1
EXHIBIT 4.5
EXECUTION COPY
NRG NORTHEAST GENERATING LLC,
the GUARANTORS party hereto
and
THE CHASE MANHATTAN BANK
as Trustee
INDENTURE
Dated as of February 22, 2000
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Senior Secured Bonds
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................1
SECTION 1.1 Definitions; Construction...................................................................1
SECTION 1.2 Compliance Certificates and Opinions.......................................................23
SECTION 1.3 Form of Documents Delivered to Trustee.....................................................24
SECTION 1.4 Notices, Etc. to Trustee...................................................................24
SECTION 1.5 Notices to Holders; Waiver.................................................................25
SECTION 1.6 Conflict with Trust Indenture Act..........................................................25
SECTION 1.7 Effect of Headings and Table of Contents...................................................26
SECTION 1.8 Successors and Assigns.....................................................................26
SECTION 1.9 Severability Clause........................................................................26
SECTION 1.10 Benefits of Indenture.....................................................................26
SECTION 1.11 Governing Law.............................................................................26
SECTION 1.12 Legal Holidays............................................................................26
SECTION 1.13 Execution in Counterparts.................................................................27
ARTICLE 2 THE BONDS.............................................................................................27
SECTION 2.1 Form of Bond to Be Established by Series Supplemental Indenture............................27
SECTION 2.2 Form of Trustee's Authentication...........................................................27
SECTION 2.3 Amount; Issuable in Series.................................................................27
SECTION 2.4 Authentication and Delivery of Bonds.......................................................29
SECTION 2.5 Form.......................................................................................30
SECTION 2.6 Execution of Bonds.........................................................................30
SECTION 2.7 Temporary Bonds............................................................................31
SECTION 2.8 Registration; Restrictions on Transfer and Exchange........................................31
SECTION 2.9 Mutilated, Destroyed, Lost and Stolen Bonds................................................33
SECTION 2.10 Payment of Principal and Interest; Principal and Interest Rights Preserved................34
SECTION 2.11 Persons Deemed Owners.....................................................................35
SECTION 2.12 Cancellation..............................................................................35
SECTION 2.13 Dating of Bonds; Computation of Interest..................................................35
SECTION 2.14 Source of Payments Limited; Rights and Liabilities of the Issuer..........................35
SECTION 2.15 Allocation of Principal and Interest......................................................36
SECTION 2.16 Parity of Bonds...........................................................................36
ARTICLE 3 APPLICATION OF PROCEEDS FROM SALE OF BONDS............................................................36
SECTION 3.1 Application of Proceeds from Sale of Bonds.................................................36
ARTICLE 4 DEBT SERVICE RESERVE ACCOUNT..........................................................................37
SECTION 4.1 Debt Service Reserve Account...............................................................37
SECTION 4.2. Securities Account; Securities Intermediary...............................................39
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SECTION 4.3. Security Interest.........................................................................41
SECTION 4.4 Investment of Funds........................................................................41
ARTICLE 5 THE GUARANTEES........................................................................................42
SECTION 5.1 The Guarantees.............................................................................42
SECTION 5.2 Obligations Unconditional..................................................................42
SECTION 5.3 Reinstatement..............................................................................43
SECTION 5.4 Subrogation................................................................................44
SECTION 5.5 Remedies...................................................................................44
SECTION 5.6 Instrument for the Payment of Money........................................................44
SECTION 5.7 Continuing Guarantees......................................................................44
SECTION 5.8 Rights of Contribution.....................................................................44
SECTION 5.9 General Limitation on Guarantee Obligations................................................45
SECTION 5.10 Effectiveness.............................................................................45
ARTICLE 6 COVENANTS OF THE ISSUER...............................................................................46
SECTION 6.1 Financial Statements and Other Information.................................................46
SECTION 6.2 Existence; Conduct of Business.............................................................47
SECTION 6.3 Maintenance of Tax Status..................................................................47
SECTION 6.4 Compliance with Laws and Contractual Obligations...........................................47
SECTION 6.5 Maintenance of Properties; Insurance.......................................................48
SECTION 6.6 Payment of Taxes and Claims................................................................48
SECTION 6.7 Books and Records; Inspection Rights.......................................................48
SECTION 6.8 Indebtedness...............................................................................49
SECTION 6.9 Liens......................................................................................49
SECTION 6.10 Certain Obligations Respecting Subsidiaries...............................................49
SECTION 6.11 Restrictive Agreements....................................................................50
SECTION 6.12 Prohibition on Sale of Assets.............................................................50
SECTION 6.13 Modifications of Certain Documents........................................................50
SECTION 6.14 Prohibition on Fundamental Changes........................................................51
SECTION 6.15 Restricted Payments.......................................................................51
SECTION 6.16 Transactions with Affiliates..............................................................52
SECTION 6.17 Investments...............................................................................52
SECTION 6.18 EWG Status................................................................................53
SECTION 6.19 Debt Service Reserve Account..............................................................53
SECTION 6.20 Rule 144A Information.....................................................................54
ARTICLE 7 COVENANTS OF THE GUARANTORS...........................................................................54
SECTION 7.1 Existence; Conduct of Business.............................................................54
SECTION 7.2 Compliance with Laws and Contractual Obligations...........................................54
SECTION 7.3 Maintenance of Properties; Insurance.......................................................54
SECTION 7.4 Indebtedness...............................................................................55
SECTION 7.5 Liens......................................................................................55
SECTION 7.6 Prohibition on Fundamental Changes.........................................................56
SECTION 7.7 Restricted Payments........................................................................56
SECTION 7.8 Transactions with Affiliates...............................................................56
SECTION 7.9 Investments................................................................................57
SECTION 7.10 Operation of Facilities...................................................................58
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SECTION 7.11 Prohibition on Sale of Assets.............................................................58
SECTION 7.12 Modification of Certain Documents.........................................................58
ARTICLE 8 REDEMPTION OF BONDS...................................................................................58
SECTION 8.1 Optional Redemption; Redemption Price......................................................58
SECTION 8.2 Election or Requirement to Redeem; Notice to Trustee.......................................59
SECTION 8.3 Mandatory Redemption; Selection of Bonds to Be Redeemed; Redemption Price..................59
SECTION 8.4 Notice of Redemption.......................................................................60
SECTION 8.5 Bonds Payable on Redemption Date...........................................................61
SECTION 8.6 Bonds Redeemed in Part.....................................................................61
ARTICLE 9 REPURCHASE UPON CHANGE OF CONTROL.....................................................................62
SECTION 9.1. Change of Control.........................................................................62
ARTICLE 10 EVENTS OF DEFAULT AND REMEDIES.......................................................................62
SECTION 10.1 Events of Default.........................................................................62
SECTION 10.2 Acceleration of Maturity; Rescission and Annulment........................................65
SECTION 10.3 Trustee May File Proofs of Claim; Appointment of Trustee as Attorney-in-Fact in
Judicial Proceedings................................................................66
SECTION 10.4 Trustee May Enforce Claims Without Possession of Bonds....................................66
SECTION 10.5 Application of Money Collected............................................................67
SECTION 10.6 Limitation on Suits.......................................................................67
SECTION 10.7 Unconditional Right of Holders to Receive Principal, Premium and Interest.................68
SECTION 10.8 Restoration of Rights and Remedies........................................................68
SECTION 10.9 Rights and Remedies Cumulative............................................................68
SECTION 10.10 Delay or Omission Not Waiver.............................................................68
SECTION 10.11 Control by Holders.......................................................................68
SECTION 10.12 Waiver of Past Defaults..................................................................69
SECTION 10.13 Undertaking for Costs....................................................................69
SECTION 10.14 Waiver of Stay or Extension Laws.........................................................69
ARTICLE 11 CONCERNING THE TRUSTEE...............................................................................70
SECTION 11.1 Certain Rights and Duties of Trustee......................................................70
SECTION 11.2 Trustee Not Responsible for Recitals, Etc.................................................72
SECTION 11.3 Trustee and Others May Hold Bonds.........................................................72
SECTION 11.4 Moneys Held by Trustee or Paying Agent....................................................72
SECTION 11.5 Compensation of Trustee and Its Lien.......................................................72
SECTION 11.6 Right of Trustee to Rely on Officer's Certificates and Opinions of Counsel................73
SECTION 11.7 Persons Eligible for Appointment As Trustee...............................................73
SECTION 11.8 Resignation and Removal of Trustee; Appointment of Successor..............................74
SECTION 11.9 Acceptance of Appointment by Successor Trustee............................................75
SECTION 11.10 Merger, Conversion or Consolidation of Trustee...........................................76
SECTION 11.11 Maintenance of Offices and Agencies......................................................76
SECTION 11.12 Reports by Trustee.......................................................................78
SECTION 11.13 Trustee Risk.............................................................................79
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SECTION 11.14 Appointment of Co-Trustee................................................................79
SECTION 11.15 Knowledge of Default.....................................................................79
ARTICLE 12 CONCERNING THE HOLDERS...............................................................................80
SECTION 12.1 Acts of Holders...........................................................................80
SECTION 12.2 Bonds Owned by Issuer and Affiliates Deemed Not Outstanding...............................81
ARTICLE 13 HOLDERS' MEETINGS....................................................................................82
SECTION 13.1 Purposes for Which Holders' Meetings May Be Called........................................82
SECTION 13.2 Issuer and Holders May Call Meeting.......................................................82
SECTION 13.3 Persons Entitled to Vote at Meeting.......................................................82
SECTION 13.4 Determination of Voting Rights; Conduct and Adjournment of Meeting........................82
SECTION 13.5 Counting Votes and Recording Action of Meeting............................................83
ARTICLE 14 SUPPLEMENTAL INDENTURES..............................................................................84
SECTION 14.1 Supplemental Indentures Without Consent of Holders.........................................84
SECTION 14.2 Supplemental Indenture with Consent of Holders............................................85
SECTION 14.3 Execution of Supplemental Indentures......................................................86
SECTION 14.4 Effect of Supplemental Indentures.........................................................86
SECTION 14.5 Conformity with Trust Indenture Act.......................................................87
SECTION 14.6 Reference in Bonds to Supplemental Indentures.............................................87
ARTICLE 15 SATISFACTION AND DISCHARGE...........................................................................87
SECTION 15.1 Satisfaction and Discharge of Bonds.......................................................87
SECTION 15.2 Satisfaction and Discharge of Indenture...................................................88
SECTION 15.3 Application of Trust Money................................................................89
ARTICLE 16 DEFEASANCE...........................................................................................89
SECTION 16.1 Defeasance................................................................................89
SECTION 16.2 Conditions to Defeasance..................................................................90
ARTICLE 17 LIMITATION ON LIABILITY..............................................................................92
SECTION 17.1 Limitation on Liability...................................................................92
SCHEDULES:
Schedule A Permitted Liens
Schedule B Restrictive Agreements
Schedule C Outstanding Investments
EXHIBITS:
Exhibit A - Form of Acceptable Guarantee
Exhibit B - Form of Subordination Provisions
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Cross-reference sheet showing the location in this Indenture
of the provisions inserted pursuant to Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939, as amended.
Trust Indenture
Act Section Indenture Section
---------- -----------------
Section 310(a)(1) 11.7
(a)(2) 11.7
(a)(3) N/A
(a)(4) N/A
(a)(5) 11.7
(b) 11.8
(c) N/A
Section 311(a) 11.4
(b) N/A
(c) N/A
Section 312(a) N/A
(b) N/A
(c) N/A
Section 313(a) 11.12
(b) 11.12
(c) 11.12
(d) 11.12
Section 314(a) 6.1
(b)(1) N/A
(b)(2) N/A
(c)(1) 1.2
(c)(2) 1.2
(c)(3) N/A
(d) N/A
(e) 1.2
(f) N/A
Section 315(a) 11.1(j)
(b) N/A
(c) 11.1(i)
(d)(1) 11.1(j)
(d)(2) 11.1(e)
(d)(3) 11.1(a); 11.1(e)
(e) 10.8
Section 316(a)(1)(A) 10.2; 10.11
(a)(l)(B) 10.12
(a)(2) N/A
(b) 10.7
(c) 11.1(f)
Section 317(a)(1) 10.3
(a)(2) 10.3
(b) 11.11(c)
Section 318 1.6
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INDENTURE dated as of February 22, 2000 among NRG Northeast
Generating LLC, a Delaware limited liability company (the "Issuer"), the
GUARANTORS party hereto and THE CHASE MANHATTAN BANK, a New York banking
corporation, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the creation of its
bonds, debentures, notes or other evidences of indebtedness to be issued in one
or more series (the "Bonds") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture (as
hereinafter defined); and the Issuer has duly authorized the execution and
delivery of this Indenture, to secure the Bonds and to provide for the
authentication and delivery thereof by the Trustee; and
WHEREAS, all things necessary to make the Bonds, 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;
NOW, THEREFORE, that, for and in consideration of the premises
and of the covenants herein contained and of the purchase of the Bonds by the
holders thereof, it is mutually covenanted and agreed, for the benefit of the
parties hereto and the equal and proportionate benefit of all Holders (as
hereinafter defined) of the Bonds, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions; Construction. For all purposes of
this Indenture (and for all purposes of any other Financing Document (as
hereinafter defined) or any other instrument or agreement that incorporates
provisions of this Indenture by reference), except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act (as hereinafter defined), either directly or by reference
therein, have the meanings assigned to them therein;
(3) except as otherwise expressly provided herein, (i) all
accounting terms used herein shall be interpreted, (ii) all financial
statements and all certificates and reports as to financial matters
required to be delivered to the Trustee hereunder shall be prepared and
(iii) all calculations made for the purposes of determining compliance
with this
NRG Northeast Generating Indenture
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Indenture shall (except as otherwise expressly provided herein) be made
in accordance with, or by application of, GAAP (as hereinafter
defined);
(4) all references in this Indenture (including the Appendices
and Schedules hereto) to designated "Articles", "Sections" and other
subdivisions are to the designated Articles, Sections and other
subdivisions of this Indenture;
(5) 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;
(6) unless the context clearly indicates otherwise, pronouns
having a masculine or feminine gender shall be deemed to include the
other;
(7) unless otherwise expressly specified, any agreement,
contract or document defined or referred to herein shall mean such
agreement, contract or document as in effect as of the date hereof, as
the same may thereafter be amended, supplemented or otherwise modified
from time to time in accordance with the terms of this Indenture and
the other Financing Documents and shall include any agreement,
contract, instrument or document in substitution or replacement of any
of the foregoing entered into in accordance with the terms of this
Indenture and the other Financing Documents;
(8) any reference to any Person (as hereinafter defined) shall
include its permitted successors and assigns in accordance with the
terms of this Indenture and the other Transaction Documents and, in the
case of any Governmental Authority (as hereinafter defined), any Person
succeeding to its functions and capacities;
(9) unless the context clearly requires otherwise, references
to "Law" (as hereinafter defined) or to any particular Law shall
include Laws or such particular Law as in effect at each, every and any
of the times in question, including any amendments, replacements,
supplements, extensions, modifications, consolidations, restatements,
revisions or reenactments thereto or thereof, and whether or not in
effect at the date of this Indenture; and
(10) unless the context clearly intends to the contrary, all
references in this Indenture to "this Indenture", the "benefits of this
Indenture", the "Lien of this Indenture", or phrases of similar import
shall be deemed to include reference to the Collateral Documents (as
hereinafter defined) to the extent that reference to the Collateral
Documents is not expressly made.
"Acceptable Bank" means any commercial bank or other financial
institution which (a) is organized under the laws of the United States of
America, any state thereof or any other member of the Organization for Economic
Cooperation and Development or Japan and has an office in the United States of
America, (b) has capital, surplus and undivided profits of at least
$1,000,000,000 and (c) has outstanding long-term unsecured indebtedness which is
rated "A" or better by S&P and "A2" or better by Xxxxx'x (or an equivalent
rating by another nationally recognized statistical rating organization of
similar standing if neither such corporation is in the business of rating
long-term unsecured bank indebtedness).
NRG Northeast Generating Indenture
9
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"Acceptable Guarantor" means (i) an Acceptable Bank or (ii)
NRG Energy or any Affiliate of NRG Energy (except the Issuer or any of its
Subsidiaries), provided that NRG Energy or such Affiliate is (a) organized under
the laws of any state of the United States of America, (b) has an aggregate
stockholders' equity of at least $250,000,000 and (c) has outstanding long-term
unsecured, unguaranteed indebtedness which is rated "BBB-" or better by S&P and
"Baa3" or better by Xxxxx'x.
"Acquisition Documents" means the Dunkirk/Xxxxxxx Acquisition
Documents, the Somerset Acquisition Documents, the Con Ed Acquisition Documents,
the Oswego Acquisition Documents or the CL&P Acquisition Documents or any
combination thereof (as the context requires).
"Act" when used with respect to any Holder, shall have the
meaning set forth in Section 12.1.
"Affected Property" means, with respect to any Event of Loss,
the property of the Issuer or any of the Guarantors that is lost, destroyed,
damaged, condemned or otherwise taken as a result of such Event of Loss.
"Affiliate" with respect to any Person, means any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, the term
"control" (including the correlative meanings of the terms "controlled by" and
"under common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise. In any event, any
member of the Issuer shall be deemed to be an Affiliate of the Issuer and any
Person that owns directly or indirectly 10% or more of securities having
ordinary voting power for the election of directors or other governing body of a
corporation or 10% or more of the Issuer or other ownership interests of any
other Person will be deemed to control such corporation or other Person.
"Xxxxxx Kill Operator" means NRG Xxxxxx Kill Operations Inc.,
a Delaware corporation.
"Xxxxxx Kill Power" means Xxxxxx Kill Power LLC, a Delaware
limited liability company.
"Assignment of Payments" means each Assignment of Payments
dated February 22, 2000 between the Issuer and each Guarantor party to a Power
Marketing Agreement.
"Astoria Operator" means NRG Astoria Gas Turbine Operations
Inc., a Delaware corporation.
"Astoria Power" means Astoria Gas Turbine Power LLC, a
Delaware limited liability company.
"Authenticating Agent" means any Person acting as
Authenticating Agent hereunder pursuant to Section 11.11.
NRG Northeast Generating Indenture
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"Authorized Agent" means any Paying Agent, Authenticating
Agent or Security Registrar or other agent appointed by the Trustee in
accordance with this Indenture to perform any function that this Indenture
authorizes the Trustee or such agent to perform.
"Authorized Representative" of any of the Issuer, the
Guarantors or any other Person means the person or persons authorized to act on
behalf of such entity by its chief executive officer, president, chief operating
officer, chief financial officer or any vice president or its Board of Directors
or any other governing body of such entity.
"Authorized Signatory" means any officer of the Trustee or any
other individual who shall be duly authorized by appropriate corporate action on
the part of the Trustee to authenticate Bonds.
"Board of Directors", when used with respect to a corporation,
means either the board of directors of such corporation or any committee of that
board duly authorized to act for it, and when used with respect to a limited
liability company, partnership or other entity other than a corporation, any
Person or body authorized by the organizational documents or by the voting
equity owners of such entity to act for them.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Issuer to have been adopted by
the Board of Directors of the Issuer and to be in full force and effect on the
date of such certification.
"Bonds" shall have the meaning set forth in the preamble to
this Indenture.
"Business Day" means a day which is neither a legal holiday
nor a day on which banking institutions (including, without limitation, the
members of the Federal Reserve System) are authorized or required by law,
regulation or executive order to close in The City of New York or the city of
Minneapolis, Minnesota.
"Change of Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record or otherwise, by any Person or
group (within the meaning of the Exchange Act and the rules of the SEC
thereunder as in effect on the date hereof) other than NRG Energy or its
wholly-owned Subsidiaries, of ownership interests representing more than 50% of
the aggregate ordinary voting power represented by the membership interests of
the Issuer; or (b) the acquisition of direct or indirect control of the Issuer
by any Person or group other than NRG Energy or its wholly-owned Subsidiaries
otherwise than as described in clause (a); provided that there shall be no
Change of Control if either (i) after the occurrence of either of the events
referred to in clause (a) or (b) above, the Rating Agencies shall have confirmed
their respective ratings of the Bonds in effect immediately prior to the
occurrence of such events or (ii) holders of not less than 66K% in aggregate
principal amount of the Outstanding Bonds approve the occurrence of such event.
"CL&P" means Connecticut Light & Power Company, a Connecticut
corporation.
"CL&P Acquisition Documents" means the Asset Sales Agreement
between NRG Energy and CL&P dated as of July 1, 1999 and each of the other
agreements attached as a form thereto.
NRG Northeast Generating Indenture
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"Closing Date" means February 22, 2000, the date on which the
Initial Bonds are first issued and sold hereunder.
"Collateral" means all property and interests in property now
owned or hereafter acquired in or upon which a Lien has been or is purported or
intended to have been granted to the Trustee pursuant to the Collateral
Documents.
"Collateral Agency and Intercreditor Agreement" means the
Collateral Agency and Intercreditor Agreement dated as of February 22, 2000
among the Issuer, the Initial Guarantors, the Working Capital Agent, the Trustee
and the Collateral Agent.
"Collateral Agent" means The Chase Manhattan Bank, solely in
its capacity as collateral agent under the Collateral Agency and Intercreditor
Agreement.
"Collateral Documents" means the Security Agreement, the NRG
Power Marketing Security Agreement, the Collateral Agency and Intercreditor
Agreement, the Consent and Agreements and the Intercompany Notes.
"Con Ed Acquisition Documents" means the Generating Plant and
Gas Turbine Asset Purchase and Sale Agreement dated as of January 27, 1999
between NRG Energy and Consolidated Edison Company of New York, Inc.
and each of the other agreements attached as a form thereto.
"Connecticut Jet Power" means Connecticut Jet Power LLC, a
Delaware limited liability company.
"Consent and Agreements" means, collectively, (a) the consent
and agreement dated February 22, 2000 among Niagra Mohawk Power Corporation,
Dunkirk Power, Xxxxxxx Power and Oswego Power, (b) the consent and agreement
dated February 22, 2000 among Consolidated Edison Company of New York, Inc.,
Xxxxxx Kill Power and Astoria Power, (c) the consent and agreement dated
February 22, 2000 among Eastern Edison Company, Blackstone Valley Electric
Company, Newport Electric Corporation and NRG Power Marketing and (d) the
consent and agreement dated February 22, 2000 between CL&P and NRG Power
Marketing.
"Corporate Services Agreement" means (a) the Corporate
Services Agreement between NRG Energy and Astoria Power dated June 25, 1999, (b)
the Corporate Services Agreement between NRG Energy and Xxxxxx Kill Power dated
June 25, 1999, (c) the Corporate Services Agreement between NRG Energy and
Dunkirk Power dated June 11, 1999, (d) the Corporate Services Agreement between
NRG Energy and Xxxxxxx Power dated June 11, 1999, (e) the Amended and Restated
Corporate Services Agreement between NRG Energy and Somerset Power dated July
15, 1999, (f) the Corporate Services Agreement between NRG Energy and Oswego
Harbor Power dated October 22, 1999, (g) the Corporate Services Agreement
between NRG Energy and Connecticut Jet Power dated December 15, 1999, (h) the
Corporate Services Agreement between NRG Energy and Devon Power dated December
15, 1999, (i) the Corporate Services Agreement between NRG Energy and Middletown
Power dated December 15, 1999, (j) the Corporate Services Agreement between NRG
Energy and Montville Power dated December 15, 1999 and (k) the Corporate
Services Agreement between NRG
NRG Northeast Generating Indenture
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Energy and Norwalk Power dated December 15, 1999, or any combination thereof
(as the context requires).
"Corporate Trust Office" means the principal office of the
Trustee or Security Registrar at which the corporate trust business of the
Trustee or Security Registrar, as the case may be, shall at any particular time
be principally administered, which at the time of the execution of this
Indenture is, in each case, located at 000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Capital Markets Fiduciary Services.
"Covenant Defeasance" has the meaning set forth in Section
16.1.
"Custodian" has the meaning set forth in Section 2.5.
"Debt Service Coverage Ratio" for any period means, on a
consolidated basis of the Issuer and the Guarantors (excluding the Unrestricted
Subsidiaries and without duplication), the ratio of, (x) all Revenues less
Operating Expenses (other than nonrecurring expenses in connection with the
issuance of Permitted Indebtedness), less all capital expenditures (unless
funded with Permitted Indebtedness), to (y) the aggregate of principal, interest
and fees payable on the Outstanding Bonds and all other Permitted Indebtedness
(other than Subordinated Indebtedness, fees payable in connection with the
issuance of Permitted Indebtedness and principal payments under the Working
Capital Facility, provided that such amounts remain available to be drawn under
the Working Capital Facility or are refinanced under a replacement Working
Capital Facility) plus payments required to be made under any Interest Rate
Agreements, less payments to be received under any Interest Rate Agreement for
such period.
"Debt Service Reserve Account" has the meaning set forth in
Section 4.1.
"Debt Service Reserve Amount" means, as of any date of
determination, the aggregate amount of cash on deposit in the Debt Service
Reserve Account, plus the aggregate fair market value of all Permitted
Investments on deposit therein at such time, plus the amount available to be
drawn or demanded under all Debt Service Reserve Support Instruments credited to
such account at such time.
"Debt Service Reserve Guarantee" means a guarantee of an
Acceptable Guarantor executed and delivered to the Trustee to support the
obligations of the Issuer hereunder with respect to all or a part of the
Issuer's obligation to fund the Debt Service Reserve Account and permitting
demands for payment thereunder as contemplated by Section 4.1, in each case:
(i) in substantially the form attached hereto as Exhibit A;
(ii) with a term ending no earlier than the termination or
satisfaction and discharge of this Indenture; and
(iii) providing for the amount thereof to be made available in
full to the Trustee in multiple payments upon the demand of the
Trustee.
NRG Northeast Generating Indenture
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"Debt Service Reserve Letter of Credit" means one or more
irrevocable direct pay letters of credit available for the purpose of drawing to
pay principal and interest on the Bonds in an amount up to the Debt Service
Reserve Requirement and any extensions thereof or any substitute letter of
credit therefor in the stated amount contained in such extension or substitute
and permitting draws thereon as contemplated by Section 4.1, in each case:
(i) issued to the Trustee (for the benefit of the Holders) by
an Acceptable Bank;
(ii) expiring not earlier than the latest to occur of (a) the
date on which the stated amount thereof is drawn down to zero, (b) the
date on which the Trustee returns the letter of credit to the issuer
thereof for cancellation and (c) the maturity of any of the Guaranteed
Obligations;
(iii) providing for the amount thereof to be made available in
full to the Trustee in multiple drawings conditioned only upon the
presentation of a sight draft accompanied by the applicable certificate
in the form attached to such letter of credit; and
(iv) with respect to which the Issuer certifies in an
Officer's Certificate that such Letter of Credit does not constitute
Indebtedness of the Issuer and is not secured by a Lien on any of the
property of the Issuer.
"Debt Service Reserve Requirement" means, at any date of
determination, the sum of the Required Amounts for all series of Bonds then
Outstanding.
"Debt Service Reserve Shortfall" means, as at any date of
determination, the excess of the Debt Service Reserve Requirement over the Debt
Service Reserve Amount as at such date, if any.
"Debt Service Reserve Support Instrument" means one or more
Debt Service Reserve Guarantees or one or more Debt Service Reserve Letters of
Credit or both (as the context requires).
"Default" means an event or condition that, with the giving of
notice, lapse of time or failure to satisfy certain specified conditions, or any
combination thereof, would become an Event of Default if not cured or remedied.
"Designation Letter" has the meaning given to such term in the
Collateral Agency and Intercreditor Agreement.
"Devon Operator" means NRG Devon Operations Inc., a Delaware
corporation.
"Devon Power" means Devon Power LLC, a Delaware limited
liability company.
"Distribution Compliance Period" means, with regard to Bonds
of any series offered and sold in their initial distribution outside the United
States in reliance on Regulation S, the period of 40 consecutive days beginning
on the later of (i) the date on which the Bonds of such series are first offered
to persons other than distributors (as defined in Regulation S) in reliance on
Regulation S (according to a written notice to the Trustee by the initial
purchasers
NRG Northeast Generating Indenture
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-8-
thereof) and (ii) the date on which the same such Bonds are initially issued,
authenticated and sold.
"Dunkirk Operator" means NRG Dunkirk Operations Inc., a
Delaware corporation.
"Dunkirk Power" means Dunkirk Power LLC, a Delaware limited
liability company.
"Dunkirk/Xxxxxxx Acquisition Documents" means the Asset Sales
Agreement between NRG Energy and Niagara Mohawk Power Corporation dated as of
December 23, 1998 and each of the other agreements attached as a form thereto.
"Environmental Approvals" means Governmental Approvals
required under applicable Environmental Laws.
"Environmental Laws" means any and all Laws (as well as
obligations, duties and requirements relating thereto under common law) relating
to: (i) noise, emissions, discharges, spills, releases or threatened releases of
pollutants, contaminants, environmentally regulated materials, materials
containing environmentally regulated materials, or hazardous or toxic materials
or wastes into ambient air, surface water, groundwater, watercourses, publicly
or privately-owned treatment works, drains, sewer systems, wetlands, septic
systems or onto land surface or subsurface strata; (ii) the use, treatment,
storage, disposal, handling, manufacture, processing, distribution,
transportation, or shipment of environmentally regulated materials, materials
containing environmentally regulated materials or hazardous and/or toxic wastes,
material, products or by-products (or of equipment or apparatus containing
environmentally regulated materials); (iii) pollution or the protection of human
health, the environment or natural resources or (iv) zoning and land use.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
"Event of Default" means any event or condition specified as
such in Section 10.1 hereof that shall have continued for the applicable period
of time, if any, therein designated.
"Event of Eminent Domain" means any compulsory transfer or
taking or transfer under threat of compulsory transfer or taking of any material
part of the collateral by any Governmental Authority.
"Event of Loss" means an event which causes all or a portion
of any Facility to be damaged, destroyed or rendered unfit for normal use for
any reason whatsoever including, but not limited to, an Event of Eminent Domain.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended and in effect from time to time.
NRG Northeast Generating Indenture
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"Facilities" means the electric generation plants and the
related facilities and equipment owned by the Initial Guarantors and any
Subsequent Guarantors and, in each case, the business and activities related
thereto.
"Federal Bankruptcy Code" means Title 11 of the United States
Code, as amended and in effect from time to time.
"Financing Documents" means this Indenture, any Series
Supplemental Indenture the Bonds, the Collateral Documents and the Registration
Rights Agreement.
"First Series Supplemental Indenture" means the First
Supplemental Indenture dated as of February 22, 2000 among the Trustee, the
Issuer and the Guarantors.
"Funds Administration Agreement" means the Funds
Administration Agreement dated February 22, 2000 among the Issuer and each of
the Guarantors.
"GAAP" means generally accepted accounting principles in
effect in the United States 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.
"Global Bonds" means a Bond in global form that evidences all
or part of the Bonds and is authenticated and delivered to, and registered in
the name of, the Registered Depositary for such securities or a nominee thereof.
"Good Faith Contest" means the contest of an item if such item
is diligently contested in good faith by appropriate proceedings timely
instituted and (a) adequate reserves are established if required by and in
accordance with GAAP with respect to the contested item and held in cash or
investments and (b) during the period of such contest the enforcement of any
contested item is effectively stayed.
"Governmental Approvals" means any authorization, consent,
approval, order, license, franchise, ruling, permit, certification, waiver,
exemption, filing or registration by or with any Governmental Authority
(including, without limitation, Environmental Approvals, zoning variances,
special exceptions and non-conforming uses) relating to the construction,
ownership, operation or maintenance of the Facilities or to the execution,
delivery or performance of any Transaction Document.
"Governmental Authority" means any nation, state, sovereign or
government, any federal, regional, state, municipal, local or political
subdivision thereof or any department, commission, board, bureau, agency,
instrumentality, judicial or administrative body or other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranteed Obligations" has the meaning set forth in Section
5.1.
NRG Northeast Generating Indenture
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"Guarantor" means each of the Initial Guarantors and any
Subsequent Guarantor.
"Guarantee" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing in
any manner any Indebtedness or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation (whether arising by virtue of Issuer arrangements, by agreement to
keep-well, to purchase assets, goods, bonds or services, to take-or-pay, or to
maintain financial statement conditions or otherwise), (ii) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part) or (iii) to reimburse any Person for
the payment by such Person under any letter of credit, surety, bond or other
guaranty issued for the benefit of such other Person, provided that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" or "Guaranteed" used as a verb
has a correlative meaning.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement entered into in the ordinary course of business and not for
speculative purposes.
"Holder" means a Person in whose name a Bond is registered in
the Security Register.
"Xxxxxxx Operator" means NRG Xxxxxxx Operations Inc., a
Delaware corporation.
"Xxxxxxx Power" means Xxxxxxx Power LLC, a Delaware limited
liability company.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person upon which interest
charges are customarily paid, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding trade and other
accounts payable incurred in the ordinary course of business so long as such
trade accounts payable are payable and paid within 90 days of the date the
respective goods are delivered or the respective services rendered), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Indebtedness of any other Person
guaranteed by such person or for which such Person shall otherwise (including
payments pursuant to any keep-well, make-well or similar arrangement) become
directly or indirectly liable, (h) all capital lease obligations of such Person,
(i) all obligations, contingent or otherwise, of such Person as an account party
or issuer in respect of letters of credit
NRG Northeast Generating Indenture
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-11-
or the like and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity
(including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnification Agreement" means the indemnification
agreement dated December 23, 1999 by NRG Energy in favor of The Chase Manhattan
Bank and Citibank, N.A. as Lender Representatives (as defined therein) and the
Indemnified Parties (as defined therein).
"Indemnification Consent Agreement" means the Indemnification
Consent Agreement dated February 22, 2000 among NRG Energy, the Issuer, the
Initial Purchasers, the Trustee and the Collateral Agent.
"Indenture" means this instrument entered into by the Issuer,
the Guarantors and the Trustee.
"Initial Bonds" means the Bonds issued by the Issuer on the
Closing Date under the First Series Supplemental Indenture.
"Initial Guarantors" means each of Xxxxxx Kill Power, Astoria
Power, Connecticut Jet Power, Devon Power, Dunkirk Power, Xxxxxxx Power,
Middletown Power, Montville Power, Norwalk Power, Oswego Harbor Power and
Somerset Power.
"Initial Purchasers" means Chase Securities, Inc., Xxxxxxx
Xxxxx Xxxxxx Inc., ABN AMRO Incorporated, CIBC World Markets and Dresdner
Kleinwort Xxxxxx X.X. LLC as the initial purchasers of the Initial Bonds.
"Intercompany Loan" means Indebtedness to the Issuer or any
Guarantor by the Issuer or any Guarantor.
"Intercompany Notes" means the notes evidencing indebtedness
owed by the Guarantors to the Issuer dated February 22, 2000.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future, interest rate option, interest rate swap,
interest rate cap or other interest rate hedge arrangement, to which the Issuer
or any Guarantor is a party, entered into in the ordinary course of business in
connection with Permitted Indebtedness and not for speculative purposes.
"Investment" means, for any Person: (i) the acquisition
(whether for cash, property of such Person, services or securities or otherwise)
of capital stock, bonds, notes, debentures or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
short sale), (ii) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of property
from another Person subject to an
NRG Northeast Generating Indenture
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understanding or agreement, contingent or otherwise, to resell such property to
such Person, but excluding any such advance, loan or extension of credit arising
in connection with the sale of inventory or supplies by such Person in the
ordinary course of business), (iii) the entering into of any Guarantee of, or
any other contingent obligation with respect to, Indebtedness or other liability
of any other Person and (without duplication) any amount committed to be
advanced, lent or extended to such Person or (iv) the entering into of any
Hedging Agreement.
"Issuer" has the meaning set forth in the preamble to this
Indenture.
"Issuer Order" means, respectively, a written request or order
signed in the name of the Issuer by one of its Authorized Representatives, and
by its treasurer, secretary, or one of its assistant treasurers or assistant
secretaries.
"Issuer's Obligations" has the meaning set forth in Section
17.1.
"Law" means any constitutional provision, law, statute, rule,
regulation, ordinance, treaty, order, decree, judgment, decision, certificate,
holding, injunction, Governmental Approval, consent or other requirement of any
Governmental Authority, enforceable at law or in equity, along with the
interpretation and administration thereof by any Governmental Authority charged
with the interpretation or administration thereof.
"Legal Defeasance" has the meaning set forth in Section 16.1.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loss Proceeds" means all insurance proceeds or other amounts
received on account of any Event of Loss.
"Majority Holders" means the holders of more than 50% in
aggregate principal amount of (i) the Bonds then Outstanding or (ii) the
Outstanding Bonds of the applicable series, as the case may be.
"Mandatory Redemption Account" has the meaning given to such
term in Section 8.2.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Issuer and the Guarantors taken as a whole, (b) the ability of
any Obligor to perform any of its obligations under any Transaction Document to
which it is a party, which obligations are material to the Issuer and the
Guarantors, taken as a whole, or (c) the material rights of or benefits
available to the Holders or the Trustee, as representative of the Holders.
NRG Northeast Generating Indenture
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"Member" means each of NRG Eastern LLC and Northeast
Generation Holding LLC, which are at the date of this Indenture the sole holders
of an equity interest in the Issuer, and any future members or equity holders of
the Issuer.
"Middletown Operator" means NRG Middletown Operations Inc., a
Delaware corporation.
"Middletown Power" means Middletown Power LLC, a Delaware
limited liability company.
"Montville Operator" means NRG Montville Operations Inc., a
Delaware corporation.
"Montville Power" means Montville Power LLC, a Delaware
limited liability company.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor thereto.
"Non-Recourse Obligations" means Indebtedness or other
obligations or liabilities (i) as to which neither the Issuer nor any of the
Guarantors (a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness) (b) is directly or
indirectly liable (as a guarantor or otherwise) other than pursuant to a pledge
by the Issuer of an equity interest in the obligor of the Indebtedness or (c)
constitutes the lender and (ii) no default with respect to which (including any
rights any Person may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
Indebtedness of the Issuer or any of Guarantor to declare a default on such
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"Norwalk Power" means Norwalk Power LLC, a Delaware limited
liability company.
"Norwalk Operator" means NRG Norwalk Harbor Operations Inc., a
Delaware corporation.
"NRG Energy" means NRG Energy, Inc., a Delaware corporation.
"NRG Operations" means NRG Operating Services, Inc., a
Delaware corporation.
"NRG Power Marketing" means NRG Power Marketing Inc., a
Delaware corporation.
"NRG Power Marketing Security Agreement" means the NRG Power
Marketing Security Agreement dated February 22, 2000 between NRG Power
Marketing, Inc. and the Collateral Agent.
"Obligations" shall have the meaning set forth in Section
16.2.
NRG Northeast Generating Indenture
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"Obligor" means the Issuer and each Guarantor.
"Officer's Certificate" means, in the case of the Issuer, a
certificate of an Authorized Representative of the Issuer and signed by a
managing director, president, a vice president, the treasurer, an assistant
treasurer, the secretary or an assistant secretary of the Issuer.
"Operating Expenses" means for any period, the sum, computed
without duplication, of all costs and expenses incurred (in the case of the
Issuer) by the Issuer or (in the case of any Guarantor) by such Guarantor during
such period (or, in the case of any future period, projected to be paid or
payable during such period) in connection with the operation, maintenance and
administration of the Facilities.
"Operation and Maintenance Agreement" means (a) the Operation
and Maintenance Agreement dated June 25, 1999 between the Astoria Operator and
Astoria Power, (b) the Operation and Maintenance Agreement dated June 25, 1999
between the Xxxxxx Kill Operator and Xxxxxx Kill Power, (c) the Operation and
Maintenance Agreement dated December 15, 1999 between the Middletown Operator
and Connecticut Jet Power, (d) the Operation and Maintenance Agreement dated
December 15, 1999 between the Devon Operator and Devon Power, (e) the Operation
and Maintenance Agreement dated June 11, 1999 between the Dunkirk Operator and
Dunkirk Power, (f) the Operation and Maintenance Agreement dated June 11, 1999
between the Xxxxxxx Operator and Xxxxxxx Power, (g) the Operation and
Maintenance Agreement dated December 15, 1999 between the Middletown Operator
and Middletown Power, (h) the Operation and Maintenance Agreement dated December
15, 1999 between the Montville Operator and Montville Power, (i) the Operation
and Maintenance Agreement dated December 15, 1999 between the Norwalk Operator
and Norwalk Power, (j) the Operation and Maintenance Agreement dated October 22,
1999 between the Oswego Operator and Oswego Harbor Power and (k) the Amended and
Restated Operation and Maintenance Agreement dated July 15, 1999 between the
Somerset Operator and Somerset Power and any successor or replacement
agreements, or any combination thereof (as the context requires).
"Operator" means the Xxxxxx Kill Operator, the Astoria
Operator, the Connecticut Jet Operator, the Devon Operator, the Dunkirk
Operator, the Xxxxxxx Operator, the Middletown Operator, the Montville Operator,
the Norwalk Operator, the Oswego Operator or the Somerset Operator, or any
combination thereof (as the context requires).
"Opinion of Counsel" means a written opinion of counsel for
any Person either expressly referred to herein or otherwise reasonably
satisfactory to the Trustee which may include, without limitation, counsel for
the Issuer, whether or not such counsel is an employee of the Issuer.
"Oswego Acquisition Documents" means the Asset Sales Agreement
dated as of April 1, 1999 between NRG Energy, Niagara Mohawk Power Corporation,
Rochester Gas and Electric Corporation and Oswego Harbor Power and each of the
other agreements attached as a form thereto.
"Oswego Harbor Power" means Oswego Harbor Power LLC, a
Delaware limited liability company.
NRG Northeast Generating Indenture
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"Oswego Operator" means NRG Oswego Harbor Power Operations
Inc., a Delaware corporation.
"Outstanding", when used with respect to Bonds or any
principal amount thereof, means, as of the date of determination, all Bonds
theretofore authenticated and delivered under this Indenture, except:
(i) Bonds theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Bonds for whose redemption money in the necessary amount
has been theretofore deposited in trust with the Trustee; provided that
if such Bonds are to be redeemed prior to the maturity thereof, notice
of such redemption has been duly given pursuant to Article 8 or
provision therefor satisfactory to the Trustee has been made;
(iii) Bonds or portions thereof deemed to have been paid
within the meaning of Section 14.1;
(iv) Bonds as to which defeasance has been effected pursuant
to Article 16; and
(v) Bonds which have been paid pursuant to Section 2.9 or that
have been exchanged for other Bonds or Bonds in lieu of which other
Bonds have been authenticated and delivered pursuant to this Indenture
other than any Bonds in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Bonds are
held by a bona fide purchaser in whose hands such Bonds constitute
valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Bonds of any series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Bonds
owned by the Issuer or any of its Subsidiaries or any Affiliate of the Issuer or
any of its Subsidiaries shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Bonds which the Trustee knows to be so owned shall be so
disregarded. Bonds so owned which 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 to act with respect to such Bonds and that the
pledgee is not the Issuer or a Subsidiary or any Affiliate of the Issuer or any
Subsidiary.
"Paying Agent" means any Person acting as Paying Agent
hereunder pursuant to Section 11.11.
"Permitted Indebtedness" means (a) the Bonds; (b)
Indebtedness, provided, that after giving effect to the incurrence of such
Indebtedness on a pro forma basis and the application of the net proceeds
thereof (A) there is no current Default or Event of Default unless the proceeds
of such Indebtedness are applied to cure, and such application does cure, such
Default or Event of Default; and (B) the Issuer provides an Officer's
Certificate that certifies that (x) the minimum annual Projected Debt Service
Coverage Ratio for each calendar year commencing with the year in which such
Indebtedness is incurred through the final maturity of
NRG Northeast Generating Indenture
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the Bonds with the longest maturity is no less than 2.00 to 1; and (y) the Debt
Service Coverage Ratio for the preceding four consecutive fiscal quarters (taken
as a whole) was not less than 2.00 to 1 (or such shorter period covering the
quarters ended subsequent to the issuance of the Bonds); and (C) each of the
Rating Agencies confirms its then current rating on the Bonds; (c) Indebtedness
for working capital purposes not to exceed in the aggregate the sum of
$50,000,000 plus, upon the acquisition of any Subsequent Guarantor or any
additional facility by a Guarantor or the Issuer, 4% of the Indebtedness
incurred by the Issuer in connection with such acquisition; (d) Indebtedness
related to Permitted Liens; (e) Indebtedness of the Issuer to a Guarantor; (f)
Indebtedness represented by Hedging Agreements; (g) Indebtedness in the form of
performance or payment guarantees entered into by the Issuer in the ordinary
course of business in connection with (i) fuel procurement by NRG Power
Marketing directly related to the Facilities, (ii) sales or purchases of
emissions allowances by NRG Power Marketing directly related to the facilities
and (iii) sales of electrical generating capacity, energy or ancillary services
by NRG Power Marketing directly related to the Facilities in each case, so long
as such activities are not for speculative purposes; (h) Indebtedness in respect
of letters of credit, surety bonds or performance bonds issued in the ordinary
course of business; (i) trade accounts payable or other similar indebtedness
arising, and accrued expenses incurred, in the ordinary course of business (but
not in any case for borrowed money) (j) other Senior Debt not to exceed
$15,000,000; and (k) Subordinated Indebtedness, provided, that no such Permitted
Indebtedness shall be secured by the Collateral unless the lender or lenders
thereof or its or their representative shall have executed, and been designated
a "Secured Party" pursuant to, a Designation Letter delivered to the Collateral
Agent.
"Permitted Investments" means investments in securities or
other instruments that are: (i) direct obligations of the United States, or any
agency thereof; (ii) obligations fully guaranteed by the United States or any
agency thereof; (iii) certificates of deposit issued by commercial banks under
the laws of the United States or any political subdivision thereof or under the
laws of Canada, Japan or any country that is a member of the European Economic
Union having a combined capital and surplus of at least $500,000,000 and having
long-term unsecured debt securities rated "A" or better by S&P and "A2" or
better by Moody's (but at the time of investment not more than $25,000,000 may
be invested in such certificates of deposit from any one bank); (iv) repurchase
obligations for underlying securities of the types described in clauses (i) and
(ii) above, entered into with any commercial bank meeting the qualifications
specified in clause (iii) above or any other financial institution having
long-term unsecured debt securities rated "A" or better by S&P and "A2" or
better by Moody's in connection with which such underlying securities are held
in trust or by a third-party custodian; (v) open market commercial paper of any
corporation incorporated or doing business under the laws of the United States
or of any political subdivision thereof having a rating of at least "A-1" from
S&P and "P-1" from Moody's (but at the time of investment not more than
$25,000,000 may be invested in such commercial paper from any one company); (vi)
investments in money market funds having a rating assigned by each of the Rating
Agencies equal to the highest rating assigned thereby to money market funds or
money market mutual funds sponsored by any securities broker dealer of
recognized national standing (or an Affiliate thereof), having an investment
policy that requires substantially all the invested assets of such fund to be
invested in investments described in any one or more of the foregoing clauses
and having a rating of "A" or better by S&P and "A2" or better by Moody's
(including money market funds or money market mutual funds for which the Trustee
in its individual capacity or any of its affiliates is investment manager or
adviser) or
NRG Northeast Generating Indenture
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-17-
(vii) a deposit of any bank (including the Trustee), trust company or financial
institution authorized to engage in the banking business having a combined
capital and surplus of at least US$500,000,000, whose long-term, unsecured debt
is rated "A" or higher by S&P and "A2" of higher by Moody's.
"Permitted Liens" means:
(a) Liens in favor of the Issuer or any Guarantor;
(b) Liens imposed by law for taxes, assessments or
governmental charges that are not yet delinquent and remain payable
without penalty or that are being contested in good faith by
appropriate proceedings;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 45 days or are being contested in good faith by
appropriate proceedings;
(d) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations or other
statutory obligations of the Issuer or any Guarantor;
(e) cash deposits or rights of set-off to secure the
performance of bids, tenders, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds, government
contracts and other obligations of a like nature (other than for
payment obligations of borrowed money), in each case in the ordinary
course of business;
(f) judgment liens in respect of judgments that do not give
rise to an Event of Default under clause (g) of Section 10.1;
(g) encumbrances identified on Schedule A hereto, and other
easements, zoning restrictions, rights-of-way and similar charges or
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Issuer or any
Guarantor;
(h) Liens securing Hedging Agreements which Hedging Agreements
relate to Indebtedness that is secured by Liens otherwise permitted
under this Indenture;
(i) Liens that are incidental to the business of the Issuer or
the Guarantors, are not for borrowing money and are not material, taken
as a whole, to the business of the Issuer and the Guarantors;
(j) Liens created or granted pursuant to the Collateral
Documents; and
(k) Liens with respect to other Permitted Indebtedness (other
than Subordinated Indebtedness), provided that the Bonds are secured on
an equal and ratable basis with the obligation so secured until such
obligation is no longer secured.
NRG Northeast Generating Indenture
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"Person" means any individual, sole proprietorship,
corporation, company, partnership, joint venture, limited liability company,
trust, unincorporated association, institution, Governmental Authority or any
other entity.
"Place of Payment", when used with respect to the Bonds of any
series means the office or agency maintained pursuant to Section 11.11 and such
other place or places, if any, where the principal of, and premium, if any, and
interest on the Bonds of such series are payable as specified herein or in any
Series Supplemental Indenture setting forth the terms of the Bonds of such
series.
"Power Sales Agreement" means each transition agreement and
each other contract or agreement, other than Power Marketing Agreements, now
existing or entered into in the future by the Issuer or any of the Guarantors
for the sale of electrical generating capacity, electrical energy, ancillary
services or any combination thereof.
"Power Marketing Agreement" means (a) the Power Sales and
Agency Agreement dated June 25, 1999 between NRG Power Marketing and Astoria
Power, (b) the Power Sales and Agency Agreement dated June 25, 1999 between NRG
Power Marketing and Xxxxxx Kill Power, (c) the Power Sales and Agency Agreement
dated December 15, 1999 between NRG Power Marketing and Connecticut Jet Power,
(d) the Power Sales and Agency Agreement dated December 15, 1999 between NRG
Power Marketing and Devon Power, (e) the Power Sales and Agency Agreement dated
June 11, 1999 between NRG Power Marketing and Dunkirk Power, (f) the Power Sales
and Agency Agreement dated June 11, 1999 between NRG Power Marketing and Xxxxxxx
Power, (g) the Power Sales and Agency Agreement dated December 15, 1999 between
NRG Power Marketing and Middletown Power, (h) the Power Sales and Agency
Agreement dated December 15, 1999 between NRG Power Marketing and Montville
Power, (i) the Power Sales and Agency Agreement dated December 15, 1999 between
NRG Power Marketing and Norwalk Power, (j) the Power Sales and Agency Agreement
dated October 22, 1999 between NRG Power Marketing and Oswego Harbor Power and
(k) the Amended and Restated Power Sales and Agency Agreement dated July 15,
1999 between NRG Power Marketing and Somerset Power, or any combination thereof
(as the context requires).
"Predecessor Bonds", with respect to any particular Bond,
means any previous Bond evidencing all or a portion of the same debt as that
evidenced by such particular Bond; for the purposes of this definition, any Bond
authenticated and delivered under Section 2.9 in lieu of a lost, destroyed or
stolen Bond shall be deemed to evidence the same debt as the lost, destroyed or
stolen Bond.
"Projected Debt Service Coverage Ratio" means, at any time of
determination thereof, a projection of the Debt Service Coverage Ratio over the
period specified, prepared by the Issuer in good faith based upon assumptions
consistent in all material respects with the Transaction Documents, historical
operating results, if any, and the Issuer's good faith projections of future
Revenues and Operating Expenses of the Issuer and the Guarantors in light of the
then existing or reasonably expected regulatory and market environments in the
markets in which the Facilities are or will be operated and upon the assumption
that no early redemption or prepayment of the Bonds of any series will be made
prior to the stated maturity of such series of Bonds. Whenever this Indenture
provides for the determination of a Projected Debt Service
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Coverage Ratio, the Projected Debt Service Coverage Ratio shall be set forth in
an Officer's Certificate of the Issuer filed with the Trustee stating that,
based upon reasonable investigation and review, the Projected Debt Service
Coverage Ratio is based on the criteria set forth in the preceding sentence.
"Prudent Industry Practice" means any of those practices,
methods, standards and acts (including but not limited to the practices, methods
and acts engaged in or approved by a significant portion of the electric power
generation industry in the United States) that, at a particular time, in the
exercise of reasonable judgment in light of the facts known or that should
reasonably have been known at the time a decision was made, could have been
expected to accomplish the desired result consistent with good business
practices, reliability, economy, safety and expedition, and which practices
generally conform to applicable law and governmental approvals. "Prudent
Industry Practice" is not intended to be limited to optimal practices that could
be used to accomplish a desired result.
"PUHCA" means the Public Utility Holding Company Act of 1935,
as amended and in effect from time to time.
"Rating Agencies" means S&P and Moody's, or another nationally
recognized credit rating agency of similar standing if either of the foregoing
corporations is not in the business of rating the subject of such rating.
"Redemption Date" has the meaning set forth in Section 8.2.
"Redemption Price" means, with respect to any Bond Outstanding
on any Redemption Date, an amount equal to the principal of such Bond
Outstanding on such date, plus interest accrued and unpaid to but excluding such
Redemption Date.
"Registered Depositary" means The Depository Trust Company,
having a principal office at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
together with any Person succeeding thereto by merger, consolidation or
acquisition of all or substantially all of its assets, including substantially
all of its securities payment and transfer operations.
"Registration Rights Agreement" means the Registration Rights
Agreement dated February 15, 2000 among the Issuer, the Guarantors and the
Initial Purchasers.
"Regular Record Date", for any Bond of a series for the
Scheduled Payment Date of any installment of principal thereof or payment of
interest thereon, means the 16th day (whether or not a Business Day) next
preceding such Scheduled Payment Date, or any other date specified for such
purpose in the form of Bond of such series attached to the Series Supplemental
Indenture relating to the Bonds of such series.
"Regulation S" means Regulation S promulgated under the
Securities Act, as amended and in effect from time to time.
"Related Person" has the meaning set forth in Section 17.1.
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"Required Amount" means, at the time of determination with
respect to the Bonds of any series, all principal of and interest on such series
projected to be payable on the next Scheduled Payment Date for such series of
Bonds.
"Responsible Officer", when used with respect to the Trustee,
means any officer in the Corporate Trust Office (or any successor group of the
Trustee) including any vice president, assistant vice president, assistant
secretary, assistant treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge and familiarity with the particular subject.
"Restricted Payments" means (i) membership distributions by or
distributions in respect of any equity interest in the Issuer or any Guarantor
(in cash, securities, property or obligations) on, or (ii) any payments or
distributions on account of, payments of interest on or the setting apart of
money for a sinking or other analogous fund for, or the purchase, redemption,
retirement or other acquisition of, (a) Subordinated Indebtedness or (b) any
portion of any membership interest or equity interest in the Issuer or such
Guarantor or of any warrants, options or other rights to acquire any such
membership interest or equity interest (or to make any payments to any Person,
such as "phantom stock" payments, where the amount thereof is calculated with
reference to fair market or equity value of the Issuer or any Guarantor),
provided that distributions or other payments by a Guarantor to the Issuer will
not constitute Restricted Payments.
"Revenues" means, with respect to the Issuer or any Guarantor,
for any period, the sum of: (i) all revenues of the Issuer or any Guarantor in
respect of its operations under any contract or agreement or otherwise including
amounts received pursuant to Hedging Agreements (other than Interest Rate
Agreements).
"S&P" means Standard & Poor's Ratings Group or any successor
thereto.
"Scheduled Payment Date" means, with respect to any Bond of a
series or any installment of principal thereof or payment of interest thereon,
the date specified in such Bond (or in the Series Supplemental Indenture
relating to such Series) as the fixed date on which such Bond or such
installment of principal or payment of interest is due and payable.
"SEC" means the Securities and Exchange Commission of the
United States.
"Secured Parties" has the meaning given to such term in the
Collateral Agency and Intercreditor Agreement.
"Securities Act" means the Securities Act of 1933, as amended
and in effect from time to time.
"Security Agreement" means the Security Agreement dated as of
February 22, 2000 among the Issuer, the Guarantors and the Trustee.
"Security Register" has the meaning set forth in Section 2.8.
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"Security Registrar" means any Person acting as Security
Registrar pursuant to Sections 2.8 and 11.11.
"Senior Debt" means the Issuer's Indebtedness under the Bonds
or any other Indebtedness of the Issuer that ranks pari passu with the Bonds.
"Series Supplemental Indenture" means any indenture
supplemental to this Indenture entered into by the Issuer, the Guarantors and
the Trustee which establishes, in accordance with this Indenture, the title,
form and terms of the Bonds of any series; and "Series Supplemental Indentures"
means each and every Series Supplemental Indenture.
"Somerset Acquisition Documents" means the Asset Purchase
Agreement between NRG Energy and Montaup Electric Company dated as of October
13, 1998 and each of the agreements attached as a form thereto.
"Somerset Operator" means Somerset Operations Inc., a Delaware
corporation.
"Somerset Power" means Somerset Power LLC, a Delaware limited
liability company.
"Special Record Date" for the payment of any defaulted
principal or interest means a date fixed by the Trustee pursuant to Section
2.10.
"Subordinated Indebtedness" means any Indebtedness of the
Issuer that is (a) payable solely and exclusively from the funds that would
otherwise have been available to make Restricted Payments from the Issuer or any
Guarantor, (b) fully subordinated in all rights and remedies to Senior Debt on
terms substantially similar to the subordination provisions set forth in Exhibit
B and (c) unsecured.
"Subsequent Guarantor" means any Subsidiary of the Issuer,
other than an Initial Guarantor, that the Issuer designates as a Guarantor
subsequent to the Closing Date.
"Subsidiary" means, with respect to any Person, (i) any
corporation 50% or more of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person, directly
or indirectly through Subsidiaries, and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person,
directly or indirectly through Subsidiaries, has a 50% or greater equity
interest at the time.
"Taxes" means, with respect any Person, any tax (whether
income, gross receipts, documentary, sales, stamp, registration, issue, capital,
property, excise or otherwise), duty, levy, impost, fee, charge or withholding
directly or indirectly imposed, assessed, levied or collected by or for the
account of any Governmental Authority.
"Transaction Documents" means the Financing Documents, the
Power Sales Agreements, the Power Marketing Agreements, the Operation and
Maintenance Agreements, the
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Corporate Services Agreements, the Funds Administration Agreement and the
Assignment of Payments.
"Transactions" means the execution, delivery and performance
by each Obligor of this Indenture and the other Transaction Documents to which
such Obligor is or is intended to be a party or by which it or its properties
are bound, the issuance of the Bonds and the use of the proceeds thereof as
described in Section 3.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed (or,
with respect to any supplemental indenture, the date as of which such
supplemental indenture was executed).
"Trustee" means the person named as the "Trustee" in the
preamble to this Indenture and its successors and assigns, and any corporation
resulting from or surviving any consolidation or merger to which it or its
successors and assigns may be a party, or any successor to all or substantially
all of its corporate trust business, provided that any such successor or assign
or surviving corporation shall be eligible for appointment as trustee pursuant
to Section 11.7, until a successor Trustee must have become such pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee.
"Uniform Commercial Code" or "UCC" means the Uniform
Commercial Code as in effect from time to time in the State of New York and any
other jurisdiction the laws of which control the creation or perfection of
security interests under the Collateral Documents.
"United States" means the United States of America.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Issuer that is designated by the Issuer's Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that such
Subsidiary: (a) has no Indebtedness or other liabilities or obligations other
than Non-Recourse Obligations; (b) is not party to any agreement, contract,
arrangement or understanding with the Issuer or any Guarantor unless the terms
of any such agreement, contract, arrangement or understanding are no less
favorable to the Issuer or such Guarantor than those that might be obtained at
the time from Persons who are not Affiliates of the Issuer; and (c) is a Person
with respect to which neither the Issuer nor any of the Guarantors has any
direct or indirect obligation (x) to subscribe for additional equity interests
or (y) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results. Any such
designation by the Issuer's Board of Directors shall be evidenced to the Trustee
by filing with the Trustee a certified copy of the Board Resolution giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture, and for all other purposes such
Subsidiary will be deemed to be a Guarantor and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Guarantor as of such date (and,
if such Indebtedness is not permitted to be incurred as of such date under
Section 6.8 hereof, the Issuer shall be in default of such Section). The Board
of Directors of the Issuer may at any time designate any Unrestricted Subsidiary
to be a Guarantor; provided that such designation shall be deemed to be an
incurrence
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of Indebtedness by a Guarantor of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such
Indebtedness is permitted under Section 6.8 hereof, and (ii) no Default or Event
of Default would occur or be in existence following such designation.
"Working Capital Agreement" means the credit agreement dated
February 22, 2000 among the Issuer, as borrower, the Guarantors party thereto
and the Working Capital Banks.
"Working Capital Banks" means Citibank, N.A. and The Chase
Manhattan Bank and any of their successors and permitted assigns, as lenders
under the Working Capital Facility.
"Working Capital Facility" means the 364-day revolving credit
facility established pursuant to the Working Capital Agreement.
SECTION 1.2 Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Indenture, upon any application or request
by the Issuer to the Trustee that the Trustee take any action under any
provision of this Indenture, the Issuer shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and, if so requested by the Trustee, an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any particular application or request
as to which the furnishing of documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing 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 each such individual,
such examination or investigation has been made as is necessary to
enable such individual 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, in the opinion of each such
individual, such condition or covenant has been complied with.
With the delivery of this Indenture, the Issuer and the
Guarantors are furnishing to the Trustee, and from time to time
thereafter may furnish, an Officer's Certificate identifying and
certifying the incumbency and specimen signatures of the Authorized
Representatives. Until the Trustee receives a subsequent Officers'
Certificate, the Trustee shall be entitled to conclusively rely on the
last such Officers' Certificate delivered to it
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for purposes of determining the Authorized Representatives of the
Issuer and the Guarantors.
SECTION 1.3 Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate 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 or has reason to believe
that the certificate or opinion or representations with respect to the matters
upon which such officer's certificate is based are erroneous or otherwise
inaccurate. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate of, or representations by, an
Authorized Representative of the Issuer stating that the information with
respect to such factual matters is in the possession of the Issuer, unless such
counsel knows that the certificate or representations with respect to such
matters are erroneous.
Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.4 Notices, Etc. to Trustee. Any Act of Holders or
other document required or permitted by this Indenture shall be deemed to have
been made or given, as applicable, only if such notice is in writing and
delivered personally, or by registered or certified first-class United States
mail with postage prepaid and return receipt requested, or made, given or
furnished in writing by confirmed telecopy or facsimile transmission, or by
prepaid courier service to the appropriate party as set forth below:
Trustee: The Chase Manhattan Bank
Capital Markets Fiduciary Services
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
International and Project
Finance Group
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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Issuer: NRG Northeast Generating LLC
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention: Investor Relations
Telecopier No.: (000) 000-0000
With Copies to: NRG Energy, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention: General Counsel
Telecopier No.: (000) 000-0000
Any party may change its address by giving notice of such change in the manner
set forth herein. Any notice given to a party by mail or by courier shall be
deemed delivered upon receipt thereof (unless the party refuses to accept
delivery, in which case the party shall be deemed to have accepted delivery upon
presentation). Any notice given to a party by telecopy or facsimile transmission
shall be deemed effective on the date it is actually sent to the intended
recipient by confirmed telecopy or facsimile transmission to the telecopier
number specified above.
SECTION 1.5 Notices to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder, at its address as it appears in the
Security Register, not later than the latest date, if any, and not earlier than
the earliest date, if any, prescribed for the giving of such notice. Where this
Indenture provides for notice, 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. 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, and
any notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given.
SECTION 1.6 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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SECTION 1.7 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns. All covenants, agreements,
representations and warranties in this Indenture by the Trustee, the Issuer and
the Guarantors shall bind and, to the extent permitted hereby, shall inure to
the benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
SECTION 1.9 Severability Clause. In case any provision in this
Indenture or in the Bonds shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.10 Benefits of Indenture. Nothing in this Indenture
or in the Bonds, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders of Bonds, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.11 Governing Law. THIS INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THEREOF TO THE EXTENT
THE APPLICATION OF SUCH PRINCIPLES WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY OTHER JURISDICTION.
SECTION 1.12 Legal Holidays. In any case where the Redemption
Date or the Scheduled Payment Date of any Bond or of any installment of
principal thereof or payment of interest thereon, or any date on which any
defaulted interest is proposed to be paid, shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or such Bond) payment of
interest and/or principal, and/or premium, if any, 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 Redemption Date or on the Scheduled Payment Date,
or on the date on which the defaulted interest is proposed to be paid, and,
except as provided in any Series Supplemental Indenture setting forth the terms
of such Bond, if such payment is timely made, no interest shall accrue for the
period from and after such Redemption Date or Scheduled Payment Date, or date
for the payment of defaulted interest, as the case may be, to the date of such
payment.
SECTION 1.13 Execution in Counterparts. This instrument may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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ARTICLE 2
THE BONDS
SECTION 2.1 Form of Bond to Be Established by Series
Supplemental Indenture. The Bonds of each series shall be substantially in the
form (not inconsistent with this Indenture, including Section 2.5 hereof)
established in the Series Supplemental Indenture relating to the Bonds of such
series.
SECTION 2.2 Form of Trustee's Authentication. The Trustee's
certificate of authentication on all Bonds shall be in substantially the
following form:
This Bond is one of the Bonds referred to in the
within-mentioned Indenture.
----------------------------
as Trustee
By
--------------------------
Authorized Signatory
SECTION 2.3 Amount; Issuable in Series. The aggregate
principal amount of Bonds that may be authenticated and delivered under this
Indenture is unlimited, provided that this Section 2.3 shall not be deemed to in
any way supersede the restrictions set forth in Section 6.8.
The Bonds may be issued in one or more series. There shall be
established in one or more Series Supplemental Indentures, prior to the issuance
of Bonds of any series:
(a) the title of the Bonds of such series (which shall
distinguish the Bonds of such series from all other Bonds) and the form
or forms of Bonds of such series;
(b) any limit upon the aggregate principal amount of the Bonds
of such series that may be authenticated and delivered under this
Indenture (except for Bonds authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Bonds of such series pursuant to Section 2.7, 2.8, 2.9, 8.6 or 14.6 and
except for Bonds that, pursuant to the last paragraph of Section 2.4
hereof, are deemed never to have been authenticated and delivered
hereunder);
(c) the date or dates on which the principal of the Bonds of
such series is payable, the amounts of principal payable on such date
or dates and the Regular Record Date for the determination of Holders
to whom principal is payable; and the date or dates on or as of which
the Bonds of such series shall be dated, if other than as provided in
Section 2.13(a);
(d) the rate or rates at which the Bonds of such series shall
bear interest, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue,
the interest payment dates on which such interest shall be payable and
the Regular Record Date for the determination of Holders to whom
interest
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is payable; and the basis of computation of interest, if other
than as provided in Section 2.13(b);
(e) if other than as provided in Section 11.11, the place or
places where (i) the principal of, premium, if any, and interest on
Bonds of such series shall be payable, (ii) Bonds of such series may be
surrendered for registration of transfer or exchange and (iii) notices
and demands to or upon the Issuer in respect of the Bonds of such
series and this Indenture may be served;
(f) the price or prices at which, the period or periods within
which and the terms and conditions upon which Bonds of such series may
be redeemed, in whole or in part, at the option of the Issuer;
(g) the obligation, if any, of the Issuer to redeem, purchase
or repay Bonds of such series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof and the price or prices
at which and the periods or periods within which and the terms and
conditions upon which Bonds of such series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligations;
(h) if other than in minimum denominations of $100,000 and any
integral multiple of $1,000 in excess thereof, the denominations in
which Bonds of such series shall be issuable;
(i) the restrictions or limitations, if any, on the transfer
or exchange of the Bonds of such series including, without limitation,
with respect to Bonds to be sold outside of the United States pursuant
to Regulation S or any other exemption from registration under the
Securities Act;
(j) the obligation, if any, of the Issuer to file a
registration statement with respect to the Bonds of such series or to
exchange the Bonds of such series for Bonds registered pursuant to the
Securities Act;
(k) any trustees, authenticating or paying agents, warrant
agents, transfer agents or registrars with respect to the Bonds of such
series, if other than as set forth herein; and
(l) any other terms of such series (which terms shall not be
inconsistent with the provisions of this Indenture).
SECTION 2.4 Authentication and Delivery of Bonds. Subject to
Section 2.3, at any time and from time to time after the execution and delivery
of this Indenture, the Issuer may deliver Bonds of any series executed by the
Issuer to the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Bonds, and the Trustee shall thereupon
authenticate and make available for delivery such Bonds in accordance with such
Issuer Order, without any further action by the Issuer. No Bond shall be secured
by or entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Bond a certificate of authentication,
in the form provided for herein, executed by the Trustee by the manual signature
of any Authorized Signatory, and such certificate upon any Bonds shall be
conclusive evidence, and the only evidence, that such Bond has been duly
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authenticated and delivered thereunder. In authenticating such Bonds and
accepting the additional responsibilities under this Indenture in relation to
such Bonds, the Trustee shall be entitled to receive, and (subject to Section
11.1) shall be fully protected in relying upon:
(a) an executed Series Supplemental Indenture with respect to
the Bonds of such series;
(b) an Officer's Certificate of the Issuer (i) certifying as
to Board Resolutions of the Issuer by or pursuant to which the terms of
the Bonds of such series were established, (ii) certifying that all
conditions precedent under this Indenture to the Trustee's
authentication and delivery of such Bonds have been complied with and
(iii) certifying that the terms of the Bonds of such series are not
inconsistent with the terms of this Indenture as then and theretofore
supplemented;
(c) an Opinion of Counsel to the effect that (i) the form or
forms and the terms of such Bonds have been established by a Series
Supplemental Indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture and (ii) the Bonds of
such series, when authenticated and made available for delivery by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Issuer, enforceable against the
Issuer in accordance with their terms, except as enforceability (A) may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of
creditors' rights and remedies generally and (B) is subject to general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law); and
(d) such other documents and evidence with respect to the
Issuer as the Trustee may reasonably request.
Prior to the authentication and delivery of a series of Bonds,
the Trustee shall also receive such other funds, accounts, documents,
certificates, instruments or opinions as may be required by the related Series
Supplemental Indenture.
Notwithstanding the foregoing, if any Bond shall have been
authenticated and delivered hereunder but never issued or sold by the Issuer,
and the Issuer shall deliver such Bond to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
stating that such Bond has never been issued or sold by the Issuer, for all
purposes of this Indenture such Bond shall be deemed never to have been
authenticated and delivered hereunder and shall never have been or be entitled
to the benefits hereof.
SECTION 2.5 Form. The Bonds of each series shall be in
registered form and may have such letters, numbers or other marks of
identification and such legends or endorsements printed, lithographed, engraved,
typewritten or photocopied thereon, as may be required to comply with the rules
of any securities exchange upon which the Bonds of any such series are to be
listed (if any) or to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Board of Directors of the Issuer or
by the Authorized
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Representative executing such Bonds, such determination by said Authorized
Representative to be evidenced by its signing the Bonds.
The Bonds may be issued in the form of (a) definitive Bonds or
(b) one or more Global Bonds. Bonds issued in definitive form shall be
registered in the name or names of such Persons and for the principal amounts as
the Issuer may request. Bonds issued in the form of a Global Bond shall be
registered in the name of the Registered Depositary or its nominee and shall
represent the beneficial interests of Persons purchasing the Bonds. In the event
any of the Bonds are issued in a transaction under Rule 144A of the Securities
Act, any such Person shall purchase such Bonds in transactions complying with
Rule 144A under the Securities Act. The Trustee, as custodian ("Custodian"),
will act as custodian of each Global Bond for the Registered Depositary or
appoint a sub-custodian to act in such capacity. So long as the Registered
Depositary or its nominee is the registered owner of the Global Bond, it shall
be considered the Holder of the Bonds represented thereby for all purposes
hereunder and under the Global Bond. None of the Issuer, the Trustee or any
Paying Agent shall have any responsibility or liability for any aspect of the
records relating to or payments made by the Registered Depositary on account of
beneficial interests in the Global Bond. Interests in the Global Bond shall be
transferred on the Registered Depositary's book-entry settlement system.
Anything in this Section 2.5 to the contrary notwithstanding,
the Initial Bonds shall be issued in definitive form unless otherwise specified
in the First Series Supplemental Indenture.
SECTION 2.6 Execution of Bonds. The Bonds shall be executed on
behalf of the Issuer by one of its Authorized Representatives. The signature of
any such officers on the Bonds may be manual or facsimile.
Bonds bearing the manual or facsimile signatures of
individuals who were, at the time such signatures were affixed, the proper
officers of the Issuer shall bind the Issuer, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Bonds or did not hold such offices at the
date of such Bonds.
SECTION 2.7 Temporary Bonds. Pending the preparation of
definitive Bonds of any series pursuant to Section 2.8, the Issuer may execute,
and upon Issuer Order the Trustee shall authenticate and make available for
delivery, temporary Bonds of such series that are printed, lithographed,
typewritten, photocopied or otherwise produced, in any denomination,
substantially of the tenor of the definitive Bonds in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the Authorized Representative executing such Bonds may determine,
as evidenced by their execution of such Bonds.
If temporary Bonds of any series are issued, the Issuer will
cause definitive Bonds of such series to be prepared without unreasonable delay.
After the preparation of definitive Bonds of such series, the temporary Bonds of
such series shall be exchangeable for definitive Bonds of such series upon
surrender of the temporary Bonds of such series at the Place of Payment, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Bonds of any series, the Issuer shall execute, and the Trustee shall
authenticate and
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make available for delivery, in exchange therefor, definitive Bonds of such
series of authorized denominations and of like tenor and aggregate principal
amount. Until so exchanged, such temporary Bonds of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Bonds of such series.
SECTION 2.8 Registration; Restrictions on Transfer and
Exchange. (a) The Issuer shall cause to be kept at the Corporate Trust Office of
the Security Registrar a register which, subject to such reasonable regulations
as the Issuer may prescribe, shall provide for the registration of Bonds and for
the registration of transfers and exchanges of Bonds. This register and, if
there shall be more than one Security Registrar, the combined registers
maintained by all such Security Registrars, are herein sometimes referred to as
the "Security Register". The Trustee is hereby appointed the initial Security
Registrar for the purpose of registering Bonds and transfers and exchanges of
Bonds as herein provided. Upon any resignation or removal of the Security
Registrar, the Issuer shall promptly appoint a successor, or in the absence of
such appointment, assume the duties of such Security Registrar.
If a Person other than the Trustee is appointed by the Issuer
as Security Registrar, the Issuer will give the Trustee prompt written notice of
the appointment of a Security Registrar and of the location, and any change in
the location of the Security Register, and the Trustee shall have the right to
inspect the Security Register at all reasonable times and to obtain copies
thereof, and the Trustee shall have the right to rely upon such Security
Register as to the names and addresses of the Holders of the Bonds and the
principal amounts and numbers of such Bonds.
(b) Any Global Bond shall be exchanged for definitive Bonds,
without coupons, and delivered to and registered in the name of Persons named by
the Registered Depositary, rather than to the nominee for the Registered
Depositary, if (i) the Issuer advises the Trustee in writing that the Registered
Depositary is no longer willing or able to discharge properly its
responsibilities as Registered Depositary with respect to the Bonds and the
Issuer is unable to appoint a qualified successor, or that the Registered
Depositary has ceased to be a clearing agency registered under the Exchange Act,
(ii) the Issuer, at its option, elects to terminate the book-entry system
through the Registered Depositary with respect to the Bonds and cause issuance
of certificated Bonds or (iii) after the occurrence and continuation of an Event
of Default, beneficial owners holding interests representing an aggregate
principal amount of Bonds of more than 50% of the Bonds represented by the
Global Bond advise the Trustee through the Registered Depositary in writing that
the continuation of a book-entry system through the Registered Depositary with
respect to the Bonds is no longer in such owners' best interests.
Upon the occurrence of any of the events in clauses (i)
through (iii) of the preceding paragraph, the Trustee shall, by forwarding any
notice received from the Issuer to the Registered Depositary, be deemed to have
notified all Persons who hold a beneficial interest in the Global Bond through
participants in the Registered Depositary or indirect participants through
participants in the Registered Depositary of the availability of definitive
Bonds. Upon surrender by the Registered Depositary of the Global Bond and
receipt of instructions for re-registration, the Security Registrar will
exchange the Global Bond for an equal aggregate principal amount of definitive
Bonds.
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After the expiration of the Distribution Compliance Period
pursuant to Regulation S of the Securities Act applicable to such securities, at
the option of the Holder, beneficial interests in Global Bonds of any series may
be exchanged in whole or in part for certificated Bonds of the same series to be
registered in the name of such Holder, of authorized denominations and of like
tenor, maturity, interest rate and aggregate principal amount, upon prior
written notice to the Trustee by or on behalf of the Registered Depositary and
surrender of the Bonds to be exchanged at any office or agency maintained for
such purpose pursuant to Section 11.11. Whenever any Bonds are so surrendered
for exchange, the Issuer shall execute, and the Trustee shall authenticate and
make available for delivery, the Bonds which the Holder making the exchange is
entitled to receive. The Issuer shall execute and deliver to the Trustee, on the
Closing Date and from time to time thereafter, for safekeeping and subsequent
authentication, a stock of definitive registered Bonds of each series in such
quantities as the Issuer, after consultation with the Trustee, determines to be
sufficient to permit the issuance of definitive Bonds and the exchanges
contemplated by this Section.
All Bonds issued upon any registration of transfer or exchange
of Bonds shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same security and benefits under this Indenture and the
other Collateral Documents, as the Bonds surrendered upon such registration of
transfer or exchange.
Every Bond presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security
Registrar or any transfer agent, duly executed by the Holder thereof or such
Holder's attorney duly authorized in writing.
No service charge shall be required of any Holders
participating in any transfer or exchange of Bonds in respect of such transfer
or exchange, but the Security Registrar may require payment of a sum sufficient
to cover any Tax that may be imposed in connection with any transfer or exchange
of Bonds, other than exchanges pursuant to section 2.7, 8.6 or 14.6 not
involving any transfer.
The Security Registrar shall not be required (a) to issue,
register the transfer of or exchange any Bond of any series during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Bonds of such series selected for redemption under
Section 8.2 and ending at the close of business on the day of such mailing or
(b) to issue, register the transfer of or exchange any Bond so selected for
redemption in whole or in part, except the unredeemed portion of any Bond
redeemed in part.
SECTION 2.9 Mutilated, Destroyed, Lost and Stolen Bonds. If
(a) any mutilated or defaced Bond is surrendered to the Trustee, or the Issuer
and the Security Registrar and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Bond, and (b) there is
delivered to the Issuer, the Security Registrar and the Trustee evidence to
their satisfaction of the ownership and authenticity thereof, and such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Issuer, the Security Registrar or the Trustee that
such Bond has been acquired by a bona fide purchaser, the Issuer shall execute
and upon the Issuer's request the Trustee shall authenticate and make available
for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen
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Bond, a new Bond of the same series and of like tenor, interest rate and
principal amount, bearing a number not then outstanding and registered in the
same manner. If, after the delivery of such new Bond, a bona fide purchaser of
the original Bond in lieu of which such new Bond was issued presents for payment
such original Bond, the Issuer and the Trustee shall be entitled to recover such
new Bond from the Person to whom it was delivered or any Person taking
therefrom, except a bona fide purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expenses incurred by the Issuer or the Trustee in connection therewith.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Bond has become or is about to become due and payable,
the Issuer, upon satisfaction of the conditions set forth in clauses (a) and (b)
of the preceding paragraph may, instead of issuing a new Bond, pay such Bond.
Upon the issuance of any new Bond under this Section 2.9, the
Issuer may require the payment of a sum sufficient to cover any Tax that may be
imposed in relation thereto and any other expenses connected therewith.
Every new Bond issued pursuant to this Section 2.9 in lieu of
any mutilated, destroyed, lost or stolen Bond shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Bond shall be at any time enforceable by anyone, and
shall be entitled to all the security and benefits of this Indenture and the
other Collateral Documents equally and proportionately with any and all other
Bonds duly issued hereunder.
The provisions of this Section 2.9 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Bonds.
SECTION 2.10 Payment of Principal and Interest; Principal and
Interest Rights Preserved. Principal or interest on any Bond that is payable,
and punctually paid or duly provided for, on any Scheduled Payment Date shall be
paid to the Person in whose name that Bond (or one or more Predecessor Bonds) is
registered at the close of business on the Regular Record Date for such
principal or interest. Payment of principal of and interest on the Bonds of any
series shall be made at the Place of Payment (or, if such office is not in The
City of New York, at either such office or an office to be maintained in such
City), or by check or in another manner or manners if so provided in the Series
Supplemental Indenture relating to such series of Bonds, except for the final
installment of principal payable with respect to a Bond, which shall be payable
as provided in Section 8.5 (in the case of Bonds redeemed) or payable upon
presentation and surrender of such Bond at the Place of Payment.
Any principal of or interest on any Bond of any series that is
payable, but is not punctually paid or duly provided for, on any Scheduled
Payment Date of an installment of principal or payment of interest shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
and such defaulted principal or interest may be paid by the Issuer, at its
election in each case, as provided in paragraph (a) or paragraph (b) below:
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(a) The Issuer may elect to make payment of all or any portion
of such defaulted principal or interest to the Persons in whose names
the Bonds of such series (or their respective Predecessor Bonds) in
respect of which principal or interest is in default are registered at
the close of business on a Special Record Date for the payment of such
defaulted principal or interest, which shall be fixed in the following
manner. The Issuer shall notify the Trustee and the Paying Agent in
writing of the amount of defaulted principal or interest proposed to be
paid on each Bond of such series and the date of the proposed payment,
and concurrently there shall be deposited with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such defaulted principal or interest or there shall be made
arrangements acknowledged by the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such defaulted
principal or interest as provided in this paragraph. Thereupon, the
Trustee shall fix a Special Record Date for the payment of such
defaulted principal or interest (together with other amounts payable
with respect to such defaulted principal or interest) which shall not
be more than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Issuer and the Security Registrar of such Special Record Date and,
in the name and at the expense of the Issuer, shall cause notice of the
proposed payment of such defaulted principal or interest and the
Special Record Date therefor to be mailed, first class postage prepaid,
to each Holder of a Bond of such series at such Holder's address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such defaulted
principal or interest and the Special Record Date therefor having been
mailed as aforesaid, such defaulted principal or interest shall be paid
to the Persons in whose names the Bonds of such series (or their
respective Predecessor Bonds) are registered on such Special Record
Date and shall no longer be payable pursuant to the following paragraph
(b).
(b) The Issuer may make, or cause to be made, payment of any
defaulted principal or interest (together with other amounts payable
with respect to such defaulted interest) in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Bonds in respect of which principal or interest is in default may
be listed, and, upon such notice as may be required by such exchange,
if, after notice given by the Issuer to the Trustee of the proposed
payment pursuant to this paragraph, such payment shall be deemed
reasonable by the Trustee.
Subject to the foregoing provisions of this Section 2.10, each
Bond delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Bond shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Bond.
SECTION 2.11 Persons Deemed Owners. Subject to Section 2.10,
prior to due presentment of a Bond for registration of transfer, the Person in
whose name any Bond is registered shall be deemed to be the owner of such Bond
for the purpose of receiving payment of principal of, and premium, if any, and
interest on, such Bond and for all other purposes whatsoever, whether or not
such Bond be overdue, regardless of any notice to anyone to the contrary.
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SECTION 2.12 Cancellation. All Bonds surrendered for payment,
redemption, credit against any sinking fund payment or registration of transfer
or exchange or deemed lost or stolen shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee for cancellation and may not be
reissued or sold. The Issuer may at any time deliver to the Trustee for
cancellation any Bonds previously authenticated and delivered hereunder which
the Issuer may have acquired in any manner whatsoever. All Bonds so delivered
shall be promptly canceled by the Trustee. No Bonds shall be authenticated in
lieu of or in exchange for any Bonds canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Bonds held by the
Trustee shall be either destroyed and certification of their destruction shall
be delivered to the Issuer or held by the Trustee in accordance with its
standard retention policy, unless the Issuer shall direct by an Issuer Order
that they be returned to it.
SECTION 2.13 Dating of Bonds; Computation of Interest. (a)
Except as otherwise provided in the Series Supplemental Indenture relating to
any series of Bonds, each Bond of such series shall be dated the date of its
authentication.
(b) Except as otherwise provided in the Series Supplemental
Indenture relating to any series of Bonds, interest on the Bonds of such series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
SECTION 2.14 Source of Payments Limited; Rights and
Liabilities of the Issuer. All payments of principal and premium, if any, and
interest to be made in respect of the Bonds and this Indenture shall be made
only from the payments from the revenues of the Issuer and the Guarantors, the
Collateral and the income and proceeds received by the Trustee therefrom. Each
Holder, by its acceptance of a Bond, agrees that (a) it will look solely to the
revenues of the Issuer and the Guarantors, the Collateral and the income and
proceeds received by the Trustee therefrom to the extent available for
distribution to such Holder as herein provided or provided in the Collateral
Documents, (b) none of the Members, or any of their respective past, present or
future members, partners, officers, directors or shareholders or other related
Persons, or the Trustee shall be personally or otherwise liable to any Holder,
nor shall any of the Members, or any of their respective past, present or future
members, partners, officers, directors or shareholders or other related Persons,
be personally or otherwise liable to the Trustee, for any amounts payable under
any Bond or for any liability under this Indenture or any other Transaction
Document, except as provided therein, and (c) recourse shall be otherwise
limited in accordance with Section 17.1.
SECTION 2.15 Allocation of Principal and Interest. Except as
otherwise provided in Section 8.6, each payment of principal of and premium, if
any, and interest on each Bond shall be applied, first, to the payment of
accrued but unpaid interest on such Bond (as well as any interest on overdue
principal or, to the extent permitted by applicable Law, overdue interest) to
the date of such payment, second, to the payment of the principal amount of and
premium, if any, on such Bond then due (including any overdue installment of
principal) thereunder, and third, the balance, if any, to the payment of the
principal amount of such Bond remaining unpaid.
SECTION 2.16 Parity of Bonds. Except as otherwise provided in
this Indenture and the other Collateral Documents, all Bonds of a series issued
and outstanding hereunder rank
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on a parity with each other Bond of the same series, and with all Bonds of each
other series and each Bond of a series shall be secured equally and ratably by
this Indenture and the other Collateral Documents with each other Bond of the
same series and with all Bonds of each other series, without preference,
priority or distinction of any one thereof over any other by reason of
difference in time of issuance or otherwise, and each Bond of a series shall be
entitled to the same benefits and security in this Indenture and the other
Collateral Documents as each other Bond of the same series and with all Bonds of
each other series.
ARTICLE 3
APPLICATION OF PROCEEDS
FROM SALE OF BONDS
SECTION 3.1 Application of Proceeds from Sale of Bonds.
Promptly upon receipt by the Issuer of the proceeds from the sale of the Initial
Bonds, the Issuer shall apply such proceeds (i) to repay existing Indebtedness
of the Issuer incurred to acquire certain Facilities, (ii) to pay costs,
expenses and the Initial Purchasers' discounts and commissions in connection
with the offering of the Initial Bonds and (iii) to repay NRG Energy money
loaned in connection with the purchase of the Facilities acquired from CL&P.
ARTICLE 4
DEBT SERVICE RESERVE ACCOUNT
SECTION 4.1 Debt Service Reserve Account.
(a) Creation of the Account. The Issuer hereby establishes at
the Trustee's Corporate Trust Office a special, segregated and irrevocable,
non-interest bearing collateral account (the "Debt Service Reserve Account")
which shall be maintained at all times until the termination of this Indenture.
All amounts from time to time held in the Debt Service Reserve Account shall be
held in the name of the Trustee for the benefit of the Holders. Except as
expressly provided in this Indenture, neither the Issuer nor any Guarantor shall
have any right to withdraw funds from the Debt Service Reserve Account. All
amounts on deposit in the Debt Service Reserve Account and all Permitted
Investments held therein shall constitute a part of the Collateral and shall not
constitute payment of any Bonds until applied as provided in this Indenture. The
Issuer hereby irrevocably authorizes the Trustee to withdraw funds from the Debt
Service Reserve Account in accordance with this Section 4.1.
(b) Funding of the Account. On the Closing Date, the Issuer
shall deposit cash, Permitted Investments, one or more Debt Service Reserve
Support Instruments or any combination thereof into the Debt Service Reserve
Account and shall at all times thereafter cause the amount on deposit therein
(which may be cash, Permitted Investments, Debt Service Reserve Support
Instruments or any combination thereof) to be at least equal to the Debt Service
Reserve Requirement.
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(c) Withdrawals from the Account.
(i) The Issuer may direct the withdrawal of funds from the
Debt Service Reserve Account (A) to the extent that no other funds are
available to it to pay principal or interest on the Bonds of any series
that are due on the date of such withdrawal (each, a "Withdrawal Date")
and (B) if on any Scheduled Payment Date, the Trustee shall have
received from the Issuer funds that are insufficient to pay the
aggregate amount of the principal and interest then due. For each
withdrawal from the Debt Service Reserve Account pursuant to this
Section 4.1(c), the Issuer shall deliver to the Trustee no less than
two Business Days prior to the relevant Withdrawal Date, a certificate
(each, a "Withdrawal Certificate") of an Authorized Representative
stating that the funds available to it to pay the aggregate amount of
such principal and interest due and payable on the Bonds on the
Withdrawal Date are insufficient to pay such amounts and setting out
the relevant Withdrawal Date and the amount to be withdrawn. On each
Withdrawal Date, the Trustee shall transfer from the Debt Service
Reserve Account, to the extent funds are available therein, to the
accounts of the Holders the amount specified in the relevant Withdrawal
Certificate.
(ii) If on any Scheduled Payment Date the Paying Agent shall
have received from or on behalf of the Issuer funds that are
insufficient to pay the aggregate amount of such principal and interest
in full, then, upon notice thereof by the Paying Agent to the Trustee
specifying the amount of such insufficiency, the Trustee shall transfer
from the Debt Service Reserve Account, to the extent funds are
available therein, to the accounts of the Holders an amount equal to
such insufficiency.
(iii) If on any date on or prior to the maturity date of the
Bonds of any series on which the Trustee is required to make
withdrawals from the Debt Service Reserve Account pursuant to the
foregoing clauses (i) or (ii) the funds on deposit in the Debt Service
Reserve Account are insufficient to make such withdrawals, the Trustee
shall draw on or demand payment under any Debt Service Reserve Support
Instrument then in its possession and selected by the Trustee in an
amount equal, when added to all amounts paid under each other Debt
Service Reserve Support Instrument on such date, to such insufficiency.
(iv) Unless the Trustee shall have been notified in writing
that an Event of Default shall have occurred and is continuing or would
result therefrom, if on the last Business Day of any calendar month,
the credit balance of the Debt Service Reserve Account exceeds the Debt
Service Reserve Requirement, then upon the written request of the
Issuer delivered to the Trustee no less than two Business Days prior to
the such last Business Day, the Trustee shall transfer from the Debt
Service Reserve Account to the Issuer an amount equal to such excess in
accordance with the instructions specified therefor in such request.
(d) Debt Service Reserve Support Instruments.
(i) At any time on or after the Closing Date, the Issuer may
deliver to the Trustee a Debt Service Reserve Support Instrument in an
aggregate amount available to be drawn
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or demanded thereunder equal to all or a portion of the Debt Service
Reserve Requirement. At any time upon or after delivery of a Debt
Service Reserve Support Instrument, the Issuer may deliver to the
Trustee a certificate (a "Reduction Certificate") setting out the
Issuer's calculation of the excess of (x) the aggregate amount of cash
and Permitted Investments on deposit in the Debt Service Reserve
Account plus the aggregate amount then available to be drawn under all
Debt Service Reserve Support Instruments theretofore delivered to the
Trustee over (y) the Debt Service Reserve Requirement. The Trustee
shall, in accordance with the instructions specified therefor in such
request, within 2 Business Days of the receipt of a Reduction
Certificate, transfer from the Debt Service Reserve Account to the
Issuer cash or Permitted Investments or reduce the amount available to
be drawn on or demanded under such Debt Service Reserve Support
Instrument(s) in an amount equal to such excess.
(ii) In the event that at any time prior to the termination or
satisfaction and discharge of this Indenture the issuing financial
institution in respect of any Debt Service Reserve Letter of Credit
fails to qualify as an Acceptable Bank, the Issuer shall cause all Debt
Service Reserve Letters of Credit issued by such issuing bank to be
replaced by another Debt Service Reserve Support Instrument or cash
deposit or Permitted Investment in an amount at least equal to the
available face amount of the Debt Service Reserve Letter(s) of Credit
being replaced. If such Debt Service Reserve Letter of Credit is not so
replaced within thirty (30) days of notice by the Trustee to the Issuer
of the failure of such issuing financial institution to qualify as an
Acceptable Bank, then in each case, the Trustee shall draw on the full
available face amount of such Debt Service Reserve Letter of Credit
(less any excess of the aggregate cash, Permitted Investments and Debt
Service Reserve Support Instruments over the Debt Service Reserve
Requirement) in accordance with the terms thereof and deposit the
proceeds of such draw into the Debt Service Reserve Account.
(iii) In the event that at any time prior to the termination
or satisfaction and discharge of this Indenture a guarantor under any
Debt Service Reserve Guarantee fails to qualify as an Acceptable
Guarantor, the Issuer shall cause the Debt Service Reserve Guarantee of
such Person to be replaced by another Debt Service Reserve Support
Instrument or cash deposit or Permitted Investment in an amount at
least equal to the amount guaranteed under the Debt Service Reserve
Guarantee being replaced. If such Debt Service Reserve Guarantee is not
so replaced within thirty (30) days of notice by the Trustee to the
Issuer of the failure of such Person to qualify as an Acceptable
Guarantor, then in each case, the Trustee shall draw on the full amount
guaranteed under such Debt Service Reserve Guarantee (less any excess
of the aggregate cash, Permitted Investments and Debt Service Reserve
Support Instruments over the Debt Service Reserve Requirement) in
accordance with the terms thereof and deposit the proceeds of such draw
into the Debt Service Reserve Account.
(e) The amount on deposit in the Debt Service Reserve Account
at any time shall be deemed to be equal to the aggregate amount of cash on
deposit therein at such time, plus the aggregate fair market value of all
Permitted Investments on deposit therein at such time, plus the amount available
to be drawn or demanded under all Debt Service Reserve Support Instruments held
by the Trustee at such time.
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SECTION 4.2. Securities Account; Securities Intermediary.
Securities Intermediary. (a) Acceptance of Appointment of
Securities Intermediary. The Chase Manhattan Bank hereby agrees to act as
securities intermediary as that term is defined in Section 8-102(a)(14) of the
New York UCC (in such capacity, the "Securities Intermediary") under this
Indenture. Each of the Issuer, the Guarantors, the Securities Intermediary and
the Trustee hereby acknowledges that the Securities Intermediary shall act as
Securities Intermediary under any Series Supplemental Indenture, unless
otherwise specified, as to any accounts established under such Series
Supplemental Indenture.
(b) Establishment of the Debt Service Reserve
Account. The Securities Intermediary hereby agrees and confirms that (A) the
Securities Intermediary has established the Debt Service Reserve Account, (B)
the Debt Service Reserve Account is and will be maintained as a "securities
account" (within the meaning of Section 8-501 of the UCC), (C) the Trustee is
the "entitlement holder" (within the meaning of Section 8-102(a)(7) of the UCC)
in respect of the "financial assets" (within the meaning of Section 8-102(a)(9)
of the UCC) credited to the Debt Service Reserve Account, (D) all property
delivered to the Securities Intermediary for deposit to the Debt Service Reserve
Account will be held by the Securities Intermediary and promptly credited to the
Debt Service Reserve Account by an appropriate entry in its records in
accordance with this Indenture, (E) all "financial assets" (within the meaning
of Section 8-102(a)(9) of the UCC) in registered form or payable to or to the
order and credited to the Debt Service Reserve Account shall be registered in
the name of, payable to or to the order of, or indorsed to, the Securities
Intermediary or in blank, or credited to another securities account maintained
in the name of the Securities Intermediary, and in no case will any financial
asset credited to the Debt Service Reserve Account be registered in the name of,
payable to or to the order of, or indorsed to, the Issuer or any Guarantor
except to the extent the foregoing have been subsequently indorsed by the Issuer
or such Guarantor to the Securities Intermediary or in blank, and (vi) the
Securities Intermediary shall not change the name or account number of the Debt
Service Reserve Account without the prior written consent of the Trustee.
(c) Financial Assets Election. The Securities
Intermediary agrees that each item of property (including any security,
instrument or obligation, share, participation, interest or other property
whatsoever) credited to the Debt Service Reserve Account shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of the UCC.
(d) Entitlement Orders, No Other Control Agreement,
No Other Liens. Each of the Issuer and each Guarantor agrees that the Securities
Intermediary may, and the Securities Intermediary agrees that it shall, comply
with any orders if originated by the Trustee without further consent by the
Issuer, any Guarantor or any other Person. In the event that the Securities
Intermediary receives conflicting entitlement orders from the Trustee and the
Issuer, any Guarantor or any other Person, the Securities Intermediary shall
comply with the entitlement orders originated by the Trustee. The Securities
Intermediary shall not execute and deliver, or otherwise become bound by, any
agreement under which the Securities Intermediary agrees with any Person other
than the Trustee to comply with entitlement orders originated by such Person
relating to the Debt Service Reserve Account or the security entitlements that
are the subject of this Indenture or any Series Supplemental Indenture. The
Securities Intermediary
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shall not grant any Lien in any financial asset that is the subject of any
security entitlement that is the subject of this Indenture or any Series
Supplemental Indenture.
(e) Subordination of Lien; Waiver of Setoff. In the
event that the Securities Intermediary has or subsequently obtains by indenture,
operation of law or otherwise a lien or security interest in the Debt Service
Reserve Account or any security entitlement credited thereto, the Securities
Intermediary agrees that such lien or security interest shall be subordinate to
the lien and security interest of the Trustee. The financial assets standing to
the credit of the Debt Service Reserve Account will not be subject to deduction,
setoff, banker's lien, or any other right in favor of any Person other than the
Trustee (except that the face amount of any checks which have been credited to
the Debt Service Reserve Account but are subsequently returned unpaid because of
uncollected or insufficient funds).
(f) No Other Agreements. None of the Securities
Intermediary, the Trustee, the Issuer or any Guarantor has entered into
any Agreement with respect to the Debt Service Reserve Account or any
financial assets credited to the Debt Service Reserve Account other
than this Indenture and the other Financing Documents. The Securities
Intermediary has not entered into any agreement with the Issuer, the
Guarantors or any other Person purporting to limit or condition the
obligation of the Securities Intermediary to comply with entitlement
orders originated by the Trustee in accordance with Section 4.2(d). In
the event of any conflict as to such obligation between this Indenture
and any other Transaction Document or any other agreement now existing
or hereafter entered into, the terms of this Indenture shall prevail.
(g) Notice of Adverse Claims. Except for the claims
and interest of the Trustee, the Issuer and any Guarantor to and in the Debt
Service Reserve Account, the Securities Intermediary does not know of any claim
to, or interest in, the Debt Service Reserve Account or in any financial asset
credited thereto. If any Person asserts any lien, encumbrance or adverse claim
(including any writ, garnishment, judgment, warrant of attachment, execution or
similar process) against the Debt Service Reserve Account or in any financial
asset credited thereto, the Securities Intermediary will promptly notify the
Trustee, the Issuer and the Guarantors thereof.
(h) Rights and Powers of the Trustee. The rights and
powers granted by the Securities Intermediary to the Trustee have been granted
in order to perfect its lien and security interests in the Debt Service Reserve
Account, are powers coupled with an interest and will be affected by neither the
bankruptcy of the Issuer or any of the Guarantors nor the lapse of time.
(i) Choice of Law. Each Series Supplemental Indenture
and the Debt Service Reserve Account (including all security entitlements
relating thereto) shall be governed by the law of the State of New York.
Regardless of any provision in any Series Supplemental Indenture, for purposes
of the UCC, the "securities intermediary's jurisdiction" of the Securities
Intermediary with respect to the Debt Service Reserve Account is the State of
New York.
SECTION 4.3. Security Interest. As collateral security for the
prompt and complete payment and performance when due of the Bonds of any series,
the Issuer hereby
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pledges, assigns, hypothecates and transfers to the Trustee for the benefit of
the Trustee and the Holders, and hereby grants to the Trustee for the benefit of
the Trustee and the Holders, a lien on and security interest in and to (i) the
Debt Service Reserve Account and (ii) all property credited thereto, including,
but not limited to, cash, investments, securities and security entitlements at
any time on deposit in or credited to the Debt Service Reserve Account,
including all income or gain earned thereon and all security entitlements with
respect to any of the foregoing. The Debt Service Reserve Account shall at all
times be in the exclusive possession of and under the exclusive domain and
control of, the Trustee.
SECTION 4.4 Investment of Funds. Monies held in the Debt
Service Reserve Account created by or pursuant to this Indenture shall be
invested and reinvested in Permitted Investments at the written direction of an
Authorized Representative of the Issuer to the Trustee; provided, however, that
the Trustee shall not invest such monies at any time when the maturity of any of
the Bonds has been accelerated and provided, further, that at any time after the
occurrence and during the continuance of an Event of Default, the Trustee may,
but is not obligated to, (and, if instructed in writing by the Majority Holders
of all Bonds of all series as to which the Event of Default applies, shall) in
its (or their) discretion at any time and from time to time elect to liquidate
any such Permitted Investments (in an amount necessary to cure such Event of
Default) and apply or cause to be applied the proceeds thereof to the payment of
the Guaranteed Obligations in respect of principal of and interest on the Bonds
in the manner specified in Section 5.09 of the Security Agreement. Such
investments shall mature in such amounts and have maturity dates or be subject
to redemption at the option of the holder thereof on or prior to maturity as
needed for the purposes of such funds. Any profit realized from investments of
the Debt Service Reserve Account shall be deposited in the Debt Service Reserve
Account and any loss shall be charged to the Debt Service Reserve Account. In no
event shall the Trustee or the Securities Intermediary be liable for the
selection of Permitted Investments or for investment losses incurred thereon.
Neither the Trustee nor the Securities Intermediary shall have liability in
respect of losses incurred as a result of the liquidation of any Permitted
Investment prior to its stated maturity or the failure of the Issuer to provide
timely written investment direction, except to the extent such losses were due
to the gross negligence or bad faith on the part of the Trustee or the
Securities Intermediary. Neither the Trustee nor the Securities Intermediary
shall have any obligation to invest or reinvest any amounts held hereunder in
the absence of written investment direction.
ARTICLE 5
THE GUARANTEES
SECTION 5.1 The Guarantees. The Guarantors hereby jointly and
severally guarantee to each Holder and the Trustee and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Bonds and all other amounts from time to time owing to the Holders or the
Trustee by the Issuer under this Indenture and any Series Supplemental Indenture
and by any Obligor under any of the other Financing Documents strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "Guaranteed Obligations"). The Guarantors hereby further jointly and
severally agree that if the Issuer shall fail to pay in full
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when due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Guarantors will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
SECTION 5.2 Obligations Unconditional. The obligations of the
Guarantors under Section 5.1 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Issuer under this Indenture or any other agreement or
instrument referred to herein, or any substitution, release or exchange of any
other guarantee of or security for any of the Guaranteed Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section that the obligations of the Guarantors hereunder shall be absolute and
unconditional, joint and several, under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of the
Guarantors hereunder, which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Indenture or any other agreement or instrument referred to herein
shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Indenture or any other agreement or instrument referred to herein shall
be waived or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or in
part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Trustee or any Holder or Holders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Trustee or any
Holder exhaust any right, power or remedy or proceed against the Issuer under
this Indenture or any other agreement or instrument referred to herein, or
against any other Person under any other guarantee of, or security for, any of
the Guaranteed Obligations.
SECTION 5.3 Reinstatement. The obligations of the Guarantors
under this Article shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Issuer in respect of the
Guaranteed Obligations is rescinded or must be
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otherwise restored by any holder of any of the Guaranteed Obligations, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise, and
the Guarantors jointly and severally agree that they will indemnify the Trustee
and each Holder on demand for all reasonable costs and expenses (including
reasonable fees of counsel) incurred by the Trustee or such Holder in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
SECTION 5.4 Subrogation. The Guarantors hereby jointly and
severally agree that, until the payment and satisfaction in full of all
Guaranteed Obligations and the satisfaction and discharge of the Bonds under
this Indenture and any Series Supplemental Indenture, they shall not exercise
any right or remedy arising by reason of any performance by them of their
guarantees in Section 5.1, whether by subrogation or otherwise, against the
Issuer or any other guarantor of any of the Guaranteed Obligations or any
security for any of the Guaranteed Obligations.
SECTION 5.5 Remedies. The Guarantors jointly and severally
agree that, as between the Guarantors and the Holders, the obligations of the
Issuer under this Indenture may be declared to be forthwith due and payable as
provided in Article 10 (and shall be deemed to have become automatically due and
payable in the circumstances provided in Article 10), for purposes of Section
5.1 notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Issuer, and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Issuer) shall forthwith
become due and payable by the Guarantors for purposes of Section 5.1.
SECTION 5.6 Instrument for the Payment of Money. Each
Guarantor hereby acknowledges that the guarantees in this Article constitute an
instrument for the payment of money, and consents and agrees that any Holder or
the Trustee, at its sole option, in the event of a dispute by such Guarantor in
the payment of any moneys due hereunder, shall have the right to bring
motion-action under New York CPLR Section 3213.
SECTION 5.7 Continuing Guarantees. The guarantees in this
Article are continuing guarantees and shall apply to all Guaranteed Obligations
whenever arising.
SECTION 5.8 Rights of Contribution. The Guarantors hereby
agree, as between themselves, that if any Guarantor shall become an Excess
Funding Guarantor (as defined below) by reason of the payment by such Guarantor
of any Guaranteed Obligations, each other Guarantor shall, on demand of such
Excess Funding Guarantor (but subject to the next sentence), pay to such Excess
Funding Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined
below and determined, for this purpose, without reference to the properties,
debts and liabilities of such Excess Funding Guarantor) of the Excess Payment
(as defined below) in respect of such Guaranteed Obligations. The payment
obligation of a Guarantor to any Excess Funding Guarantor under this Section
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Guarantor under the other provisions of this
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Article, and such Excess Funding Guarantor shall not exercise any right or
remedy with respect to such excess until payment and satisfaction in full of all
of such obligations.
For purposes of this Section, (i) "Excess Funding Guarantor"
means, in respect of any Guaranteed Obligations, a Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Guarantor, the
amount calculated by multiplying (A) all amounts due and payable in respect of
the Guaranteed Obligations times (B) the ratio of (x) the amount by which the
aggregate present fair saleable value of all assets of such Guarantor (excluding
any shares of stock of any other Guarantor) exceeds the amount of all the debts
and liabilities of such Guarantor (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder and any obligations of any other Guarantor that have been Guaranteed
by such Guarantor) to (y) the amount by which the aggregate fair saleable value
of all assets of all of the Guarantors exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Issuer and the Guarantors
hereunder and under the other Transaction Documents) of all of the Guarantors,
determined (A) with respect to any Guarantor that is a party hereto on the
Effective Date, as of the Effective Date, and (B) with respect to any other
Guarantor, as of the date such Guarantor becomes a Guarantor hereunder.
SECTION 5.9 General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Guarantor under Section 5.1
would otherwise, taking into account the provisions of Section 5.8, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under Section
5.1, then, notwithstanding any other provision hereof to the contrary, the
amount of such liability shall, without any further action by such Guarantor,
any Holder, the Trustee or any other Person, be automatically limited and
reduced to the highest amount that is valid and enforceable and not subordinated
to the claims of other creditors as determined in such action or proceeding.
SECTION 5.10 Effectiveness. The respective obligations of each
Guarantor under this Article 5 shall not be effective unless and until an
Authorized Representative of the Issuer shall have delivered a certificate
(each, a "Guarantee Effectiveness Certificate") to the Trustee to the effect
that all Governmental Approvals under Section 204 of the Federal Power Act as
may be necessary for such Guarantor to incur and perform its obligations under
this Article 5 have been obtained and remain in effect and that all applicable
waiting periods have expired without any action being taken by any competent
authority which restricts, prevents or imposes materially adverse conditions
upon the incurrence or performance of such obligations. The Issuer shall cause a
Guarantee Effectiveness Certificate in respect of each Guarantor to be delivered
to the Trustee within four Business Days after receipt by such Guarantor of such
Governmental Approvals and the expiration of such applicable waiting periods.
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ARTICLE 6
COVENANTS OF THE ISSUER
The Issuer hereby covenants and agrees that so long as this
Indenture is in effect and any Bonds remain Outstanding:
SECTION 6.1 Financial Statements and Other Information. For so
long as the Bonds are Outstanding, the Issuer will furnish to the Trustee and
the Rating Agencies:
(a) within 105 days after the end of each fiscal year of the
Issuer, (i) the audited consolidated balance sheet and related
statements of operations, members' equity and cash flows of the Issuer
and its Subsidiaries as of the end of and for such year and (ii) the
audited consolidated balance sheet and related statements of
operations, members' equity and cash flows of the Issuer and the
Guarantors (excluding the financial condition and results of operations
of the Issuer and the Unrestricted Subsidiaries) as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Issuer and its
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 60 days after the end of each of the first three
quarters of each fiscal year of the Issuer, (i) the unaudited
consolidated balance sheet and related statements of operations,
members' equity and cash flows of the Issuer and its Subsidiaries as of
the end of and for such fiscal quarter and the then-elapsed portion of
the fiscal year and (ii) the unaudited consolidated balance sheet and
related statements of operations, members' equity and cash flows of the
Issuer and the Guarantors (excluding the financial condition and
results of operations of the Issuer and the Unrestricted Subsidiaries),
setting forth in each case in comparative form the figures for (or, in
the case of the balance sheet, as of the end of) the corresponding
period or periods of the previous fiscal year, all certified by an
Authorized Representative of the Issuer as presenting fairly in all
material respects the financial condition and results of operations of
the Issuer and its Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section, an Officer's Certificate (i)
certifying as to whether to the best knowledge of the signer thereof a
Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with
respect thereto, (ii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the most recent
prior audited financial statements delivered pursuant to Section 6.1(a)
or delivered to Holders on or prior to the Closing Date, as applicable,
and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
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(d) concurrently with any delivery of financial statements
under clause (a) of this Section, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of Defaults under clause (b) (B) (y) of the
definition of "Permitted Investments" or clauses (b) or (c) of Section
6.15 (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Issuer or any of the Guarantors with the SEC, or any
Governmental Authority succeeding to any or all of the functions of
said commission, or with any national securities exchange, or
distributed by the Issuer to its members generally, as the case may be;
(f) promptly after receiving notice of the same, copies of any
information with respect to any material litigation or material
governmental or environmental proceedings against the Issuer or the
Guarantors; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Issuer or any of the Guarantors, or compliance with
the terms of this Indenture and the other Transaction Documents, as the
Trustee or Majority Holders may reasonably request.
SECTION 6.2 Existence; Conduct of Business. The Issuer will,
and will cause each of the Guarantors to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence as a limited liability company and all things reasonably necessary to
preserve, renew and keep in full force and effect the rights, licenses, permits,
privileges and franchises material to the conduct of its business as then
conducted; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.14;
provided, further, that the Issuer or any Guarantor may change its status as a
limited liability company if the Rating Agencies confirm their current ratings
of the Bonds and the Issuer or Guarantor, as applicable, otherwise complies with
its obligations under the Financing Documents.
SECTION 6.3 Maintenance of Tax Status. The Issuer will not,
and will cause each of the Guarantors not to, voluntarily take any action to
cause the Issuer or any Guarantors to be subject to taxation as a separate
entity for federal income tax purposes.
SECTION 6.4 Compliance with Laws and Contractual Obligations.
The Issuer will, and will cause each of its Subsidiaries to, comply with all
laws, rules, regulations and orders of any Governmental Authority (including
Environmental Laws and ERISA matters), and all contractual obligations
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 6.5 Maintenance of Properties; Insurance.
(a) The Issuer will, and will cause each of the Guarantors to,
(i) keep and maintain all property material to the conduct of its business in
good working order and condition,
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ordinary wear and tear excepted; provided, however, that nothing in this Section
shall prevent the Issuer or a Guarantor from disposing of any asset (subject to
compliance with Section 6.12, 6.14, 7.6 or 7.11) or from discontinuing the
operation or maintenance of any of such material properties if such
discontinuance is, as determined by the Issuer in good faith, desirable in the
conduct of its business or the business of any Guarantor and would not
reasonably be expected to have a Material Adverse Effect on the Issuer and the
Guarantors taken as a whole and (ii) maintain, with financially sound and
reputable insurance companies, insurance with respect to each Facility in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations. The Issuer will maintain and will cause the Guarantors to maintain
insurance for risks customarily insured against by other enterprises with
similar capital structures and owning and operating facilities of like size and
type as that of the Facilities in accordance with Prudent Industry Practice.
(b) The Issuer will (i) provide funds to each of the
Guarantors at such times and in such amounts so as to enable each of the
Guarantors to pay all Operating Expenses incurred by each such Guarantor on or
before the date such Operating Expenses become due and payable and (ii) cause
each of the Guarantors to comply with Section 7.7. If, on the last Business Day
of each calendar month, the funds available to the Issuer exceed the amount
equal to the aggregate amount of Operating Expenses of the Issuer and the
Guarantors then due and payable plus Operating Expenses of the Issuer and the
Guarantors reasonably anticipated to become due and payable during the following
calendar month, then, on or before the third Business Day of such following
calendar month, the Issuer shall deposit into the Debt Service Reserve Account
an amount equal to the lesser of (i) the Debt Service Reserve Shortfall, if any,
determined as at the last Business Day of a calendar month and (ii) the amount
of such excess.
SECTION 6.6 Payment of Taxes and Claims. The Issuer will, and
will cause each of the Guarantors to, pay its obligations, including Tax
liabilities, before the same shall become delinquent or in default unless the
same is then the subject of a Good Faith Contest or except where nonpayment
would not have a Material Adverse Effect.
SECTION 6.7 Books and Records; Inspection Rights. The Issuer
will, and will cause each of the Guarantors to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Issuer will, and
will cause each of the Guarantors to, permit the Trustee or its representative,
upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at
such reasonable times and as often as reasonably requested.
SECTION 6.8 Indebtedness. The Issuer will not: (a) create,
incur, assume or permit to exist any Indebtedness, except Permitted
Indebtedness; (b) permit any Guarantor to create, incur, assume or permit to
exist any Indebtedness, except its guarantee of the Bonds or its guarantee of
other Permitted Indebtedness (other than Subordinated Indebtedness), and
Intercompany Loans; or (c) permit any Unrestricted Subsidiary to create, incur,
assume or permit to exist any Indebtedness, except Non-Recourse Obligations.
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SECTION 6.9 Liens. The Issuer will not, nor will it permit any
of the Guarantors to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except Permitted Liens.
SECTION 6.10 Certain Obligations Respecting Subsidiaries.
(a) Guarantors. In the event that the Issuer shall form or
acquire any new subsidiary that shall constitute a Subsidiary hereunder, it
shall designate such new Subsidiary as a "Guarantor" or an "Unrestricted
Subsidiary" and will cause each new Subsidiary designated as a Guarantor:
(i) to become an "Obligor" under the Security Agreement;
(ii) to take such action (including delivering such membership
interests or other ownership interests, executing and delivering such
Uniform Commercial Code financing statements) as shall be necessary to
create and perfect valid and enforceable first priority Liens on
substantially all of the personal property of such Guarantor on which a
Lien is required to be created pursuant to the Security Agreement as
collateral security for the obligations of such Guarantor hereunder;
and
(iii) to take such action, from time to time as shall be
necessary to ensure that any such Guarantor remain at all times a
"Guarantor" hereunder except as otherwise permitted hereunder
(including Sections 6.12 and 6.14).
(b) Ownership of Subsidiaries. The Issuer will, and will cause
each of its Subsidiaries to, take such action from time to time as shall be
necessary to ensure that the ownership of the Issuer in the voting equity
interests of each of its Subsidiaries (other than Unrestricted Subsidiaries)
shall at all times exceed 50% of all such voting equity interests. In the event
that any additional membership interests shall be issued by any Subsidiary
(other than an Unrestricted Subsidiary) to the Issuer, the Issuer agrees
forthwith to deliver to the Collateral Agent pursuant to the Security Agreement
the certificates evidencing such membership interests, accompanied by undated
stock powers executed in blank and to take such other action as the Trustee
shall request to perfect the security interest created therein pursuant to the
Security Agreement.
SECTION 6.11 Restrictive Agreements. The Issuer will not, and
will not permit any of the Guarantors to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Issuer or any
Guarantor to create, incur or permit to exist any Lien upon any of its property
or assets that is either (i) created under the Transaction Documents or (ii) in
favor of the Issuer, or (b) the ability of any Guarantor to pay dividends or
other distributions with respect to any shares of its capital stock or to make
or repay loans or advances to the Issuer or any other Guarantor or to Guarantee
Indebtedness of the Issuer or any other Guarantor except such prohibition,
restriction or condition existing under or by reason of: (1) applicable Law, (2)
this Indenture or any Financing Document, (3) with respect to real property,
customary non-assignment provisions of any contract or any lease governing a
leasehold interest of any Guarantor, (4) any agreements
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existing at the time of acquisition of any Person or the properties or assets of
the Person so acquired, which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person or
the properties or assets of the Person so acquired, (5) agreements listed on
Schedule B hereof, (6) Liens incurred in accordance with Section 6.9 or 7.5 or
(7) refinancing of indebtedness with respect to clauses (4) or (5).
SECTION 6.12 Prohibition on Sale of Assets. The Issuer will
not, and will not, permit the Guarantors to, sell or otherwise dispose of any
assets other than (i) transfers of assets among the Issuer and the Guarantors;
(ii) sales and dispositions in the ordinary course of business not in excess of
$20,000,000 in the aggregate for the Issuer and the Guarantors in any fiscal
year; (iii) any sales or dispositions of surplus, obsolete or worn-out
equipment; (iv) any sales or dispositions required for compliance with
applicable Law or necessary Governmental Approvals; (v) sales or dispositions of
non-controlling ownership interests in Guarantors in accordance with Section
6.10(b) so long as the guarantee set forth herein with regard to such Guarantor
stays in effect; (vi) sales or dispositions of ownership interests in
Unrestricted Subsidiaries; (vii) any sales or dispositions of assets permitted
under Section 6.14 or 7.11; and (viii) any other sale or other disposition so
long as after giving effect to such events, the Rating Agencies shall have
confirmed their respective ratings of the Bonds in effect immediately prior to
such sale or other disposition.
SECTION 6.13 Modifications of Certain Documents. Without the
prior consent of the Majority Holders, the Issuer will not agree or consent to
nor allow any Guarantor to agree or consent to any termination, modification,
supplement, replacement or waiver of any Transaction Document, unless such
termination, modification, supplement, replacement or waiver could not,
individually or collectively with all other such terminations, modifications,
supplements, replacements and waivers, reasonably be expected to have a Material
Adverse Effect.
SECTION 6.14 Prohibition on Fundamental Changes.
(a) Mergers, Consolidations, Disposal of Assets, Etc. Except
as permitted under Section 6.12 (other than clause (vii) thereof) or Section
7.11 (other than clause (v) thereof), the Issuer will not, nor will it permit
any of the Guarantors to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) all or any substantial part of its assets, or all or substantially
all of the membership or other equity interests of any of its Subsidiaries (in
each case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if as a result thereof no Default shall have occurred and be
continuing, (i) any Subsidiary may merge into the Issuer in a transaction in
which the Issuer is the surviving corporation, (ii) any Guarantor may merge into
any Guarantor in a transaction in which the surviving entity is a Guarantor and
the Issuer's economic interest in each merging Guarantor's assets shall not have
been diminished as a result of such merger, (iii) any Guarantor may sell,
transfer, lease or otherwise dispose of its assets to the Issuer or to another
Guarantor (provided that the Issuer's economic interest in such assets is not
diminished as a result thereof) and (iv) any Guarantor may liquidate or dissolve
if the assets of such Guarantor are transferred to another Guarantor (provided
that the Issuer's economic interest in such assets is not diminished
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as a result thereof and the Issuer determines in good faith that such
liquidation or dissolution is in the best interests of the Issuer and is not
materially disadvantageous to the Holders).
(b) Lines of Business. The Issuer will not, nor will it permit
any of the Guarantors to, engage to any material extent in any business other
than, (i) in the case of the Issuer, the ownership of the Guarantors and the
Unrestricted Subsidiaries and the ownership and operation of non-nuclear
electric generating facilities and (ii) in the case of the Guarantors (including
any Subsequent Guarantors), the ownership and operation of their respective
Facilities and the ownership and operation of other non-nuclear electric
generating facilities.
SECTION 6.15 Restricted Payments. The Issuer will not make, or
agree to pay or make, directly or indirectly, any Restricted Payment, unless, at
the time of and after giving effect to such Restricted Payment (a) no Default or
Event of Default shall have occurred and be continuing or would occur as a
consequence of such Restricted Payment; (b) the Debt Service Reserve Account is
funded up to the Debt Service Reserve Requirement; (c) the Debt Service Coverage
Ratio for the preceding four consecutive quarters (or such shorter period
covering the quarters ended subsequent to the issuance of the Bonds, taken as a
consecutive period) was not less than 1.50 to 1.0 in the case of any such period
ending prior to December 31, 2003 or 1.70 to 1.0 for any such period ending
thereafter; (d) the Projected Debt Service Coverage Ratio for the next
succeeding eight calendar quarters (taken as two periods of four quarters and
determined as of the beginning of the quarter during which the determination is
made) is not less than 1.50 to 1.0 in the case of any such four quarter period
ending prior to December 31, 2003 or 1.70 to 1.0 for any such four quarter
period ending thereafter; and (e) the Issuer certifies that making the
Restricted Payment would not reasonably be expected to have a Material Adverse
Effect on the Issuer and the Guarantors taken as a whole. Restricted Payments by
any Guarantor of the Issuer that is not a wholly-owned Subsidiary of the Issuer
made otherwise than to the Issuer shall be subject to the restrictions set forth
in clauses (a), (b) (c), (d) and (e) of the preceding sentence. Restricted
Payments to the Issuer by any wholly-owned Subsidiary of the Issuer shall not be
subject to any restrictions.
Notwithstanding the foregoing, the Issuer will not be restricted from
(i) making payments to NRG Energy of any proceeds from treasury locks entered
into by the Issuer on or prior to the Closing Date and (ii) the repayment on the
date hereof of loans made by NRG Energy in connection with the Facilities
located in Connecticut and assumed by the Issuer.
SECTION 6.16 Transactions with Affiliates. The Issuer will
not, nor will it permit any of the Guarantors to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) transactions in the ordinary course of business at
prices and on terms and conditions not less favorable to the Issuer or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the Issuer and the Guarantors not
involving any other Affiliate, (c) any Restricted Payment permitted by Section
6.15 or 7.7, and (d) transactions that are contemplated by any Transaction
Document or any extensions, renewals or replacements thereof that will not have
a Material Adverse Effect.
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Notwithstanding the foregoing, the restrictions set forth in
this covenant shall not apply to (i) reasonable and customary directors' fees,
indemnification and similar arrangements, consulting fees, employee salaries,
bonuses or employment agreements, compensation or employee benefit arrangements
and incentive arrangements with any officer, director or employee of the Issuer
or any Subsidiary entered into in the ordinary course of business, (ii) loans
and advances to officers, directors and employees of the Issuer or any
Subsidiary for reasonable travel, entertainment, moving and other relocation
expenses, in each case made in the ordinary course of business, (iii) the
incurrence of intercompany Indebtedness which constitutes Permitted
Indebtedness, (iv) transactions pursuant to agreements in effect on the date
hereof, (v) the repayment to NRG Energy of funds money loaned by NRG Energy in
connection with the transactions contemplated by the CL&P Acquisition Documents
and (vi) the distribution to NRG Energy of any proceeds received by the Issuer
in connection with any treasury locks entered into on or before the Closing
Date.
SECTION 6.17 Investments. The Issuer will not, nor will it
permit any of the Guarantors to, make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and identified
on Schedule C;
(b) operating deposit accounts with banks;
(c) cash or Permitted Investments;
(d) Investments by the Issuer or the Guarantors in the Issuer
or the Guarantors (including Investments by the Issuer in Intercompany
Loans);
(e) Investments in another Person, if as a result of such
Investment (A) such other Person becomes a Guarantor or (B) such other
Person is merged or consolidated with or into, or transfers or conveys
all or substantially all of its assets to the Issuer or a Guarantor;
(f) Investments representing capital stock or obligations
issued to, the Issuer or any Guarantor in settlement of claims against
any other Person by reason of a composition or readjustment of debt or
a reorganization of any debtor of the Issuer or any Guarantor;
(g) Investments in the Bonds;
(h) Investments acquired by the Issuer or any of the
Guarantors in connection with any asset sale permitted under Section
6.12, 6.14(a), 7.6(a) or 7.11 to the extent such Investments are
non-cash proceeds as permitted under Section 6.12, 6.14(a), 7.6(a) or
7.11;
(i) any Investment to the extent that the consideration
therefor is capital stock (other than redeemable capital stock) of the
Issuer;
(j) Investments consisting of security deposits with utilities
and other Persons made in the ordinary course of business;
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(k) Hedging Agreements entered into in the ordinary course of
business and not for speculative purposes;
(l) amounts constituting Restricted Payments which the Issuer
would be permitted to make under Section 6.15 and the Guarantors would
be permitted to make under Section 7.7; and
(m) additional Investments up to but not exceeding $10,000,000
in the aggregate.
For purposes of clause (m) of this Section, the aggregate amount of an
Investment at any time shall be deemed to be equal to (A) the aggregate amount
of cash, together with the aggregate fair market value of property, including
any securities, loaned, advanced, contributed, transferred or otherwise invested
that gives rise to such Investment minus (B) the aggregate amount of dividends,
distributions or other payments received in cash in respect of such Investment;
the amount of an Investment shall not in any event be reduced by reason of any
write-off of such Investment nor increased by any increase in the amount of
earnings retained in the Person in which such Investment is made that have not
been dividend, distributed or otherwise paid out.
SECTION 6.18 EWG Status. The Issuer will take, or cause to be
taken, all action required to maintain the Guarantors' status as "exempt
wholesale generators" under Section 32(a) of PUHCA.
SECTION 6.19 Debt Service Reserve Account. The Issuer will
maintain the Debt Service Reserve Account in accordance with Article 4 at all
times until the termination of this Indenture.
SECTION 6.20 Rule 144A Information.
(a) Unless a registration statement shall have previously
become effective with respect to the Bonds, at any time when the Issuer is not
subject to Section 13 or 15(d) of the Exchange Act, upon the request of a
Holder, the Issuer shall promptly furnish to such Holder or to a prospective
purchaser of such Bond designated by such Holder, as the case may be, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act in order to permit compliance by such Holder with Rule 144A in
connection with the resale of such Bond by such Holder.
(b) At any time after a registration statement with respect to
the Bonds shall have been filed with and declared effective by the SEC, the
Issuer shall provide to the such periodic and other reports that the Issuer is
required to file pursuant to Sections 13 or 15(d) of the Exchange Act.
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ARTICLE 7
COVENANTS OF THE GUARANTORS
Each Guarantor hereby covenants and agrees that so long as
this Indenture is in effect and any Bonds remain Outstanding:
SECTION 7.1 Existence; Conduct of Business. Each Guarantor
agrees that it will do or cause to be done all things necessary to preserve,
renew and keep in full force and effect such Guarantor's legal existence as a
limited liability company and all things reasonably necessary to preserve, renew
and keep in full force and effect such Guarantor's rights, licenses, permits,
privileges and franchises material to the conduct of such Guarantor's business
as then conducted; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.6; provided,
further, that any Guarantor may change its status as a limited liability company
if the Rating Agencies confirm their then current ratings of the Bonds and such
Guarantor otherwise complies with its obligations under the Financing Documents.
SECTION 7.2 Compliance with Laws and Contractual Obligations.
Each Guarantor agrees that it will comply with all Laws (including Environmental
Laws and ERISA matters) and all contractual obligations, in each case, as
applicable to such Guarantor or its property, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Effect.
SECTION 7.3 Maintenance of Properties; Insurance. Each
Guarantor agrees that it will (i) keep and maintain all property material to the
conduct of such Guarantor's business in good working order and condition,
ordinary wear and tear excepted; provided, however, that nothing in this Section
shall prevent any Guarantor from disposing of any asset (subject to compliance
with Section 7.6 or Section 7.11) or from discontinuing the operation or
maintenance of any of such material properties if the Guarantor reasonably
determines in good faith that such discontinuance is desirable in the conduct of
its business and would not reasonably be expected to have a Material Adverse
Effect, and (ii) maintain, with financially sound and reputable insurance
companies, insurance with respect to each Facility in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations in accordance with
Prudent Industry Practices. Each Guarantor agrees that it will maintain
insurance for risks customarily insured against by other enterprises with
similar capital structures and owning and operating facilities of like size and
type as that of the Facilities in accordance with Prudent Industry Practice.
SECTION 7.4 Indebtedness. Each Guarantor agrees that it will
not create, incur, assume or permit to exist any Indebtedness, except
Intercompany Loans, the Guarantees of the Bonds or guarantees of other Permitted
Indebtedness (other than Subordinated Indebtedness).
SECTION 7.5 Liens. Each Guarantor agrees that it will not
create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by such Guarantor, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except Permitted Liens.
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SECTION 7.6 Prohibition on Fundamental Changes.
(a) Mergers, Consolidations, Disposal of Assets, Etc. Except
as permitted by Section 6.12 (other than clause (vii) thereof) or Section 7.11
(other than clause (v) thereof), each Guarantor agrees that it will not merge
into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with such Guarantor, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or any
substantial part of its assets (in each case, whether now owned or hereafter
acquired), or liquidate or dissolve, except that (i) each Guarantor may merge
into a Subsidiary in a transaction in which such Guarantor is the surviving
corporation, (ii) any Guarantor may merge into any other Guarantor in a
transaction in which the surviving entity is a Guarantor, (iii) each Guarantor
may sell, transfer, lease or otherwise dispose of such Guarantor's assets to the
Issuer or to any other Guarantor and (iv) any Guarantor may liquidate or
dissolve if the Issuer determines in good faith that such liquidation or
dissolution is in the best interests of the Guarantor and is not materially
disadvantageous to the Holders, provided that no Default shall have occurred and
be continuing as a result of any of the events described in clauses (i), (ii) or
(iii) above.
(b) Lines of Business. Each Guarantor agrees that it will not
engage to any material extent in any business other than the ownership and
operation of such Guarantor's respective Facilities or other non-nuclear
electric generating facilities, provided that each Subsequent Guarantor agrees
that it will not engage to any material extent in any business other than the
ownership and operation of non-nuclear electric generating facilities.
SECTION 7.7 Restricted Payments. Each Guarantor agrees that it
will not make, or agree to pay or make, directly or indirectly, any Restricted
Payment, unless such payment is only (a) to the Issuer at any time or (b) to any
future minority owners of the Guarantors only if at the time of such Restricted
Payment the Issuer would itself be permitted to make the payment to such other
minority owner as if such minority owner held a minority interest in the Issuer
instead of such Guarantor.
SECTION 7.8 Transactions with Affiliates. Each Guarantor
agrees that it will not sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of such Guarantor's
Affiliates, except (a) transactions in the ordinary course of business at prices
and on terms and conditions not less favorable to the Guarantor than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among such Guarantor and the Issuer or any of the other Guarantors
not involving any other Affiliate, (c) any Restricted Payment permitted by
Section 6.15 or 7.7 and (d) transactions that are contemplated by any
Transaction Document or any extensions, renewals or replacements thereof, if any
such transaction would not reasonably be expected to result in a Material
Adverse Effect.
Notwithstanding the foregoing, the restrictions set forth in
this covenant shall not apply to (i) reasonable and customary directors' fees,
indemnification and similar arrangements, consulting fees, employee salaries,
bonuses or employment agreements, compensation or employee benefit arrangements
and incentive arrangements with any officer, director or employee of the Issuer
or any Subsidiary entered into in the ordinary course of business, (ii) loans
and advances to officers, directors and employees of the Issuer or any
Subsidiary for
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reasonable travel, entertainment, moving and other relocation expenses, in each
case made in the ordinary course of business, (iii) the incurrence of
intercompany Indebtedness which constitutes Permitted Indebtedness and (iv)
transactions pursuant to agreements in effect on the date hereof.
SECTION 7.9 Investments. Each Guarantor agrees that it will
not make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the date hereof and identified
in Schedule C;
(b) operating deposit accounts with banks;
(c) cash or Permitted Investments;
(d) Investments by such Guarantor in the Issuer or other
Guarantors;
(e) Investments in another Person, if as a result of such
Investment (A) such other Person becomes a Guarantor or (B) such other
Person is merged or consolidated with or into, or transfers or conveys
all or substantially all of its assets to the Issuer or a Guarantor;
(f) Investments representing capital stock or obligations
issued to, the Issuer or any Guarantor in settlement of claims against
any other Person by reason of a composition or readjustment of debt or
a reorganization of any debtor of the Issuer or any Guarantor;
(g) Investments in the Bonds;
(h) Investments acquired by any Guarantor in connection with
any asset sale permitted under Section 6.12, 6.14, 7.6(a) or 7.11 to
the extent such Investments are non-cash proceeds as permitted under
Section 6.12, 6.14(a), 7.6(a) or 7.11;
(i) any Investment to the extent that the consideration
therefor is capital stock (other than redeemable capital stock) of the
Issuer;
(j) Investments consisting of security deposits with utilities
and other like Persons made in the ordinary course of business;
(k) Hedging Agreements entered into in the ordinary course of
business and not for speculative purposes;
(l) amounts constituting Restricted Payments which the
Guarantor would otherwise be permitted to make to minority owners under
Section 7.7; and
(m) additional Investments up to but not exceeding $10,000,000
in the aggregate with respect to such Guarantor, the other Guarantors
and the Issuer.
For purposes of clause (m) of this Section, the aggregate amount of an
Investment at any time shall be deemed to be equal to (A) the aggregate amount
of cash, together with the aggregate fair
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market value of property, including any securities, loaned, advanced,
contributed, transferred or otherwise invested that gives rise to such
Investment minus (B) the aggregate amount of dividends, distributions or other
payments received in cash in respect of such Investment; the amount of an
Investment shall not in any event be reduced by reason of any write-off of such
Investment nor increased by any increase in the amount of earnings retained in
the Person in which such Investment is made that have not been dividend,
distributed or otherwise paid out.
SECTION 7.10 Operation of Facilities. Each Guarantor agrees
that it will operate or cause its respective Facility to be operated in
accordance with Prudent Industry Practices.
SECTION 7.11 Prohibition on Sale of Assets. Each Guarantor
agrees not to sell or otherwise dispose of any assets other than (i) transfers
of assets between the Issuer and such Guarantor; (ii) sales and dispositions in
the ordinary course of business not in excess of $20,000,000 in the aggregate
for such Guarantor, any other Guarantor and the Issuer in any fiscal year; (iii)
any sales or dispositions of surplus, obsolete or worn-out equipment; (iv) any
sales or dispositions required for compliance with applicable Law or necessary
Governmental Approvals; (v) any sales or dispositions of assets permitted under
Section 6.14 or 7.6; or (vi) any other sale or other disposition so long as
after giving effect to such events, the Rating Agencies shall have confirmed
their respective ratings of the Bonds in effect immediately prior to such sale
or other disposition.
SECTION 7.12 Modification of Certain Documents. Without the
prior consent of the Majority Holders of all Outstanding Bonds, no Guarantor
will agree or consent to any termination, modification, supplement, replacement
or waiver of any Transaction Document, unless such termination, modification,
supplement, replacement or waiver could not, individually or collectively with
all other such terminations, modifications, supplements, replacements and
waivers, reasonably be expected to have a Material Adverse Effect.
ARTICLE 8
REDEMPTION OF BONDS
SECTION 8.1 Optional Redemption; Redemption Price. The Issuer
at its option, may, at any time, redeem the Bonds of any series, in whole or in
part at the Redemption Price plus any premium set forth in the related Series
Supplemental Indenture. Redemption of Bonds of any series shall be made in
accordance with the terms of such Bonds and, to the extent that this Article
does not conflict with such terms, the succeeding sections of this Article.
SECTION 8.2 Election or Requirement to Redeem; Notice to
Trustee. The requirement or election of the Issuer to redeem any Bonds shall be
evidenced by an Issuer Order. If the Issuer has elected or is required to redeem
any Bonds, the Issuer shall, at least 30 days but not more than 60 days prior to
the date upon which notice of redemption is required to be given to the Holders
pursuant to Section 8.4 hereof (unless a shorter period shall be satisfactory to
the Trustee), deliver to the Trustee an Issuer Order specifying the date on
which such redemption shall occur (the "Redemption Date") as determined in
accordance with this Article 8, the series
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and principal amount of Bonds to be redeemed and evidence that the moneys
necessary for such redemption will be delivered to the Trustee not later than
the Business Day prior to the Redemption Date. Upon receipt of any such Issuer
Order with respect to a mandatory redemption, the Trustee shall establish a
non-interest bearing special purpose trust account (the "Mandatory Redemption
Account") into which shall be deposited by the Issuer not later than one
Business Day prior to the Redemption Date, immediately available amounts to be
held by the Trustee and applied to the redemption of such Bonds. As collateral
security for the prompt and complete payment and performance when due of all its
obligations with respect to the Bonds and under this Indenture, the Issuer has
pledged, assigned, hypothecated and transferred to the Trustee for the benefit
of the Holders a Lien on and security interest in and to the Mandatory
Redemption Account. The Mandatory Redemption Account shall at all times be in
the exclusive possession of, and under the exclusive dominion and control of,
the Trustee. In the case of any redemption of Bonds prior to the expiration of
any restriction on such redemption provided in the terms of such Bonds, the
Series Supplemental Indenture relating thereto or elsewhere in this Indenture,
the Issuer shall furnish the Trustee with an Officer's Certificate and Opinion
of Counsel evidencing compliance with such restriction or condition.
SECTION 8.3 Mandatory Redemption; Selection of Bonds to Be
Redeemed; Redemption Price.
(a) Unless otherwise provided in a Series Supplemental
Indenture and in accordance with Section 7 of the Collateral Agency and
Intercreditor Agreement, Outstanding Bonds shall be redeemed in whole or in part
on a pro rata basis, prior to maturity, at the Redemption Price if (x) an Event
of Loss shall occur and the Issuer has either (i) determined that the Affected
Property cannot be rebuilt, repaired or restored or (ii) decided not to rebuild,
repair or restore the Affected Property and (y) Loss Proceeds exceed
$10,000,000. All Loss Proceeds in excess of $10,000,000 to be distributed for
the benefit of the Holders after giving effect to the distribution of Loss
Proceeds to the other Secured Parties under Section 7(d) of the Collateral
Agency and Intercreditor Agreement, shall be applied to the pro rata redemption
of the Bonds pursuant to this Section 8.3. The Redemption Date shall be any date
during the 90-day period following the date of the Issuer's determination (x)
that the Affected Property cannot be rebuilt, repaired or restored or (y) not to
rebuild, repair or restore the Affected Property, as the case may be (taking
into account the notice requirements set forth in Section 8.4).
(b) Unless otherwise provided in a Series Supplemental
Indenture and in accordance with Section 7 of the Collateral Agency and
Intercreditor Agreement, the Outstanding Bonds shall be redeemed in whole or in
part prior to maturity at the Redemption Price if an Event of Loss shall occur
and it has been determined that the Affected Property be rebuilt, repaired or
restored and the amount of the Loss Proceeds, as the case may be, remaining
after the payment of the actual total cost of such rebuilding, repair or
restoration exceeds $5,000,000. The amount by which all of the Loss Proceeds
exceeds the actual total cost of rebuilding, repairing or restoring the Affected
Property which is in excess of $5,000,000 to be distributed for the benefit of
the Holders after giving effect to the distribution of Loss Proceeds to the
other Secured Parties under Section 7(d) of the Collateral Agency and
Intercreditor Agreement shall be applied by the Trustee to the pro rata
redemption of the Bonds pursuant to this Article 8. The Redemption Date shall be
any date during the 90-day period following the date of the delivery of an
Officer's Certificate of the Issuer to the Trustee certifying completion
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of the rebuilding, repair or restoration of the Affected Property (taking into
account the notice requirements set forth in Section 8.4).
(c) Upon any redemption of the Bonds in accordance with this
Section 8.3, the scheduled principal amortization of the Bonds of a series shall
be reduced by an amount equal to the product of (x) the scheduled principal
amortization of the Bonds of such series then in effect multiplied by (y) a
fraction, the numerator of which is equal to the principal amount of the
Outstanding Bonds of such series to be redeemed and the denominator of which is
the principal amount of the Outstanding Bonds of such series immediately prior
to such redemption.
(d) Except as otherwise specified in the Series Supplemental
Indenture relating to the Bonds of a series, if less than all the Bonds of such
series are to be redeemed pursuant to Section 8.3(a) or (b), the Bonds of such
series shall be redeemed ratably by the Trustee from the Outstanding Bonds of
such series not previously called for redemption in whole.
(e) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Bonds shall
relate, in the case of any Bonds redeemed or to be redeemed only in part, to the
portion of the principal amount of such Bonds that has been or is to be
redeemed.
For the purpose of redemptions of any Bonds pursuant to clause
(a) or (b) above, the Redemption Price shall equal the principal amount of such
Bond Outstanding on the Redemption Date, plus interest accrued and unpaid to but
excluding the Redemption Date.
SECTION 8.4 Notice of Redemption. Except as otherwise
specified in the Series Supplemental Indenture relating to the Bonds of a series
to be redeemed, notice of redemption shall be given to the Holders of Bonds of
such series to be redeemed at least 30 days (unless a shorter period shall be
satisfactory to the Trustee) but not more than 60 days prior to the Redemption
Date. All notices of redemption shall state:
(a) the Redemption Price;
(b) the Redemption Date;
(c) if less than all of the Outstanding Bonds of any series
are to be redeemed, the portion of the principal amount of each Bond of
such series to be redeemed in part, and a statement that, on and after
the Redemption Date, upon surrender of such Bond, a new Bond or Bonds
of such series in principal amount equal to the remaining unpaid
principal amount thereof will be issued;
(d) that on the Redemption Date, interest thereon will cease
to accrue on and after said date;
(e) the Place or Places of Payment where such Bonds are to be
surrendered for payment of the Redemption Price; and
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(f) that the deposit by the Issuer with the Trustee of an
amount of immediately available funds to pay the Bonds to be redeemed
in full is a condition precedent to the Redemption.
Notice of redemption of Bonds to be redeemed shall be given by
the Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
SECTION 8.5 Bonds Payable on Redemption Date. Notice of
redemption having been given as aforesaid, and the conditions, if any, set forth
in such notice having been satisfied, the Bonds or portions thereof so to be
redeemed shall, on the Redemption Date become due and payable, and from and
after such date such Bonds or portions thereof shall cease to bear interest.
Upon surrender of any such Bond for redemption in accordance with such notice,
an amount in respect of such Bond or portion thereof shall be paid as provided
therein; provided, however, that any payment of interest on any Bond the
Scheduled Payment Date of which is on or prior to the Redemption Date shall be
payable to the Holder of such Bond or one or more Predecessor Bonds, registered
as such at the close of business on the related Regular Record Date according to
the terms of such Bond and subject to the provisions of Section 2.10.
SECTION 8.6 Bonds Redeemed in Part. Any Bond that is to be
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder thereof or its attorney duly authorized in writing), and
the Issuer shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Bond without service charge, a new Bond or
Bonds of the same series, of any authorized denomination requested by such
Holder and of like tenor and in aggregate principal amount equal to and in
exchange for the remaining unpaid principal amount of the Bond so surrendered.
ARTICLE 9
REPURCHASE UPON CHANGE OF CONTROL
SECTION 9.1. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder
shall have the right to require the Issuer to repurchase all or any part of such
Holder's Bonds at a purchase price in cash equal to 101% of the then Outstanding
principal amount of a Bond, plus accrued and unpaid interest to but excluding
the date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date in
accordance with the terms of this Indenture); provided, however, that
notwithstanding the occurrence of a Change of Control, the Issuer shall not be
obligated to purchase any Bond pursuant to this Section 9.1 to the extent that
the Issuer has exercised its rights to redeem such Bond as described in Section
8.2.
(b) Within 30 days following any Change of Control, the Issuer
shall mail a notice to each Holder with a copy thereof to the Trustee stating,
among other things: (1) that a
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Change of Control has occurred and that such Holder has the right to require the
Issuer to purchase all or any portion of such Holder's Bonds at a purchase price
in cash equal to 101% of the principal amount of such Bond, plus accrued and
unpaid interest to but excluding the date of purchase (subject to the right of
Holders of record on a Regular Record Date to receive interest due on the
relevant Scheduled Payment Date in accordance with the terms of this Indenture);
(2) the circumstances and relevant facts regarding such Change of Control
(including information with respect to pro forma historical income, cash flow
and capitalization, each after giving effect to such Change of Control); (3) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and (4) the instructions determined by the
Issuer, consistent with this Section 9.1, that a Holder must follow in order to
have its Bonds or any portion thereof purchased.
(c) The Issuer shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Bonds pursuant to this
Section 9.1. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 9.1, the Issuer shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations described above by virtue thereof.
ARTICLE 10
EVENTS OF DEFAULT AND REMEDIES
SECTION 10.1 Events of Default. The term "Event of Default",
whenever used herein, shall mean any of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or come
about or be affected by operation of law, or be pursuant to or in compliance
with any applicable Law), and any such event shall continue to be an Event of
Default if and for so long as it shall not have been remedied:
(a) the Issuer defaults in the payment of any principal or
interest on any Bond when the same becomes due and payable, whether by
scheduled maturity or required redemption or by acceleration or
otherwise, for 15 days or more;
(b) default in the performance or observance in any material
respect of any other term, covenant, or obligation of the Issuer under
this Indenture, not otherwise expressly defined as an Event of Default,
and the continuance of such default for more than 60 days after the
earliest to occur of (i) actual knowledge of an executive officer of
the Issuer of such default, (ii) the time at which an executive officer
of the Issuer should reasonably have had knowledge of such default or
(iii) notice from the Trustee or the Holders of such default;
(c) default or defaults under one or more agreements,
instruments, mortgages, bonds, debentures or other evidences of
Indebtedness under which the Issuer or any Guarantor then has
outstanding Indebtedness in excess of $15,000,000, individually or in
the aggregate, and such default or defaults have resulted in the
acceleration of the maturity of such Indebtedness and such acceleration
has not been annulled or rescinded;
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(d) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Issuer or any
Guarantor or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Issuer or any Guarantor or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall
continue undismissed for a period of 60 or more days or an order or
decree approving or ordering any of the foregoing shall be entered;
(e) the Issuer or any Guarantor shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for itself or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for
the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(f) any event described in clauses (d) or (e) above occurs
with respect to NRG Energy, NRG Power Marketing, NRG Operations or any
Operator (so long as such Operator continues to be Subsidiary of NRG
Energy), in each case to the extent a party to any Transaction
Document, and remains uncured for the grace periods provided in such
clauses, provided, however, that in respect of such an event relating
to any Operator, the Issuer shall have an additional 60-day period
within which to enter into a replacement operating arrangement, and
provided further, that in no case shall such an event in respect of an
Operator constitute an Event of Default unless it has a Material
Adverse Effect on the Issuer and the Guarantors taken as a whole;
(g) the Issuer or any Guarantor shall become unable, admit in
writing its inability or fail generally to pay its debts as they become
due;
(h) one or more judgments for the payment of money in an
aggregate amount in excess of $25,000,000 shall be rendered against the
Issuer or any of the Guarantors or any combination thereof and the same
shall remain undischarged or unpaid for a period of 60 consecutive days
during which execution shall not be effectively stayed;
(i) the Issuer shall be terminated, dissolved or liquidated
(as a matter of law or otherwise);
(j) the Liens created by the Collateral Documents shall at any
time not constitute a valid and perfected Lien on the collateral
intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein)
in favor of the Trustee, free and clear of all other Liens (other than
Liens permitted under this Indenture or under the respective Collateral
Documents), or, except for expiration in
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accordance with its terms, any of the Collateral Documents shall for
whatever reason be terminated or cease to be in full force and effect,
or the enforceability thereof shall be contested by any Obligor or
Member;
(k) either (i) this Indenture or any other Financing Document
is declared in a final non-appealable judgment to be unenforceable
against the Issuer or any Guarantor or the Issuer or any Guarantor
shall have expressly repudiated its obligations thereunder; or (ii) any
other Transaction Document is declared in a final non-applicable
judgment to be unenforceable against any party thereto, or any such
party shall have expressly repudiated its obligations thereunder and
ceased to perform such obligations, or defaulted in the performance or
observance of any of its material obligations thereunder and such
default has continued unremedied for a period of five days or more or
any such party is the subject of any proceeding under the Federal
Bankruptcy Code;
(l) default by the Issuer, any Guarantor or any counterparty
under or invalidity of any Power Sales Agreement, Operation and
Maintenance Agreement or Corporate Services Agreement, to the extent
such default under or invalidity of any such agreement (x) continues
for 30 consecutive days and (y) could reasonably be expected to have a
Material Adverse Effect on the Issuer and the Guarantors taken as a
whole; or
(m) failure to renew or replace any Operation and Maintenance
Agreement (or to make a substantially similar arrangement with respect
to the operation and maintenance of a Facility) upon (i) termination by
a Guarantor or an Operator, after having given 180 days' notice of its
intent to terminate, within 5 days of such termination, (ii)
termination by any Guarantor, within 5 days of such termination, or
(iii) termination by any Operator, within 30 days of such termination.
SECTION 10.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default described in paragraph (a) of Section 10.1
occurs and is continuing with respect to Bonds of any series, then and in each
and every such case, unless the principal of all the Bonds of such series shall
have already become due and payable, either the Trustee or the Holders of not
less than 331/3% in aggregate principal amount of the Bonds of such series then
Outstanding hereunder, or, in the event of any Event of Default described in
paragraph (b), (c), (f), (h), (i), (j), (k), (l) or (m) of Section 10.1, the
Majority Holders of Bonds of such series then outstanding hereunder, by notice
in a writing to the Issuer (and to the Trustee if given by Holders), may declare
the principal amount of all the Bonds of such series then Outstanding and all
accrued interest thereon to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Bonds of such series contained to the
contrary notwithstanding. If an Event of Default described in paragraph (d), (e)
or (g) of Section 10.1 occurs and is continuing, then and in each and every such
case, the principal amount of the Bonds then Outstanding and all accrued
interest thereon shall, without any notice to the Issuer or any other act on the
part of the Trustee or any Holder of the Bonds, become and be immediately due
and payable, anything in this Indenture or in the Bonds contained to the
contrary notwithstanding.
At any time after such declaration of acceleration has been
made with respect to the Bonds of any series and before a judgment or decree for
payment of the money due has been
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obtained by the Trustee as hereinafter in this Article provided, the Majority
Holders of the Bonds of such series, by written notice to the Issuer and the
Trustee, may receive and annul such declaration and its consequences if:
(i) there shall have been paid to or deposited with the
Trustee a sum sufficient to pay
(A) all overdue installments of interest on the
Bonds of such series,
(B) the principal of and premium, if any, on any
Bonds of such series that have become due other than by such
declaration of acceleration and interest thereon at the
respective rates provided in the Bonds of such series for late
payments of principal or premium,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the
respective rates provided in the Bonds for late payments of
interest, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and
counsel, and
(ii) all Events of Default, other than the nonpayment of the
principal of the Bonds that has become due solely by such acceleration,
have been cured or waived as provided in Section 10.12.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 10.3 Trustee May File Proofs of Claim; Appointment of
Trustee as Attorney-in-Fact in Judicial Proceedings. In case of pendency in any
receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization
or any other judicial proceedings relating to the Issuer or any obligor on the
Bonds or the property of the Issuer or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Bonds shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Issuer for
payment of overdue principal or interest) shall be entitled and empowered by
intervention in such proceedings or otherwise
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owed and unpaid in respect
of the Bonds and to file such other papers or documents as may be
necessary and advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation expenses,
disbursements and advances of the Trustee, its agents and counsel and
all other amounts due the Trustee under Section 10.4) and of the
Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute same;
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and any receiver, assignee, trustee, liquidator or sequestrator in any such
judicial proceeding is hereby authorized by each Holder to make such payment to
the Trustee and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 10.5.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Bonds or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 10.4 Trustee May Enforce Claims Without Possession of
Bonds. All rights of action and claims under this Indenture or the Bonds of any
series may be prosecuted and enforced by the Trustee without the possession of
any of the Bonds of such series or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agent and counsel, be
for the ratable benefit of the Holders of the Bonds of the series in respect of
which such judgment has been recovered.
SECTION 10.5 Application of Money Collected. Any money
collected by the Trustee with respect to a series of Bonds 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 money on account of
principal (or premium, if any) or interest, upon presentation of the Bonds of
such series and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 11.5.
SECOND: To the payment of the amounts then due and unpaid upon
the Bonds of that series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably among Bonds within each series and among the series, without preference
or priority of any kind, according to the amounts due and payable on such Bonds
for principal (and premium, if any) and interest, respectively.
SECTION 10.6 Limitation on Suits. No Holder of any Bond of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Bonds or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Bonds of such
series;
(b) the Holders of not less than 25% in aggregate principal
amount of then Outstanding Bonds of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
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(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Majority
Holders of such series;
it being understood and intended that no one or more Holders of Bonds of such
series shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holders of Bonds of such series, or to obtain or to seek to obtain
priority or preference over any other such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
proportionate benefit of all the Holders of all Bonds of such series.
SECTION 10.7 Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Bond shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
interest on such Bond on the respective maturities expressed in such Bond (or,
in the case of redemption or repayment, on the Redemption Date or Repayment
Date, as the case may be) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 10.8 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, then and in every such case the Issuer, the Trustee
and the Holders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 10.9 Rights and Remedies Cumulative. Except as
otherwise provided in the last paragraph of Section 2.9, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders 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.
SECTION 10.10 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Bond to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be. No waiver of
any Event of
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Default, whether by the Trustee or by the Holders, shall extend to
or shall affect any subsequent Event of Default or shall impair any remedy or
right consequent thereon.
SECTION 10.11 Control by Holders. The Holders of a majority in
principal amount of then Outstanding Bonds of any series 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 with respect to the Bonds of such series; provided that
(a) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, determines
that the action so directed may not lawfully be taken or would conflict
with this Indenture or if the Trustee in good faith shall, by a
Responsible Officer, determine that the proceedings so directed would
involve it in personal liability or it reasonably believes it will not
adequately be indemnified against the costs, expenses and liabilities
which might be incurred by it in complying with its request or be
unjustly prejudicial to the Holders not taking part in such direction,
and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 10.12 Waiver of Past Defaults. The Majority Holders of
any series may on behalf of the Holders of all the Bonds of such series waive
any past default hereunder with respect to such series and its consequences,
except a default not theretofore cured
(a) in the payment of the principal of (or premium, if any) or
interest on any Bond of such series, or in the payment of any sinking
or purchase fund or analogous obligation with respect to the Bonds of
such series, or
(b) in respect of a covenant or provision hereof which under
Article 14 cannot be modified or amended without the consent of the
Holder of each Outstanding Bond of such series.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 10.13 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Bond by its acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any part litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of then
Outstanding Bonds of any
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series to which the suit relates, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Bond on or after the respective maturities expressed in such
Bond (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date).
SECTION 10.14 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 11
CONCERNING THE TRUSTEE
SECTION 11.1 Certain Rights and Duties of Trustee. The
Trustee, prior to the occurrence of an Event of Default and after curing or
waiving all Events of Default that may have occurred, undertakes to perform only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the Trustee.
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.
Except as otherwise provided in Section 315 of the Trust
Indenture Act:
(a) The Trustee may conclusively rely and shall be fully
protected in acting, or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by
the proper party or parties; but in the case of any such certificates
or opinions which by the provisions 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 but need not verify the contents
thereof.
(b) Any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
shall be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer.
(c) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture, and may refuse
to perform any duty or exercise any
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such rights or powers unless it shall have been offered reasonable
security or indemnity to its satisfaction against the costs, expenses
and liabilities which may reasonably be incurred therein or thereby.
(d) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture or with respect to any action it takes or
omits to take in good faith in accordance with a direction received by
it from Holders holding a sufficient percentage of Bonds to give such
direction as permitted by this Indenture.
(e) Prior to the occurrence of an Event of Default with
respect to any series of Bonds hereunder and after the curing or
waiving of all Events of Default with respect to such series of Bonds
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 or other paper or document with respect to
such series of Bonds unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of
the Bonds of such series then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the reasonable
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 to the Trustee 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 so proceeding.
The reasonable expense of every such investigation shall be paid by the
Issuer or, if paid by the Trustee, shall be repaid by the Issuer upon
demand.
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent, attorney custodian or nominee appointed with due care by it
hereunder or under any Collateral Document.
(g) 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 or the action or failure to act by
such Responsible Officers was unreasonable.
(h) 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 any
direction of the Issuer given under this Agreement.
(i) 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,
entitlement order, approval or other paper or document.
(j) The Trustee shall have no obligation to invest and
reinvest any cash held pursuant to this Agreement in the absence of
timely and specific written investment
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direction from the Issuer. In no event shall the Trustee be liable for
the selection of investments or for investment losses incurred thereon.
The Trustee shall have no liability in respect of losses incurred as a
result of the liquidation of any investment prior to its stated
maturity or the failure of the Issuer to provide timely written
investment direction.
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 a reasonable ground for
believing that the repayment of such funds or indemnity satisfactory to it
against such liability is not reasonably assured to it.
The Trustee may consult with counsel and the written advice or
opinion of counsel shall be full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in
accordance with such written advice or opinion of counsel.
SECTION 11.2 Trustee Not Responsible for Recitals, Etc. The
recitals contained herein and in the Bonds, except the Trustee's certificate 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
representations as to the validity or sufficiency of this Indenture, the
Collateral or of the Bonds. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Bonds or of the proceeds of such Bonds.
SECTION 11.3 Trustee and Others May Hold Bonds. The Trustee or
any Paying Agent or Security Registrar or any other Authorized Agent of the
Trustee, or any Affiliate thereof, in its individual or any other capacity, may
become the owner or pledgee of Bonds and may otherwise deal with the Issuer, or
any other obligor on the Bonds with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar or such other Authorized Agent.
SECTION 11.4 Moneys Held by Trustee or Paying Agent. All
moneys received by the Trustee or any Paying Agent shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but, other than the Mandatory Redemption Account, need not be
segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
moneys received by it hereunder except such as it may agree in writing with the
Issuer to pay thereon.
SECTION 11.5 Compensation of Trustee and Its Lien. For so long
as any of the Bonds shall remain outstanding, the Issuer covenants and agrees to
pay to the Trustee (all references in this Section 11.5 to the Trustee shall be
deemed to apply to the Trustee in its capacities as Trustee, Paying Agent and
Security Registrar) from time to time, and the Trustee shall be entitled to,
reasonable compensation for all services rendered by it hereunder (which shall
be agreed to from time to time by the Issuer and the Trustee and which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust), and, except as herein otherwise expressly provided, the
Issuer will pay or reimburse the Trustee upon its request for all reasonable
expenses and disbursements incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
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and the reasonable expenses, advances and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense or disbursement
as may arise from its gross negligence or bad faith. The Issuer also covenants
and agrees to indemnify the Trustee for, defend, and hold harmless the Trustee
and its officers, directors, employees, representatives and agents from and
against, any loss, liability, claim, damage or expense incurred without gross
negligence or bad faith on the part of the Trustee or any of its employees,
officers or agents, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder and this Indenture, including
liability which the Trustee may incur as a result of failure to withhold, pay or
report Taxes and including the costs and expenses of defending itself against
any claim or liability in the premises and including, without limitation, any
loss, liability, claim, damage or expense relating to or arising out of any
Environmental Law. The obligations of the Issuer under this Section shall
constitute additional Indebtedness hereunder. In no event shall the Trustee be
liable for special, indirect or consequential loss or damages whatsoever
(including, but not limited to lost profits), even if the Trustee has been
advised of the likelihood of such damage and regardless of the form of action
taken.
The obligations of the Issuer under this Section 11.5 shall
survive payment in full of the Bonds, the resignation or removal of the Trustee
and the termination of this Indenture.
When the Trustee or any predecessor Trustee incurs expenses or
renders services in connection with the performance of its obligations hereunder
(including its services as paying agent, if so appointed by the Issuer) after an
Event of Default specified in Section 10.1(f) or (a) occurs, the expenses and
compensation for such services are intended to constitute expenses of
administration under applicable bankruptcy, insolvency or other similar United
States Federal or state law to the extent provided in Section 503(b)(5) of the
Federal Bankruptcy Code.
SECTION 11.6 Right of Trustee to Rely on Officer's
Certificates and Opinions of Counsel. Before the Trustee acts or refrains from
acting with respect to any matter contemplated by this Indenture, it may require
an Officer's Certificate of the Issuer or an Opinion of Counsel, which shall
conform to the provisions of Section 1.3. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such
certificate or opinion as set forth in Section 11.1(g).
SECTION 11.7 Persons Eligible for Appointment As Trustee.
There shall at all times be a Trustee hereunder which shall at all times be a
corporation which complies with the eligibility requirements of the Trust
Indenture Act, having a combined capital and surplus of at least $100,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of a supervising or examining authority referred
to in Section 310(a) of the Trust Indenture Act, then for the purposes of this
Section 11.7, 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. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 11.7, the Trustee shall resign
immediately in the manner and with the effect specified in Section 11.8.
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SECTION 11.8 Resignation and Removal of Trustee; Appointment
of Successor.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to any one or more or all series
of Bonds by giving written notice to the Issuer and by giving notice of such
resignation to the Holders of Bonds in the manner provided in Section 1.5.
(b) In case at any time any of the following shall occur with
respect to any series of Bonds:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act, after written request
thereafter by the Issuer or by any Security holder who has been a bona
fide Holder of a Bond or Bonds for at least six months,
(2) the Trustee shall cease to be eligible under Section 11.7
and shall fail to resign after written request therefor by the Issuer
or by any Holder of a Bond or Bonds of such Series, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or a receiver 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, (A) the Issuer may remove the Trustee with respect to
the applicable series of Bonds, and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors of the
Issuer, or (B) subject to the requirements of Section 315(e) of the Trust
Indenture Act, any Holder who has been a bona fide Holder of a Bond or Bonds of
any such series 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 with respect to such
series of Bonds. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor Trustee
with respect to such series of Bonds.
(c) The Holders of a majority in aggregate principal amount of
the Bonds 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
11.1 of the action taken by the Holders, provided that unless a Default or Event
of Default shall have occurred and be continuing, the Issuer shall consent (such
consent not to be unreasonably withheld).
(d) If the Trustee shall resign, be removed, or become
incapable of acting or if a vacancy shall occur in the office of Trustee with
respect to Bonds of any series for any cause, the Issuer shall promptly appoint
a successor Trustee or Trustees with respect to the applicable series of Bonds
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the former
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed with respect to a particular series and have accepted
such appointment pursuant to Section 11.9 within 30 days after the mailing of
such notice of resignation or removal, the former Trustee may petition any
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court of competent jurisdiction for the appointment of a successor Trustee, or
any Holder who has been a bona fide Holder of a Bond or Bonds of the applicable
series for at least six months may, subject to the requirements of Section
315(e) of the Trust Indenture Act, 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 and
prescribe, appoint a successor Trustee.
(e) Any resignation or removal of the Trustee and any
appointment of a successor Trustee pursuant to this Section shall become
effective only upon acceptance of appointment by the successor Trustee as
provided in Section 11.9.
SECTION 11.9 Acceptance of Appointment by Successor Trustee.
Any successor Trustee appointed under Section 11.8 shall execute, acknowledge
and deliver to the Issuer and to its predecessor Trustee with respect to any or
all applicable series of Bonds an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts, duties
and obligations with respect to such series of its predecessor Trustee
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,
the Trustee ceasing to act shall, upon payment of any such amounts then due it
pursuant to the provisions of Section 11.5, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts with
respect to such series of the Trustee so ceasing to act. Upon request of any
such successor Trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
Trustee to secure any amounts then due it pursuant to Section 11.5.
In the case of the appointment hereunder of a successor
Trustee with respect to the Bonds of one or more (but not all) series, the
Issuer, the predecessor Trustee and each successor Trustee with respect to the
Bonds of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such mutually agreeable provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the predecessor Trustee with respect to the Bonds of any
series as to which the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and shall, by mutual agreement, add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-Trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee with respect to any series of Bonds shall
accept appointment as provided in this Section unless at the time of such
acceptance such successor Trustee shall with respect to such series be eligible
under Section 11.7.
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Upon acceptance of appointment by a successor Trustee with
respect to the Bonds of any series, the Issuer shall give notice of the
succession of such Trustee hereunder to the Holders of Bonds in the manner
provided in Section 1.5. If the Issuer fails to give such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be given at the expense of the Issuer.
SECTION 11.10 Merger, Conversion or Consolidation of Trustee.
Any Person 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 Person succeeding to
all or substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such successor Trustee shall be qualified under the Trust Indenture Act and
eligible under the provisions of Section 11.7 hereof and Section 310(a) of the
Trust Indenture Act.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture, any of the Bonds 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 Bonds so authenticated and, in case at that time any of the Bonds shall not
have been authenticated, any successor to the Trustee may authenticate such
Bonds 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 Bonds 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 the authenticate
Bonds in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 11.11 Maintenance of Offices and Agencies.
(a) There shall at all times be maintained in the Borough of
Manhattan, the City of New York, and in such other Places of Payment, if any, as
shall be specified for the Bonds of any series in the related Series
Supplemental Indenture, an office or agency where Bonds may be presented or
surrendered for registration of transfer or exchange and for payment of
principal, premium, if any, and interest. Such office shall be initially:
The Chase Manhattan Bank
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Notices and demands to or upon the Trustee in respect of the Bonds or this
Indenture may be served at the Corporate Trust Office. Written notice of the
location of each of such other office or agency and of any change of location
thereof shall be given by the Issuer to the Trustee and by the Trustee to the
Holders in the manner specified in Section 1.5. In the event that no such office
or agency shall be maintained or no such notice of location or of change of
location shall be given, presentations, surrenders and demands may be made and
notices may be served at the Corporate Trust Office.
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(b) There shall at all times be a Security Registrar and a
Paying Agent hereunder. In addition, at any time when any Bonds remain
Outstanding, the Trustee may appoint an Authenticating Agent or Agents with
respect to the Bonds of one or more series which shall be authorized to act on
behalf of the Trustee to authenticate Bonds of such series issued upon original
issuance, exchange, registration of transfer or partial redemption thereof or
pursuant to Section 2.9, and Bonds so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder (it being understood that wherever
reference is made in this Indenture to the authentication and delivery of Bonds
by the Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent). If an appointment of an
Authenticating Agent with respect to the Bonds of one or more series shall be
made pursuant to this Section 11.11(b), the Bonds of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This Bond is one of the series of Bonds referred to in the
within-mentioned Indenture.
---------------------------------
Trustee
By
-------------------------------
Authenticating Agent
By
-------------------------------
Authorized Signatory
Any Authorized Agent shall be a bank or trust company, shall
be a Person organized and doing business under the laws of the United States or
any State thereof, with a combined capital and surplus of at least $100,000,000,
and shall be authorized under such laws to exercise corporate trust powers,
subject to supervision by United States Federal or state authorities. If such
Authorized Agent publishes reports of its condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 11.11, the combined capital and
surplus of such Authorized Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authorized Agent shall cease to be eligible in accordance with the
provisions of this Section 11.11, such Authorized Agent shall resign immediately
in the manner and with the effect specified in this Section 11.11.
The Trustee at its office specified in the first paragraph of
this Indenture, is hereby appointed as Paying Agent and Security Registrar
hereunder.
(c) Any Paying Agent (other than the Trustee) from time to
time appointed hereunder shall execute and deliver to the Trustee an instrument
in which said Paying Agent shall agree with the Trustee, subject to the
provisions of this Section 11.11, that such Paying Agent will:
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(i) hold all sums held by it for the payment of principal of,
and premium, if any, and interest on Bonds in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(ii) give the Trustee within five days thereafter notice of
any default by any obligor upon the Bonds in the making of any such
payment of principal, premium, if any, or interest; and
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
Notwithstanding any other provision of this Indenture, any
payment required to be made to or received or held by the Trustee may, to the
extent authorized by written instructions of the Trustee, be made to or received
or held by a Paying Agent in the Borough of Manhattan, the City of New York, for
the account of the Trustee.
(d) Any Person into which any Authorized Agent may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, consolidation or conversion to which any Authorized Agent shall be a
party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor Person is otherwise eligible under this Section 11.11, without
the execution or filing of any paper or any further act on the part of the
parties hereto or such Authorized Agent or such successor Person.
(e) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee and the Issuer. The Issuer may, and
at the request of the Trustee shall, at any time, terminate the agency of any
Authorized Agent by giving written notice of such termination to the Authorized
Agent and to the Trustee. Upon the resignation or termination of an Authorized
Agent or in case at any time any such Authorized Agent shall cease to be
eligible under this Section 11.11 (when, in either case, no other Authorized
Agent performing the functions of such Authorized Agent shall have been
appointed), the Issuer shall promptly appoint one or more qualified successor
Authorized Agents approved by the Trustee to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated or who
shall have ceased to be eligible under this Section 11.11. The Issuer shall give
written notice of any such appointment to all Holders as their names and
addresses appear on the Security Register.
SECTION 11.12 Reports by Trustee. On or before March 15 in
every year, so long as any Bonds are Outstanding hereunder, the Trustee shall
transmit to the Holders a brief report, dated as of the preceding December 31,
to the extent required by Section 313 of the Trust Indenture Act in accordance
with the procedures set forth in said Section. A copy of such report at the time
of its mailing to Holders shall be filed with the SEC and each stock exchange,
if any, on which the Bonds are listed. The Issuer shall promptly notify the
Trustee if the Bonds become listed on any stock exchange, and the Trustee shall
comply with Section 313(d) of the Trust Indenture Act.
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SECTION 11.13 Trustee Risk. 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 it shall have
reasonable ground for believing that the repayment of such funds or liability is
not reasonably assured to it. Whether or not expressly provided herein, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to Section 11.1 and
the requirements of the Trust Indenture Act.
SECTION 11.14 Appointment of Co-Trustee. It is the purpose of
this Indenture that there shall be no violation of any law of any jurisdiction,
denying or restricting the right of banking corporations or associations to
transact business as Trustee in such jurisdiction. It is recognized that in case
of litigation under this Indenture or any Transaction Document, and in
particular in case of the enforcement of any such document on default, or in
case the Trustee deems that by reason of any present or future law of any
jurisdiction it may not exercise any of the powers, rights or remedies herein
granted to the Trustee or hold title to the properties, in trust, as herein
granted, or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that the Trustee appoint an additional
individual or institution as a separate or co-trustee. The following provisions
of this Section 11.14 are adopted to these ends.
SECTION 11.15 Knowledge of Default. In no event shall the
Trustee be deemed to have knowledge of an Event of Default unless it has
received written notice or a Responsible Officer has actual knowledge thereof.
In the event that the Trustee appoints an additional
individual or institution as a separate or co-trustee, each and every remedy,
power, right, claim, demand, cause of action, immunity, estate, title, interest
and lien expressed or intended by this Indenture to be exercised by or vested in
or conveyed to the Trustee with respect thereto shall be exercisable by and
vested in such separate or co-trustee but only to the extent necessary to enable
such separate or co-trustee to exercise such powers, rights and remedies, and
every covenant and obligation necessary to the exercise thereof by such separate
or co-trustee shall run to and be enforceable by either of them.
Should any instrument in writing be required by the separate
trustee or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer. In case any
separate trustee or co-trustee, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates, properties, rights,
powers, trusts, duties and obligations of such separate trustee or co-trustee,
so far as permitted by law, shall vest in and be exercised by the Trustee until
the appointment of a new trustee or successor to such separate trustee or
co-trustee.
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ARTICLE 12
CONCERNING THE HOLDERS
SECTION 12.1 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders (collectively, an "Act" of such Holders, which term also shall refer
to the instruments or record evidencing or embodying the same) may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of Holders of
Bonds voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Bonds duly called and held in accordance
with the provisions of Article 13, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record, or both, are
delivered to the Trustee, and when it is specifically required herein, to the
Issuer. Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject to
Section 11.1) conclusive in favor of the Trustee and the Issuer, if made in the
manner provided in this Section 12.1. The record of any meeting of Holders of
Bonds shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of any public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to such
officer the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer, and where such execution
is by an officer of a corporation or association or of a Issuer, on behalf of
such corporation, association or Issuer, such certificate or affidavit shall
also constitute sufficient proof of such Person's authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The principal amount and serial numbers of Bonds held by
any Person, and the date or dates of holding the same, shall be proved by the
Security Register and the Trustee shall not be affected by notice to the
contrary.
(d) Any Act by the Holder of any Bond (i) shall bind every
future Holder of the same Bond and the Holder of every Bond issued upon the
transfer thereof or the exchange therefor or in lieu thereof, whether or not
notation of such action is made upon such Bond, and (ii) shall be valid
notwithstanding that such Act is taken in connection with the transfer of such
Bond to any other Person, including the Issuer or any Affiliate thereof.
(e) Until such time as written instruments shall have been
delivered with respect to the requisite percentage of principal amount of Bonds
for the Act contemplated by such instruments, any such instrument executed and
delivered by or on behalf of a Holder of Bonds may be revoked with respect to
any or all of such Bonds by written notice by such Holder (or its
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duly appointed agent) or any subsequent Holder (or its duly appointed agent),
proven in the manner in which such instrument was proven unless such instrument
is by its terms expressly irrevocable.
(f) Bonds of any series authenticated and delivered after any
Act of Holders may, and shall if required by the Issuer, bear a notation in form
approved by the Issuer as to any action taken by such Act of Holders. If the
Issuer shall so determine, new Bonds of any series so modified as to conform, in
the opinion of the Issuer, to such action, may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
outstanding Bonds of such series.
The Issuer may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to sign any instrument
evidencing or embodying an Act of the Holders. If a record date is fixed, those
Persons who were Holders at such record date (or their duly appointed agents),
and only those Persons, shall be entitled to sign any such instrument evidencing
or embodying an Act of Holders or to revoke any such instrument previously
signed, whether or not such Persons continue to be Holders after such record
date. No such instrument shall be valid or effective if signed more than 90 days
after such record date, and may be revoked as provided in paragraph (e) above.
SECTION 12.2 Bonds Owned by Issuer and Affiliates Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Bonds have concurred in any request, demand, authorization,
direction, notice, consent and waiver or other act under this Indenture, Bonds
which are owned by the Issuer, any Partner or any Affiliate of any of the
foregoing shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver, only Bonds for which a Responsible Officer of the Trustee has received
written notice of such ownership as conclusively evidenced by the Security
Register shall be so disregarded. The Issuer shall furnish the Trustee, upon its
reasonable request, with a list of such Affiliates. Bonds so owned which have
been pledged in good faith may be regarded as Outstanding for the purposes of
this Section, if the pledgee shall establish to the satisfaction of the Trustee
that the pledgee has the right to vote such Bonds and that the pledgee is not an
Affiliate of the Issuer. Subject to the provisions of Section 315 of the Trust
Indenture Act, in case of a dispute as to such right, any decision by the
Trustee, taken upon the advice of counsel, shall be full protection to the
Trustee.
ARTICLE 13
HOLDERS' MEETINGS
SECTION 13.1 Purposes for Which Holders' Meetings May Be
Called. A meeting of Holders may be called at any time and from time to time
pursuant to this Article 13 for any of the following purposes:
(a) to give any notice to the Issuer or to the Trustee, or to
give any directions to the Trustee, or to waive or to consent to the
waiving of any default hereunder and its
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consequences, or to take any other action authorized to be taken by
Holders pursuant to Article 10;
(b) to remove the Trustee and appoint a successor Trustee
pursuant to Article 11;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 14.2; or
(d) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Bonds under any other provision of this Indenture or under
applicable law.
SECTION 13.2 Issuer and Holders May Call Meeting. In case the
Issuer, pursuant to a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Bonds of any series then Outstanding shall
have requested the Trustee to call a meeting of Holders of such series, by
written request setting forth in general terms the action proposed to be taken
at the meeting, and the Trustee shall not have made the mailing of the notice of
such meeting within 20 days after receipt of such request, then the Issuer or
the Holders of such Bonds in the amount above specified may determine the time
and the place in the Borough of Manhattan, The City of New York, for such
meeting and may call such meeting to take any action authorized in Section 13.1
by giving notice thereof as provided in Section 13.2.
SECTION 13.3 Persons Entitled to Vote at Meeting. To be
entitled to vote at any meeting of Holders a person shall be (a) Holder of one
or more Bonds with respect to which such meeting is being held or (b) a person
appointed by an instrument in writing as proxy for the Holder or Holders of such
Bonds by a Holder of one or more such Bonds. The only persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Issuer and its counsel.
SECTION 13.4 Determination of Voting Rights; Conduct and
Adjournment of Meeting. Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders, in regard to proof of the holding of Bonds and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 12.1 or other proof.
Except as otherwise permitted or required by any such regulations, the holding
of Bonds shall be proved in the manner specified in Section 12.1 and the
appointment of any proxy shall be proved in the manner specified in said Section
12.1 or by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or firm satisfactory to the
Trustee.
The Issuer or the Holders calling the meeting, as the case may
be, shall appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be
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elected by vote of the Holders of a majority in aggregate principal amount of
the Bonds represented at the meeting and entitled to vote.
Subject to the provisions of Section 12.2, at any meeting each
Holder of a series or proxy shall be entitled to one vote for each $1,000
principal amount of Bonds of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Bond challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Bonds of such series held by him or instruments in
writing as aforesaid duly designating him as the person to vote on behalf of
other Holders of such series. Any meeting of Holders duly called pursuant to
Section 13.2 may be adjourned from time to time, and the meeting may be held as
so adjourned without further notice. At any meeting, the presence of persons
holding or representing Bonds with respect to which such meeting is being held
in an aggregate principal amount sufficient to take action upon the business for
the transaction of which such meeting was called shall be necessary to
constitute a quorum; but, if less than a quorum be present, the persons holding
or representing a majority of the Bonds represented at the meeting may adjourn
such meeting with the same effect, for all intents and purposes, as though a
quorum had been present.
SECTION 13.5 Counting Votes and Recording Action of Meeting.
The vote upon any resolution submitted to any meeting of Holders of a series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Bonds of such series or of their representatives by proxy and the
serial numbers and principal amounts of the Bonds of such series held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting. The record shall show
the serial numbers of the Bonds voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Issuer and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE 14
SUPPLEMENTAL INDENTURES
SECTION 14.1 Supplemental Indentures Without Consent of
Holders. Without the consent of the Holders of any Bonds, the Issuer, when
authorized by a Board Resolution (a copy of which shall be delivered to the
Trustee), and the Trustee, at any time and from time to
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time, may enter into one or more indentures supplemental hereto in form
satisfactory to the Trustee or enter into any consent with respect to the
Collateral Documents for any of the following purposes:
(a) to establish the form and terms of Bonds of any series
permitted by Sections 2.1 and 2.3; 1 or
(b) to evidence the succession of another entity to the Issuer
and the assumption by any such successor of the covenants of the Issuer
herein contained; or
(c) to evidence the succession of a new Trustee hereunder
pursuant to Section 11.9; or
(d) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Board of
Directors shall consider to be for the protection of the Holders of
Bonds, 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 Bonds to waive such an Event of
Default; or
(e) to convey, transfer and assign to the Trustee properties
or assets to secure the Bonds, and to correct or amplify the
description of any property at any time subject to this Indenture or
the Collateral Documents or to assure, convey and confirm unto the
Trustee any property subject or required to be subject to this
Indenture or the Collateral Documents; or
(f) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to qualify, requalify or
continue the qualification of this Indenture (including any
supplemental indenture) under the Trust Indenture Act, or under any
similar United States Federal statute hereafter enacted, and to add to
this Indenture such other provisions as may be expressly permitted by
the Trust Indenture Act, excluding, however, the provisions referred to
in Section 316(a)(2) of the Trust Indenture Act as in effect at the
date as of which this instrument was executed or any corresponding
provision in any similar United States Federal statute hereafter
enacted; or
(g) to permit or facilitate the issuance of Bonds in
uncertificated form; or
(h) to change or eliminate any provision of this Indenture or
the Collateral Documents; provided, however, that if such change or
elimination shall adversely affect the interests of the Holders of
Bonds of any series, such change or elimination shall not become
effective with respect to such series; or
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(i) to cure any ambiguity, to correct or supplement any
provision in the Indenture or the Collateral Documents that may be
defective or inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under
this Indenture or the Collateral Documents, provided such action shall
not adversely affect the interest of the Holders of any series in any
material respect; or
(j) to provide for the issuance of exchange securities, as
contemplated by the Registration Rights Agreement, and to make such
other changes to the Indenture or the Collateral Documents as the Board
of Directors of the Issuer determines are necessary or appropriate in
connection therewith, provided such action shall not adversely affect
the interests of the Holders of Bonds of any series in any material
respect.
SECTION 14.2 Supplemental Indenture with Consent of Holders.
With the consent of the Majority Holders of Bonds of all series then
Outstanding, considered as one class, by Act of said Holders delivered to the
Issuer and the Trustee, the Issuer, when authorized by a Board Resolution (a
copy of which shall be delivered to the Trustee), may, and the Trustee, subject
to Sections 14.3 and 14.4, shall, enter into an indenture or indentures
supplemental hereto for the purpose of adding any mutually agreeable provisions
to or changing in any manner or eliminating any of the provisions of, this
Indenture; provided, however, that if there shall be Bonds of more than one
series Outstanding hereunder and if a proposed supplemental indenture shall
directly affect the rights of the Holders of one or more, but less than all, of
such series, then the consent only of the Holders of not less than a Majority in
aggregate principal amount of the Outstanding Bonds of all series so directly
affected, considered as one class, shall be required; and provided, further,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Bond directly affected thereby,
(a) change any Scheduled Payment Date, or the dates or
circumstances of payment of premium, if any, on any Bond, or change the
principal amount thereof or the interest thereon or any premium payable
upon the redemption thereof, or change the place of payment where, or
the coin or currency in which, any Bond or the premium, if any, or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment of principal or interest on or
after the Scheduled Payment Date for such payment (or, in the case of
redemption, on or after the Redemption Date) or such payment of
premium, if any, on or after the date such premium becomes due and
payable in respect of such Bonds; or
(b) except to the extent expressly permitted by this Indenture
or any of the Collateral Documents, permit the creation of any Lien
prior to or, except as contemplated by Section 6.16, pari passu with
the Lien of the Collateral Documents with respect to any of the
Collateral, terminate the Lien of the Collateral Documents on any
Collateral or deprive any Holder of the security afforded by the Lien
of the Collateral Documents; or
(c) reduce the percentage in principal amount of the
Outstanding Bonds, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture; or
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(d) modify any of the provisions of Section 10.12 or of this
Section 14.2.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture or any Collateral Document which
has expressly been included solely for the benefit of one or more particular
series of Bonds, or which modifies the rights of the Holders of Bonds of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Bonds of any other
series.
Upon receipt by the Trustee of Board Resolutions and such
other documentation as the Trustee may reasonably require and upon the filing
with the Trustee of evidence of the Act of said Holders, the Trustee shall join
in the execution of such supplemental indenture or other instrument, as the case
may be, subject to the provisions of Sections 14.3 and 14.4.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 14.3 Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by any Series Supplemental
Indenture or other supplemental indenture permitted by this Article 14 or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 11.1) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and all
conditions precedent to the execution of such supplemental indenture have been
met.
SECTION 14.4 Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article 14, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of Bonds
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 14.5 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 14 shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 14.6 Reference in Bonds to Supplemental Indentures.
Bonds authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article 14 may, and shall if required by the Issuer,
bear a notation in form approved by the Issuer as to any matter provided for in
such supplemental indenture; and, in such case, suitable notation may be made
upon Outstanding Bonds after proper presentation and demand. If the Issuer shall
so determine, new Bonds so modified as to conform, in the opinion of the Issuer
and the Trustee, to any such supplemental indenture may be prepared and executed
by the Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Bonds.
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ARTICLE 15
SATISFACTION AND DISCHARGE
SECTION 15.1 Satisfaction and Discharge of Bonds. Except as
otherwise provided with respect to the Bonds of any series in the Series
Supplemental Indenture relating thereto, the Bonds of such series shall, on or
prior to the Scheduled Payment Date with respect to the final installment of
principal thereof, be deemed to have been paid for all purposes of this
Indenture, and the entire Debt of the Issuer in respect thereof shall be deemed
to have been satisfied and discharged, upon satisfaction of the following
conditions:
(a) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee, in trust, money in an amount which shall
be sufficient to pay when due the principal of and premium, if any, and
interest due and to become due on the Bonds of such series on and prior
to the Scheduled Payment Date with respect to the final installment of
principal thereof or upon redemption;
(b) if any such deposit of money shall have been made prior to
the Scheduled Payment Date with respect to the final installment of
principal or the Redemption Date of such Bonds, the Issuer shall have
delivered to the Trustee a Issuer Order stating that such money shall
be held by the Trustee, in trust;
(c) in the case of redemption of Bonds, the Issuer Order with
respect to such redemption pursuant to Article 8 shall have been given
to the Trustee; and
(d) there shall have been delivered to the Trustee an Opinion
of Counsel to the effect that such satisfaction and discharge of the
Debt of the Issuer with respect to the Bonds of such series shall not
be deemed to be, or result in, a taxable event with respect to the
Holders of such series for purposes of United States federal income
taxation unless the Trustee shall have received documentary evidence
that each Holder of such series either is not subject to, or is exempt
from, United States federal income taxation.
Upon satisfaction of the aforesaid conditions with respect to the Bonds of any
series, the Trustee shall, upon receipt of a Issuer Order, execute proper
instruments acknowledging satisfaction and discharge of the series of Bonds.
In the event that Bonds which shall be deemed to have been
paid as provided in this Section 15.1 do not mature and are not to be redeemed
within the 60-day period commencing on the date of the deposit with the Trustee
of moneys, the Issuer shall, as promptly as practicable, give a notice, in the
same manner as a notice of redemption with respect to such Bonds, to the Holders
of such Bonds to the effect that such Bonds are deemed to have been paid and the
circumstances thereof.
Notwithstanding the satisfaction and discharge of any Bonds as
aforesaid, the obligations of the Issuer and the Trustee in respect of such
Bonds under Sections 2.8, 2.9, 2.10 and 11.5 and this Article 15 shall survive.
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SECTION 15.2 Satisfaction and Discharge of Indenture. This
Indenture shall upon Issuer Order cease to be of further effect (except as
hereinafter expressly provided), and the Trustee, at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when:
(a) either
(i) all Bonds theretofore authenticated and delivered
(other than (A) Bonds which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 2.9 and (B) Bonds deemed to have been paid in
accordance with Section 15.1) have been delivered to the
Trustee for cancellation; or
(ii) all Bonds not theretofore delivered to the
Trustee for cancellation shall be deemed to have been paid in
accordance with Section 15.1;
(b) all other sums due and payable hereunder have been paid;
and
(c) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Upon satisfaction of the aforesaid conditions, the Trustee shall, upon receipt
of a Issuer Order, execute proper instruments acknowledging satisfaction and
discharge of the Indenture and take all other action reasonably requested by the
Issuer to evidence the termination of any and all Liens created by or with
respect to this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Issuer and the Trustee under
Sections 2.8, 2.9, 2.10 and 11.5 and this Article 15 shall survive.
Upon satisfaction and discharge of this Indenture as provided
in this Section 15.2, the Trustee shall assign, transfer and turn over to or
upon the order of the Issuer, any and all money, securities and other property
then held by the Trustee for the benefit of the Holders, other than money
deposited with the Trustee pursuant to Section 15.1(a) and interest and other
amounts earned or received thereon.
SECTION 15.3 Application of Trust Money. The money deposited
with the Trustee pursuant to Section 15.1 shall not be withdrawn or used for any
purpose other than, and shall be held in trust for, the payment of the principal
of and premium, if any, and interest on the Bonds or portions of principal
amount thereof in respect of which such deposit was made.
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ARTICLE 16
DEFEASANCE
SECTION 16.1 Defeasance.
(a) Subject to Sections 16.1(b) and 16.2, the Issuer at any
time may terminate (i) all its obligations under this Indenture, the Bonds and
the Collateral Documents (a "Legal Defeasance") or (ii) any of its covenants,
other than its obligation to make payments on the Bonds pursuant to Section 2.10
(a "Covenant Defeasance"). With respect to any Covenant Defeasance, except as
specified in clause (ii) of the preceding sentence, the remainder of this
Indenture and the Bonds, shall be unaffected thereby. The Issuer may exercise a
Legal Defeasance notwithstanding the prior exercise of a Covenant Defeasance. If
the Issuer exercises a Legal Defeasance, payment of the Bonds may not be
accelerated due to an Event of Default. Upon satisfaction of the conditions set
forth herein and on demand of the Issuer, the Trustee (x) shall acknowledge in
writing the discharge of the obligations terminated by the Issuer, (y) shall
execute documents and deliver such instruments in writing as shall be required
to reconvey, release, assign and deliver to the Issuer any and all of the
Trustee's interest in the Collateral, the right, title and interest in and to
any and all rights conveyed, assigned or pledged to the Trustee or otherwise
subject to this Indenture, except amounts in the funds required to be paid to
the Issuer under this Indenture, and (z) shall turn over to the Issuer or to any
such person, body or authority as may be entitled to receive the same all
balances then held by it hereunder. Covenant Defeasance, as effected hereby,
means that the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth under any of the
covenants in this Indenture except as set forth hereinabove, whether directly or
indirectly by reason of any reference elsewhere herein to any such covenant or
Section or to any other provision herein or in any other document.
(b) Notwithstanding Section 16.1(a) above, the obligations of
the Issuer pursuant to Sections 2.8, 2.9, Section 2.10 and 11.5 shall survive
until the Bonds have been paid in full. Thereafter, the obligations of the
Issuer pursuant to Section 11.5 shall survive.
SECTION 16.2 Conditions to Defeasance. Either the Legal
Defeasance or the Covenant Defeasance may be exercised only if:
(a) The Issuer shall have irrevocably deposited in trust with
the Trustee (i) cash in an amount which, when added to any other moneys
held by the Trustee and available for such payment, would be sufficient
to pay (A) the principal of, and any premium and interest on, all Bonds
issued hereunder and under any Series Supplemental Indenture when due,
whether on any Scheduled Payment Date or upon redemption, acceleration,
or otherwise, and (B) all other sums payable hereunder and under any
Series Supplemental Indenture, (ii) non-callable direct obligations of,
or obligations guaranteed by, the United States, maturing on or before
the date or dates when the payments specified in clause (i) above shall
become due, the principal amount of which and the interest thereon,
when due, is or will be, in the aggregate, sufficient to make all such
payments, (iii) securities evidencing ownership interest in obligations
or in specified portions thereof (which shall consist of specified
portions of the principal of or interest on such obligations) of the
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character described in clause (ii), sufficient to make all the payments
specified in clause (i) above, or (iv) any combination of such cash and
such obligations (the "Obligations") specified in (ii) or (iii) above,
the aggregate amount of which and interest thereon, when due, are or
will be sufficient to make all the payments specified in clause (i)
above, and such deposit shall not cause the Trustee to have a
conflicting interest as defined in and for the purposes of the Trust
Indenture Act;
(b) The Issuer shall have delivered to the Trustee a
certificate from a nationally recognized firm of independent
accountants expressing their opinion that the deposited cash and/or the
Obligations without any reinvestment thereof will provide cash at such
times and in such amounts as will be sufficient to pay principal of,
and any premium and interest on, all Outstanding Bonds when due,
whether at on any Scheduled Payment Date or upon redemption,
acceleration, or otherwise;
(c) The Issuer shall have delivered to the Trustee an Opinion
of Counsel to the effect that (i) all preference periods applicable to
the defeasance trust have expired under any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally, (ii) the defeasance trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended, and (iii) the
Holders shall have a perfected security interest under applicable law
in the Obligations so deposited with customary assumptions and
qualifications;
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Events of Default
from bankruptcy or insolvency events are concerned, at any time in the
period ending on the 123rd day after the date of deposit;
(e) Such Legal Defeasance or Covenant Defeasance, as the case
may be, shall not result in a breach or violation of or constitute a
Default under this Indenture, or any other material agreement or
instrument to which the Issuer is a party or by which the Issuer is
bound;
(f) In the case of a Legal Defeasance, the Issuer shall have
delivered to the Trustee an Opinion of Counsel confirming that (i) the
Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) since the date of this Indenture there
has been a change in the applicable United States Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders will not recognize income,
gain or loss for United States Federal income tax purposes as a result
of such Legal Defeasance and will be subject to United States Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(g) In the case of a Covenant Defeasance, the Issuer shall
have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the Holders will not
recognize income, gain or loss for United States Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to
United States
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Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had
not occurred; and
(h) The Issuer shall have delivered to the Trustee an
Officer's Certificate and Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been
complied with.
Neither the Obligations nor moneys deposited with the Trustee
pursuant to this section shall be substituted, withdrawn, reinvested or used for
any purpose other than, and shall be segregated and held in trust for the
payment of the principal of, and premium, if any and interest on, the Bonds.
ARTICLE 17
LIMITATION ON LIABILITY
SECTION 17.1 Limitation on Liability. Notwithstanding
anything to the contrary contained in this Indenture or the Bonds or the
Collateral Documents,
(a) the liability and obligation of the Issuer to perform and
observe and make good the obligations contained in this Indenture and
the Bonds and the Collateral Documents and to pay the Indebtedness
issued hereunder in accordance with the provisions of this Indenture
and the Bonds (such liability and obligation being herein referred to
as the "Issuer's Obligations"), or any part thereof, or any claim based
thereon or otherwise in respect thereof shall not (except as expressly
provided in clause (b) below or in the last paragraph of this Section
17.1) be enforced by any action or proceeding wherein damages or any
money judgment or any deficiency judgment or any judgment establishing
any personal obligation or liability shall be sought, collected or
otherwise obtained against any Member, any parent of a Member or any
past, present or future partner, officer, director, shareholder,
incorporator, Affiliate or related Person, of any Member or the Issuer
(each such Member, parent of a Member and past, present or future
partner, officer, director or shareholder, incorporator, Affiliate or
related Person being herein referred to as a "Related Person"), and
(except as expressly provided in clause (b) below or in the last
paragraph of this Section 17.1) each of the Trustee, the Holders and
any Person acting on behalf of the Trustee or the Holders, for itself
and its successors and assigns, irrevocably waives any and all right to
xxx for, seek or demand any such damages, money judgment, deficiency
judgment or personal judgment against any Related Person under or by
reason of or in connection with the Issuer's Obligations, or any part
thereof, or any claim based thereon or otherwise in respect thereof and
(except as expressly provided in clause (b) below or in the last
paragraph of this Section 17.1) agrees to look solely to the Issuer and
Collateral held under or in connection with the Collateral Documents
for the enforcement of the Issuer's Obligations; and
(b) The liability of the Related Persons with respect to the
Issuer's Obligations, or any part thereof, or for any claim based
thereon or otherwise in respect thereof is (except
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as expressly provided in the last paragraph of this Section 17.1)
limited to the respective interests of such Related Persons in the
Collateral, and (except as expressly provided in the last paragraph of
this Section 17.1) no recourse shall be had in the event of any
non-performance by the Issuer of any of the Issuer's Obligations to (i)
any assets or properties of any Related Person other than the
respective interests of such Related Persons in the Collateral or (ii)
the Related Persons (except with respect to the respective interests of
such Related Persons in the Collateral), and no judgment for any
deficiency upon the Issuer's Obligations, or any part thereof, or for
any claim based thereon or otherwise in respect thereof or related
thereto, shall be obtainable by the Holders, the Trustee or any Person
acting on behalf of the Holders or the Trustee against any Related
Person.
Nothing contained in this Section 17.1 shall be construed (i)
as preventing the Trustee, the Holders and any Person acting on behalf of the
Trustee or the Holders from naming the Issuer or a Related Person in any action
or proceeding brought by the Trustee, the Holders and any Person acting on
behalf of the Trustee or the Holders to enforce and to realize upon or the
Collateral purported to be provided by such Related Persons under or in
connection with the Collateral Documents so long as no judgment, order, decree
or other relief in the nature of a personal or deficiency judgment or otherwise
establishing any personal obligation under or by reason of or in connection with
the Issuer's Obligations, or any part thereof, or any claim based thereon or
otherwise in respect thereof shall be asked for, taken, entered or enforced
against any Related Person, in any such action or proceeding, (ii) as modifying,
qualifying or affecting in any manner whatsoever the Lien and security interests
created by this Indenture and the Collateral Documents and the other Transaction
Documents or the enforcement thereof by the Holders or the Trustee or any Person
acting on behalf of the Holders or the Trustee, (iii) as modifying, qualifying
or affecting in any manner whatsoever the personal recourse undertakings,
obligations and liabilities of any Person (including, without limitation, any
Related Person) under any capital contribution agreement, any guaranty of
payment, completion guaranty or any guaranty or indemnification agreement now or
hereafter executed and delivered to the Trustee, the Holders or any Person
acting on behalf of the Trustee or the Holders in connection with the
transactions contemplated by this Indenture or (iv) as modifying, qualifying or
affecting in any manner whatsoever the personal recourse liability of any
Related Person, or any other Person for fraud or willful misrepresentation or
any wrongful misappropriation or diversion of any portion of the Collateral.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
NRG NORTHEAST GENERATING LLC
By: /s/ Xxxxx Xxxxxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title:President, NRG Northeast Generating LLC
GUARANTORS
XXXXXX KILL POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
ASTORIA GAS TURBINE POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
CONNECTICUT JET POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
DEVON POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
DUNKIRK POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
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XXXXXXX POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
MIDDLETOWN POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
MONTVILLE POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
NORWALK POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
OSWEGO HARBOR POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
SOMERSET POWER LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
THE CHASE MANHATTAN BANK
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President International
Project Finance
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XXX XXXXX XXXXXXXXX BANK
as Securities Intermediary
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President International
Project Finance
NRG Northeast Generating Indenture
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EXHIBIT A
FORM OF ACCEPTABLE GUARANTEE
This GUARANTEE AGREEMENT (this "Guarantee"), dated as of
between [NRG Energy/Affiliate of NRG Energy/Acceptable Bank], a
corporation duly organized and validly existing under the laws of
(the "Guarantor") and The Chase Manhattan Bank, as Trustee (the "Trustee") on
behalf of the Secured Parties (as defined in the Collateral Agency and
Intercreditor Agreement).
RECITALS
1. NRG Northeast Generating LLC (the "Issuer"), Xxxxxx Kill
Power LLC, Astoria Gas Turbines Power LLC, Connecticut Jet Power LLC, Devon
Power LLC, Dunkirk Power LLC, Xxxxxxx Power LLC, Middletown Power LLC, Montville
Power LLC, Norwalk Power LLC, Oswego Harbor Power LLC and Somerset Power LLC
(each, a "Subsidiary Guarantor" and collectively, the "Subsidiary Guarantors")
have entered into the Indenture dated as of February 22, 2000 with the Trustee.
2. In order to fund the Debt Service Reserve Account so that
the obligations of the Issuer under Article 4 of the Indenture shall be
released, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Guarantor has agreed to guarantee the
payment of the Guaranteed Obligation (as defined below).
Accordingly, the Guarantor agrees with the Trustee as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise defined, all capitalized terms used in this
Guarantee shall have the meanings given in the Indenture. The rules of
interpretation set forth in Article 1 of the Indenture shall apply to this
Guarantee.
ARTICLE 2
GUARANTEE
2.01 The Guarantee. The Guarantor absolutely, unconditionally
and irrevocably guarantees to the Trustee on behalf of the Holders of the Bonds
and their respective successors and assigns the prompt payment of up to US$
(as such amount may be reduced or increased from time to time, the "Guaranteed
Obligation") upon receipt of a written request from the Issuer therefor.
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The Guarantor further agrees that it will promptly pay the
amount specified in such written notice, but in no event more than the
Guaranteed Obligation, on the date of receipt of such written notice. The
delivery of such notice by the Issuer to the Guarantor shall in accordance with
Article 4 of the Indenture constitute sufficient demand on the Guarantor to make
the payment specified in such notice.
2.02 Obligations Unconditional. The obligations of the
Guarantor under Section 2.01 are absolute, unconditional and irrevocable,
irrespective of any actual or asserted lack of value, genuineness, validity,
regularity or enforceability of the obligations of the Issuer under the
Indenture, any other Transaction Document or any other agreement or instrument
referred to therein, or any substitution, release or exchange of any other
guarantee of or security for the Guaranteed Obligation, and, to the fullest
extent permitted by applicable Law, irrespective of any other circumstance
whatsoever that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this Article 2 that the
obligations of the Guarantor under this Guarantee shall be absolute and
unconditional, under any and all circumstances.
Subject to Section 2.01, the Guarantor expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Trustee or any Holder exhaust any right, power or
remedy or proceed against the Issuer or the Subsidiary Guarantors under the
Indenture or any other Transaction Document or any other agreement or instrument
referred to therein, or against any other Person under any other guarantee of,
or security for, any of the Guaranteed Obligation.
2.03 Instrument for the Payment of Money. The Guarantor
acknowledges that this guarantee constitutes an instrument for the payment of
money only, and consents and agrees that the Trustee or any Holder, at its sole
option, in the event of a dispute by such Guarantor in the payment of any moneys
due hereunder, shall have the right to bring motion-action under New York CPLR
Section 3213.
2.04 Reduction of Guaranteed Obligation. The Guaranteed
Obligation shall be reduced automatically in accordance with clause 4.1(d)(i) of
the Indenture and the Trustee shall promptly provide to the Guarantor notice of
such reduction. Contemporaneous with the giving of such notice, the Trustee
shall annotate this Guarantee to reflect the Guaranteed Obligation as so
reduced.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants that:
3.01 Power and Authority. The Guarantor has the limited
liability company power and authority to (i) execute and deliver this Guarantee
and perform its obligations hereunder, (ii) to conduct its business as currently
conducted and (iii) to own its property.
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3.02 Valid Existence. The Guarantor is duly organized and is
validly existing under and pursuant to the laws of the jurisdiction of its
organization and is qualified to do business and is in good standing in all
jurisdictions necessary for it to conduct its business and own its property
except where the failure to so qualify or be in good standing would not have a
Material Adverse Effect.
3.03 Due Authorization. The execution, delivery and
performance by the Guarantor of this Guarantee have been duly authorized by all
necessary corporate action, and do not and shall not require any further
consents or approvals which have not been obtained, or violate any provision of
any Law or breach any agreement presently in effect with respect to or binding
on the Guarantor or its properties except where such violations or breach would
not have a Material Adverse Effect.
3.04 Binding Obligation. This Guarantee is a legal, valid and
binding obligation of the Guarantor, enforceable against it in accordance with
its terms, except as such enforceability may be limited in each case by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting the enforceability of creditors' rights generally (and to
the possible judicial application of foreign laws or governmental action
affecting the rights of creditors generally) and except as such enforceability
is subject to the application of general principles of equity (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
at law), including without limitation (i) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and (ii)
concepts of materiality, reasonableness, good faith and fair dealing.
ARTICLE 4
MISCELLANEOUS
4.01 Notices. All notices required or permitted under the
terms and provisions of this Guarantee shall be in writing (including by telex
or fax) in the English language delivered to the intended recipient. Any such
notice shall be effective when received if given in accordance with the
provisions of Section 1.4 of the Indenture to the address set out beneath such
party's signature to this Guarantee.
4.02 Severability. If any provision hereof is invalid, illegal
or unenforceable in any jurisdiction, then to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of the Trustee and
the Secured Parties in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity, illegality or
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity, legality or enforceability of such provision in any other
jurisdiction.
4.03 Benefit of Guarantee. This Guarantee shall be binding
upon and inure to the benefit of the Guarantor and the Trustee and their
respective successors, transferees and assigns.
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4.04 Language. The language of this Guarantee is the English
language and no translation made or to be made hereof shall have any legal
validity.
4.05 Governing Law. This Guarantee shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
agreements made and to be performed entirely within the State of New York,
without regard to principles of conflicts of law thereof to the extent the
application of such principles would cause the application of the laws of any
other jurisdiction.
4.06 Further Assurances. The Guarantor shall execute and
deliver all such instruments and take all such actions as may be reasonably
necessary to effectuate fully the purposes of this Guarantee.
4.07 Term. This Guarantee shall terminate upon the earlier to
occur of indefeasible payment in full of the Guaranteed Obligation and reduction
of the Guaranteed Obligation to zero.
4.08 Amendments. Except as otherwise expressly provided in
this Guarantee, any provision of this Guarantee may be amended or modified only
by an instrument in writing signed by the parties hereto.
4.09 Submission to Jurisdiction and Venue. Any legal action or
proceeding against the Guarantor with respect to this Guarantee shall be brought
and enforced in the U.S. state or federal courts located in the Borough of
Manhattan, The City of New York, New York, and, by execution and delivery of
this Guarantee, the Guarantor irrevocably accepts for itself and in respect of
its property, generally, irrevocably and unconditionally, the jurisdiction of
the aforesaid courts. A judgment, after exhaustion of all available appeals, in
any such action or proceeding shall be conclusive and binding upon the Guarantor
and may be enforced in any other jurisdiction by a suit upon such judgment, a
certified copy of which shall be conclusive evidence of the judgment.
4.10 Appointment of Process Agent. The Guarantor irrevocably
designates, appoints and empowers CT Corporation System, with offices on the
date of this Guarantee at 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
as its designee, appointee and agent with respect to any action or proceeding to
receive, accept and acknowledge for and on its behalf, and in respect of its
property, service of any and all legal process, summons, notices and documents
which may be served in any such action or proceeding and agrees that the failure
of any such agent to give any advice of any service of process to it shall not
impair or affect the validity of such service or of any judgment based thereon.
If for any reason such designee, appointee and agent shall cease to be available
to act as such, the Guarantor shall designate a new designee, appointee and
agent in the United States on the terms and for the purposes of this provision
reasonably satisfactory to the Trustee. The Guarantor further irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it, at its address set forth below, such
service to become effective 30 days after such mailing. Nothing in this
Guarantee shall affect the right of the Trustee to serve process or to commence
legal proceedings or otherwise proceed against the Guarantor in any other
jurisdiction in any other manner permitted by law. The
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Guarantor waives irrevocably, to the extent permitted by law, any objection to
the laying of venue in New York, New York, and any claim of inconvenient forum
in respect of any such action in New York, New York to which it might otherwise
be entitled in any actions arising out of or based on this Guarantee.
NRG Northeast Generating Indenture
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IN WITNESS WHEREOF, each party has caused this Guarantee to be
duly executed and delivered by its officer thereto duly authorized as of the
date first above written.
[NRG Energy/Affiliate of NRG Energy/Acceptable Bank]
as Guarantor
By:
-------------------------
Title:
-------------------------
Address:
-------------------------
-------------------------
-------------------------
Attention:
-------------------------
Telephone:
-------------------------
Telecopy:
-------------------------
THE CHASE MANHATTAN BANK,
not in its individual capacity, but solely
as Trustee
By:
-------------------------
Title:
-------------------------
Address: The Chase Manhattan Bank
Capital Markets Fiduciary Services
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
International and Project Finance Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
NRG Northeast Generating Indenture
105
EXHIBIT B
SUBORDINATION PROVISIONS
Section 1. [NRG Northeast Generating LLC, a limited liability
company organized under the laws of Delaware] (the "Company"), hereby covenants
and agrees, and [NAME OF SUBORDINATED LENDER] (the "Subordinated Lender"),
likewise agrees, that, to the extent and in the manner set forth in this
Agreement, [describe subordinated indebtedness] (the "Subordinated
Indebtedness"), and the payment from whatever source of the principal of, and
interest and premium (if any) on, the Subordinated Indebtedness, are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full in cash of all Senior Indebtedness (as hereinafter defined). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto, whether directly or by reference to another agreement
or document, in the Indenture dated as of February 22, 2000 (as amended,
supplemented or modified and in effect from time to time, the "Indenture") among
the Company, the Guarantors party thereto and The Chase Manhattan Bank, as
trustee (in such capacity, together with its successors and assigns, the
"Trustee") for the Holders.
For purposes hereof, "Senior Indebtedness" shall mean all
indebtedness, liabilities and other obligations of the Company (including, but
not limited to, all such obligations in respect of principal, premiums,
interest, fees, reimbursement obligations, penalties, indemnities, legal
expenses, costs and other expenses, whether due after acceleration or otherwise)
to the Secured Parties (as defined in the Collateral Agency and Intercreditor
Agreement) (of whatsoever nature and howsoever evidenced) under or pursuant to
the Collateral Documents and the other Financing Documents, in each case, direct
or indirect, primary or secondary, fixed or contingent, now or hereafter arising
out of or relating to any such agreement or document. The term "Senior
Indebtedness" shall include any interest accruing after the date of any filing
by the Company of any petition in bankruptcy or the commencing of any
bankruptcy, insolvency or similar proceedings with respect to the Company,
whether or not such interest is allowable as a claim in any such proceeding.
Section 2. The Subordinated Lender further agrees that:
(a) (i) Unless and until the Senior Indebtedness shall have
been paid or otherwise satisfied in full, the Subordinated Lender shall
not ask, demand, xxx for, take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other
manner (including, without limitation, from or by way of the Collateral
or any guaranty of payment or performance), payment of all or any of
the Subordinated Indebtedness, except as permitted under the Indenture
and shall be paid solely from cash that may be applied to Restricted
Payments under Section 6.15 of the Indenture. For the purposes of these
provisions, the Senior Indebtedness shall not be deemed to have been
paid or satisfied in full until the Senior Indebtedness shall have been
indefeasibly so paid in cash to the Secured Parties (after the passage
of any relevant preference periods).
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(ii) Upon any distribution of all or any of the assets of the
Company to creditors of the Company upon the dissolution, winding up,
liquidation, arrangement, reorganization or composition of the Company,
whether in any bankruptcy, insolvency, arrangement, reorganization,
receivership or similar proceedings or upon an assignment for the
benefit of creditors or any other marshalling of the assets and
liabilities of the Company or otherwise, any payment or distribution of
any kind (whether in cash, property or securities) which otherwise
would be payable or deliverable upon or with respect to the
Subordinated Indebtedness but for the provisions of this Agreement,
including, without limitation, any such payment or distribution that
may be payable or deliverable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the
Subordinated Indebtedness shall be paid or delivered directly to the
Collateral Agent for application (in the case of cash) to or as
Collateral (in the case of non-cash property or securities) for the
payment or prepayment of the Senior Indebtedness until the Senior
Indebtedness has been paid or otherwise satisfied in full in cash.
(iii) Each of the Secured Parties may demand specific performance
of these terms of subordination, whether or not the Company shall have
complied with any of the provisions hereof applicable to them at any
time when the Subordinated Lender shall have failed to comply with any
of such provisions applicable to it. The Subordinated Lender hereby
irrevocably waives any defense based on the adequacy of a remedy at
law, which might be asserted as a bar to such remedy of specific
performance.
(iv) So long as any of the Senior Indebtedness shall remain
unpaid or otherwise unsatisfied, the Subordinated Lender shall not
commence or join with any creditor other than the Collateral Agent in
commencing any proceeding referred to in subsection (ii) above for the
payment of any amounts which otherwise would be payable or deliverable
upon or with respect to the Subordinated Indebtedness.
(v) Subject to the indefeasible payment or satisfaction in full
in cash of all of the Senior Indebtedness, the Subordinated Lender
shall be subrogated to the rights of the Secured Parties to receive
payments or distributions of assets of the Company made on the Senior
Indebtedness until the Subordinated Indebtedness has been satisfied in
full.
(vi) In the event that, notwithstanding the foregoing provisions
of this Section 2, the Subordinated Lender shall have received, before
all Senior Indebtedness is paid in full in cash or payment thereof is
otherwise provided for, any such payment or distribution of assets of
the Company of any kind or character, whether in cash, property or
securities, including any such payment or distribution arising out of
the exercise by the Subordinated Lender of a right of set-off or
counterclaim and any such payment or distribution received by reason of
any other indebtedness of the Company being subordinated to the
Subordinated Indebtedness, then, and in such event, such payment or
distribution shall be held in trust for the benefit of the Secured
Parties, and shall be immediately paid over to the Collateral Agent, to
the extent necessary to make payment in full in cash of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
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The foregoing provisions regarding subordination are for the
benefit of the Secured Parties and shall be enforceable by them directly against
the Subordinated Lender, and no Secured Party shall be prejudiced in its right
to enforce subordination of any of the Subordinated Indebtedness by any act or
failure to act by the Company or anyone in custody of its assets or property.
Notwithstanding anything to the contrary contained in the foregoing provisions,
the Subordinated Lender may receive and retain payments in respect of the
Subordinated Indebtedness from the Company to the extent that such payments are
permitted by the Indenture.
(b) So long as any Senior Indebtedness remains outstanding,
the following provisions shall apply:
(i) If an Event of Default shall have occurred and be
continuing, the Collateral Agent, on behalf of the Secured Parties,
shall be permitted to take any and all actions to exercise any and all
rights, remedies and options which it may have under the Collateral
Agency and Intercreditor Agreement and the other Security Documents.
(ii) The Subordinated Lender shall not, without the prior written
consent of the Secured Parties, (A) exercise any rights or enforce any
remedies or assert any claim with respect to the Collateral, (B) seek
to foreclose any Lien or sell the Collateral, or (C) take any action,
directly or indirectly, or institute any proceedings, directly or
indirectly, with respect to any of the foregoing.
(iii) The Subordinated Lender hereby waives: (A) notice of the
existence, creation or non-payment of all or any of the Senior
Indebtedness and (B) to the fullest extent permitted by law, any right
it may have to require the Collateral Agent to marshal assets.
(c) The Secured Parties may, at any time and from time to
time, without any consent of or notice to the Subordinated Lender and without
impairing or releasing the obligations of the Subordinated Lender: (A) amend,
modify, extend, renew, waive or consent to in any manner, any provision of any
agreement under which any of the Senior Indebtedness is outstanding in
accordance with the terms thereof; (B) sell, exchange, release, not perfect and
otherwise deal with any property at any time pledged, assigned or mortgaged to
secure the Senior Indebtedness in accordance with the Security Documents; (C)
release anyone liable in any manner under or in respect of the Senior
Indebtedness; (D) exercise or refrain from exercising any rights against the
Company and others; and (E) apply any sums from time to time received to payment
or satisfaction of the Senior Indebtedness.
(d) After the payment in full of all amounts due in respect of
the Senior Indebtedness, the holder or holders of the Subordinated Indebtedness
shall be subrogated to the rights of the holders of the Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of, premium, if any,
interest on and all other amounts due or to become due with respect to the
Subordinated Indebtedness shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the holder or holders
of the Subordinated Indebtedness would be entitled but
NRG Northeast Generating Indenture
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for the provisions hereof, and no payment pursuant to these provisions to the
holders of the Senior Indebtedness by any holder of the Subordinated
Indebtedness shall, as among the Company, its creditors other than holders of
the Senior Indebtedness and the holder or holders of the Subordinated
Indebtedness, be deemed to be a payment by the Company to or on account of the
Senior Indebtedness. No payment or distributions to the holders of the Senior
Indebtedness which such holder or holders of the Subordinated Indebtedness shall
be entitled to receive pursuant to such subrogation shall, as among the Company,
its creditors other than holders of the Senior Indebtedness and the holder or
holders of the Subordinated Indebtedness be deemed to be a payment by the
Company or on account of the Subordinated Indebtedness.
Nothing contained in this instrument is intended to or shall
impair as among the Company, its creditors other than the holders of the Senior
Indebtedness, and the holders of the Subordinated Indebtedness, the obligation
of the Company, which is absolute and unconditional, to pay to the holders of
the Subordinated Indebtedness as and when the same shall become due and payable
in accordance with its terms, or to affect the relative rights of the holders of
the Subordinated Indebtedness and creditors of the Company other than the
holders of the Senior Indebtedness.
Section 3. The Subordinated Lender agrees not to take any
action in respect of or to enforce any right of subrogation arising as a result
of the Subordinated Lender paying over amounts to the holders of the Senior
Indebtedness as provided herein, prior to payment in full in cash of the Senior
Indebtedness.
Section 4. The Subordinated Lender agrees that, if it shall
fail to file claims or proofs of claim with respect to the Subordinated
Indebtedness at least 30 days prior to the expiration of the period in which
such claims or proofs of claim shall be required to be filed, the holders of the
Senior Indebtedness are authorized to file such claims or proofs of claim on
behalf of the Subordinated Lender as its attorney-in-fact.
NRG Northeast Generating Indenture
