remarketing Agreement that would
amortize the Senior Note Premium on the basis set forth in the Remarketing
Agreement.
"Investment Banker" means an independent investment banking
institution of national standing selected by the Issuer.
"Investment Grade" means, with respect to the Securities, a
rating of Baa3 or higher by Xxxxx'x Investors Service, Inc., and a rating of
BBB- or higher by Standard and Poor's Ratings Group (or, if either or both of
the foregoing rating agencies cease to rate the Securities for reasons beyond
the control of the Issuer, equivalent ratings by one or two (as the case may be)
other nationally recognized statistical rating organizations (as such term is
defined in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act)); provided that if
either of the foregoing rating agencies shall change its ratings designations
while the Securities are Outstanding, "Investment Grade" shall mean the lowest
ratings designation signifying "investment grade" issued by such agency (or
higher).
"ISDA Master Agreement" means the ISDA Master Agreement dated
as of March 7, 2000 between Bank of America, N.A. and the Pass-Through Trustee,
as supplemented and amended by the schedule thereto.
"Issuer" means NRG Energy, Inc., a Delaware corporation, and,
subject to Article 9 hereof, its successors and assigns.
"NSP" means Northern States Power Company, a Minnesota
corporation.
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"Officers' Certificate" means a certificate signed on behalf
of the Issuer by the Chairman of the Board of Directors or any committee of such
Board duly authorized to act on behalf of such Board or the President, or any
Vice President and by the Chief Financial Officer or the Secretary or any
Assistant Secretary or the Treasurer or any Assistant Treasurer of the Issuer
and delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 11.6 hereof, if and to the extent required thereby.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel satisfactory to the Trustee, who may be an employee of or counsel
to the Issuer. Each such opinion shall include the statements provided for in
Section 11.6 hereof, if and to the extent required thereby.
"Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 7.4 hereof, mean, as of any particular
time, all Securities authenticated and delivered by the Trustee under this
Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation, or which shall have been
paid pursuant to Section 2.7 hereof (other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands the Securities are valid obligations of the
Issuer); and
(2) Securities, or portions thereof, for the payment
or redemption of which moneys or direct obligations of the United
States of America backed by its full faith and credit in the necessary
amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer (if the Issuer shall act as
its own paying agent), provided that if such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption
shall have been given as herein provided, or provision satisfactory to
the Trustee shall have been made for giving such notice.
"Pass-Through Trustee" means The Bank of New York, as trustee
of the NRG Energy Pass-Through Trust 2000-1.
"Paying Agent" means any Person authorized by the Issuer to
pay the principal of, or premium, if any, or interest on, any Securities on
behalf of the Issuer hereunder, including, without limitation, the Principal
Paying Agent.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
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"Pounds Sterling" means such currency of the United Kingdom as
at the time of payment is legal tender for the payment of public and private
debts.
"Principal Paying Agent" means The Bank of New York until a
successor Principal Paying Agent shall have become such pursuant to the
applicable provisions of this Indenture and, thereafter, "Principal Paying
Agent" shall mean such successor Principal Paying Agent.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which such Security is to be redeemed pursuant
to this Indenture, exclusive of accrued and unpaid interest.
"Regulation S" means Regulation S under the Securities Act, as
such Regulation may be amended from time to time, or under any similar rules or
regulations hereafter adopted by the Commission.
"Relevant Date" for any payment to be made with respect to the
Securities of any series means whichever is the later of (i) the date on which
the relevant payment first becomes due and (ii) if the full amount payable has
not been received in The City of New York by the Trustee on or prior to such due
date, the date on which, the full amount payable having been so received, notice
to that effect shall have been given to the Holders in accordance with this
Indenture.
"Remarketing Agreement" means the Remarketing Agreement dated
as of March 20, 2000 between the Issuer and the Remarketing Agent.
"Remarketing Agent" means Banc of America Securities LLC or
any affiliate thereof or its successor or assigns.
"Reset Date" means, as applicable, any of the Initial Reset
Date and, as applicable, June 15, 2005, September 15, 2005, December 15, 2005 or
March 15, 2006 (unless any such date is not a Business Day, in which case the
next succeeding day that is a Business Day).
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or under any similar rules or regulation
hereafter adopted by the Commission.
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"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" has the meaning set forth in the
recitals above.
"Senior Note Premium" means the "Note Premium" on the
Securities as that term is defined in the Remarketing Agreement and as
determined by Remarketing Agent pursuant to the Remarketing Agreement.
"Senior Note Repurchase Date" has the meaning set forth in
Section 4.10(b).
"Stated Maturity" means, with respect to any Security or any
installment of interest thereon, the date specified as the fixed date on which
any principal or any such installment of interest is due and payable.
"Sterling Swap Payment" means a semi-annual payment to be made
by the Pass-Through Trustee to the Swap Counterparty which is calculated to
equal the Pound Sterling semi-annual interest payment required to be made by the
Company on the Securities.
"Swap Counterparty" means Bank of America, N.A., or its
successors.
"Swap Termination Event" means the termination of the Currency
Swap in accordance with its terms on March 15, 2005 (or, if such day is not a
Business Day, the next succeeding Business Day), unless earlier terminated as a
result of (a) the failure for 30 days by the Pass-Through Trustee to make a
Sterling Swap Payment thereunder, (b) the failure by the Swap Counterparty to
make a Dollar Swap Payment thereunder if such failure is not remedied on or
before the third Business Day after notice of such failure is given by the
Pass-Through Trustee to the Swap Counterparty, (c) the occurrence of a
Conversion Event, (d) the occurrence of a redemption of the Securities as a
result of an Optional Tax Redemption, (e) the occurrence of a repurchase of 100%
of the Securities as a result of a Change of Control, (f) the commencement of
insolvency, conservatorship or receivership in respect of the Trust or (g)
certain other events as described in the Currency Swap.
"Taxing Jurisdiction" means the jurisdiction (or any political
subdivision or taxing authority thereof) under the laws of which the Issuer is
incorporated or in which the Issuer is managed and controlled or has a place of
business.
"Trust Agreement" means the Trust Agreement, dated as of March
20, 2000, between the Issuer and The Bank of New York, as trustee.
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"Trustee" means the entity identified as "Trustee" in the
first paragraph hereof until the appointment of a successor trustee pursuant to
Article 6, after which "Trustee" shall mean such successor trustee.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"U.S. Government Obligations" means securities that are (i)
direct and unconditional 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
and which, in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company subject to federal or state supervision or examination with a
combined capital and surplus of at least $100,000,000, as custodian with respect
to any such U.S. Government Obligations or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"Voting Stock" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the election
of directors (or persons fulfilling similar responsibilities) of such Person.
"1996 Senior Notes" means $125,000,000 aggregate principal
amount of 7.625% Securities Due 2006 of the Issuer, issued pursuant to an
Indenture dated as of January 31, 1996, between the Issuer and Norwest Bank
Minnesota, National Association.
"1997 Senior Notes" means $250,000,000 principal amount of 7
1/2% Senior Notes Due 2007 of the Issuer, issued pursuant to an Indenture dated
as of June 1, 1997, between the Issuer and Norwest Bank Minnesota, National
Association.
"1999 Senior Notes" means $300,000,000 principal amount of 7
1/2 % Senior Notes Due 2009 of the Issuer, issued pursuant to an Indenture dated
as of May 25, 1999, between the Issuer and Norwest Bank Minnesota, National
Association.
"1999 ROARS" means $240,000,000 principal amount of 8%
Remarketable or Redeemable Securities (ROARS(SM)) due 2013 of the Issuer, issued
pursuant to an Indenture dated as of November 8, 1999, between the Issuer and
Norwest Bank Minnesota, National Association.
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ARTICLE 2
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
Section 2.1 Authentication and Delivery of Securities.
Upon the execution and delivery of this Indenture, or from
time to time thereafter, Securities in an aggregate principal amount not in
excess of pound sterling 160,000,000 (except as otherwise provided in Section
2.5 hereof) may be executed by the Issuer and delivered to the Trustee for
authentication, and the Trustee or the Authentication Agent shall thereupon
authenticate and deliver said Securities to or upon the written order of the
Issuer, signed by both (a) its Chairman of the Board of Directors or any
committee of such Board duly authorized to act on behalf of such Board, or any
Vice Chairman of the Board of Directors or any committee of such Board duly
authorized to act on behalf of such Board, or its President or any Vice
President and (b) by its Chief Financial Officer, or its Secretary or any
Assistant Secretary, or its Treasurer or any Assistant Treasurer without any
further action by the Issuer. The Securities shall be direct, unconditional
obligations of the Issuer and shall rank pari passu without preference among
themselves and equally in priority of payment with all other present and future
unsubordinated, unsecured indebtedness of the Issuer.
Section .1 Execution of Securities.
The Securities shall be signed on behalf of the Issuer by both
(a) its Chairman of the Board of Directors or any committee of such Board duly
authorized to act on behalf of such Board, or any Vice Chairman of the Board of
Directors or any committee of such Board duly authorized to act on behalf of
such Board, or its President or any Vice President and (b) by its Chief
Financial Officer or its Secretary or its Assistant Secretary or its Treasurer
or any Assistant Treasurer, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Security had not ceased to be
such officer of the Issuer; and any Security may be signed on behalf of the
Issuer by such Persons as, at the actual date of the execution of such Security,
shall be the proper officers of the Issuer, although at the date of the
execution and delivery of this Indenture any such Person was not such officer.
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Section .2 Certificate of Authentication.
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form recited in the form of Security
attached as Exhibit A hereto, executed by the Trustee or the Authenticating
Agent by manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee or the Authenticating Agent upon any
Security executed by the Issuer shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the Holder is entitled to the benefits of this Indenture.
Section 2.2 Form, Denomination and Date of Securities.
(1) The Securities and the Trustee's certificate of
authentication shall be substantially in the form set forth in the form of
Security attached as Exhibit A hereto, the terms of which are herein
incorporated by reference and which are part of this Indenture. The Securities
shall be numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plans as the officers of the Issuer executing the same may
determine with the approval of the Trustee. Any of the Securities may be issued
with appropriate insertions, omissions, substitutions and variations and may
have imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with the
rules of any securities market in which the Securities are admitted to trading,
or to conform to general usage.
(2) The Issuer shall execute and the Trustee shall
authenticate and deliver the Securities pursuant to a Company Order.
(3) Each Security shall be dated the date of its
authentication and shall bear interest from the applicable date at a rate
specified on the face thereof, which interest shall be payable on the dates
specified on the face thereof.
(4) The Person in whose name any Security is registered at the
close of business on the record date specified in the Securities with respect to
any Interest Payment Date shall be entitled to receive the interest, if any,
payable on such Interest Payment Date notwithstanding any transfer or exchange
of such Security subsequent to the record date and prior to such Interest
Payment Date, except if and to the extent the Issuer shall default in the
payment of the interest due on such Interest Payment Date, in which case such
defaulted interest shall be paid to the Persons in whose names Outstanding
Securities are registered at the close of business on a subsequent special
record date, to be established (together with the related payment date) by the
Issuer with the consent of the Trustee. Such special record date shall not be
more than 15 nor less than 10 Business Days prior to the payment date. Not more
than 15 days prior to the special record date, the Issuer (or the Trustee, in
the name of and at the expense of the Issuer) shall mail to Holders a notice
that states the special record date, the related payment date and the amount of
interest to be paid. Notice of the proposed payment of such defaulted interest
and the special
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record date therefor having been mailed as aforesaid, such defaulted interest
shall be paid to the Persons in whose names the Securities are registered on
such special record date.
(5) The Securities shall be issuable in the denominations
specified in the form of Security attached as Exhibit A hereto.
Section 2.3 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities.
In case any temporary or definitive Security shall become
mutilated or defaced or be apparently destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and substitution for the Security
so apparently destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
apparent destruction, loss or theft of such Security and of the ownership
thereof.
Upon the issuance of a substitute Security, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith. In case any Security
which has matured or is about to mature, or has been called for redemption in
full, shall become mutilated or defaced or be apparently destroyed, lost or
stolen, the Issuer may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to save each of
them harmless from all risks, however remote, and, in every case of apparent
destruction, loss or theft, the applicant shall also furnish to the Issuer and
the Trustee and any agent of the Issuer or the Trustee evidence to their
satisfaction of the apparent destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security issued pursuant to the provisions of
this Section by virtue of the fact that any Security is apparently destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Issuer, whether or not the apparently destroyed, lost or stolen Security shall
be at any time enforceable by anyone and shall be entitled to all the benefits
of (but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, or apparently destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the
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contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
Section 2.4 Cancellation of Securities; Destruction Thereof.
All Securities surrendered for payment, redemption,
registration of transfer or exchange, if surrendered to the Issuer or any agent
of the Issuer or the Trustee, shall be delivered to the Trustee for cancellation
or, if surrendered to the Trustee, shall be canceled by it, provided all
conditions regarding such cancellation have been met; and no Securities shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall cancel and dispose of all Securities
surrendered for registration of transfer, exchange, payment or cancellation in
accordance with the Trustee's policy of disposal. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
Section 2.5 Transfer Agent and Paying Agent.
The Issuer shall enter into an appropriate appointment letter
with any Registrar, Transfer Agent or Paying Agent not a party to this
Indenture, which shall implement the provisions of this Indenture that relate to
such Person. The Issuer shall notify the Trustee of the name and address of any
such Person. If the Issuer 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 6.6. The Issuer initially appoints the Trustee as
Registrar, Transfer Agent and Principal Paying Agent in The City of New York.
ARTICLE 3
TERMS OF THE SECURITIES
Section 3.1 Issue of Securities.
(1) On or after the Initial Reset Date, the Securities shall
be issuable in minimum denominations of pound sterling 10,000 and integral
multiples of pound sterling 1,000 in excess thereof.
(2) The Securities shall have a final maturity date of March
15, 2020.
(3) The record date for the Securities shall be 15 calendar
days immediately prior to each Interest Payment Date.
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Section 3.2 Interest through the Initial Reset Date.
(1) The per annum interest rate on the Securities for each
Interest Accrual Period through the Initial Reset Date will be 7.97% and shall
be payable in Pounds Sterling; provided, however, that, upon the occurrence of a
Conversion Event, the provisions of Section 3.3 shall become effective.
(2) Interest on the Securities through the Initial Reset Date
will be payable semi-annually on each Interest Payment Date, commencing on the
Interest Payment Date next succeeding the date of initial issuance of the
Securities; provided, however, that, if any such Interest Payment Date is not a
Business Day and a Conversion Event has not occurred, then payment of interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay).
(3) The amount payable in respect of interest on the principal
amount of the Securities (the "Interest Amount") outstanding at the end of the
relevant Interest Accrual Period shall be determined on the basis of a 360-day
year of twelve 30-day months; provided however, that in the event of a Swap
Termination Event, other than a Swap Termination Event caused by a Conversion
Event, an Optional Tax Redemption, or the repurchase of 100% of the Securities
pursuant to a Change of Control, the Interest Amount shall be determined by (i)
applying the rate of interest to the principal amount of the outstanding
Securities and (ii) multiplying that amount by the actual number of days in such
Interest Accrual Period divided by 365 (or if such Interest Accrual Period ends
after February 28 in a leap year, 366) expressed as a decimal and rounded upward
if necessary to the nearest 1/16th of 1%.
Section 3.3 Conversion Event.
(1) Upon the occurrence of a Conversion Event, then
automatically (i) the aggregate principal amount of the outstanding Securities
shall convert to $250,000,000 or whatever lesser amount of the Certificates is
then outstanding, effective from the date of the immediately preceding Interest
Payment Date prior to the occurrence of such Conversion Event and (ii) the
interest rate on the outstanding Securities shall convert to 8.70% per annum
effective from the date of the immediately preceding Interest Payment Date prior
to the occurrence of such Conversion Event, and such interest rate shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
(2) Upon the occurrence of a Conversion Event, the Trustee
shall provide notice by first class mail within 15 calendar days after the
occurrence of such Conversion Event (or if the declaration of acceleration
relating to such Conversion Event shall have been given by Holders of the
Securities, after the date on which the Trustee shall receive notice of such
acceleration) providing the information set forth in this Section 3.3 to any
securities exchange on which the Securities may then be listed and to the
Holders of the Securities.
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Section 3.4 Interest after Initial Reset Date.
(1) Interest Rate to Maturity.
(1) The interest rate in effect with respect to
the Securities immediately prior to the Initial Reset Date shall be reset on the
Initial Reset Date to equal the Interest Rate to Maturity, as determined by the
Remarketing Agent in accordance with the procedures established in the
Remarketing Agreement and subject to Section 3.6, and shall be effective from
and including the Initial Reset Date to but excluding the final maturity of the
Securities, unless the Issuer shall exercise the Floating Rate Option in
accordance with paragraph (b) of this Section 3.4. If the Issuer shall have
exercised the Floating Rate Option, then the Floating Period Interest Rate shall
be reset in accordance with the Remarketing Agreement on the Reset Date
corresponding to the Floating Rate Period Termination Date to equal the Interest
Rate to Maturity, which interest rate shall be effective from and including such
Reset Date to but excluding the final maturity of the Securities.
(2) During the period from and including the Fixed
Rate Reset Date to but excluding the final maturity of the Securities, interest
on the Securities shall accrue on the principal amount of the Securities at the
Interest Rate to Maturity and shall be payable semi-annually on each Interest
Payment Date, commencing with the first such Interest Payment Date following the
Fixed Rate Reset Date; provided, however, that, if any such Interest Payment
Date is not a Business Day, then payment of interest payable on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay). Interest on the
Securities from the Fixed Rate Reset Date shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
(2) Floating Rate Period.
(1) In accordance with procedures established in
the Remarketing Agreement and subject to Section 3.6, if the Issuer exercises
the Floating Rate Option no later than the 5th Business Day prior to the
Floating Rate Spread Determination Date by providing notice to the Trustee and
Remarketing Agent, then the Securities shall bear interest at the Floating
Period Interest Rate for each Floating Rate Reset Period in the Floating Rate
Period.
(2) During each Floating Rate Reset Period in the
Floating Rate Period, interest on the Securities shall accrue on the principal
amount of the Securities at the Floating Period Interest Rate for such Floating
Rate Period and shall be payable quarterly on each Interest Payment Date,
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commencing with the first such Interest Payment Date following the Initial Reset
Date. The Interest Amount for such Floating Rate Reset Period shall be
determined by (A) applying the Floating Period Interest Rate for such Floating
Rate Reset Period to the Floating Rate Purchase Price and (B) multiplying that
amount by the actual number of days in such Floating Rate Reset Period divided
by 365 (or, if such Floating Rate Reset Period ends after February 28 in a leap
year, 366) expressed as a decimal and rounded upward if necessary to the nearest
1/16th of 1%.
(3) Notice.
Subject to Section 3.6, the Remarketing Agent shall notify the
Issuer and the Trustee by telephone, confirmed in writing (which may include
facsimile or other electronic transmission) by 4:00 p.m. (London time), (i) on
the Fixed Rate Determination Date of the Interest Rate to Maturity, which shall
be effective from and including the Fixed Rate Reset Date and (ii) on each Reset
Date, if the Company elects the Floating Rate Option, of the Floating Period
Interest Rate for the Floating Rate Reset Period beginning on such Reset Date,
which shall be effective from and including such Reset Date. Any such
notification by the Remarketing Agent, absent manifest error, shall be binding
and conclusive upon the holders of beneficial interests in the Securities, the
Issuer and the Trustee.
Section 3.5 Mandatory Tender.
(1) Subject to 3.6(c), if the Callholder shall have
purchased the Securities pursuant to the Call Option Agreement and the Issuer
shall have elected the Floating Rate Option, the Securities shall be
automatically tendered, or deemed tendered, by the Holders thereof to the
Remarketing Agent for purchase on the Floating Rate Period Termination Date. On
the Reset Date corresponding to the Floating Rate Period Termination Date, the
interest rate on the Securities shall be reset to equal the Interest Rate to
Maturity in accordance with, and the Securities shall be remarketed pursuant to,
the Remarketing Agreement.
(2) The purchase price for the Securities tendered
pursuant to paragraph (a) of this Section 3.5 shall equal 100% of the Floating
Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but
excluding the Floating Rate Period Termination Date. If for any reason the
Remarketing Agent does not purchase all of the Securities on the Floating Rate
Period Termination Date, the Issuer shall redeem the Securities on the Floating
Rate Period Termination Date at a redemption price equal to 100% of the Floating
Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but
excluding the Floating Rate Period Termination Date. If the Remarketing Agent
elects to purchase the Securities, such obligation of the Remarketing Agent is
subject to the conditions set forth in the Remarketing Agreement.
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Section 3.6 Redemption.
(1) Early Redemption Right of Holder.
(1) In the event that the Callholder (A) has not given
notice on or before February 15, 2005 of its intention to exercise the call
option under the Call Option Agreement or (B) fails to pay on or before the
Business Day next preceding the Initial Reset Date the call price required under
the Call Option Agreement, the Issuer shall redeem the Securities on the Initial
Reset Date, in whole but not in part, at a price equal to 100% of the aggregate
principal amount of the Securities plus accrued and unpaid interest thereon to
but excluding the Initial Reset Date, upon written notice by 5:00 p.m. (London
time) on the Business Day next preceding the Initial Reset Date from the
Trustee, as holder of the Securities.
(2) Any written notice given by the Trustee, as holder
of the Securities, pursuant to paragraph (i) of this Section 3.6(a) shall be
irrevocable; provided, however, that if prior to the Initial Reset Date an Event
of Default shall have occurred and be continuing, such holder, at its option,
may elect by written notice to the Issuer, to withdraw the instructions given
pursuant to paragraph (i) of this Section 3.6(a) and instead declare the
Securities to be due and payable pursuant to Section 5.1.
(2) Mandatory Redemption.
If the Callholder shall have purchased the Securities
pursuant to the Call Option Agreement and the Issuer shall have elected the
Floating Rate Option, the Issuer shall be required to redeem the outstanding
Securities, in whole but not in part, on any Reset Date following the Initial
Reset Date at a redemption price equal to the Floating Rate Purchase Price plus
accrued and unpaid interest, if any, thereon to but excluding such Reset Date in
the event that (i) the Remarketing Agent for any reason does not notify the
Issuer of the Floating Period Interest Rate for the Floating Rate Reset Period
beginning on such Reset Date by 4:00 p.m. (London time) on such Reset Date or of
the Interest Rate to Maturity by 4:00 p.m., (London time) on the Fixed Rate
Determination Date, as applicable, (ii) prior to any such Reset Date, the
Remarketing Agent resigns and no successor has been appointed on or before such
Reset Date or Fixed Rate Determination Date, as applicable, (iii) the
Remarketing Agent elects to terminate the Remarketing Agreement in accordance
with its terms, (iv) the Remarketing Agent for any reason does not elect (by
notice to the Issuer and the Trustee not later than the Fixed Rate Determination
Date) to purchase the Securities for remarketing on the Floating Rate Period
Termination Date or (v) the Remarketing Agent for any reason does not deliver
the purchase price of the Securities to or through DTC on or before the Floating
Rate Period Termination Date as provided in the Remarketing Agreement.
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(3) Optional Redemption.
If the Callholder shall have purchased the Securities
pursuant to the Call Option Agreement and the Issuer shall have elected the
Floating Rate Option, the Issuer shall notify the Callholder, the Remarketing
Agent and the Trustee, not later than the Business Day immediately preceding the
Floating Rate Period Termination Date, if the Issuer irrevocably elects to
exercise its right to redeem the Securities, in whole but not in part, from the
Remarketing Agent on the Floating Rate Period Termination Date. If the Issuer
elects to redeem the Securities, the Issuer shall redeem the Securities in whole
at a redemption price equal to the Floating Rate Purchase Price plus accrued and
unpaid interest, if any thereon to but excluding the Floating Rate Period
Termination Date.
(4) Optional Tax Redemption.
The Securities may be redeemed at the election of the
Issuer, as a whole, but not in part, by the giving of notice not more than 60
days nor less than 30 days as provided in Section 11.4, at a price equal to the
outstanding principal amount thereof, together with Additional Amounts, if any,
and accrued interest, if any, to the Redemption Date, if (a) the Issuer
satisfies the Trustee that it has or will become obligated to pay Additional
Amounts on the Securities, as a result of any change in, or amendment to, the
laws or regulations of a Taxing Jurisdiction, or any change in the application
or interpretation of such laws or regulations, which change or amendment becomes
effective (subject to Section 9.1) on or after the date of original issuance of
the Securities, and (b) such obligation cannot be avoided by the Issuer taking
reasonable measures available to it; provided, however, that no such notice of
redemption shall be given earlier than 90 days prior to the earliest date on
which the Issuer would be obligated to pay such Additional Amounts were a
payment in respect of the Securities then due. Prior to the publication of any
notice of redemption of such Securities pursuant to this Indenture, the Issuer
will deliver to the Trustee an Officers' Certificate stating that the obligation
to pay such Additional Amounts cannot be avoided by the Issuer taking reasonable
measures available to it, and the Trustee shall accept such certificate as
sufficient evidence of the condition precedent set forth in clause (b) above,
and such certificate shall be conclusive and binding on the Holders of the
Securities.
ARTICLE 4
COVENANTS OF THE ISSUER AND THE TRUSTEE
Section 4.1 Payment of Principal and Interest.
The Issuer covenants and agrees that it will duly and
punctually pay or cause to be paid the principal and the Change of Control
purchase price of, and premium, if any, and interest and Additional Amounts, if
any, on, each of the Securities at the place or places, at the respective
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times and in the manner provided in the Securities. Payment of principal and the
Change of Control purchase price of, and premium and interest and Additional
Amounts, if any, on, the Securities shall be paid by mailing a check to or upon
the written order of each registered Holders of Securities entitled thereto at
its last address as it appears on the Securities Register or, upon written
application to the Trustee by a Holder of pound sterling 1,000,000 or more in
aggregate principal amount of Securities, by wire transfer of immediately
available funds to an account maintained by such Holder with a bank or other
financial institution; provided, however, that (subject to the provisions of
Section 2.7 hereof) payment of principal and the Change of Control purchase
price of, and premium and Additional Amounts, if any, on, any Security may be
conditioned upon presentation for payment of the certificate representing such
Security.
Section .3 Offices for Payments, etc.
So long as any of the Securities remain Outstanding, the
Issuer shall maintain in the Borough of Manhattan, The City of New York, the
following: (a) an office or agency where the Securities may be presented for
payment, (b) an office or agency where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided and (c)
an office or agency where notices and demands to or upon the Issuer in respect
of the Securities or of this Indenture may be served. The Issuer shall give to
the Trustee written notice of the location of any such office or agency and of
any change of location thereof. The Issuer hereby initially designates the
Trustee's Corporate Trust Office as such office or agency. The Trustee shall
make Sterling-denominated payments on the Securities through a London-based
account of the Trustee. In case the Issuer shall fail to maintain any such
office or agency or shall fail to give such notice of the location or of any
change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee.
Section 4.2 Appointment to Fill Vacancy in Office of Trustee.
The Issuer, whenever necessary to avoid or fill a vacancy in
the office of Trustee, shall appoint, in the manner provided in Section 6.9
hereof, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.3 Paying Agents.
The Trustee shall be the principal paying agent for the
Securities. Whenever the Issuer shall appoint a paying agent other than the
Trustee, it shall cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums received by it as such agent
for the payment of the principal or Change of Control purchase price of, or
premium or interest or Additional Amounts, if any, on, the Securities (whether
such sums have been paid to it by the Issuer
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or by any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities or of the Trustee,
(2) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities) to make any payment of the
principal or Change of Control purchase price of, or premium or interest or
Additional Amounts, if any, on, the Securities when the same shall be due and
payable, and
(3) pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance of the
failure referred to in clause (b) above.
If the Trustee is not the Registrar, the Issuer shall, prior
to each due date of the principal or Change of Control purchase price of, or
premium, if any, or interest or Additional Amounts, if any, on the Securities,
deposit with the paying agent a sum sufficient to pay such principal, Change of
Control purchase price premium, interest or Additional Amounts and (unless such
paying agent is the Trustee) the Issuer shall promptly notify the Trustee of any
failure to take such action.
Anything in this Section 4.4 to the contrary notwithstanding,
the Issuer may at any time, for the purpose of obtaining satisfaction and
discharge of this Indenture or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by any paying agent hereunder, as required by
this Section 4.4, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.4 is subject to
the provisions of Section 10.3 and Section 10.1 hereof.
Section .4 Certificate to Trustee.
Issuer shall furnish to the Trustee on or before March 31 in
each year (beginning with March 31, 2001) a brief certificate from the principal
executive, financial or accounting officer of this Issuer as to his or her
knowledge of the Issuer's compliance with all covenants under this Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice provided under this Indenture).
Section 4.4 Securityholder's Lists.
The Issuer shall furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Securities (a) semiannually not more than 15
days after each record date for the payment of semi-annual interest on the
Securities, as specified in the form of Security attached as Exhibit A hereto,
as of
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such record date, and (b) at other times as the Trustee may request in writing,
within thirty days after receipt by the Issuer of any such request as of a date
not more than 15 days prior to the time such information is furnished.
Section 4.5 Reports by the Issuer.
The Issuer shall file with the Trustee and provide
Securityholders, within 15 days after it files them with the Commission, copies
of its annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may by rules
and regulations prescribe) that the Issuer is required to file with the
Commission pursuant to Section 13 or 15(d) of Exchange Act.
Section 4.6 Limitation on Liens.
So long as any of the Securities are Outstanding, the Issuer
shall not pledge, mortgage or hypothecate, or permit to exist, any mortgage,
pledge or other lien upon any property at any time directly owned by the Issuer
to secure any indebtedness for money borrowed that is incurred, issued, assumed
or guaranteed by the Issuer ("Indebtedness"), without making effective
provisions whereby the Securities shall be equally and ratably secured with any
and all such Indebtedness and with any other Indebtedness similarly entitled to
be equally and ratably secured; provided, however, that this restriction shall
not apply to or prevent the creation or existence of (i) liens existing at the
Original Issuance Date of the Securities, (ii) purchase money liens that do not
exceed the cost or value of the purchased property, (iii) other liens not to
exceed 10% of Consolidated Net Tangible Assets, and (iv) liens granted in
connection with extending, renewing, replacing or refinancing, in whole or in
part, the Indebtedness (including, without limitation, increasing the principal
amount of such Indebtedness) secured by liens described in the foregoing clauses
(i) through (iii).
In the event that the Issuer shall propose to pledge, mortgage
or hypothecate any property at any time directly owned by it to secure any
Indebtedness, other than as permitted by clauses (i) through (iv) of the
previous paragraph, the Issuer shall (prior thereto) give written notice thereof
to the Trustee, who shall give notice to the Holders, and the Issuer shall,
prior to or simultaneously with such pledge, mortgage or hypothecation,
effectively secure all the Securities equally and ratably with such
Indebtedness.
Section 4.7 Payment of Additional Amounts.
All payments of principal and interest (including payments of
a Change of Control purchase price and premium, if any) with respect to the
Securities shall be made free and clear of, and without withholding or deduction
for or on account of, any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed, levied, collected, withheld or
assessed by or within a Taxing Jurisdiction or by or within any political
subdivision thereof or any authority therein or thereof having power to tax
("Gross-Up Taxes"), unless such
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withholding or deduction is required by law. In the event of any such
withholding or deduction, the Issuer, shall pay to the Holder of such Securities
such additional amounts in respect of such withholding or deduction as are
necessary so that such Holder receives the amount that would have been due to
such Holder in the absence of such withholding or deduction ("Additional
Amounts"), except that no such Additional Amounts shall be payable:
(1) to, or to a Person on behalf of, a Holder who is liable
for such Gross-Up Taxes with respect to the Securities, by reason of such Holder
having some connection with the relevant Taxing Jurisdiction (including being a
citizen or resident or national of, or carrying on a business or maintaining a
permanent establishment in, or being physically present in, such Taxing
Jurisdiction) other than the mere holding of a Security or the receipt of
principal and interest (including payments of discount and premium, if any) in
respect thereof; or
(2) to, or to a Person on behalf of, a Holder who presents a
Security (where presentation is required) for payment more than 30 days after
the Relevant Date except to the extent that such Holder would have been entitled
to such Additional Amounts on presenting such Security for payment on the last
day of such period of 30 days; or
(3) to, or to a Person on behalf of, a Holder who would not be
liable or subject to the withholding or deduction by making a declaration of
non-residence or similar claim for exemption to the relevant tax authority; or
(4) in respect of any estate, asset, inheritance, gift,
transfer or sales tax that is imposed or withheld; or
(5) any combination of (a)-(d) above.
Such Additional Amounts will also not be payable where, had the
beneficial owner of the Security (or any interest therein) been the Holder of
the Security, he would not have been entitled to payment of Additional Amounts
by reason of any one or more of clauses (a) through (d) above. If the Issuer
shall determine that Additional Amounts will not be payable for any of the
foregoing reasons, the Issuer will inform such Holder promptly after making such
determination setting forth the reason(s) therefor.
Reference in this Indenture or any Securities to payment of
principal, Change of Control purchase price, interest, discount or premium in
respect of the Securities shall be deemed also to refer to any Additional
Amounts which may be payable as set forth in this Indenture or in the
Securities.
At least 10 Business Days prior to the first Interest Payment Date
(and at least 10 Business Days prior to each succeeding Interest Payment Date if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate), the Issuer will furnish to the Trustee
and any Paying Agent an Officers' Certificate instructing the Trustee and
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any Paying Agent whether payments of principal of, or premium, if any, or
interest on, the Securities due on such Interest Payment Date shall be without
deduction or withholding for or on account of any Gross-Up Taxes. If any such
deduction or withholding shall be required, prior to such Interest Payment Date
the Issuer will furnish the Trustee and any Paying Agent with an Officers'
Certificate which specifies the amount, if any, required to be withheld on such
payment to Holders and certifies that the Issuer shall pay such withholding or
deduction. The Issuer covenants to indemnify the Trustee and any Paying Agent
for, and to hold the Trustee and any Paying Agent harmless against, any loss,
liability or expense reasonably incurred without negligence, willful misconduct
or bad faith on its part, arising out of or in connection with actions taken or
omitted by the Trustee or any Paying Agent in reliance on any Officers'
Certificate furnished pursuant to this paragraph. Any Officers' Certificate
required by this Section 4.9 to be provided to the Trustee and any Paying Agent
shall be deemed to be duly provided if telecopied to the Trustee and such Paying
Agent.
The Issuer shall furnish to the Trustee the official receipts (or
a certified copy of the official receipts) evidencing payment of Gross-Up Taxes.
Copies of such receipts shall be made available to the Holders of the Securities
upon request.
Section 4.8 Repurchase of Securities Upon a Change of Control.
(1) Upon the occurrence of a Change of Control, (i) prior to
the Initial Reset Date, each Holder of the Securities shall have the right to
require that the Issuer repurchase such Holder's Securities at a repurchase
price in Pounds Sterling equal to 100% of the principal amount thereof plus
accrued interest, if any, to the date of repurchase, plus a payment in U.S.
Dollars equal to 1% of the principal amount of Certificates to be repurchased
pursuant to a Change of Control Offer as set forth in the Trust Agreement, (ii)
after the Initial Reset Date, each Holder of the Securities shall have the right
to require that the Issuer repurchase such Holder's Securities at a repurchase
price in Pounds Sterling equal to 101% of the principal amount thereof plus
accrued interest, if any, to the date of repurchase and (iii) prior to the
Initial Reset Date, but after a Conversion Event, each Holder of the Securities
shall have the right to require that the Issuer repurchase such Holder's
Securities at a repurchase price in Dollars equal to 101% of the principal
amount thereof plus accrued interest, if any, to the date of repurchase, in each
case, in accordance with the terms set forth in subsection (b) below.
(2) Within 30 days following any Change of Control, the Issuer
shall mail a notice to each Holder (with a copy to the Trustee) stating:
(1) that a Change of Control has occurred and (i) if prior
to the Initial Reset Date, that such Holder shall have the right to require that
the Issuer repurchase such Holder's Securities at a repurchase price in Pounds
Sterling equal to 100% of the principal amount thereof plus accrued interest, if
any, to the date of repurchase, plus a payment in U.S. Dollars equal to 1% of
the principal amount of Certificates to be repurchased pursuant to a Change of
Control Offer as set forth in the Trust Agreement, (ii) if after the Initial
Reset Date,
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that such Holder has the right to require the Issuer to repurchase such Holder's
Securities at a repurchase price in Pounds Sterling equal to 101% of the
principal amount thereof plus accrued interest, if any, to the date of
repurchase and (iii) if prior to the Initial Reset Date, but after a Conversion
Event, that such Holder shall have the right to require that the Issuer
repurchase such Holder's Securities at a repurchase price in Dollars equal to
101% of the principal amount thereof plus accrued interest, if any, to the date
of repurchase (in each such case, a "Change of Control Offer");
(2) the circumstances and relevant facts regarding such
Change of Control (including information with respect to pro forma historical
income, cash flow and capitalization of the Issuer after giving effect to such
Change of Control);
(3) that any Security not tendered for repurchase will
continue to accrue interest;
(4) that interest on any Security accepted for payment
pursuant to the Change of Control Offer shall cease to accrue after the
repurchase of such Security on the Repurchase Date if payment thereof has been
deposited with the Trustee;
(5) that Holders electing to have a Security repurchased
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 prior to the close of business on the Business Day prior to the
Senior Note Repurchase Date;
(6) that Holders will be entitled to withdraw their
election if the paying agent receives, not later than the close of business on
the third Business Day (or such shorter periods as may be required by applicable
law) preceding the Senior Note Repurchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Securities the Holder delivered for repurchase, and a statement that
such Holder is withdrawing its election to have such Securities repurchased; and
(7) that Holders that elect to have their Securities
purchased only in part will be issued new Securities in a principal amount equal
to then unpurchased portion of the Securities surrendered.
(3) The repurchase date (the "Senior Note Repurchase Date")
shall be:
(1) if prior to the Initial Reset Date, the Certificate
Repurchase Date; and upon receiving notice of the Certificate Repurchase Date,
the Issuer shall promptly notify each Holder (with a copy to the Trustee) of the
Senior Note Repurchase Date; and
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(2) if after the Initial Reset, a Business Day that is not
earlier than 30 days or later than 60 days from the date the Issuer notifies the
Trustee, by mail, of a Change of Control pursuant to Section 4.10(b).
(4) On the Senior Note Repurchase Date, the Issuer shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Trustee money sufficient, without
reinvestment, to pay the purchase price of all Securities or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee, Securities
so accepted together with an Officers' Certificate identifying the Securities or
portions thereof tendered to the Issuer. The Trustee shall promptly mail to the
Holders of the Securities so accepted payment in an amount equal to the purchase
price, and promptly authenticate and mail to such Holders new Securities in
principal amount equal to any unpurchased portion of the Securities surrendered.
The Issuer will publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Senior Note Repurchase Date.
(5) The Issuer shall comply with Rule 14e-1 under the Exchange
Act and any other applicable laws and regulations in the event that a Change of
Control occurs and the Issuer is required to make a Change of Control Offer.
ARTICLE I
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.9 Event of Default Defined; Acceleration of
Maturity; Waiver of Default.
In case of one or more of the following Events of Default
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall have occurred and be continuing, that
is to say:
(1) default in the payment of all or any part of the
principal or Change of Control purchase price of, or premium, if any, on, any of
the Securities as and when the same shall become due and payable either at
maturity, upon any redemption or required repurchase, by declaration of
acceleration or otherwise;
(2) default in the payment of any installment of interest,
or any Additional Amounts, upon any of the Securities as and when the same shall
become due and payable, and continuance of such default for a period of 30 days;
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(3) an event of default, as defined in any instrument of the
Issuer under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Issuer that has resulted in the acceleration
of such Indebtedness, or any default occurring in payment of any such
Indebtedness at final maturity (and after the expiration of any applicable grace
periods), other than such Indebtedness (i) which is payable solely out of the
property or assets of a partnership, joint venture or similar entity of which
the Issuer is a participant, or which is secured by a lien on the property or
assets owned or held by such entity, without further recourse to or liability of
the Issuer, or (ii) the principal of, and interest on, which, when added to the
principal of and interest on all other such Indebtedness (exclusive of
Indebtedness under clause (i) above), does not exceed $20,000,000 in the
aggregate;
(4) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the Issuer in
the Securities or in this Indenture and such failure continues for a period of
30 days after the date on which written notice specifying such failure, stating
that such notice is a "Notice of Default" hereunder and demanding that the
Issuer remedy the same, shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Securities at the time Outstanding;
(5) one or more final judgments, decrees or orders of any
court, tribunal, arbitrator, administrative or other governmental body or
similar entity for the payment of money shall be rendered against the Issuer or
any of its properties in an aggregate amount in excess of $20,000,000 (excluding
the amount thereof covered by insurance), and such judgment, decree or order
shall remain unvacated, undischarged and unstayed for more than 90 consecutive
days, except while being contested in good faith by appropriate proceedings;
(6) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect, or a decree or order adjudging the
Issuer a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment, or composition of or in respect
of the Issuer under any applicable federal or state law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or for any substantial part of its property or ordering
the winding up or liquidation of its affairs, shall have been entered, and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(7) the Issuer shall commence a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or consent to the entry of a decree
or order for relief in an involuntary case or proceeding under any such law, or
to the commencement of any bankruptcy or insolvency case or proceeding against
the Issuer, or the filing by the Issuer of a petition or answer or consent
seeking reorganization or relief under any such applicable federal or state law,
or the consent by the Issuer to the filing of
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such petition or to the appointment of or the taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Issuer or of any substantial part of its property, or the making by the
Issuer of an assignment for the benefit of creditors, or the taking of action by
the Issuer in furtherance of any such action;
then and in each and every such case (other than an Event of Default with
respect to the Issuer specified in 5.1(f) or 5.1(g) hereof), unless the
principal of all of the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding hereunder, by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may declare the entire
principal of all the Securities and the interest accrued thereon to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable. This provision, however, is subject to the
condition that if, at any time after the principal of the Securities shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
and the principal or Change of Control purchase price and premium, if any, of
any and all Securities that shall have become due otherwise than by acceleration
(with interest upon such principal and Change of Control purchase price and
premium, if any, and to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the rate of
interest specified in the Securities and Additional Amounts, if any, to the date
of such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other reasonable expenses and
liabilities incurred and all reasonable advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and if any
and all Events of Default under the Indenture, other than the non-payment of the
principal that shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults (except, unless theretofore cured, a default in payment of principal
of, or Change of Control purchase price or premium, if any, or interest or
Additional Amounts, if any, on the Securities) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
If an Event of Default specified in Section 5.1(f) or 5.1(g)
hereof occurs with respect to the Issuer, the principal of and accrued interest
and Additional Amounts, if any, on the Security shall become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Securityholder.
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Section 4.10 Collection of Indebtedness by Trustee; Trustee
May Prove Debt.
The Issuer covenants that (i) in case default shall be made in
the payment of any installment of interest on any of the Securities when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (ii) in case default shall be made in the
payment of all or any part of the principal or Change of Control purchase price,
of, or premium, if any, on, any of the Securities when the same shall have
become due and payable, whether upon maturity or upon any redemption or by
declaration or acceleration or otherwise, then upon demand of the Trustee, the
Issuer shall pay to the Trustee for the benefit of the Holders of the Securities
the whole amount that then shall have become due and payable on all such
Securities of principal, Change of Control purchase price, premium or interest,
as the case may be (with interest to the date of such payment upon the overdue
principal, Change of Control purchase price or premium and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the rate of interest specified in the Securities);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any reasonable expenses and liabilities incurred, and all
reasonable advances made, by the Trustee and each predecessor Trustee except as
a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal and Change of Control purchase price of and premium and interest
on the Securities to the registered Holders, whether or not the Securities be
overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated,
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, custodian, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property or
such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the creditors
or property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective or whether the Trustee
shall have made any demand pursuant to the provisions of this Section 5.2, shall
be entitled and empowered, by intervention in such proceedings or otherwise:
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(1) to file and prove a claim or claims for the whole amount
of principal, Change of Control purchase price, premium and interest owing and
unpaid in respect of the Securities, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all reasonable expenses and liabilities incurred, and all
reasonable advances made, by the Trustee and each predecessor Trustee, except as
a result of negligence or bad faith) and of the Securityholders, allowed in any
judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such other obligor;
(2) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities in any election of a trustee or
a standby trustee in any arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or a person performing similar functions in
comparable proceedings; and
(3) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to the Securityholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel, and
all other reasonable expenses and liabilities incurred, and all reasonable
advances made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholders any plan or reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding, except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the Trustee
without the possession of any of the Securities or the production thereof at any
trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a
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party) the Trustee shall be held to represent all the Holders of the Securities,
and it shall not be necessary to make any Holders of the Securities parties to
any such proceedings.
Section 4.11 Application of Proceeds.
Any moneys collected by the Trustee pursuant to this Article
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities and stamping (or
otherwise noting) thereon the payment, or issuing Securities in reduced
principal amounts in exchange for the presented Securities if only partially
paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses, including
reasonable compensation to the Trustee and each predecessor Trustee and their
respective agents, and attorneys and counsel and of all reasonable expenses and
liabilities incurred, and all reasonable advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and all other
amounts due under Section 6.6 hereof;
SECOND: In case the principal or the Change of Control
purchase price and premium, if any, of the Securities shall not have become and
be then due and payable, to the payment of interest in default in the order of
the maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate of interest specified in the Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal or Change of Control purchase
price of the Securities shall have become and shall be then due and payable, to
the payment of the whole amount then owing and unpaid upon all the Securities
for principal, Change of Control purchase price and premium, with interest upon
the overdue principal, Change of Control purchase price, premium, if any, and
(to the extent that such interest has been collected by the Trustee), and in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities, then to the payment of such principal, Change of
Control purchase price and premium, without preference or priority of principal,
Change of Control purchase price or premium over interest, or of interest over
principal or Change of Control purchase price, or premium, or of any installment
of interest over any other installment of interest, or of any Security over any
other Security, ratably to the aggregate of such principal or Change of Control
purchase price and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other Person lawfully entitled thereto.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 5.3.
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Section 4.12 Suits for Enforcement.
In case an Event of Default has occurred, has not been waived
and is continuing, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this Indenture
or to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Section 4.13 Restoration of Rights on Abandonment of
Proceedings.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
Section 4.14 Limitations of Suits by Securityholders.
No Holder of any Security shall have any right by virtue or by
availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than 25% in aggregate principal amount of
the Securities then Outstanding shall have made written request upon the Trustee
to institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 30 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceedings, and
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.8 hereof; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Security with every
other taker and Holder and the Trustee, that no one or more Holders of
Securities shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holder of Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities. For the protection and enforcement
of the provisions of this Section 5.6 each and every Securityholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
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Section 4.15 Powers and Remedies Cumulative, Delay or Omission
Not Waiver of Default.
Except as provided in Section 2.5 hereof, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of
the Securities to exercise as aforesaid any such right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of Default
or an acquiescence therein; and, subject to Section 5.6 hereof, every power and
remedy given by this Indenture or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
Section 4.16 Control by Securityholders.
The Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding shall have the right to 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 the Trustee by this
Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture; and provided further
that (subject to the provisions of Section 6.1 hereof) the Trustee shall have
the right to decline to follow any such direction if the Trustee, being advised
by counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors, its
executive committee, or a trust committee of directors or Responsible Officers
of the Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in or pursuant to such
direction shall be unduly prejudicial to the interests of Holders of the
Securities not joining in the giving of said direction, it being understood that
(subject to Section 6.1 hereof) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by Securityholders.
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Section 4.17 Waiver of Past Defaults.
Prior to the declaration of the maturity of the Securities as
provided in Section 5.1 hereof, the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding may on behalf of the Holders of
all the Securities waive any past default or Event of Default hereunder and its
consequences, except a default (a) in the payment of principal or Change of
Control purchase price of, or premium, if any, or interest on any of the
Securities or (b) in respect of a covenant or provision hereof that cannot be
modified or amended without the consent of the Holder of each Security affected.
In the case of any such waiver, the Issuer, the Trustee and the Holders of the
Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 4.18 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture
(including, without limitation, Section 5.6 hereof), the right of any Holder to
receive, and to institute suit to enforce, payment of the principal and Change
of Control purchase price of, and premium, if any, and interest on the
Securities on or after the respective due dates expressed in such Securities
(including upon redemption and acceleration of the maturity of the principal of
and premium, if any, and interest on the Securities), shall not be affected or
impaired, and shall be absolute and unconditional.
ARTICLE 5
CONCERNING THE TRUSTEE
Section 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default.
The Trustee, prior to the occurrence of an Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
undertakes to perform only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured or
waived) 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 man would exercise or use under the circumstances in the conduct of
his own affairs.
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No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
Section 5.2 Certain Rights of the Trustee.
Subject to Section 6.1 hereof:
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(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate (including, without limitation, any certificate provided to the
Trustee pursuant to Section 4.5 hereof), statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon, security or
other paper document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed) and
any resolution of the Board of Directors or any committee of such Board duly
authorized to act on behalf of such Board, may be evidenced to the Trustee by a
copy thereof certified by the Secretary or an Assistant Secretary of the Issuer;
(3) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(4) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred therein or thereby;
(5) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or document
unless requested in writing to do so by the Holders of not less than a majority
in aggregate principal amount of the Securities then Outstanding; provided that,
if the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured by the security afforded
to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to making such
investigation; the reasonable expenses of every such examination shall be paid
by the Issuer, or by the Trustee or any predecessor Trustee and repaid by the
Issuer upon demand; and
(7) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
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paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Issuer,
personally or by agent or attorney.
Section 5.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Issuer, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representation as to the validity or sufficiency
of this Indenture or of the Securities. The Trustee shall not be accountable for
the use or application by the Issuer or any of the Securities or of the proceeds
thereof.
Section 5.4 Trustee and Agents May Hold Securities;
Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent and
may otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
Section 5.5 Moneys Held by Trustee.
Subject to the provisions of Section 10.4 hereof, all moneys
received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by mandatory
provisions of law. Neither the Trustee nor any agent of the Issuer or the
Trustee shall be under any liability for interest on any moneys received by it
hereunder, except as the Issuer and the Trustee otherwise may agree.
Section I.5 Compensation and Indemnification of Trustee and
Its Prior Claim.
The Issuer covenants and agrees to pay to the Trustee from
time to time as shall be agreed upon between the Issuer and the Trustee in
writing from time to time, and the Trustee shall be entitled to reasonable
compensation (which shall not be limited by any provision of law relating to the
compensation of a trustee of an express trust), and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ), except
to the extent any such expense, disbursement or advance may arise from the
Trustee's negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predeces-
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sor Trustee for, and to hold it harmless against, any and all loss, liability,
damage, claim or expense arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder and the performance of its duties hereunder, including the costs and
expenses of defending and investigating any claim or liability in the premises,
except to the extent any such loss, liability or expense is due to its own
negligence or bad faith. The obligations of the Issuer under this Section 6.6 to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.
Section 5.6 Right of Trustee to Rely on Officers' Certificate,
etc.
Subject to Section 6.1 and Section 6.2 hereof, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee.
Section 5.7 Persons Eligible for Appointment as Trustee.
The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States or of a state
thereof, having a combined capital and surplus of at least $50,000,000, and
which is authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal, state or District of Columbia
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of a federal, state or District of
Columbia supervising or examining authority, then for the purposes of this
Section 6.8, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. No obligor on the Securities or Person
directly or indirectly controlling, controlled by or under common control with
such an obligor shall serve as Trustee.
Section I.6 Resignation and Removal; Appointment of Successor
Trustee.
(1) The Trustee may at any time resign by giving written
notice of resignation to the Issuer and by mailing notice thereof by first-class
mail to Holders of Securities at their last addresses as they shall appear on
the Securities Register. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee by written instrument in duplicate,
executed by authority of the Board of Directors or any committee of such Board
duly authorized to act on behalf of such Board, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
Trustee. If no such successor trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the
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appointment of a successor trustee, or any Securityholder who has been a bona
fide Holder of a Security or Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper, prescribe or appoint a successor trustee.
(2) In case at any time any of the following shall occur:
(1) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.8 hereof and shall fail to resign
after written request therefor by the Issuer or by any such
Securityholder; or
(2) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver or liquidator
of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors or any committee of such Board duly authorized to act on
behalf of such Board, one copy of which instrument shall be delivered to the
Trustee so removed and one copy of which shall be delivered to the successor
trustee, or, any Securityholder who has been a bona fide Holder of a Security or
Securities for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(3) The Holders of a majority in aggregate principal amount of
the Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 7.1 hereof of the action in that regard taken by the Securityholders.
(4) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 6.9 shall become effective only upon acceptance of appointment by the
successor trustee as provided in Section 6.10 hereof.
Section 5.8 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.9
hereof shall execute and deliver to the Issuer and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee shall become
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effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
of its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid, the Trustee ceasing
to act shall, subject to Section 10.4 hereof, pay over the successor trustee all
moneys at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer
shall execute appropriate instruments in writing for more fully and certainly
vesting in and confirming to such successor such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a prior claim upon all property or
funds held or collected by such Trustee to secure any amounts then due to it
pursuant to the provisions of Section 6.6 hereof.
Upon acceptance of appointment by a successor trustee as
provided in this Section 6.10, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities at their last addresses as they
shall appear in the Securities Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.9 hereof. If the Issuer fails to mail such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Issuer.
Notwithstanding replacement of the Trustee pursuant to this
Section 6.10, the Issuer's obligations under Section 6.6 hereof shall continue
for the benefit of the retiring Trustee.
Section I.7 Merger, Conversion, Consolidation or Succession to
Business of Trustee.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section 6.8 hereof,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture, any of the Securities shall
have been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor trustee, and in such cases such certificate shall have the full
force which it is anywhere in the Securities or in this Indenture provided that
the certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the
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name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
Section I.1 Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Securityholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Securityholders, in person or by
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1 and Section 6.2 hereof) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
Section I.2 Proof of Execution of Instruments and of Holding
of Securities Record Date.
Subject to Section 6.1 and Section 6.2 hereof, the execution
of any instrument by a Securityholder or his agent or proxy may be provided in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be provided by the Securities Register or by a
certificate of the Security Registrar thereof. The Issuer may set a record date
for purposes of determining the identity of Holders of Securities entitled to
vote or consent to any action referred to in Section 7.1 hereof, which record
date may be set at any time or from time to time by notice to the Trustee for
any date or dates (in the case of any adjournment or resolicitation) not more
than 60 days nor less than five days prior to the proposed date of such vote or
consent, and thereafter, notwithstanding any other provisions hereof, only
Holders of Securities of record on such record date shall be entitled to so vote
or give such consent or to withdraw such vote or consent.
Section 6.1 Holders to Be Treated as Owners.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may deem and treat the Person in whose name any Security shall be
registered by the Securities Register as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal and Change of Control purchase price of, and
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premium, if any, on and, subject to the provisions of this Indenture, interest
on such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such Person, or upon
his order, shall be valid and to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
Section 6.2 Securities Owned by Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities that are owned by the Issuer or any
other obligor on the Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or any obligor on the Securities shall be disregarded and deemed not to
be Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities that the Trustee knows are so
owned shall be so disregarded. Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Section 6.1 and
Section 6.2 hereof, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.
Section 6.3 Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.1 hereof, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the Securities
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities, the Holders of which have consented
to such action may, by filing written notice with the Trustee at the Corporate
Trust Office and upon proof of holding as provided in this Article, revoke such
action so far as concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor, irrespective of whether
or not any notation in regard thereto is made upon any such Security. Any action
taken by the Holders of the percentage in aggregate
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principal amount of the Securities specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the Trustee and
the Holders of all such Securities.
ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of
Directors or any committee of such Board duly authorized to act on behalf of
such Board, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(1) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
(2) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer pursuant
to Article IX hereof;
(3) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Board of Directors or
any committee of such Board duly authorized to act on behalf of such Board,
shall consider to be for the protection of the Holders of Securities, and to
make the occurrence, or the occurrence and continuance of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee due solely to such an Event of
Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities to waive such an Event of Default;
(4) to cure any ambiguity or to cure, correct or supplement
any defective provision contained herein or in the Securities, or to make such
other provisions in regard to matters or questions arising under this Indenture
or under any supplemental indenture as the Board of Directors or any committee
of such Board duly authorized to act on behalf of such Board, may deem necessary
or desirable, and in any case which the Trustee and the Issuer shall determine
(i) are not inconsistent with this Indenture and the Securities and (ii) shall
not adversely affect the interests of the Holders of the Securities; and
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(5) to modify or supplement this Indenture or any indenture
supplemental hereto in such manner as to permit the qualification thereof under
the Trust Indenture Act of any other similar federal statute hereafter in
effect.
The Trustee is hereby authorized to join in the execution of
any such supplemental Indenture, to make any further appropriate agreements and
stipulations that may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 8.1 may be executed without the consent of the Holders of any of
the Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2 hereof.
Section 7.2 Supplemental Indentures With Consent of
Securityholders.
With the consent (evidenced as provided in Article VII hereof)
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding, the Issuer, when authorized by a resolution
of its Board of Directors or any committee of such Board duly authorized to act
on behalf of such Board, and the Trustee may, from time to time and at any time,
modify this Indenture or any indentures supplemental hereto or the rights of the
Holders of the Securities; provided, that no such supplemental indenture shall
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on (including Additional Amounts), any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or upon a Change of Control or impair or affect the right of any Securityholder
to institute suit for the payment thereof or make any change to Section 4.10
hereof that adversely affects the rights of the Holders of the Securities, in
each case without the consent of the Holder of each Security so affected, or (b)
without the consent of the Holders of all Securities then Outstanding, (i)
reduce the aforesaid percentage of Securities, the consent of the Holders of
which is required for any such modification, or the percentage of Securities,
the consent of the Holders of which is required for any waiver provided for in
this Indenture, (ii) change any obligation of the Issuer to maintain an office
or agency in the places and for the purposes specified in Section 4.2 or (iii)
make any change in Section 5.9 or this Section 8.2, except to increase any
percentages or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holders of each Outstanding
Security affected thereby.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors or any committee of such Board duly
authorized to act on behalf of such Board, certified by the Secretary or an
Assistant Secretary of the Issuer authorizing the execution
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of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders and other documents, if any, required
by Section 7.1 hereof, the Trustee shall join with the Issuer in the execution
of such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to
enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section 8.2 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer shall mail a notice thereof by first-class mail to the Holders of
Securities at their addresses as they shall appear on the Securities Register,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section 7.3 Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture pursuant to
the provisions hereof, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Issuer and the Holders of Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section I.3 Documents to Be Given to Trustee.
The Trustee, subject to the provisions of Section 6.1 and
Section 6.2 hereof, may receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any such supplemental indenture complies
with the applicable provisions of this Indenture.
Section 7.4 Notation of Securities in Respect of Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article VIII may
bear a notation in form approved by the Trustee as to any matters provided for
by such supplemental indenture. If the Issuer or the Trustee shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors or any committee of such Board duly authorized to act on
behalf of such Board, to any modification of this Indenture contained in any
such supplemental
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indenture may be prepared by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities then Outstanding.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.1 Covenant Not to Merge, Consolidate, Sell or
Transfer Assets Except Under Certain Conditions.
(1) The Issuer shall not consolidate with or merge into any
other Person, or sell, convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Issuer shall not permit any
Person to consolidate with or merge into the Issuer, unless: (i) immediately
prior to and immediately following such consolidation, merger, sale or lease, no
Event of Default shall have occurred and be continuing and (ii) the Issuer is
the surviving or continuing corporation, or the surviving or continuing
corporation or the corporation that acquires by sale, conveyance, transfer or
lease is incorporated in the United States of America or Canada and expressly
assumes the payment and performance of all obligations of the Issuer under the
Indenture and the Securities.
(2) Except for the sale of the properties and assets of the
Issuer substantially as an entirety pursuant to subsection (a) above, and other
than assets required to be sold to conform with governmental regulations, the
Issuer shall not sell or otherwise dispose of any assets (other than short-term,
readily marketable investments purchased for cash management purposes with funds
not representing the proceeds of other asset sales) if on a pro forma basis, the
aggregate net book value of all such sales during the most recent 12-month
period would exceed 10 percent of Consolidated Net Tangible Assets computed as
of the end of the most recent fiscal quarter preceding such sale; provided,
however, that any such sales shall be disregarded for purposes of computing such
10 percent Consolidated Net Tangible Assets if the proceeds are invested in
assets in similar or related lines of business of the Issuer; and, provided
further, that the Issuer may sell or otherwise dispose of assets in excess of
such 10 percent of Consolidated Net Tangible Assets if the proceeds from such
sales or dispositions, which are not reinvested as provided above, are retained
by the Issuer as cash or cash equivalents or are used by the Issuer to purchase
Securities, 1996 Senior Notes, 1997 Senior Notes, 1999 Senior Notes or 1999
ROARS which are then delivered to the Trustee for cancellation or are used to
reduce or retire Indebtedness ranking pari passu in right of payment to the
Securities.
(3) In the event that any such successor entity is organized
under the laws of or is managed or controlled or has a place of business in a
jurisdiction located outside of a Taxing Jurisdiction and withholding or
deduction is required by law for or on account of any present or future taxes,
duties, assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or within such other jurisdiction or by or
within any
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political subdivision thereof or any authority therein or thereof having power
to tax, the successor entity shall pay to the relevant Holder of the Securities
Additional Amounts, under the same circumstances and subject to the same
limitations as are specified for in Section 4.9 hereof, but substituting for the
applicable Taxing Jurisdiction in each place the name of such jurisdiction. In
addition, such successor entity shall be entitled to effect an optional tax
redemption under the same circumstances and subject to the same limitations as
are set forth in Section 3.6(d) hereof, but substituting for the applicable
Taxing Jurisdiction in each place the name of such other jurisdiction under the
laws of which such successor entity is organized, managed and controlled or has
a place of business and substituting the date of such succession for the date of
original issuance of the Securities.
Section 8.2 Successor Corporation Substituted.
In case of any such consolidation, merger, sale or transfer,
and following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Issuer, with the same
effect as if it had been named Issuer herein.
Such successor corporation may cause to be signed, and may
issue, either in its own name or in the name of the Issuer prior to such
succession, any or all of the Securities issuable hereunder that theretofore
shall not have been signed by the Issuer and delivered to the Trustee; and, upon
the order of such successor corporation, instead of the Issuer, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities that previously
shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication and any Securities that such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of 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
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or transfer
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or transfer (other than a
transfer by way of lease) the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article IX shall be
discharged from all obligations and covenants under this Indenture.
Section 8.3 Opinion of Counsel to Trustee; Officers'
Certificate.
The Trustee, subject to the provisions of Section 6.1 and
Section 6.2 hereof, shall be entitled to receive and rely upon an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale or transfer, and any such assump-
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tion, and any such liquidation or dissolution, complies with the applicable
provisions of this Indenture.
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 9.1 Satisfaction and Discharge of Indenture.
If at any time (a) the Issuer shall have paid or caused to be
paid the principal and Change of Control purchase price of and premium, if any,
and interest on all the Securities Outstanding hereunder, as and when the same
shall have become due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities theretofore authenticated (other than
any Securities which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.7 hereof), or (c)(i) all
such Securities not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii) the
Issuer shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer in accordance with Section 10.4
hereof) or U.S. Government Obligations, maturing as to principal, premium, if
any, and interest in such amounts and at such times as will insure (without
reinvestment) the availability of cash 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 at maturity all
such Securities not theretofore delivered to the Trustee for cancellation,
including principal, premium, if any, and interest due or to become due to such
date of maturity as the case may be, and if, in any such case, the Issuer shall
also pay or cause to be paid all other sums payable hereunder by the Issuer,
then this Indenture shall cease to be of further effect (except as to (i) rights
of registration of transfer and exchange, and the Issuer's right to optional
redemption, (ii) substitution of apparently mutilated, defaced, destroyed, lost
or stolen Securities, (iii) rights of Holders to receive payments of principal
thereof (including any Change of Control purchase price previously accrued) and
premium, if any, and interest or Additional Amounts, if any, thereon, upon the
original stated due dates therefor (but not upon acceleration), (iv) the rights
and obligations and immunities of the Trustee hereunder and (v) the rights of
the Securityholders as beneficiaries hereof with respect to the moneys so
deposited with the Trustee payable to all or any of them), and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture;
provided that the rights of Holders of the Securities to receive amounts in
respect of principal of and premium, if any, and interest or the Securities held
by them shall not be delayed longer than
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required by then applicable mandatory rules or policies of any securities
exchange upon which the Securities may be listed.
The Issuer agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities.
Section 9.2 Application by Trustee of Funds Deposited for
Payment of Securities.
Subject to Section 10.4 hereof, all moneys deposited with the
Trustee pursuant to Section 10.1 hereof shall be held in trust and applied, by
it to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal, and Change of Control purchase price, premium, if any, interest and
Additional Amounts, if any; but such money need not be segregated from other
funds except to the extent required by law.
Section 9.3 Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture all moneys then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Issuer, be repaid to it or paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
Section 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years.
Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal or Change of Control purchase price of or
premium or interest on any Security and not applied but remaining unclaimed for
two years after the date upon which such principal, Change of Control purchase
price, premium or interest shall have become due and payable shall, upon the
written request of the Issuer, be repaid to the Issuer by the Trustee or such
paying agent, and the Holder of such Security shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease.
Section 9.5 Defeasance and Discharge of Indenture.
The Issuer 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 deposit referred to in subpara-
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graph (A) hereof has been made, and the provisions of this Indenture will no
longer be in effect with respect to the Securities (and the Trustee, at the
expense of the Issuer, shall execute proper instruments acknowledging the same),
except as to:
(1) rights of registration of transfer and exchange, and the
Issuer's right of optional redemption, (b) substitution of apparently mutilated,
defaced, destroyed, lost or stolen Securities, (c) rights of Holders to receive
payments of principal (including rights to receive any Change of Control
purchase price previously accrued) thereof and premium, if any, and interest
thereon, (d) the rights, obligations and immunities of the Trust hereunder, (e)
the rights of the Securityholders as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and (f) the
obligations of the Issuer to maintain a place of payment for the Securities
under Section 4.1 hereof; provided that the following conditions shall have been
satisfied:
(A) with reference to this Section 10.5 the Issuer
has irrevocably deposited or caused to be irrevocably deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.8 hereof) as trust
funds in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities, (i) money in an amount, or (ii)
U.S. Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms (without reinvestment) will
provide not later than one day before the due date of any payment referred to in
clause (x) or (y) of this subparagraph (A) money in an amount, or (iii) a
combination thereof, 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, after payment of all federal,
state and local taxes or other charges and assessments in respect thereof
payable by the Trustee, (x) the principal and Change of Control purchase price
previously accrued of, premium, if any, and each installment of principal and
interest (including any Additional Amounts then known), the Outstanding
Securities at the maturity date of such principal or installment of principal or
interest and (y) any mandatory sinking fund payments or analogous payments
applicable to the Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and the Securities;
(B) the Issuer has delivered to the Trustee (i) an
Opinion of Counsel to the effect that Holders will not recognize income, gain or
loss for federal income tax purposes as a result of the Issuer's exercise of its
option under this Section 10.5 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, defeasance and discharge had not occurred, which Opinion
of Counsel must be based on (x) a change in applicable federal income tax law or
related Treasury Regulations after the date of this Indenture or (y) a ruling
received by the Issuer from the Internal Revenue Service to the same effect and
(ii) an Opinion of Counsel to the effect that the defeasance trust does not
constitute an "investment company" under the Investment Company Act of 1940, as
amended, and after the passage of 123 days following the deposit, the trust fund
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will not be subject to the effect of Section 547 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit
on a pro forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default, shall have
occurred and be continuing on the date of such deposit or during the period
ending on the 123rd day after the date of such deposit, and such deposit shall
not result in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Issuer is a party or by which the Issuer is
bound; and
(D) if at such time the Securities are listed on a
national securities exchange, the Issuer has delivered to the Trustee an Opinion
of Counsel to the effect that the Securities will not be delisted as a result of
such deposit, defeasance and discharge.
Section 9.6 Defeasance of Certain Obligations.
The Issuer may omit to comply with any term, provision, or
condition set forth in this Indenture in Sections 4.8 and 4.10 and Section
5.l(d) (with respect to Sections 4.8 and 4.10) and Sections 5.1(c) and (e) shall
be deemed not to be Events of Default on the 123rd day after the deposit
referred to in subparagraph (A) hereof if:
(A) with reference to this Section 10.6, the Issuer
has irrevocably deposited or caused to be irrevocably deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.6 hereof) as trust
funds in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities, (i) money in an amount, or (ii)
U.S. Government Obligations which bought the payment of interest and principal
in respect thereof in accordance with their terms (without reinvestment) will
provide not later than one day before the due date of any payment referred to in
this Section 10.6, money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a certification thereof delivered to the Trustee, to
pay and discharge, after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the principal
and Change of Control purchase price of, premium, if any, and interest on
(including any Additional Amounts then known) in respect of the Outstanding
Securities on the dates such payments are due in accordance with the terms of
this Indenture and the Securities;
(B) the Issuer has delivered to the Trustee (i) an
Opinion of Counsel to the effect that Holders will not recognize income, gain or
loss for federal income tax purposes as a result of the Issuer's exercise of its
option under this Section 10.6 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, defeasance and discharge had not occurred, and (ii) an
Opinion of Counsel to the effect that the defeasance trust does not constitute
an "investment company" under the Investment Company Act of 1940, as amended,
and after the passage
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of 123 days following the deposit, the trust fund will not be subject to the
effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law;
(C) immediately after giving effect to such deposit
on a pro forma basis, no Event of Default, or event that after the giving of
notice or lapse of time or both would become an Event of Default, shall have
occurred and be continuing on the date of such deposit or during the period
ending on the 123rd day after the date of such deposit, and such deposit shall
not result in a breach or violation of or constitute a default under any other
agreement or instrument to which the Issuer is a party or by which the Issuer is
bound; and
(D) if at such time the Securities are listed on a
national securities exchange, the Issuer has delivered to the Trustee an Opinion
of Counsel to the effect that the Securities will not be delisted as a result of
such deposit, defeasance and discharge.
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section I.1 Incorporators, Shareholders, Officers and
Directors of Issuer Exempt from Individual
Liability.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such,
or against any past, present or future shareholder, officer or director, as
such, of the Issuer or of any successor, either directly or through the Issuer
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
Section 10.1 Provisions of the Indenture for the Sole Benefit
of Parties and Securityholders.
Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any Person, other than the
parties hereto and their successors and the Holders (and, where expressly set
forth herein, owners of interests in any Global Security), any legal or
equitable right, remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and the Holders (and, where
expressly set forth herein, owners of interests in any Global Security).
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Section 10.2 Successors and Assigns of Issuer Bound by
Indenture.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or in behalf of the Issuer shall bind its successors
and assigns, whether so expressed or not.
Section I.2 Notices and Demands on Issuer, Trustee and
Securityholders.
Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
to or on the Issuer may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
NRG Energy, Inc., 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Chief Financial Officer. Any notice, direction, request or demand by
the Issuer or any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made to the
Corporate Trust Office or such office or agency designated for such purpose in
Section 4.2 hereof.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Securities Register. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Bearer Securities of any event and
the rules of any securities exchange on which such Bearer Securities are listed
so require, such notice shall be sufficiently given to Holders of such Bearer
Securities if published in such newspaper or newspapers as may be specified in
such Securities on a Business Day at least twice, the first such publication to
be not earlier than the earliest date, and not later than the latest date,
prescribed for the giving of such notice. Any such notice by publication shall
be deemed to have been given on the date of the first such publication. In
addition, notice to the Holder of any Global Bearer Security shall be given by
mail in the manner provided above.
If by reason of any cause it shall be impracticable to publish
any notice to Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given with the approval
of the Trustee shall constitute sufficient notice to such Holders
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for every purpose hereunder. Neither the failure to give notice by publication
to Holders of Bearer Securities as provided above, nor any defect in any notice
so published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice,
consent, waiver or Act required or permitted under this Indenture shall be in
the English language, except that any published notice may be in an official
language of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 10.3 Rule 144A Information.
So long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, the
Issuer shall furnish to holders thereof and to prospective purchasers thereof
designated by such holders, upon request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act, unless such information is contained, at the time of
such request, in documents filed with the Commission pursuant to Section 13 or
15(d) of the Exchange Act.
Section I.3 Officers' Certificates and Opinions of Counsel,
Statements to Be Contained Therein.
Upon any application or demand by the Issuer to the Trustee to
take any action under any of the provisions of this Indenture, the Issuer shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture 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 has made such
examination or
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investigation as is necessary to enable him 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.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or Opinion of Counsel may be based, insofar as it
relates to factual matters (information with respect to which is in the
possession of the Issuer) upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants or Investment Banker filed with the Trustee shall contain a
statement that such firm is independent.
Section 10.4 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal, Change of
Control purchase price, or premium, if any, of the Securities or the date fixed
for redemption of any Security shall not be a Business Day, then payment of
interest, principal, Change of Control purchase price, or premium need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the date of maturity or the date fixed for
redemption, and no interest shall accrue for the period after such date.
Section 10.5 New York Law to Govern.
THIS INDENTURE SHALL, PURSUANT TO SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF (OTHER THAN SUCH
SECTION 5-1401).
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Section 10.6 Consent to Jurisdiction.
The Issuer irrevocably consents and agrees, for the benefit of
the Holders from time to time of the Securities and the Trustee, that any civil
legal action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection with this
Indenture or the Securities may be brought in the Supreme Court of New York, New
York County or the United States District Court for the Southern District of New
York and any appellate court from either thereof and, until amounts due and to
become due in respect of the Securities have been paid, hereby irrevocably
consents and submits to the non-exclusive jurisdiction of each such court in
personam, generally and unconditionally with respect to any legal action, suit
or proceeding for itself and in respect of its properties, assets and revenues
and agrees to file such consents with such authorities as may be required to
irrevocably evidence such agreement. The Issuer irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions, suits
or proceedings arising out of or in connection with this Indenture brought in
the Supreme Court of New York, New York County or the United States District
Court for the Southern District of New York and any appellate court from either
thereof and hereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
Section I.4 Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same agreement.
Section I.5 Effect of Headings.
The Article and Section Headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of March 20, 2000.
NRG ENERGY, INC.,
as Issuer
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
Attest:
By:
-----------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
62
EXHIBIT A
NRG ENERGY, INC.
Reset Senior Notes Due March 15, 2020
No. pound sterling 160,000,000*
CUSIP No.
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH NRG, ENERGY, INC. (THE
"COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE CERTIFICATES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT UPON THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE TRUSTEE AND
THE COMPANY OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT UPON THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE TRUSTEE AND THE
COMPANY, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY BEING COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
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* Reference is made to (i) Schedule A attached hereto with
respect to decreases and increases in the aggregate principal
amount of Securities evidenced by this certificate and (ii)
the other provisions of this Security providing for the
conversion to a US Dollar-denominated Security.
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NRG ENERGY, INC.
Reset Senior Notes Due March 15, 2020
NRG ENERGY, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to the bearer upon surrender hereof, the
principal sum of pound sterling 160,000,000 on March 15, 2020, and to pay
interest thereon at the rate or rates per annum described herein from March 15,
2000, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on March 15 and September 15 in each
year, commencing September 15, 2000, to the Initial Reset Date and thereafter
subject to the terms and conditions set forth herein, at the interest rate or
rates determined by the Remarketing Agent in accordance with the procedures set
forth on the reverse hereof until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
bearer on such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the bearer on such
Interest Payment Date and will be paid to the bearer hereof at the time of
payment of such Defaulted Interest or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
Capitalized terms that are not defined herein shall have the meanings
assigned to them in the Indenture.
Unless a Conversion Event shall have occurred, the rate of interest
payable from time to time through the Initial Reset Date in respect of this
Security is 7.97%.
The Interest Amount outstanding at the end of the relevant Interest
Accural Period shall be determined on the basis of a 360-day year consisting of
twelve 30-day months; provided however, that in the event of a Swap Termination
Event, other than a Swap Termination Event caused by a Conversion Event, an
Optional Tax Redemption, or the repurchase of 100% of the Securities pursuant to
a Change of Control, the Interest Amount shall be determined by (i) applying the
rate of interest to the principal amount of the outstanding Securities and (ii)
multiplying that amount by the actual number of days in such Interest Accrual
Period divided by 365 (or if such Interest Accrual Period ends after February 28
in a leap year, 366) expressed as a decimal and rounded upward if necessary to
the nearest 1/16th of 1%.
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Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, relating to the interest reset and remarketing
mechanics of this Security after the Initial Reset Date.
The Trustee shall make Sterling-denominated payments on the Senior
Notes through a London-based account of the Trustee.
All payments of principal and the Change of Control purchase price of,
and premium, if any, and interest in respect of this Security shall be made free
and clear of, and without withholding or deduction for or on account of, any
present or future taxes, duties, assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or assessed by or within a Taxing
Jurisdiction or by or within any political subdivision thereof or any authority
therein or thereof having power to impose Gross-Up Taxes, unless such
withholding or deduction is required by law. In the event of any such
withholding or deduction, the Issuer shall pay to the Holder such Additional
Amounts in respect of such withholding or reduction as are necessary so that the
Holder receives the amount that would have been due in the absence of such
Additional Amounts, except that no such Additional Amounts shall be payable:
(i) to, or to a Person on behalf of, a
Holder who is liable for such Gross-Up
Taxes in respect of this Security by
reason of such Holder or the beneficial
owner of this Security having some
connection with the relevant Taxing
Jurisdiction (including being a citizen
or resident or national of, or carrying
on a business or maintaining a
permanent establishment in, or being
physically present in, such Taxing
Jurisdiction) other than the mere
holding of this Security or the receipt
of principal of, or premium, if any, or
interest in respect of, this Security;
(ii) to, or to a Person on behalf of, a
Holder who presents this Security
(where presentation is required) for
payment more than 30 days after the
Relevant Date except to the extent that
the Holder would have been entitled to
such Additional Amounts on presenting
this Security for payment on the last
day of such period of 30 days;
(iii) to, or to a Person on behalf of, a
Holder who would not be liable or
subject to the withholding or deduction
by making a declaration of nonresidence
or similar claim for exemption to the
relevant taxing authority; or
(iv) in respect of any estate, asset,
inheritance, gift, transfer or sales
tax that is imposed or withheld.
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Such Additional Amounts will also not be payable where, had the
beneficial owner of the Security (or any interest therein) been the Holder of
the Security, such owner would not have been entitled to payment of Additional
Amounts by reason of any one or more of clauses (a) through (d) above. If the
Issuer shall determine that Additional Amounts will not be payable because of
the immediately preceding sentence, the Issuer will inform such Holder promptly
after making such determination setting forth the reason(s) therefor.
References to the payment of principal and the Change of Control
purchase price of, and premium or interest in respect of, this Security shall be
deemed to include any Additional Amounts which may be payable as set forth in
the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or
a certified copy of the official receipts) evidencing payment of the Gross-Up
Taxes. Copies of such receipts shall be made available to the Holder of this
Security upon request.
All notices regarding the Securities shall be published in a
leading English language daily newspaper of general circulation in New York and
London.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed by an authorized signatory of the Company.
NRG ENERGY, INC.
By: _____________________________________
Authorized Officer
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the Indenture described
herein.
THE BANK OF NEW YORK,
as Trustee
By: ______________________________________
Authorized Signatory
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[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of
the Company. The Securities are limited to the aggregate principal amount of
pound sterling 160,000,000, issued under the Indenture, dated as of March 15,
2000, between the Company and The Bank of New York, as the Trustee, to which
Indenture reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
Certain provisions with respect to the interest rate reset
procedures for the Securities after the Initial Reset Date set forth below are
contained in the Remarketing Agreement between the Company and Banc of America
Securities LLC, as the Remarketing Agent.
In accordance with the procedures established in the Remarketing
Agreement and subject to Section 3.4 of the Indenture, the interest rate in
effect with respect to the Securities immediately prior to the Initial Reset
Date shall be reset on the Initial Reset Date to equal the Interest Rate to
Maturity, which shall be effective from and including the Initial Reset Date to
but excluding the final maturity of the Securities, unless the Company shall
exercise the Floating Rate Option in accordance with the provisions herein. If
the Company shall have so exercised the Floating Rate Option, then the Floating
Period Interest Rate shall be reset in accordance with the Remarketing Agreement
on the Reset Date corresponding to the Floating Rate Period Termination Date to
equal the Interest Rate to Maturity, which shall be effective from and including
such Reset Date to but excluding the final maturity of the Securities.
During the period from and including the Fixed Rate Reset Date to
but excluding the final maturity of the Securities, interest on the Securities
shall accrue on the principal amount of the Securities at the Interest Rate to
Maturity and shall be payable semi-annually on each Interest Payment Date,
commencing with the first such Interest Payment Date following the Fixed Rate
Reset Date; provided, however, that, if any such Interest Payment Date is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay). Interest on the Securities from the Fixed
Rate Reset Date shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
In accordance with procedures established in the Remarketing
Agreement and subject to Section 3.4 of the Indenture, if the Company exercises
the Floating Rate Option no later than the fifth Business Day prior to the
Floating Rate Spread Determination Date by providing notice to the Trustee and
Remarketing Agent, then the Securities shall bear interest at the Floating
Period Interest Rate for each Floating Rate Reset Period in the Floating Rate
Period.
During each Floating Rate Reset Period in the Floating Rate
Period, interest on the Securities shall accrue on the principal amount of the
Securities at the Floating Period Interest Rate for such Floating Rate Period
and shall be payable quarterly on each Interest
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Payment Date, commencing with the first such Interest Payment Date following the
Initial Reset Date. The Interest Amount for such Floating Rate Reset Period
shall be determined by (A) applying the Floating Period Interest Rate for such
Floating Rate Reset Period to the Floating Rate Purchase Price and (B)
multiplying that amount by the actual number of days in such Floating Rate Reset
Period divided by 365 (or, if such Floating Rate Reset Period ends in a leap
year, 366) expressed as a decimal and rounded upward if necessary to the nearest
1/16th of 1%.
If the Callholder shall have purchased the Securities pursuant to
the Call Option Agreement and the Company shall have elected the Floating Rate
Option, the Securities shall be automatically tendered, or deemed tendered, by
the Holders thereof to the Remarketing Agent for purchase on the Floating Rate
Period Termination Date. On the Reset Date corresponding to the Floating Rate
Period Termination Date, the interest rate on the Securities shall be reset to
equal the Interest Rate to Maturity in accordance with, and the Securities shall
be remarketed pursuant to, the Remarketing Agreement.
The purchase price for the Securities tendered pursuant to the
paragraph above shall be equal to 100% of the Floating Rate Purchase Price plus
accrued and unpaid interest, if any, thereon to but excluding the Floating Rate
Period Termination Date. If for any reason the Remarketing Agent does not
purchase all of the Securities on the Floating Rate Period Termination Date, the
Company shall be required to redeem the Securities at a redemption price equal
100% of the Floating Rate Purchase Price plus accrued and unpaid interest, if
any, thereon to but excluding the Floating Rate Period Termination Date. If the
Remarketing Agent elects to purchase the Securities, such obligation of the
Remarketing Agent is subject to the conditions set forth in the Remarketing
Agreement.
In the event that the Callholder (i) has not given notice on or
before February 15, 2005 of its intention to exercise the call option under the
Call Option Agreement or (ii) fails to pay on or before the Business Day next
preceding the Initial Reset Date the call price required under the Call Option
Agreement, the Company shall redeem on the Initial Reset Date, in whole but not
in part, the Securities at a redemption price equal to 100% of the aggregate
principal amount of the Securities plus accrued and unpaid interest thereon to
but excluding the Initial Reset Date, upon written notice by 5:00 p.m. London
time on the Business Day next preceding Initial Reset Date from the Trustee, as
holder of the Securities.
Any such written notice given by the Trustee, as holder of the
Securities, shall be irrevocable; provided, however, that if prior to the Early
Redemption Date an Event of Default shall have occurred and be continuing, such
holder, at its option, may elect by written notice to the Company, to withdraw
such instruction and instead to declare the Securities to be due and payable
pursuant to Section 5.1 of the Indenture.
If the Callholder shall have purchased the Securities pursuant to
the Call Option Agreement and the Company shall have elected the Floating Rate
Option, the Company shall be required to redeem the Securities, in whole but not
in part, on any Reset Date following the
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Initial Reset Date at a redemption price equal to the Floating Rate Purchase
Price plus accrued and unpaid interest, if any, thereon to but excluding such
Reset Date in the event that (i) the Remarketing Agent for any reason does not
notify the Company of the Floating Period Interest Rate for the Floating Rate
Reset Period beginning on such Reset Date by 4:00 p.m. (London time) on such
Reset Date or of the Interest Rate to Maturity by 4:00 p.m., (London time) on
the Fixed Rate Determination Date, as applicable, (ii) prior to any such Reset
Date, the Remarketing Agent resigns and no successor has been appointed on or
before such Reset Date or the Fixed Rate Determination Date, as applicable,
(iii) the Remarketing Agent elects to terminate the Remarketing Agreement in
accordance with its terms, (iv) the Remarketing Agent for any reason does not
elect (by notice to the Company and the Trustee not later than the Fixed Rate
Determination Date) to purchase the Securities for remarketing on the Floating
Rate Period Termination Date, (v) the Remarketing Agent for any reason does not
deliver the purchase price of the Securities to or through DTC on or before the
Floating Rate Period Termination Date or (vi) the Company for any reason fails
to redeem the Securities from the Remarketing Agent as provided in the
Remarketing Agreement following the Company's election to effect such redemption
as set forth in paragraph (c) of Section 3.6 of the Indenture.
If the Callholder shall have purchased the Securities pursuant to
the Call Option Agreement and the Company shall have elected the Floating Rate
Option, the Company shall notify the Callholder, the Remarketing Agent and the
Trustee, not later than the Business Day immediately preceding the Floating Rate
Period Termination Date, if the Company irrevocably elects to exercise its right
to redeem the Senior Notes, in whole but not in part, from the Remarketing Agent
on the Floating Rate Period Termination Date. If the Company elects to redeem
the Securities, the Company shall redeem the Securities in whole at a redemption
price equal to the Floating Rate Purchase Price plus accrued and unpaid
interest, if any thereon to but excluding the Floating Rate Period Termination
Date.
The tender and settlement procedures set forth above, including
provisions for payment by purchasers of the Securities to any remarketing agent
or for payment of the Securities, may be modified to the extent required to
facilitate the tender and remarketing of the Securities at the time of the
remarketing. In addition, the Remarketing Agent may, without the consent of
holders of the Securities, modify the tender and settlement procedures specified
above in order to facilitate the tender and settlement process.
Unless the Company defaults in payment of the redemption price,
from and after a redemption date the Securities or portions thereof called for
redemption will cease to bear interest, and the Holders thereof will have no
right in respect of such Securities except the right to receive the redemption
price thereof.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of the Securities and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
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If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture. At any time
after such declaration of acceleration with respect to the Securities has been
made, but before a judgment or decree for payment of money has been obtained by
the Trustee as provided in the Indenture, if all Events of Default with respect
to the Securities have been cured or waived (other than the non-payment of
principal of the Securities which has become due solely by reason of such
declaration of acceleration), then the Holders of a majority in aggregate
principal amount of Securities then outstanding may waive all defaults, as
provided in the Indenture, and rescind and annul such declaration of
acceleration and its consequences.
This Security is subject to redemption in whole but not in part
upon the giving of notice as provided in the Indenture, at a price equal to the
outstanding principal amount thereof, together with Additional Amounts, if any,
and accrued interest, if any, to the Redemption Date if, (a) the Company
satisfies the Trustee prior to the giving of such notice that it has or will
become obligated to pay Additional Amounts as a result of any change in, or
amendment to, the laws or regulations of a Taxing Jurisdiction, or any change in
the application or interpretation of such laws or regulations, which change or
amendment becomes effective on or after March 15, 2000, and (b) such obligation
cannot be avoided by the Company taking reasonable measures available to it,
subject, as provided in the Indenture, to the delivery by the Company of an
Officers' Certificate stating that such obligation to pay Additional Amounts
cannot be avoided by the Company taking reasonable measures available to it.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the Indenture or any
supplemental indenture or the rights and obligations of the Company and the
rights of the Holders of the Securities to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time Outstanding
to be affected (voting as a class). The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, and
premium, if any, and interest in respect of this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
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In the event of a Change of Control, the Issuer has the
obligation, subject to certain conditions, (i) prior to the Initial Reset Date,
to offer to repurchase the Securities at a purchase price in Sterling equal to
100% of the principal amount thereof plus accrued interest, if any, to the date
of repurchase, plus a payment in U.S. Dollars equal to 1% of the principal
amount of Certificates to be repurchased pursuant to a Change of Control Offer
in accordance with the Trust Agreement; (ii) after the Initial Reset Date, to
repurchase the Securities at 101% of the principal amount thereof plus accrued
interest to the date of repurchase in accordance with the procedures set forth
in the Indenture; and (iii) prior to the Initial Reset Date, but after a
Conversion Event, to offer to repurchase the Securities at 101% of the principal
amount thereof plus accrued interest to the date of repurchase in accordance
with the procedures set forth in the Indenture. As further described in the
Indenture, a Change of Control will not be deemed to have occurred if, after
giving effect thereto, the Securities are rated Investment Grade.
The bearer of this Security shall be treated as the owner of it
for all purposes, subject to the terms of the Indenture. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities and of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture in accordance with the terms of the
Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or
Affiliate of the Company shall have any liability for any obligation 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 Holder of
the Securities by accepting the Securities waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities as a convenience to the Holders of the
Securities. No representation is made as to the
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accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
This Security shall be governed by and construed in accordance
with the law of the State of New York.
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SCHEDULE A
SCHEDULE OF ADJUSTMENTS
The initial aggregate principal amount of Securities evidenced by
the Certificate to which this Schedule is attached is ___________. The notations
on the following table evidence decreases and increases in the aggregate
principal amount of Securities evidenced by such Certificate.
Date of Decrease in Increase in Aggregate Notation by
Adjustment Aggregate Aggregate Principal Security
---------- Principal Principal Amount Amount of Registrar
Securities of Securities Securities ---------
---------- ------------- Remaining After
Such Decrease or
Increase
--------
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FORM OF ASSIGNMENT
I or we assign and transfer this Security to:
(Print or type name, address and zip code of assignee)
(Insert assignee's social security or tax I.D. number)
and irrevocably appoint:
Agent to transfer this Security on the books of the Issuer. The Agent may
substitute another to act for him.
Date: Your Signature:
(Sign exactly as your name appears exactly on the other side of this Security)
*Signature
Guarantee:
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FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Issuer pursuant
to Section 4.10 of the Indenture, check the Box: [insert [_] ].
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If you wish to have a portion of this Security purchased by the
Issuer pursuant to Section 4.10 of the Indenture, state the amount (in original
principal amount):
$-----------
Your Signature:
Date:
(Sign exactly as your name appears on the other side of this Security)
*Signature Guarantee
ARTICLE 11
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*Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in 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 Indenture and the Securities Exchange Act of 1934.
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