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MIDWEST ENERGY, INC.
and
THE BANK OF NEW YORK,
as Trustee
INDENTURE
Dated as of October 18, 1999
$225,000,000 8.700% Senior Notes due 2009
$250,000,000 9.375% Senior Bonds due 2029
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.....................................................................................1
SECTION 1.02. Certificates and Opinions......................................................................17
SECTION 1.03. Form of Documents Delivered to Trustee.........................................................18
SECTION 1.04. Acts of Holders; Record Dates..................................................................18
SECTION 1.05. Notices, Etc., to Trustee and Company..........................................................21
SECTION 1.06. Notice to Holders; Waiver......................................................................21
SECTION 1.07. Effect of Headings and Table of Contents.......................................................22
SECTION 1.08. Successors and Assigns.........................................................................22
SECTION 1.09. Separability Clause............................................................................22
SECTION 1.10. Benefits of Indenture..........................................................................22
SECTION 1.11. Governing Law..................................................................................22
SECTION 1.12. Legal Holidays.................................................................................22
SECTION 1.13. Incorporation by Reference of Trust Indenture Act..............................................22
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally................................................................................23
ARTICLE III
SECURITIES
SECTION 3.01. Terms and Issuance of the Securities...........................................................25
SECTION 3.02. Execution, Authentication, Delivery and Dating.................................................31
SECTION 3.03. Temporary Securities...........................................................................32
SECTION 3.04. Registrar and Paying Agent; Registration, Registration of Transfer and
Exchange.......................................................................................32
SECTION 3.05. Restricted Securities..........................................................................34
SECTION 3.06. Global Securities..............................................................................35
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Securities...............................................40
SECTION 3.08. Payment of Interest; Interest Rights Reserved..................................................41
SECTION 3.09. Persons Deemed Owners..........................................................................42
SECTION 3.10. Cancellation...................................................................................43
SECTION 3.11. Computation of Interest........................................................................43
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SECTION 3.12. Certification Form.............................................................................43
SECTION 3.13. CUSIP and ISIN Numbers.........................................................................50
ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 4.01. Satisfaction and Discharge of Indenture........................................................50
SECTION 4.02. Defeasance, Discharge and Covenant Defeasance..................................................51
SECTION 4.03. Application of Trust Money.....................................................................54
SECTION 4.04. Reinstatement..................................................................................54
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default..............................................................................55
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.............................................56
SECTION 5.03. Other Remedies.................................................................................57
SECTION 5.04. Waiver of Past Defaults........................................................................57
SECTION 5.05. Control by Majority............................................................................57
SECTION 5.06. Limitation on Suits............................................................................58
SECTION 5.07. Rights of Holders to Receive Payments..........................................................58
SECTION 5.08. Collection Suit by Trustee.....................................................................58
SECTION 5.09. Trustee May File Proofs of Claim...............................................................59
SECTION 5.10. Application of Proceeds........................................................................59
SECTION 5.11. Restoration of Rights and Remedies.............................................................60
SECTION 5.12. Undertaking for Costs..........................................................................60
SECTION 5.13. Rights and Remedies Cumulative.................................................................60
SECTION 5.14. Delay or Omission Not Waiver...................................................................61
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities............................................................61
SECTION 6.02. Notice of Defaults.............................................................................62
SECTION 6.03. Certain Rights of Trustee......................................................................62
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.........................................64
SECTION 6.05. May Hold Securities............................................................................64
SECTION 6.06. Money Held in Trust............................................................................64
SECTION 6.07. Compensation and Reimbursement.................................................................64
SECTION 6.08. Disqualification; Conflicting Interests........................................................65
SECTION 6.09. Corporate Trustee Required; Eligibility........................................................65
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee......................................65
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SECTION 6.11. Acceptance of Appointment by Successor.........................................................67
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business....................................68
SECTION 6.13. Preferential Collecting of Claims Against Company..............................................68
SECTION 6.14. Authenticating Agents..........................................................................68
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders......................................70
SECTION 7.02. Preservation of Information; Communications to Holders.........................................70
SECTION 7.03. Reports by Trustee.............................................................................71
SECTION 7.04. Reports by Company.............................................................................71
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms...........................................71
SECTION 8.02. Successor Corporation to be Substituted........................................................72
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indenture without Consent of Holders..............................................72
SECTION 9.02. Supplemental Indentures with Consent of Holders................................................74
SECTION 9.03. Execution of Supplemental Indentures...........................................................75
SECTION 9.04. Effect of Supplemental Indentures..............................................................75
SECTION 9.05. Conformity with Trust Indenture Act............................................................75
SECTION 9.06. Reference in Securities to Supplemental Indentures.............................................75
SECTION 9.07. Amendments to the Pledge Agreement.............................................................75
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium, if any, and Interest............................................76
SECTION 10.02. Maintenance of Office or Agency................................................................76
SECTION 10.03. Money for Securities Payments to Be Held in Trust..............................................77
SECTION 10.04. Limitation on Liens............................................................................78
SECTION 10.05. Limitation on Distributions and Intercompany Loans.............................................82
SECTION 10.06. Limitation on Indebtedness of the Company......................................................83
SECTION 10.07. Limitation on Business Activities..............................................................84
SECTION 10.08. Statement by Officers as to Default............................................................84
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SECTION 10.09. Modification or Waiver of Certain Covenants....................................................84
SECTION 10.10. Further Assurances.............................................................................85
SECTION 10.11. Copies Available to Holders....................................................................85
SECTION 10.12. Reports by Company.............................................................................85
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Optional Redemption............................................................................86
SECTION 11.02. Election to Redeem; Notice to Trustee..........................................................86
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed..............................................86
SECTION 11.04. Notice of Redemption...........................................................................87
SECTION 11.05. Deposit of Redemption Price....................................................................88
SECTION 11.06. Securities Payable on Redemption Date..........................................................88
SECTION 11.07. Securities Redeemed in Part....................................................................88
ARTICLE XII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 12.01. Purposes of Meeting............................................................................89
SECTION 12.02. Place of Meetings..............................................................................89
SECTION 12.03. Voting at Meetings.............................................................................90
SECTION 12.04. Voting Rights, Conducts and Adjournment........................................................90
SECTION 12.05. Revocation of Consent by Holders...............................................................91
ARTICLE XIII
SECURITY AND COLLATERAL
SECTION 13.01. Pledge Agreement...............................................................................91
SECTION 13.02. Recording and Opinions.........................................................................92
SECTION 13.03. Release of Collateral..........................................................................92
SECTION 13.04. Certificates of the Company....................................................................93
SECTION 13.05. Certificates of the Trustee....................................................................93
SECTION 13.06. Authorization of Actions to be Taken by the Collateral Agent Under the
Pledge Agreement...............................................................................93
SECTION 13.07. Authorization of Receipt of Refunds by the Trustee Under the Pledge
Agreement......................................................................................94
SECTION 13.08. Termination of Security Interest...............................................................94
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ARTICLE XIV
MISCELLANEOUS
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SECTION 14.01. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process........................................................................................94
SECTION 14.02. Counterparts...................................................................................96
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EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Bond
Exhibit C First Supplemental Indenture, dated as of October 18, 1999,
between CILCORP Inc., an Illinois Corporation and The Bank of
New York, a New York banking corporation, as trustee
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CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
Section 310 (a)(1).........................................................................6.09
(a)(2).........................................................................6.09
(a)(3)...............................................................Not Applicable
(a)(4)...............................................................Not Applicable
(b)......................................................................6.08, 6.10
Section 311 (a)............................................................................6.13
(b)............................................................................6.13
(c)..................................................................Not Applicable
Section 312 (a)......................................................................7.01, 7.02
(b)............................................................................7.02
(c)............................................................................7.02
Section 313 (a)............................................................................7.03
(b)............................................................................7.03
(c)............................................................................7.03
(d)............................................................................7.03
Section 314 (a)............................................................................7.04
(a)(4)...................................................................1.01, 7.04
(b)..................................................................Not Applicable
(c)(1).........................................................................1.02
(c)(2).........................................................................1.02
(c)(3)...............................................................Not Applicable
(d)..................................................................Not Applicable
(e)............................................................................1.02
(f)..................................................................Not Applicable
Section 315 (a)............................................................................6.01
(b)............................................................................6.02
(c)............................................................................6.01
(d)............................................................................6.01
(e)............................................................................5.12
Section 316 (a)............................................................1.01 ("Outstanding")
(a)(1)(A)................................................................5.02, 5.05
(a)(1)(B)......................................................................5.04
(a)(2)...............................................................Not Applicable
(b)............................................................................5.07
(c)............................................................................1.04
Section 317 (a)(1).........................................................................5.08
(a)(2).........................................................................5.09
(b)...........................................................................10.03
Section 318 (a)............................................................................1.13
(b)..................................................................Not Applicable
(c)............................................................................1.13
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Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be a part of the Indenture.
-i-
INDENTURE, dated as of October 18, 1999, between MIDWEST ENERGY, INC., an
Illinois corporation (herein called the "Company"), having its principal office
at 0000 Xxxxx 00xx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and THE BANK
OF NEW YORK, a New York banking corporation as trustee (herein called the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Company desires to create two series of notes, one series
in an aggregate principal amount of Two hundred and twenty-five million dollars
($225,000,000) to be designated the "8.700% Senior Notes due 2009" (the
"Notes"), and one series in an aggregate principal amount of Two hundred and
fifty million dollars ($250,000,000) to be designated the "9.375% Senior Bonds
due 0000" (xxx "Xxxxx" and, together with the Notes, the "Securities"), and all
action on the part of the Company necessary to authorize the issuance of the
Securities under this Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as
provided in this Indenture, the valid and binding obligations of the Company,
have been done and performed;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance and
purchase of the Securities by the holders thereof and of the acceptance of this
trust by the Trustee, the Company covenants and agrees with the Trustee, for the
equal benefit of holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the respective meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein to the extent applicable;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States and, except as otherwise herein expressly
provided, the term "generally accepted
2
accounting principles," with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation; and
(4) 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.
Certain terms, used principally in Article VI, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"AES" means The AES Corporation, a Delaware corporation and the sole
stockholder of the Company.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling", and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means the rules and procedures of DTC and, as
applicable, Euroclear and Cedel, in each case pertaining to beneficial interests
in a Global Security.
"Auditors" means the auditors for the time being of the Company or, in
the event of their being replaced by the Company or being unable or unwilling to
carry out any action requested of them pursuant to the terms of the Indenture,
such other firm of internationally recognized accountants as the Company may
select for the purpose.
"Authenticating Agent" means any Person authorized to authenticate and
deliver Securities on behalf of the Trustee pursuant to Section 6.14.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution of the Company
certified by the Secretary or any Assistant Secretary or by any other authorized
designee of the Board of Directors to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification.
"Bonds" has the meaning specified in the first recital of this
Indenture.
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"Business Day", when used with respect to the Place of Payment of the
Securities of any series, means each day which is not a Saturday, a Sunday or a
day on which banking institutions in any Place of Payment for the Securities of
that series are authorized or obligated by law to remain closed.
"Capitalized Lease Obligations" means all lease obligations of the
Company and its Subsidiaries which, under GAAP, are or will be required to be
capitalized, in each case taken at the amount of the lease obligation accounted
for as indebtedness in conformity with those principles.
"Cedel" means Cedelbank, societe anonyme, or its successors.
"CILCORP" means CILCORP Inc., an Illinois corporation.
"CILCO" means Central Illinois Light Company, an Illinois corporation
and wholly-owned subsidiary of CILCORP.
"Collateral" has the meaning specified in the Pledge Agreement.
"Collateral Agent" has the meaning specified in the Pledge Agreement.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board of Directors, the
President or a Vice President of the Company and by the Treasurer, an Assistant
Treasurer, Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Consolidated Current Liabilities" means the consolidated current
liabilities of the Company and its Subsidiaries but excluding the current
portion of long term Indebtedness which would otherwise be included in it, as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Debt" means, at any time, the sum of the aggregate
outstanding principal amount of all Indebtedness for Borrowed Money (including,
without limitation, the principal component of Capitalized Lease Obligations,
but excluding Permitted Debt, Currency, Interest Rate or Commodity Agreements
and all Consolidated Current Liabilities and Project
4
Finance Debt) of the Company and its Subsidiaries, as determined on a
consolidated basis in conformity with GAAP.
"Consolidated EBITDA" means, for any period, the sum of the amounts for
such period of the Company's (i) Consolidated Net Income, (ii) distributions
paid, accrued or scheduled to be paid in respect of any Preferred Securities or
other capital stock to the extent deducted in calculating Consolidated Net
Income, (iii) Consolidated Interest Expense plus (x) interest paid, accrued or
scheduled to be paid or to be accrued in respect of any Permitted Debt, and (y)
interest expense related to company owned life insurance, (iv) income taxes and
deferred taxes (other than income taxes (either positive or negative)
attributable to extraordinary and non-recurring gains or losses or sales of
assets), (v) depreciation expense, (vi) amortization expense, and (vii) all
other non-cash items reducing Consolidated Net Income, less all non-cash items
increasing Consolidated Net Income, all as determined on a consolidated basis in
conformity with GAAP; provided that, to the extent that the Company has any
Subsidiary that is not a wholly owned Subsidiary, Consolidated EBITDA shall be
reduced by an amount equal to the Consolidated Net Income of such Subsidiary
multiplied by the quotient of (A) the number of shares of outstanding common
stock of such Subsidiary not owned on the relevent Measurement Date by the
Company or any Subsidiary of the Company, divided by (B) the total number of
shares of outstanding common stock of such Subsidiary on the relevent
Measurement Date.
"Consolidated Interest Expense" means, for any period, the aggregate
amount of interest in respect of Indebtedness for Borrowed Money (excluding
interest expense related to Permitted Debt and company owned life insurance and
including amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in accordance
with the effective interest method of accounting; and all commissions, discounts
and other fees and charges owed with respect to bankers' acceptance financing)
and the net costs associated with Interest Rate Agreements and all but the
principal component of rentals in respect of Capitalized Lease Obligations,
paid, accrued or scheduled to be paid or to be accrued by the Company and each
of its Subsidiaries during such period, excluding, however, any amount of such
interest of any Subsidiary of the Company if the net income (or loss) of such
Subsidiary is excluded from the calculation of Consolidated Net Income for such
Subsidiary pursuant to clause (ii) of the definition thereof (but only in the
same proportion as the net operating income (or loss) of such Subsidiary is
excluded), less consolidated interest income, all as determined on a
consolidated basis in conformity with GAAP; provided that, to the extent that
the Company has any Subsidiary that is not a wholly owned Subsidiary,
Consolidated Interest Expense shall be reduced by an amount equal to such
interest expense of such Subsidiary multiplied by the quotient of (A) the number
of shares of outstanding common stock of such Subsidiary not owned on the
relevent Measurement Date by the Company or any Subsidiary of the Company
divided by (B) the total number of shares of outstanding common stock of such
Subsidiary on the relevent Measurement Date.
"Consolidated Net Income" means, for any period, the aggregate of the
net income (or loss) of the Company and its Subsidiaries for such period, as
determined on a consolidated basis in conformity with GAAP; provided that the
following items shall be excluded from any calculation of Consolidated Net
Income (without duplication): (i) the net
5
income (or loss) of any Person (other than a Subsidiary) in which any other
person has a joint interest, except to the extent of the amount of dividends or
other distributions actually paid to the Company or another Subsidiary of the
Company during such period; (ii) the net income (or loss) of any Subsidiary to
the extent that the declaration or payment of dividends or similar distributions
by such Subsidiary of such net income is not at the time permitted by the
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation or license; (iii) all
extraordinary gains and extraordinary losses, merger related expenses and
one-time expenses, cash or noncash, relating to restructuring efforts; and (iv)
all gains and losses from discontinued operations.
"Consolidated Net Tangible Assets" means at any time, the total of all
assets (including revaluations thereof as a result of commercial appraisals,
price level restatement or otherwise) appearing on the most recently available
consolidated balance sheet of the Company and its Subsidiaries (provided that
such balance sheet is of a date not more than 60 days prior to the date of
creation of the relevent Lien) prepared in accordance with GAAP, net of
applicable reserves and deductions, but excluding goodwill, trade names,
trademarks, patents, unamortized debt discount and all other like intangible
assets (which term shall not be construed to include such revaluations), less
the aggregate of the Consolidated Current Liabilities of the Company appearing
on such balance sheet.
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York, at which at any particular time its corporate trust
business shall be administered, which at the date hereof is located at 000
Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, XX 00000, Attention: Corporate Trust
Administration, or at any other time at such other address as the Trustee may
designate from time to time.
"corporation" includes corporations, associations, companies and
business trusts.
"Covenant Defeasance" has the meaning specified in Section 4.02(b).
"Currency, Interest Rate or Commodity Agreements" means an agreement or
transaction involving any currency, interest rate or energy price or volumetric
swap, cap or collar arrangement, forward exchange transaction, option, warrant,
forward rate agreement, futures contract or other derivative instrument of any
kind for the hedging or management of foreign exchange, interest rate or energy
price or volumetric risks; it being understood, for purposes of this definition,
that the term "energy" shall include, without limitation, coal, gas, oil and
electricity.
"default" means, for purposes of Section 5.01 hereof, an "Event of
Default" as specified in Section 5.01 hereof. For purposes of Section 310(b) of
the Trust Indenture Act (if applicable to the Securities of any series),
"default" shall mean an "Event of Default" as specified in Section 5.01 hereof,
but exclusive of any period of grace or requirement of notice.
"Defaulted Interest" has the meaning specified in Section 3.08.
6
"Defeasance" has the meaning specified in Section 4.02(a).
"Definitive Security" means a physical security in fully registered
form.
"Depositary" means, with respect to the Securities issued in whole or
in part in the form of one or more Global Securities, DTC.
"Discharged" means, with respect to the Securities of any series, the
discharge of the entire indebtedness represented by, and obligations of the
Company under, the Securities of such series and the satisfaction of all the
obligations of the Company under this Indenture relating to the Securities of
such series, except (A) the rights of Holders of the Securities of such series
to receive, from the trust fund described in Section 4.03 hereof, payment of the
principal of and interest and premium, if any, on the Securities of such series
when such payments are due, (B) the Company's obligations with respect to the
Securities of such series with respect to registration, transfer, exchange and
maintenance of a Place of Payment and (C) the rights, powers, trusts, duties,
protections and immunities of the Trustee under this Indenture.
"Distribution" means any dividend, distribution or payment (including
by way of redemption, repurchase, retirement, return or repayment) in respect of
shares of capital stock of the Company, excluding any contract adjustment
payments under contracts to purchase common stock of CILCORP, AES or any of its
affiliates (which common stock was not held as an asset of CILCORP) entered into
in connection with the issuance of any Permitted Debt.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debt.
"DTC" means The Depository Trust Company or its successors, or any
successor clearing agency which is registered as such under the Exchange Act and
approved by the Company.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co., and any
Subsidiary or successor thereof.
"Effective Date" means the effective date of the Merger, as provided
for in the certificate of merger filed and accepted by the appropriate state
authorities.
"Euroclear" means the Euroclear System or its successors.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Definitive Security" has the meaning specified in Section
2.01.
"Exchange Global Security" has the meaning specified in Section 2.01.
7
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Exchange Security" means a security which has been registered under
the Securities Act in global form as an Exchange Global Security or definitive
form as an Exchange Definitive Security.
"Existing Rating" means, for any Rating Agency on any date of
determination, the Rating assigned to the securities by such Rating Agency as of
such date.
"Excluded Subsidiary" means any Subsidiary of the Company
(i) in respect of which neither the Company nor any Subsidiary of
the Company (other than another Excluded Subsidiary) has
undertaken any legal obligation to give any guarantee for the
benefit of the holders of any Indebtedness for Borrowed Money
(other than to another member of the Group) other than in
respect of any statutory obligation and the Subsidiaries of
which are all Excluded Subsidiaries; and
(ii) which has been designated as such by the Company by written
notice to the Trustee; provided that the Company may give
written notice to a Responsible Officer of the Trustee at any
time that any Excluded Subsidiary is no longer an Excluded
Subsidiary whereupon it shall cease to be an Excluded
Subsidiary.
"Existing Rating" means, for any Rating Agency on any date of
determination, the Rating assigned to the Securities of any series by such
Rating Agency as of such date.
"Expiration Date" has the meaning specified in Section 1.04.
"GAAP" means generally accepted accounting principles in the United
States, as in effect from time to time.
"Global Security" means a Rule 144A Global Security, a Regulations S
Global Security or an Exchange Global Security, in global form substantially in
the form set forth in Exhibit A, with respect to the Notes, or Exhibit B, with
respect to the Bonds, in each case, to this Indenture.
"Group" means the Company and its Subsidiaries and "member of the
Group" shall be construed accordingly.
"Holder", "holder of Securities", "Securityholder" and other similar
terms mean the Person in whose name a Security is registered in the Security
Register.
"Holding Period" has the meaning specified in Section 2.01.
8
"incur" means, with respect to any Indebtedness, to incur, create,
issue, assume or guarantee such Indebtedness.
"Indebtedness" means, with respect to the Company or any of its
Subsidiaries at any date of determination (without duplication): (i) all
Indebtedness for Borrowed Money (excluding any credit which is available but
undrawn), (ii) all obligations in respect of letters of credit (including
reimbursement obligations with respect thereto), (iii) all obligations to pay
the deferred and unpaid purchase price of property or services, which purchase
price is due more than six months after the date of placing such property in
service or taking delivery and title thereto or the completion of such services,
except trade payables, (iv) all Capitalized Lease Obligations, (v) all
indebtedness of other persons secured by a mortgage, charge, lien, pledge or
other security interest on any asset of the Company or any of its Subsidiaries,
whether or not such indebtedness is assumed; provided that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of the secured indebtedness, (vi)
all indebtedness of other persons of the types specified in the preceding
clauses (i) through (v), to the extent such indebtedness is guaranteed by the
Company or any of its Subsidiaries, and (vii) to the extent not otherwise
included in this definition, net obligations under Currency, Interest Rate or
Commodity Agreements. The amount of Indebtedness at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, upon the occurrence of the contingency giving rise to the obligation,
the maximum liability of any contingent obligations of the types specified in
the preceding clauses (i) through (vii) at such date; provided that the amount
outstanding at any time of any Indebtedness issued with original issue discount
is the face amount of such Indebtedness less the remaining unamortized portion
of the original issue discount of such Indebtedness at such time as determined
in conformity with GAAP.
"Indebtedness For Borrowed Money" means any indebtedness (whether being
principal, premium, interest or other amounts) for (i) money borrowed, (ii)
payment obligations under or in respect of any trade acceptance or trade
acceptance credit, or (iii) any notes, bonds, loan stock or other debt
securities offered, issued or distributed whether by way of public offer,
private placement, acquisition consideration or otherwise and whether issued for
cash or in whole or in part for a consideration other than cash (including,
without limitation, Permitted Debt); provided, however, in each case, that such
term shall exclude (a) any indebtedness relating to any accounts receivable
securitizations, (b) any Indebtedness of the type permitted to be secured by
Liens pursuant to Section 10.04(m) herein, (c) any Preferred Securities which
are issued and outstanding on the date of original issue of the Securities or
any extension, renewal, or replacement (or successive extensions, renewals or
replacements), as a whole or in part, of any such existing Preferred Securities,
for amounts not exceeding the principal amount or liquidation preference of the
Preferred Securities so extended, renewed or replaced, and (d) any Preferred
Securities issued in replacement or in connection with a refinancing of any
preferred securities or preferred stock which is issued and outstanding on the
date or original issue of the Securities, for amounts not exceeding the
liquidation preference of the preferred securities or preferred stock so
replaced or refinanced.
9
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Indirect Participant" means a Person that holds a beneficial interest
in a Global Security through a person that has an account with DTC.
"Initial Purchaser" means Xxxxxx Brothers Inc., X.X. Xxxxxx & Co. and
Xxxxxx Xxxxxxx Xxxx Xxxxxx.
"Initial Ratings" has the meaning specified in Section 10.05.
"Initial Securities" means Securities of any series issued under this
Indenture which are offered and sold pursuant to an exemption from registration
under the Securities Act.
"Interest Coverage Ratio" means, with respect to the Company on any
Measurement Date, the ratio of (i) the aggregate amount of Consolidated EBITDA
of the Company for the four fiscal quarters for which financial information in
respect thereof is available immediately prior to such Measurement Date to (ii)
the aggregate Consolidated Interest Expense during such four fiscal quarters.
"Interest Payment Date", when used with respect to any installment or
interest in respect of a Security, means the Stated Maturity of such installment
of interest.
"Investments" in any Person means any loan or advance to, any net
payment on a guarantee of, any acquisition of capital stock, equity interest,
obligation or other security of, or capital contribution or other investment in,
such Person. Investments exclude advances to customers and suppliers and similar
payments in the ordinary course of business.
"Leverage Ratio" means the ratio of Consolidated Debt to Total Capital,
calculated on the basis of the most recently available consolidated balance
sheet of the Company and its consolidated Subsidiaries (provided that such
balance sheet is as of a date not more than 60 days prior to a Measurement Date)
prepared in accordance with GAAP.
"Lien" means any mortgage, lien, pledge, security interest or other
encumbrance; provided, however, that the term "Lien" shall not mean any
easements, rights-of-way, restrictions and other similar encumbrances and
encumbrances consisting of zoning restrictions, leases, subleases, restrictions
on the use of property or defects in the title thereto.
"Maturity", when used with respect to any Security or any installment
of principal thereof, means the date on which the principal of such Security or
installment of principal, as applicable, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Measurement Date" means the record date for any Distribution.
10
"Merger" means the consummation of the merger of the Company with and
into CILCORP and the other transactions contemplated by the Merger Agreement, as
a result of which CILCORP becomes a direct wholly-owned Subsidiary of AES.
"Merger Agreement" means the Agreement and Plan of Merger dated as of
November 22, 1998 among AES, CILCORP and the Company, as the same may be amended
from time to time.
"Moody's" means Xxxxx'x Investors Service, Inc., and any Subsidiary or
successor thereof.
"Notes" has the meaning stated in the first recital of this Indenture.
"Notice of Default" means a written notice of the kind specified in
Section 5.01(3).
"Obligations" has the meaning specified in Section 13.01.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or any Vice President of the Company and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, and delivered to the Trustee. One of the Officers signing an
Officers' Certificate delivered pursuant to Section 10.08 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who, unless
otherwise specified herein or required by the Trust Indenture Act, may be an
employee of or regular counsel for the Company, or may be other counsel to the
Company.
"Outstanding", when used with respect to the Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or U.S. Governmental Obligations in the
necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.09 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
11
been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Subsidiary of the
Company or of such other obligor 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 Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned as
described in the proviso to the preceding sentence which have been pledged in
good faith may be regarded as Outstanding if the pledgee certifies to the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Subsidiary of the Company or of such other obligor.
"Participant" means a Person that has an account with DTC.
"Paying Agent" means The Bank of New York until a successor Paying
Agent shall have become such pursuant to the applicable provisions of this
Indenture and, thereafter, "Paying Agent" shall mean such successor Paying
Agent.
"Permanent Global Security" means a Global Security that is, at the
time of the initial issuance of the related series of Securities, issued in
permanent form.
"Permitted Debt" means Indebtedness for Borrowed Money issued in
connection with a contract or contracts to purchase from CILCORP common stock of
CILCORP, AES or any affiliate of AES (which common stock was not held as an
asset of CILCORP) for an aggregate amount equal to the aggregate principal
amount of such Indebtedness for Borrowed Money.
"Permitted Liens" means liens permitted by clauses (a) through (e)
under Section 10.04(i).
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on the Securities of that series are payable as specified
in or as contemplated by Section 3.01.
"Pledge Agreement" means the Pledge Agreement dated as of the date
hereof, made by CILCORP in favor of The Bank of New York, as collateral agent.
12
"Pledge Effective Date" means the earlier to occur of (i) January 31,
2002 and (ii) the date on which the existing $30.5 million Series A medium-term
notes of CILCORP are no longer outstanding.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purpose of this definition, any Security
authenticated and delivered under Section 3.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen security.
"Preferred Securities" means, without duplication, any trust preferred
or preferred securities or related debt or guaranties of CILCORP or any of its
subsidiaries.
"Principal Amount" has the meaning specified in Section 3.01.
"Project Finance Debt" means:
(i) any Indebtedness to finance or refinance the ownership,
acquisition, development, design, engineering, procurement,
construction, servicing, management and/or operation of any project or
asset which is incurred by an Excluded Subsidiary; and
(ii) any Indebtedness to finance or refinance the ownership,
acquisition, development, design, engineering, procurement,
construction, servicing, management and/or operation of any project or
asset in respect of which the person or persons to whom any such
Indebtedness is or may be owed by the relevant borrower (whether or not
a member of the Group) has or have no recourse whatsoever to any member
of the Group (other than an Excluded Subsidiary) for the repayment
thereof other than:
(a) recourse to such member of the Group for amounts
limited to the cash flow or net cash flow (other than historic
cash flow or historic net cash flow) from, or ownership
interests or other investments in, such project or asset;
and/or
(b) recourse to such member of the Group for the
purpose only of enabling amounts to be claimed in respect of
such Indebtedness in an enforcement of any encumbrance given
by such member of the Group over such project or asset or the
income, cash flow or other proceeds deriving therefrom (or
given by any shareholder or the like, or other investor in the
borrower or in the owner of such project or asset over its
shares or the like in the capital of, or other investment in,
the borrower or in the owner of such project or asset) to
secure such Indebtedness, provided that the extent of such
recourse to such member of the Group is limited solely to the
amount of any recoveries made on any such enforcement; and/or
(c) recourse to such borrower generally, or directly
or indirectly to a member of the Group, under any form of
assurance, indemnity, undertaking or
13
support, which recourse is limited to a claim for damages
(other than liquidated damages and damages required to be
calculated in a specified way) for breach of an obligation
(not being a payment obligation or an obligation to procure
payment by another or an indemnity in respect thereof or any
obligation to comply or to procure compliance by another with
any financial ratios or other tests of financial condition) by
the person against which such recourse is available.
"QIB" means a Qualified Institutional Buyer, as defined in Rule 144A.
"Rating" means, for each Rating Agency, the credit rating assigned to
the Securities of any series by such Rating Agency.
"Rating Agency" means (i) S&P, (ii) Moody's, and (iii) Duff & Xxxxxx,
any of their respective Subsidiaries or successors, or, in any case, if such
person ceases to rate any series of Securities for reasons outside the control
of the Company, any other "nationally recognized statistical rating
organization" (within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act) selected by the Company as a replacement Rating Agency.
"Ratings Downgrade" means a lowering by any of the Rating Agencies of
the Existing Rating assigned to the Securities by such Rating Agency.
"Redemption Date" means any date on which the Company redeems all or
any portion of any Security in accordance with the terms of this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest.
"Registered Exchange Offer" means the offer by the Company, pursuant to
the Registration Rights Agreement, to Holders of the Initial Securities, to
issue and deliver to such Holders, in exchange for such Initial Securities, a
like aggregate principal amount of Exchange Securities which have been
registered under the Securities Act.
"Registered Security" means any Security that is payable to a
registered owner or registered assigns thereof as registered in the Security
Register.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of October 18, 1999 between the Company and the Initial Purchasers.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.01.
"Regulation S" means Regulation S promulgated under the Securities Act,
or any successor provision thereto and as may be amended from time to time.
14
"Regulation S Global Security" has the meaning specified in Section
2.01.
"Regulation S Security" means Securities of any series offered and sold
in their initial distribution to non-US Persons in offshore transactions in
reliance on Regulation S, until such time as the Restricted Period shall have
terminated.
"Relevant Date" means, for any payment made with respect to the
Securities of any series, the later of (i) the date on which such payment first
becomes due and (ii) if the full amount payable has not been received in The
City of New York by the Depositary or by the Trustee on or prior to such due
date, the date on which, the full amount having been so received, notice to that
effect shall have been given to the Holders in accordance with this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office, including any vice president,
assistant vice president, assistant secretary (if any), treasurer, assistant
treasurer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers; and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Definitive Securities" means Definitive Securities that are
Restricted Securities.
"Restricted Period" has the meaning specified in Section 2.01.
"Restricted Securities" means Securities required to bear a legend
containing Securities Act transfer restrictions, in substantially the form
specified on Exhibits A and B hereto.
"Rule 144" means Rule 144 promulgated under the Securities Act, or any
successor provision thereto and as may be amended from time to time.
"Rule 144A" means Rule 144A promulgated under the Securities Act, or
any successor provision thereto and as may be amended from time to time.
"Rule 144A Global Security" has the meaning specified in Section 2.01.
"Rule 144A Security" means Securities of any series offered and sold in
their initial resale distribution to QIBs in reliance on Rule 144A, until such
time as the Holding Period shall have terminated.
"S&P" means Standard & Poor's Rating Group, and any, Subsidiary or
successor thereof.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
15
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Security Register" and "Security Exchange Agent/Registrar" have the
respective meanings specified in Section 3.04.
"Shelf Registration Statement" means any registration statement filed
with the Commission by the Company, in connection with the offer and sale of any
series of Initial Securities pursuant to the Registration Rights Agreement.
"Significant Subsidiary" means, at any particular time, any Subsidiary
of the Company whose gross assets or gross revenues (having regard to the
Company's direct and/or indirect beneficial interest in the shares, or the like,
of that Subsidiary) represent at least 25% of the consolidated gross assets or,
as the case may be, consolidated gross revenues of the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership or other business entity of which 50% or more of the
total voting power of shares of capital stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned, directly or indirectly, by (i) such person, (ii) such
person and one or more Subsidiaries of such person or (iii) one or more
Subsidiaries of such person.
"Temporary Cash Investments" means any of the following: (i) any
investment in direct obligations of the United States or any agency thereof or
obligations guaranteed by the United States or any agency thereof, in each case,
maturing within 360 days of the date of acquisition thereof, (ii) investment in
time deposit accounts, certificates of deposit and money market deposits
maturing within 180 days of the date of acquisition thereof issued by a bank or
trust company (including the Trustee) which is organized under the laws of the
United States, any state thereof or any foreign country recognized by the United
States having capital, surplus and undivided profits aggregating in excess of
$250,000,000 and whose debt is rated "A" (or such similar equivalent rating) or
higher by at least one Rating Agency or any money-market fund sponsored by any
registered broker dealer or mutual fund distributor, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) above entered into with a nationally
recognized broker-dealer, (iv) investments in commercial paper, maturing not
more than 90 days after the date of acquisition, issued by a corporation (other
than an affiliate of the Company) organized and in existence under the laws of
the United States or any foreign country recognized by the United States with a
rating at the time as of which any
16
investment therein is made of "P-2" (or higher) according to Moody's or "A-2"
(or higher) according to S&P and (v) securities with maturities of six months or
less from the date of acquisition backed by standby or direct pay letters of
credit issued by any bank satisfying the requirements of clause (ii) above.
"Total Capital" of any Person means, as of any date, the sum (without
duplication) of (a) Indebtedness for Borrowed Money, (b) preferred stock and
Preferred Securities of such Person and its consolidated Subsidiaries and (c)
consolidated stockholder's equity of such Person and its consolidated
Subsidiaries (excluding any preferred stock in stockholder's equity).
"Transactions" means the transactions contemplated by the Merger
Agreement, Pledge Agreement, Registration Rights Agreement and this Indenture.
"Transfer Agent" means any Person authorized by the Company to
effectuate the exchange or transfer of any Security on behalf of the Company
hereunder.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"United States" and "U.S." means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"U.S. Government Obligation" means any (a) security which is (i) a
direct obligation of the United States for the payment of which the full faith
and credit of the United States is pledged or (ii) an obligation of a person
controlled or supervised by and acting as an agency of instrumentality of the
United States the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States, which, in the case of clause (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and (b)
depositary receipt issued by a bank (as defined in the Securities Act) as
custodian with respect to any security specified in clause (a) above and held by
such bank for the account of the holder of such depositary receipt or with
respect to any specific payment of principal of or interest on any such security
held by any such bank, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Unrestricted Security" has the meaning specified in Section 2.01.
17
SECTION 1.02. Certificates and Opinions
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee (i) an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and (ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the Officers'
Certificate required by Section 10.08) shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 1.03. 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 or covered 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 or instrument required to be given or executed by a Person which is
not a natural person may be given or executed on behalf of such Person by any
duly authorized designee of such Person.
Any certificate or opinion of an Officer of the Company 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 in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an Officer or Officers of the Company stating that the information with
respect to such factual matters is in the possession
18
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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 1.04. Acts of Holders; Record Dates
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by the
Holders of any series of Securities may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by each such Holder in
Person or by an agent duly appointed in writing, and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are received by the Trustee and by the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. 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 6.01) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section 1.04.
Without limiting the generality of the foregoing, unless otherwise
established in or pursuant to a Board Resolution or set forth or determined in
an Officers' Certificate, (i) a Holder of any Security may make, give or take,
by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by the Holder of any such Security,
(ii) a Holder of any such Security, including a Depositary that is a Holder of a
Global Security, entitled hereunder to take any action hereunder with regard to
such Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of the principal
amount of such Security; and (iii) a Depositary that is a Holder of a Global
Security may provide its proxy or proxies to the beneficial owners of interest
in such Global Security through the Depositary's standing instructions and
customary practices.
(b) The fact and date of the execution by any Person of any such
instrument, writing or proxy may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument, writing or proxy acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument, writing or proxy, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
19
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, in its discretion, by Board Resolution, set any
day as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to give, make or take any request, demand,
authorization, direction, consent, waiver or Act provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series;
provided that the Company shall have no obligation to set a record date; and
provided further that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to any applicable
Expiration Date (as defined below) by Holders of the requisite principal amount
of Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect); provided, however,
that no new record date may be established with the purpose or effect of
rendering, and no other provision of this paragraph shall be construed to
render, ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company at its own expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Trustee
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.02, (iii) any request to institute proceedings referred
to in Section 5.06 or (iv) any direction referred to in Section 5.05; provided
that if the Trustee does not set any record date within ten days after first
receiving any such notice, declaration, rescission and annulment, request or
direction, as the case may be, then the record date shall be the close of
business on the date on which the Trustee first receives any such notice,
declaration, rescission and annulment, request or direction, as the case may be.
If any record date is set by the Trustee pursuant to this paragraph, the Holders
of Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to any applicable Expiration Date by Holders of the requisite principal
amount of
20
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect); provided, however,
that no new record date may be established with the purpose or effect of
rendering, and no other provision of this paragraph shall be construed to
render, ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken based on such record date previously set. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Company's expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
1.06.
With respect to any record date set pursuant to this Section 1.04(e),
the party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other parties hereto
in writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.06, on or prior to the earlier of (i) the existing
Expiration Date and (ii) the proposed new Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 90th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
SECTION 1.05. Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if in writing and mailed, first-class, postage
prepaid, to the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to CILCORP at 000 Xxxxxxxx
Xxxx., Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 Attention: Corporate Secretary or
at any other address previously furnished in writing to the Trustee by the
Company.
21
SECTION 1.06. Notice 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 affected
by such event at the Holder's address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. 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.
If, by reason of the suspension of regular mail service or by reason of
any other cause, it shall be impracticable to give such notice by mail, then
such notification as shall be made at the direction of the Company in a manner
reasonably calculated, to the extent practicable under the circumstances, to
provide prompt notice shall constitute a sufficient notification for every
purpose hereunder.
Any notice required or permitted hereunder may be waived in writing by
the Person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 1.07. 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 1.08. Successors and Assigns
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.09. Separability Clause
In case any provision in this Indenture or in the Securities 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 Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
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SECTION 1.11. Governing Law
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.12. Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest, if any, or principal (and premium, if any) need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 1.13. Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture, as then supplemented.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" in the indenture securities means the Company and any other
obligor in the indenture securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule have the meanings assigned to them by such
definitions.
23
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally
The Securities of each series shall be in substantially the form set
forth in Exhibits A and B hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon (i) as may be
required by law or to comply with the rules of (a) any securities exchange, (b)
DTC or any other clearing agency registered as such under the Exchange Act or
(c) Euroclear or Cedel; or (ii) as may, consistently herewith, be determined by
the Officers executing such Securities, as evidenced by their execution thereof.
The Trustee's certificate of authentication shall be in substantially the form
set forth in Exhibits A and B hereto.
The Definitive Securities shall be printed, typewritten, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the Officers executing such Securities, as evidenced by
their execution thereof.
Initial Securities of any series offered and sold in their initial
resale distribution to QIBs in reliance on Rule 144A shall initially be issued
in the form of one or more global Securities of such series in definitive, fully
registered form, substantially in the form set forth in Exhibits A and B, with
respect to Notes and Bonds, respectively, with such applicable legends as are
provided for in Section 3.01(h). Such global Securities shall be duly executed
by the Company and authenticated by the Trustee as provided, and deposited with
the Trustee, which will hold such global Securities for the benefit of DTC.
Until such time as the Holding Period (as defined below) shall have terminated,
each such Security shall be referred to as a "Rule 144A Global Security." The
aggregate principal amount of any Rule 144A Global Security may be adjusted by
endorsements to Schedule A on the reverse thereof in any situation where
adjustment is permitted or required by this Indenture. Unless the Company
determines otherwise in accordance with applicable law, the legend setting forth
transfer restrictions shall be removed from a Rule 144A Security in accordance
with the procedures set forth in Section 3.05(b) after such time as the
applicable Holding Period shall have terminated, and each such Security shall
thereafter be held as an "Unrestricted Security." As used herein, the term
"Holding Period," with respect to Rule 144A Securities of any series, means the
period referred to in Rule 144(k) or any successor provision thereto and as may
be amended or revised from time to time, beginning from the later of (i) the
original issue date of such Securities or (ii) the last date on which the
Company or any affiliate of the Company was the beneficial owner of such
Securities (or any predecessor thereof).
Initial Securities of any series offered and sold in their initial
distribution to non-U.S. Persons in offshore transactions in reliance on
Regulation S shall initially be issued in the form of one or more global
Securities of such series in definitive, fully registered form, substantially in
the form set forth in Exhibits A and B, with respect to Notes and Bonds,
24
respectively, with such applicable legends as are provided for in Section
3.01(h). Such global Securities shall be duly executed by the Company and
authenticated by the Trustee as provided, and deposited with the Trustee, which
will hold such global Securities for the benefit of DTC, for credit initially
only to such accounts at Euroclear or Cedel as DTC's Participants may direct.
Until such time as the Restricted Period (as defined below) shall have
terminated, each such global Security shall be referred to as a "Regulation S
Global Security." The aggregate principal amount of any Regulation S Global
Security may be adjusted by endorsements to Schedule A on the reverse thereof in
any situation where adjustment is permitted or required by this Indenture.
Unless the Company determines otherwise in accordance with applicable law, the
legend setting forth transfer restrictions shall be removed from a Regulation S
Security in accordance with the procedures set forth in Section 3.05(b) after
such time as the applicable Restricted Period shall have terminated, and each
such Security shall thereafter be held as an "Unrestricted Security." As used
herein, the term "Restricted Period," with respect to Regulation S Securities of
any series, means the period of 40 consecutive days beginning on and including
the later of (i) the date on which such Securities are first offered to Persons
other than distributors (as defined in Regulation S) in reliance on Regulation S
and (ii) the original issue date of such Securities. No Regulation S Global
Security shall be issued except as provided in this paragraph to evidence
Securities offered and sold in their initial distribution in reliance on
Regulation S.
Exchange Securities of any series exchanged for interests in a Rule
144A Global Security or a Regulation S Global Security will be issued in the
form of one or more permanent global Securities of such series substantially in
the form set forth in Exhibits A and B with respect to Notes and Bonds,
respectively, including the appropriate legend set forth in Section 3.01(h),
(the "Exchange Global Securities") which shall be duly executed by the Company
and authenticated by the Trustee as provided, and deposited with the Trustee.
The Exchange Global Securities may be represented by more than one certificate,
if so required by DTC's rules regarding the maximum principal amount to be
represented by a single certificate. Exchange Securities exchanged for interests
in a Rule 144A Definitive Security or a Regulation S Definitive Security will be
issued in the form of a Definitive Security substantially in the form set forth
in Exhibits A and B with respect to Notes and Bonds, respectively, including the
appropriate legend set forth in Section 3.01(h) (the "Exchange Definitive
Securities").
ARTICLE III
SECURITIES
SECTION 3.01. Terms and Issuance of the Securities
(a) Issue of Securities.
Two series of Securities, which shall be designated the "8.700% Senior
Notes due 2009", and the "9.375% Senior Bonds due 2029", respectively, shall be
executed, authenticated and delivered in accordance with the provisions of, and
shall in all respects be subject to, the terms, conditions and covenants of this
Indenture (including the forms of Securities set forth in Exhibits A and B, as
applicable). The aggregate principal amount of the Notes, and the
25
aggregate principal amount of the Bonds which may be authenticated and delivered
under this Indenture shall not exceed $225 million and $250 million,
respectively.
(b) Optional Redemption.
The Securities may be redeemed, in whole or in part, at the option of
the Company pursuant to the terms set forth in paragraph 2 of the series of
Securities to be redeemed. The provisions of Article XI of this Indenture shall
also apply to any optional redemption of Securities by the Company.
(c) Place of Payment.
The Place of Payment in respect of the Securities will be in The City
of New York, initially at the Corporate Trust Office of The Bank of New York
(which as of the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration).
(d) Form of Securities; Incorporation of Terms.
The form of the Securities shall be substantially in the forms of
Exhibits A and B attached hereto, as applicable, the respective terms of which
are herein incorporated by reference and which are part of this Indenture. The
Securities shall be issued as one or more Global Securities in fully registered
form and one or more Definitive Securities in fully registered form, as
determined in accordance with Section 2.01 hereof. The Global Securities shall
be deposited with the Trustee, as custodian for DTC, to be held by the Trustee
in accordance with this Indenture.
(e) Exchange of the Global Securities.
Each of the Global Securities shall be exchangeable for Definitive
Securities only as provided in Section 3.06(b)(ii) hereof.
(f) Regular Record Date for the Securities.
The Regular Record Date for the Securities shall be immediately prior
to the April 1 or October 1 immediately prior to the respective Interest Payment
Date.
(g) Authorized Denominations.
Beneficial interests in Global Securities, as well as Definitive
Securities, may be held only in denominations of $1,000 and integral multiples
of $1,000 in excess thereof.
26
(h) Restrictive Legends.
Except as otherwise provided in clause (A) or (B) below, unless and
until (i) an Initial Security is sold under an effective registration statement
or (ii) an Initial Security is exchanged for an Exchange Security in connection
with an effective registration statement, in each case pursuant to the
Registration Rights Agreement or a similar agreement,
(A) the Rule 144A Global Securities shall bear the following legend on
the face thereof:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS HELD BY THE DEPOSITORY TRUST COMPANY (THE
"DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES HELD BY A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR
TO SUCH OTHER ENTITY AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY (OR ITS PREDECESSOR) HAS BEEN INITIALLY RESOLD IN RELIANCE ON
RULE 144A UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE
WITH ITS TERMS AND THE TERMS OF THE INDENTURE. THIS SECURITY (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT AND, ACCORDINGLY, THIS SECURITY MAY
NOT BE OFFERED OR SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION
27
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A AND REGULATION S
THEREUNDER.
BY ITS ACQUISITION HEREOF, EACH HOLDER OF THIS SECURITY AND ANY OWNERS OF
INTERESTS HEREIN, FOR THE BENEFIT OF THE COMPANY, (1) REPRESENTS THAT IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE
ORIGINAL ISSUE DATE OF THIS SECURITY OR (Y) THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF THIS SECURITY
(OR ANY PREDECESSOR HEREOF) THROUGH THE TIME PERIOD REFERRED TO IN RULE
144(K) UNDER THE SECURITIES ACT, IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY AFFILIATE THEREOF, (B) IN
THE UNITED STATES TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904
UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH OF CASES (A) TO (E) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND (3) AGREES THAT IT
WILL, AND EACH SUBSEQUENT HOLDER WILL BE REQUIRED TO, DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND ON THESE RESALE RESTRICTIONS.
UNLESS THE COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW,
THIS LEGEND WILL BE REMOVED BY THE COMPANY UPON REQUEST OF THE HOLDER,
AFTER THE EXPIRATION OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER
THE SECURITIES ACT BEGINNING FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE
OF THIS SECURITY AND (B) THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY
PREDECESSOR HEREOF)."; and
(B) the Regulation S Global Securities shall bear the following legend
on the face thereof:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS HELD BY THE
28
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES HELD BY A PERSON OTHER THAN
THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE MADE
EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR
TO SUCH OTHER ENTITY AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY (OR ITS PREDECESSOR) HAS BEEN ISSUED IN RELIANCE ON
REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE
WITH ITS TERMS AND THE TERMS OF THE INDENTURE. THIS SECURITY (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT, AND, ACCORDINGLY, THIS SECURITY MAY
NOT BE OFFERED OR SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A AND REGULATION S THEREUNDER.
BY ITS ACQUISITION HEREOF, EACH HOLDER OF THIS SECURITY AND ANY OWNERS OF
INTERESTS HEREIN, FOR THE BENEFIT OF THE COMPANY, (1) REPRESENTS THAT IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL
ISSUE DATE OF THIS SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY
PREDECESSOR
29
HEREOF) THROUGH THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE
SECURITIES ACT, IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY OR ANY AFFILIATE THEREOF, (B) IN THE UNITED
STATES TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH OF CASES (A) TO (E) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND (3) AGREES THAT IT WILL, AND
EACH SUBSEQUENT HOLDER WILL BE REQUIRED TO, DELIVER TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND ON THESE RESALE RESTRICTIONS.
THE RIGHTS ATTACHED TO THIS REGULATION S GLOBAL SECURITY, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES,
ARE AS SPECIFIED IN THE INDENTURE.
PRIOR TO THE COMMENCEMENT OF THE REGISTERED EXCHANGE OFFER OR THE
EFFECTIVENESS OF THE SHELF REGISTRATION STATEMENT, TRANSFERS OF INTERESTS
IN THIS REGULATION S GLOBAL SECURITY TO U.S. PERSONS SHALL BE LIMITED TO
TRANSFERS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT.
UNLESS THE COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW,
THIS LEGEND WILL BE REMOVED BY THE COMPANY FOLLOWING THE EXPIRATION OF 40
CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON
WHICH INTERESTS IN THIS SECURITY ARE OFFERED TO PERSONS OTHER THAN
DISTRIBUTORS (AS DEFINED IN REGULATION S) AND (B) THE ORIGINAL ISSUE DATE
OF THIS SECURITY. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT."; and
(C) the Exchange Global Securities shall bear the following legend on
the face thereof:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS HELD BY THE DEPOSITORY TRUST COMPANY (THE
"DEPOSITARY") OR A NOMINEE OF
30
THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES HELD BY A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR
TO SUCH OTHER ENTITY AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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SECTION 3.02. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents. The
signature of any such Person on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of any individual
who was at any time the proper Officer of the Company shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior to the
authentication and delivery of such Securities or did not hold such office at
the date of authentication of such Securities.
The Company may deliver the Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver the Securities. In
authenticating the Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee will be
entitled to receive, and (subject to Section 6.01 and 6.03) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(a) that the terms of the Securities have been established in
conformity with the provisions of this Indenture; and
(b) that the Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, constitute valid and
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general principles of equity
and such other matters as counsel may specify therein.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.10 together
with a written statement (which need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
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SECTION 3.03. Temporary Securities
Pending the preparation of the definitive Securities, the Company may
execute, and upon compliance by the Company with Section 3.02, the Trustee or
the Authenticating Agent shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form or,
if authorized, in bearer form, and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder except as
provided in Section 3.04 (if in connection with a transfer). Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute
and the Trustee or the Authenticating Agent shall authenticate and deliver in
exchange therefor one or more definitive Securities of any authorized
denominations and of a like aggregate principal amount and tenor. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series and
tenor.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security for the individual Securities represented thereby
pursuant to this Section 3.03 or Section 3.04, the temporary Global Security
shall be endorsed by the Trustee to reflect the reduction of the principal
amount of such temporary Global Security, and such principal amount shall be
reduced for all purposes by the amount so exchanged and endorsed.
SECTION 3.04. Registrar and Paying Agent; Registration, Registration of
Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration, transfers and exchanges of the Securities. The Company shall
maintain an office or agency of the Paying Agent in any Place of Payment where
the Securities may be presented for payment. The Company may have one or more
co-registrars and one or more additional paying agents, and the terms "Security
Exchange Agent/Registrar" and "Paying Agent" shall include any additional
co-registrars and paying agents, respectively.
The Company shall enter into an appropriate agency agreement with any
Securities Exchange Agent/Registrar, Paying Agent or additional co-registrars or
paying agents not a party to this Indenture, which shall incorporate the terms
of the Trust Indenture Act and the
33
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee in writing of the name and address of any such agent. If the Company
fails to maintain a Security Exchange Agent/Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 6.07. The Company may act as Security Exchange
Agent/Registrar or Paying Agent.
The Company hereby initially appoints the Trustee as Registrar for the
purpose of registering Securities and transfers of Securities, and for the
purpose of exchanging Securities, and as Paying Agent, all as herein provided.
The Company may change the Paying Agent or Registrar.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee or the Authenticating Agent shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, any Security or Securities may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and upon
receipt of a Company Order the Trustee or the Authenticating Agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities as provided in this Indenture shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Exchange Agent/Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Sections 3.03, 9.06 or 11.07 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities 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
under Section 11.04 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
34
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part, provided that such Security shall be
immediately surrendered for redemption with written instructions for payment
consistent with the provisions of this Indenture.
The provisions of this Section 3.04 are, with respect to any Global
Security, subject to Section 3.06 hereof.
SECTION 3.05. Restricted Securities
(a) Transfer and Exchange.
Every Restricted Security shall be subject to the restrictions on
transfer provided in the applicable legend(s) required to be set forth on the
face of each Restricted Security pursuant to Section 2.01, unless such
restrictions on transfer shall be waived or modified, in accordance with
applicable laws, by the written consent of the Company. Each of the Holder of
each Restricted Security, by its acceptance thereof, agrees to be bound by such
restrictions on transfer.
(b) Removal of Transfer Restrictions.
Unless with respect to the whole or any portion of any Restricted
Security the Company determines otherwise in accordance with applicable law,
transfer restrictions and any restrictive legend(s) with respect to Restricted
Securities of any series shall be removed by the Company (i) in the case of Rule
144A Securities upon presentation of such Security by the Holder at any time on
or after the expiration of the Holding Period, or (ii) in the case of Regulation
S Securities, upon presentation of such Security by the Holder at any time on or
after the expiration of the Restricted Period. Thereafter, upon registration of
transfer of or exchange of such Securities, the Company shall execute, and the
Trustee shall authenticate and deliver, an Unrestricted Security.
The Company shall deliver to the Trustee an Officer's Certificate
setting forth the expiration date of the Holding Period and the Restricted
Period.
Except as otherwise provided in the preceding paragraph, if the
Securities are issued upon the registration of transfer, exchange or replacement
of Securities bearing a legend or legends setting forth restrictions on
transfer, or if a request is made to remove such legend(s) from a Security, the
Securities so issued shall bear such legend(s), or such legend(s) shall not be
removed, as the case may be, unless there is delivered to the Company such
satisfactory evidence (which may include an opinion, reasonably satisfactory to
the Company, of independent counsel experienced in matters of United States
securities law) as may be reasonably required by the Company that neither such
legend(s) nor the restrictions on transfer set forth therein are required to
ensure that transfers thereof comply with the provisions of Rule 144A or Rule
144 or Regulation S under the Securities Act or that such Securities are not
"restricted securities" within the meaning of Rule 144 under the Securities Act.
Upon provision of such satisfactory evidence to the Company, the Trustee, at the
written direction of the Company, shall authenticate and
35
deliver a Security that does not bear such legend(s). In the absence of bad
faith on its part, the Trustee may conclusively rely upon such direction of the
Company in authenticating and delivering a Security that does not bear such
legend(s).
As used in this Section 3.05, the term "transfer" encompasses any sale,
pledge or other transfer of any Securities referred to herein.
Notwithstanding anything else in this Indenture to the contrary, after
a transfer of any Initial Securities during the period of the effectiveness of a
Shelf Registration Statement with respect to such Initial Securities, all
requirements pertaining to legends on such Initial Security will cease to apply,
the requirements requiring that any such Initial Security issued to certain
Holders be issued in global form will cease to apply, and a certificated Initial
Security without legends will be available to the transferee of the Holder of
such Initial Securities or upon receipt of directions to transfer such Holder's
interest in the Global Security, as applicable.
Notwithstanding anything else in this Indenture to the contrary, upon
the consummation of the Registered Exchange Offer with respect to the Initial
Securities pursuant to which Holders of such Initial Securities are offered
Exchange Securities in exchange for their Initial Securities, all requirements
pertaining to such Initial Securities that Initial Securities issued to certain
Holders be issued in global form will cease to apply and certificated Initial
Securities with the restricted securities legend set forth in Section 3.01(h)
will be available to Holders of such Initial Securities, that do not exchange
their Initial Securities and Exchange Securities in certificated form will be
available to Holders that exchange such Initial Securities in the Registered
Exchange Offer.
SECTION 3.06. Global Securities
(a) Form and Legend.
The Company shall execute and the Trustee shall, in accordance with
Section 3.02, authenticate and deliver, a Global Security or Securities which
(i) shall represent, and shall be denominated in an aggregate amount equal to
the aggregate principal amount of, all of the Securities of such series to be so
represented, (ii) shall be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to the Depositary for such
series or pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the effect of the first two paragraphs of the legend set forth
in Section 3.01(h)(A).
(b) Transfer and Exchange.
(i) Transfers of Global Notes as such. Except as otherwise
expressly provided in this Indenture or any supplement thereto, a
Global Security representing all or a portion of the Securities may not
be transferred in global form, except as a whole (i) by the Depositary
for such series to a nominee of such Depositary; (ii) by a nominee of
such Depositary to such Depositary or another
36
nominee of such Depositary; or (iii) by such Depositary or any such
nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
(ii) Exchanges of Global Securities for Definitive Securities.
A Global Security shall be exchangeable, in whole but not in part, for
definitive Securities of such series if:
(a) DTC notifies the Company and the Depositary that it is unwilling or
unable to continue to hold book-entry interests in such Global Security
or DTC at any time ceases to be a "clearing agency" registered as such
under the Exchange Act, and, in either case, a successor is not
appointed by the Company within 90 days;
(b) while a Global Security is a Restricted Security the book-entry
interests in such Global Security cease to be eligible for DTC services
because the Securities of such series are neither (i) rated in one of
the top four categories by a nationally recognized statistical rating
organization nor (ii) included within a Self-Regulatory Organization
system approved by the Commission for the reporting of quotation and
trade information of securities eligible for transfer pursuant to Rule
144A, such as the PORTAL system;
(c) the Depositary for Securities of such series notifies the Company
that it is unwilling or unable to continue as Depositary with respect
to such Global Security and no successor is appointed within 90 days;
(d) the Company in its sole discretion executes and delivers to the
Trustee an Officers' Certificate providing that such Global Security
shall be so exchangeable. Securities so issued in exchange for any such
Global Security shall be of the same series, having the same interest
rate, if any, and maturity and having the same terms as such Global
Security, in authorized denominations and in the aggregate having the
same principal amount as such Global Security and registered in such
names as the Depositary for such Global Security shall direct based on
the instructions of DTC; or
(e) if there shall have occurred and be continuing an Event of Default
with respect to the Securities of such series and the Registrar has
received a request from the Depositary that the Global Security of such
series be exchanged for one or more Definitive Securities.
Upon such exchange, the surrendered Global Security shall be canceled
by the Trustee. Upon any such surrender, (i) the Company shall execute and the
Trustee shall authenticate and deliver without charge to each Person specified
by DTC, in exchange for such Person's beneficial interest in the Global
Security, a new Security or Securities of the same series in definitive
registered form having the same interest rate, if any, and maturity and having
the same terms as such Global
37
Security, in any authorized denomination requested by such Person and of an
aggregate principal amount equal to such Person's beneficial interest in the
Global Security and bearing the applicable legend regarding transfer
restrictions applicable to such Security set forth in Section 3.01(h); and (ii)
if the Global Security is being exchanged (x) as a whole, then the surrendered
Global Security shall be canceled by the Trustee, or (y) in part, then the
principal amount of the surrendered Global Security shall be reduced by an
endorsement on Schedule A thereto in the appropriate amount.
Definitive Securities issued in exchange for a Global Security pursuant
to this Section 3.06(b)(ii) shall be issued only in registered form and shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from DTC and its Participants
or Indirect Participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered.
(c) Beneficial Interests.
Subject to Section 3.05 and Section 3.06, beneficial interests in a
Global Security may be transferred in any manner consistent with the Applicable
Procedures.
(d) Special Provisions Regarding Transfer of Beneficial Interests in a
Regulation S Global Security.
The transfer of beneficial interests in a Regulation S Global Security
shall be effected in a manner not inconsistent with the following provisions:
(i) Transfer Through a Rule 144A Global Security. If the
holder of a beneficial interest in a Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in a Rule
144A Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this Section 3.06(d)(i).
Upon receipt by the Security Exchange Agent/Registrar at the Corporate
Trust Office of (1) written instructions given in accordance with the
Applicable Procedures from a Participant directing the Depositary to
cause to be credited to a specified Participant's account a beneficial
interest in the Rule 144A Global Security equal to that of the
beneficial interest in the Regulation S Global Security to be so
transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account of
the Participant to be credited with, and the account of the Participant
held for Euroclear or Cedel (as the case may be) to be debited for,
such beneficial interest, and (3) a certificate substantially in the
form set forth in or contemplated by Section 3.12(a) given by the
transferor of such beneficial interest, the Security Exchange
Agent/Registrar shall (A) reduce the principal amount of the Regulation
S Global Security, and increase the principal amount of the Rule 144A
Global Security, in each case by an amount equal to the principal
amount of the beneficial interest in the Regulation S Global Security
to be so transferred, as evidenced by appropriate endorsements on
Schedule A of the respective Global Securities and
38
(B) instruct DTC (x) to make corresponding reductions and increases in
the amounts represented by the respective Global Securities and (y) to
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Rule 144A Global Security
having a principal amount equal to the amount by which the principal
amount of the Regulation S Global Security was reduced upon such
transfer.
Delivery of a beneficial interest in the Regulation S Global Security
of any series may not be taken in the form of a beneficial interest in the Rule
144A Global Security if immediately prior to the contemplated transfer no Rule
144A Global Security of the same series is then Outstanding.
(ii) Interests in Regulation S Global Security Initially to be
Held Through Euroclear or Cedel. Until the termination of the
Restricted Period with respect to Securities of a series, beneficial
interests in a Regulation S Global Security of such series may be held
only through Participants acting for and on behalf of Euroclear and
Cedel; provided that this Section 3.06(d)(ii) shall not prohibit any
transfer otherwise permissible under Section 3.06(d)(i).
(e) Special Provisions Regarding Transfer of Beneficial Interests in a
Rule 144A Global Security.
The transfer of beneficial interests in a Rule 144A Global Security
shall be effected in a manner not inconsistent with the following provisions:
(i) Transfer Through a Regulation S Global Security. If the
holder of a beneficial interest in a Rule 144A Global Security wishes
at any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in a Regulation S
Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this Section 3.06(e)(i).
Upon receipt by the Security Exchange Agent/Registrar at the Corporate
Trust Office of (1) written instructions given in accordance with the
Applicable Procedures from a Participant directing the Depositary to
cause to be credited to a specified Participant's account a beneficial
interest in the Regulation S Global Security equal to that of the
beneficial interest in the Rule 144A Global Security to be so
transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account of
the Participant held for Euroclear or Cedel (as the case may be) to be
credited with, and the account of the Participant to be debited for,
such beneficial interest, and (3) a certificate substantially in the
form set forth in or contemplated by Section 3.12(b) given by the
transferor of such beneficial interest, the Security Exchange
Agent/Registrar shall (A) reduce the principal amount of the Rule 144A
Global Security, and increase the principal amount of the Regulation S
Global Security, in each case by an amount equal to the principal
amount of the beneficial interest in the Rule 144A Global Security to
be so transferred, as evidenced by appropriate
39
endorsements on Schedule A of the respective Global Securities and (B)
instruct DTC (x) to make corresponding reductions and increases to the
amounts represented by the respective Global Securities and (y) to
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global Security
having a principal amount equal to the amount by which the principal
amount of the Rule 144A Global Security was reduced upon such transfer.
Delivery of a beneficial interest in the Rule 144A Global Security of
any series may not be taken in the form of a beneficial interest in the
Regulation S Global Security if immediately prior to the contemplated transfer
no Regulation S Global Security of the same series is then Outstanding.
(ii) Transfer Through an Unrestricted Global Security. If the
holder of a beneficial interest in a Rule 144A Global Security wishes
at any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security, such transfer may be effected, subject to
the Applicable Procedures, only in accordance with this Section
3.06(e)(ii). Upon receipt by the Security Exchange Agent/Registrar at
the Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from a Participant directing
the Depositary to cause to be credited to a specified Participant's
account a beneficial interest in the Unrestricted Global Security equal
to that of the beneficial interest in the Rule 144A Global Security to
be so transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account of
the Participant (and, in the case of any such transfer pursuant to
Regulation S, the Euroclear or Cedel account for which such
Participant's account is held) to be credited with, and the account of
the Participant to be debited for, such beneficial interest, (3) a
certificate substantially in the form set forth in or contemplated by
Section 3.12(c) given by the transferor of such beneficial interest,
and (4) if requested by the Company or the Trustee, an opinion of
counsel satisfactory to each of them, the Security Exchange
Agent/Registrar shall (A) reduce the principal amount of the Rule 144A
Global Security, and increase the principal amount of the Unrestricted
Global Security, in each case by an amount equal to the principal
amount of the beneficial interest in the Rule 144A Global Security to
be so transferred, as evidenced by appropriate endorsements on Schedule
A of the respective Global Securities and (B) instruct DTC (x) to make
corresponding reductions and increases to the transferor's beneficial
interests in the respective Global Securities and (y) to cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the Unrestricted Global Security having a
principal amount equal to the amount by which the principal amount of
the Rule 144A Global Security was reduced upon such transfer.
40
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such Security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security, in each such case without
premium or penalty.
Upon the issuance of any new Security under this Section 3.07, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 3.07
in exchange for any mutilated Security or in lieu of any destroyed, lost or
stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section 3.07 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 Securities.
SECTION 3.08. Payment of Interest; Interest Rights Reserved
Interest on any Security which is payable and is punctually paid or
duly provided for on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Payment of interest, if any, in respect of the Securities will be made
at the office or agency of the Paying Agent and Registrar within the City of New
York unless the Company
41
elects to make interest payments by check mailed to the address of the Person
entitled thereto at such person's address appearing in the Security Register.
Payment of interest, if any, in respect of the Securities may also be made, in
the case of a Holder of at least U.S. $50,000,000 aggregate principal amount of
Securities, and payment of interest, if any, in respect of a Permanent Global
Security shall be made, by wire transfer to a U.S. Dollar account maintained by
the Holder with a bank in the United States; provided that such Holder elects
payment by wire transfer by giving written notice to the Trustee or a Paying
Agent to such effect designating such account no later than 15 days immediately
preceding the relevant due date for payment.
Any interest on any Security of any series which is payable but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
thereof on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to 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 Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not 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. Unless the Trustee is
acting as the Security Exchange Agent/Registrar, promptly after such
Special Record Date, the Company shall furnish the Trustee with a list, or
shall make arrangements satisfactory to the Trustee with respect thereto,
of the names and addresses of, and respective principal amounts of such
Securities held by, the Holders appearing on the Security Register at the
close of business on such Special Record Date. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at
the 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 Interest and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
42
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any Securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange.
Subject to the foregoing provisions of this Section 3.08, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security, shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.09. Persons Deemed Owners
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.08) interest, if any, on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary. All such payments so made to any
such person, or upon such person's order, shall be valid, and, to the extent of
the sums so paid, effectual to satisfy and discharge the liability for monies
payable upon any such Security.
Holders of beneficial interests in a Global Security of any series will
not be entitled to receive certificates therefor, except in the limited
circumstances set forth in Section 3.06(b)(ii). No holder of any beneficial
interest in a Global Security shall have any rights under this Indenture with
respect to such Global Security.
The Trustee shall not deem requests or directions from, or votes by,
the Depositary for a Global Security of any series to be inconsistent if made on
behalf of different holders of beneficial interests.
SECTION 3.10. Cancellation
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall
be promptly cancelled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this Section
3.10, except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be returned to the Company upon written request.
43
SECTION 3.11. Computation of Interest
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 3.12. Certification Form
(a) Whenever any certification is to be given by an owner of a
beneficial interest in a Regulation S Global Security pursuant to Section
3.06(d)(i) of this Indenture, in connection with the transfer of a beneficial
interest therein to a Person who wishes to take delivery thereof in the form of
a beneficial interest in a Rule 144A Global Security, such certification shall
be provided substantially in the form of the following certificate (which may be
attached to or set forth on the Security), including or omitting bracketed
language as appropriate, but otherwise with only such changes as may be approved
in writing by the Company:
44
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM REGULATION S
GLOBAL SECURITY TO RULE 144A GLOBAL SECURITY
(TRANSFERS PURSUANT TO SECTION 3.06(d)(i) OF THE INDENTURE)
The Bank of New York,
as Trustee
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Trust Administration
Re : CILCORP INC.'s [Title of Securities]
Reference is hereby made to the Indenture, dated as of October 18, 1999
(the "Indenture"), between CILCORP INC. and THE BANK OF NEW YORK, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to U.S. $___________ principal amount of Securities
which are evidenced by one or more Regulation S Global Securities in fully
registered form (ISIN No. _____) and held with the Depositary by means of a
book-entry interest through [Euroclear] [Cedel] in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Regulation S Global Security to a Person that will
take delivery thereof (the "Transferee") in the form of any equal principal
amount of Securities evidenced by one or more Rule 144A Global Securities (CUSIP
No. ______).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that the interests in the Regulation S Global
Security are being transferred pursuant to and in accordance with Rule 144A
under the Securities Act of 1933, and, accordingly, the Transferor does hereby
further certify that the interests in the Regulation S Global Security are being
transferred to a Person that the Transferor reasonably believes is purchasing
the Securities for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A, in each case in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable securities laws of any state of the United
States.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters or initial
purchasers, if any, of the initial offering of such Securities being
transferred.
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
----------------------
cc: CILCORP INC.
Signature Guarantee:
---------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Exchange Agent/Registrar, which
requirements include membership or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Security Exchange Agent/Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
(b) For Securities of any series, whenever any certification is to be
given by an owner of a beneficial interest in a Rule 144A Global Security
pursuant to Section 3.06(e)(i) of this Indenture in connection with the transfer
of a beneficial interest therein to a Person who wishes to take delivery thereof
in the form of a beneficial interest in a Regulation S Global Security, such
certification shall be provided substantially in the form of the following
certificate (which may be attached to or set forth on the Security), with only
such changes as shall be approved in writing by the Company:
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FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
SECURITY TO REGULATION S GLOBAL SECURITY
(TRANSFERS PURSUANT TO SECTION 3.06(e)(i) OF THE INDENTURE)
The Bank of New York,
as Trustee
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Trust Administration
Re: CILCORP INC.'s [Title of Securities]
Reference is hereby made to the Indenture, dated as of October 18, 1999
(the "Indenture"), between CILCORP INC. and THE BANK OF NEW YORK, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$___________ principal amount of Securities
which are evidenced by one or more Rule 144A Global Securities (CUSIP
No._______) and held through DTC in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a non-U.S. Person who will take delivery thereof
in the form of an equal principal amount of Securities evidenced by one or more
Regulation S Global Securities (CUSIP No. ________), which amount, immediately
after such transfer, is to be held with DTC through Euroclear or Cedel or both
(Common Code _________).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
does hereby further certify that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either:
(A) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any Person acting
on its behalf reasonably believed that the transferee was outside the
United States, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
Transferor nor any Person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
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(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with DTC through Euroclear or Cedel
or both (Common Code ____________).
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters or initial
purchasers, if any, of the initial offering of such Securities being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated:
------------------
cc: CILCORP INC.
Signature Guarantee:
----------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Exchange Agent/Registrar, which
requirements include membership or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Security Exchange Agent/Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
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(c) Whenever any certification is to be given by an owner of a
beneficial interest in a Rule 144A Global Security pursuant to Section
3.06(e)(ii) of this Indenture in connection with the transfer of a beneficial
interest in the Rule 144A Global Security to a Person who wishes to take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Security, such certification shall be provided substantially in the form of the
following certificate, with only such changes as shall be approved in writing by
the Company:
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
SECURITY TO UNRESTRICTED GLOBAL SECURITY
(TRANSFERS PURSUANT TO SECTION 3.06(e)(ii)
OF THE INDENTURE)
The Bank of New York,
as Trustee
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Trust Administration
Re: CILCORP INC.'s [Title of Securities]
Reference is hereby made to the Indenture, dated as of October __, 1999
(the "Indenture"), between CILCORP INC. and THE BANK OF NEW YORK, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$_______ principal amount of Securities which
are evidenced by one or more Rule 144A Global Securities (CUSIP No.______) and
held through DTC in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by one or more Unrestricted Global
Securities (CUSIP No.______).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with either Rule 903, Rule 904 or Rule 144 under the United
States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(A) the offer of the Securities was not made to a Person in
the United States;
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(B) either:
(i) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any Person acting on its behalf reasonably believed that the
transferee was outside the United States, or
(ii) the transaction was executed in, on or through
the facilities of a designated offshore securities market and
neither the Transferor nor any Person acting on its behalf
knows that the transaction was pre-arranged with a buyer in
the United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(D) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; or
(2) if the transfer has been effected pursuant to Rule 144, the
Securities have been transferred in a transaction permitted by Rule 144.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters and initial
purchasers, if any, of the initial offering of Securities being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
----------------------------------
Name:
Title:
Dated:
------------------
cc: CILCORP INC.
Signature Guarantee:
---------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Exchange Agent/Registrar, which
requirements include membership or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Security Exchange Agent/Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
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SECTION 3.13. CUSIP and ISIN Numbers
The Company in issuing the Securities may use "CUSIP" numbers or "ISIN"
numbers (in either case, if then generally in use), and, if so, the Trustee
shall use "CUSIP" or "ISIN" numbers, as applicable, in notices of redemption as
a convenience to Holders; provided that the Trustee shall assume no
responsibility for the accuracy of such numbers and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 4.01. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
the Securities herein expressly provided for and any rights to receive payments
of any principal, premium or interest in respect thereof as provided in Section
10.01), and the Trustee shall execute instruments in form and substance
satisfactory to itself and to the Company acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all the Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.07 and
(ii) Securities for whose payment money has theretofore been deposited
in trust with the Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.03) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company, or
(iv) are deemed paid and discharged pursuant to
Section 4.02, and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount
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of (a) money or (b) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one
day before the Stated Maturity or Redemption Date, as the case
may be, money, or (c) a combination of money and such U.S.
Government Obligations, in each case, sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, if any, to the date
of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid, caused to be paid or made provision
satisfactory to the Trustee for payment of all other sums payable hereunder
by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
following rights and obligations shall survive: (i) the obligations of the
Company to the Trustee under Section 6.07 and 6.14,(ii) if money or U.S.
Government Obligations shall have been deposited with or received by the Trustee
pursuant to Section 4.01(1)(B) or Section 4.02, the obligations of the Trustee
under Section 4.03 and the last paragraph of Section 10.03 and (iii) any rights
of registration of transfer, exchange or replacement of Securities provided in
Article III and Sections 9.06, 10.02 and 11.07.
SECTION 4.02. Defeasance, Discharge and Covenant Defeasance
(a) Defeasance and Discharge of a Series of Securities. The Company
shall be deemed to have been discharged from its obligations with respect to
Outstanding Securities of any series, as provided in this Section 4.02(a) on and
after the date the applicable conditions set forth in subsection (c) hereof are
satisfied (hereinafter called "Defeasance") with respect to such Securities. For
this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness representing the Outstanding
Securities of such series and to have satisfied all of its other respective
obligations under the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of Securities of such series to receive,
solely from the trust fund described in Section 4.03 and as more fully set forth
in such Section, payments in respect of the principal of and any premium and
interest on such Securities of such series when payments are due, (ii) the
Company's obligations with respect to the Securities of such series under
Article III and Sections 10.02 and 10.03, (iii) the rights (including without
limitation, the rights set forth in Section 6.07), powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Article. Subject to compliance
with this Article, the Company may defease any Securities
52
pursuant to this Section notwithstanding the prior Covenant Defeasance of such
Series pursuant to subsection (b) hereof.
(b) Covenant Defeasance. On and after the date the applicable
conditions set forth in subsection (c) hereof are satisfied (hereinafter called
"Covenant Defeasance") with respect to the Outstanding Securities of any series,
(i) the Company shall be released from its obligations under Sections 8.01,
10.04, 10.05, 10.06, 10.07, 10.08 and Article XIII (other than Section 13.08),
and any covenants adopted by indenture supplemental hereto under Section 9.01(2)
for the benefit of the Holders of such Securities and (ii) the occurrence of any
event specified in Sections 5.01(3), 5.01(4), 5.01(5), 5.01(6) or 5.01(7) with
respect to any obligations referred to in clause (i) shall be deemed not to be
or result in an Event of Default, in each case with respect to the Outstanding
Securities of such series as provided in this Section. For this purpose, such
Covenant Defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any
other document, but the remainder of this Indenture and the Securities of such
series shall be unaffected thereby.
(c) Conditions to Defeasance or Covenant Defeasance. The following
shall be the conditions to the Defeasance or the Covenant Defeasance pursuant to
this Section 4.02 of the Outstanding Securities of any series:
(1) The Company shall elect by Board Resolution to effect a Defeasance or a
Covenant Defeasance pursuant to this Section 4.02 with respect to the
Outstanding Securities of any series specified in such Board Resolution;
(2) The Company shall irrevocably have deposited or caused to be deposited
(except as provided in Section 6.07, Section 4.03(c) and the last paragraph
of Section 10.03) with the Trustee (specifying that each such deposit is
pursuant to this Section 4.02) as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Outstanding Securities of such series, (a) money, or (b)
U.S. Government Obligations which through the payment of principal and
interest in respect thereof in accordance with their terms will provide
money, not later than one day before the due date of any payment, or (c) a
combination thereof, in each case in an amount sufficient, in the opinion
of a nationally recognized firm of independent accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and discharge
the principal of and any premium and interest on the Securities of such
series on the respective Stated Maturities (or if the Company has
designated a Redemption Date pursuant to the next sentence of this clause
(2), to and including the Redemption Date so designated by the Company), in
accordance with the terms of this Indenture and the Securities of such
series. If the Company shall wish to deposit or cause to be deposited money
or U.S. Government Obligations to pay or discharge the principal of (and
premium, if any) and interest, if any, on the outstanding Securities of
such series to and including a Redemption Date on which
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all of the outstanding Securities of such series are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board Resolution
delivered to the Trustee on or prior to the date of deposit of such money
or U.S. Government Obligations, and such Board Resolution shall be
accompanied by an irrevocable Company Request that the Trustee give notice
of such redemption in the name and at the expense of the Company not less
than 30 nor more than 60 days prior to such Redemption Date in accordance
with this Indenture;
(3) In the event of a Defeasance pursuant to Section 4.02(a), the Company
shall have delivered to the Trustee an opinion of independent counsel of
recognized standing stating that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (y)
since the date of this instrument, there has been a change in the
applicable U.S. federal income tax law, in either case (x) or (y) to the
effect that, and based thereon such opinion shall confirm that, the Holders
of such series will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of the deposit;
(4) In the event of a Covenant Defeasance pursuant to Section 4.02(b), the
Company shall have delivered to the Trustee an opinion of independent
counsel of recognized standing to the effect that the Holders and any
owners of beneficial interests in Outstanding Securities of such series
will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of the deposit;
(5) The Securities, if then listed on any securities exchange, will not be
delisted as a result of such deposit;
(6) No event which is, or after notice or lapse of time or both would
become, an Event of Default (including by reason of such deposit) with
respect to the Outstanding Securities of such series shall have occurred
and be continuing at the time of such deposit;
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other material agreement
or instrument to which the Company is a party or by which it is bound; and
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, stating that all conditions precedent
with respect to such Defeasance or Covenant Defeasance have been complied
with.
SECTION 4.03. Application of Trust Money
(a) Subject to the provisions of the last paragraph of Section 10.03,
all money or U.S. Government Obligations deposited with the Trustee pursuant to
Sections 4.01 or 4.02 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Sections 4.01 or
4.02, shall be held in trust and applied by it, in accordance
54
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the persons entitled thereto, of
the principal of (and premium, if any) and interest, if any, on the Securities
for whose payment such money has been deposited with or received by the Trustee.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Trustee or the trust
created hereby with respect to U.S. Government Obligations deposited pursuant to
Sections 4.01 or 4.02 or the interest and principal received in respect thereof
other than any such tax, fee or other charge which by law is payable by or on
behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any monies or U.S. Government Obligations held by it as
provided in Sections 4.01 or 4.02 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which, at the time of such certification, would have been
required to be deposited to effect the discharge of the Indenture or of any
series of Securities, or the Defeasance or Covenant Defeasance of the Securities
of any series, as the case may be. This paragraph (c) shall not authorize the
sale by the Trustee of any U.S. Government Obligations held under this
Indenture.
SECTION 4.04. Reinstatement
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to the Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 4.01 or 4.02 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 4.03 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in Trust.
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default
An "Event of Default" shall occur with respect to the Securities of any
series if:
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(1) default for a period of 30 days in the payment of any interest upon any
Security of that series when it becomes due and payable and continuance of
such default; or
(2) default in the payment of the principal of (or any premium on) any
Security of that series at its Maturity upon redemption, upon required
purchase, upon acceleration or otherwise; or
(3) default in the performance, or breach, of any other covenant or
obligation of the Company in this Indenture for a period of 30 days after
there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
25% aggregate principal amount of the Outstanding Securities of that series
a written notice specifying such default and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(4) default in the payment of the principal of any bond, debenture, note or
other evidence of indebtedness, in each case for money borrowed by the
Company, or in the payment of principal under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for Borrowed Money of the Company or any
Significant Subsidiary, if such Indebtedness for Borrowed Money is not
Project Finance Debt and provides for recourse generally to the Company
which default for payment of principal is in an aggregate principal amount
exceeding $25 million (or its equivalent in any other currency or
currencies) when such indebtedness becomes due and payable (whether at
maturity, upon redemption or acceleration or otherwise), if such default
shall continue unremedied or unwaived for more than 30 Business Days and
the time for payment of such amount has not been expressly extended by the
holders of such indebtedness, provided that at the time such payment
default is remedied, cured or waived the Event of Default hereunder by
reason thereof shall be deemed likewise to have been remedied, cured or
waived without further action upon the part of the Trustee or any of the
Holders; or
(5) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or any of its Significant Subsidiaries or
for all or substantially all of the property and assets of the Company or
any of its Significant Subsidiaries or ordering the winding up or
liquidation of the affairs of the Company or any of its Significant
Subsidiaries, and in each case such decree or order shall remain unstayed
and in effect for a period of 180 consecutive days; or
(6) the Company or any of its Significant Subsidiaries (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
of its
56
Significant Subsidiaries or for all or substantially all of the property
and assets of the Company or any of its Significant Subsidiaries or (C)
effects any general assignment for the benefit of creditors; or
(7) from and after the Pledge Effective Date, the Trustee fails to have
perfected a security interest in the pledged capital stock of CILCO for a
period of 10 days in accordance with the terms of the Pledge Agreement.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment
(a) If an Event of Default other than as described in clauses (5) or
(6) of Section 5.01 with respect to the Securities of any series then
outstanding occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series then
outstanding hereunder (each such series treated as a separate class) by notice
in writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in clause (5) or (6) of Section
5.01 occurs and is continuing, then the principal amount of all the Securities
then outstanding, premium, if any, and interest accrued thereon, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Securities of any series shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, if any and all Events of Default under the Indenture, other than the
non-payment of the principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then and in every such case the Holders of a majority in aggregate
principal amount of all the then outstanding Securities of all such series that
have been accelerated (voting as a single class), by written notice to the
Company and to the Trustee, may waive all defaults with respect to all such
series and rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
SECTION 5.03. Other Remedies
If an Event of Default with respect to the Securities of any series
occurs and is continuing, the Trustee may pursue, in its own name or as trustee
of an express trust, any available remedy by proceeding at law or in equity to
collect the payment of principal of and
57
interest on the Securities of such series or to enforce the performance of any
provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 5.04. Waiver of Past Defaults
Subject to Sections 5.02, 5.07 and 9.02, the Holders of at least a
majority in the aggregate principal amount of the Outstanding Securities of each
series affected, by notice to the Trustee, may waive an existing default or
Event of Default with respect to the Securities of such series and its
consequences, except a default in the payment of principal of or interest on any
Security as specified in clauses (1) or (2) of Section 5.01 or in respect of a
covenant or provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such default shall cease to exist, and any Event of Default
with respect to the Securities of such series 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 Event of Default or impair
any right consequent thereto.
SECTION 5.05. Control by Majority
Subject to Sections 6.01 and 6.03, the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities of all series
affected may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to the Securities of such series by this Indenture;
provided, that the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders not joining in the giving of such
direction; and provided further, that the Trustee may take any other action it
deems proper that is not inconsistent with any directions received from Holders
of Securities pursuant to this Section 5.05.
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SECTION 5.06. Limitation on Suits
No Holder of any Security of any series may institute any proceeding,
judicial or otherwise, with respect to this Indenture or the Securities of such
series, or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given to a Responsible Officer of the
Trustee written notice of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to a Responsible Officer of the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series
have not given the Trustee a direction that is inconsistent with such
written request.
Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 5.07. Rights of Holders to Receive Payments
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of or interest, if any, on
such Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 5.08. Collection Suit by Trustee
If an Event of Default with respect to the Securities of any series in
payment of principal or interest specified in clause (1) or (2) of Section 5.01
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, and accrued interest remaining unpaid on, together with interest
on overdue principal of, and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest on, the Securities of such
series, in each case
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at the rate specified in such Securities, and such further amount as shall be
sufficient to cover all amounts owing the Trustee under Section 6.07.
SECTION 5.09. Trustee May File Proofs of Claim
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due the Trustee under Section 6.07) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor on the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any moneys, securities or other
property payable or deliverable upon conversion or exchange of the Securities or
upon any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it under Section 6.07. Nothing herein contained shall be deemed to
empower 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 Securities 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 5.10. Application of Proceeds
Any moneys collected by the Trustee pursuant to this Article in respect
of the Securities of any series shall be applied in the following order at the
date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal (or premium, if any) or interest, upon
presentation of the several Securities and noting thereon the payment, if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07
applicable to the Securities of such series in respect of which moneys have
been collected;
SECOND: In case the principal and premium, if any, of the Securities of
such series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent permitted by
law) upon the overdue installments of interest at the same rate as the rate
of interest specified in such Securities, such payments to be made ratably
to the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal and premium, if any, of the Securities of
such series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series for
principal and premium, if any, and interest, if any, with interest upon the
overdue
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principal, and (to the extent permitted by law) upon overdue installments
of interest at the same rate as the rate of interest specified in the
Securities of such series; and in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Securities of such
series, then to the payment of such principal and interest, without
preference or priority of principal over interest, or of interest over
principal or premium, if any, or of any installment of interest over any
other installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal
and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company.
SECTION 5.11. 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, or has been determined adversely to
the Trustee or to such Holder, then, and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Company, Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 5.12. Undertaking for Costs
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, in either case in respect to the Securities of any series, a
court may require any party litigant in such suit (other than the Trustee) to
file an undertaking to pay the costs of such suit, and the court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 5.12 does not apply to a suit by a Holder pursuant to
Section 5.07 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 5.13. Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or wrongfully taken Securities in Section 3.07, 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.
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SECTION 5.14. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Securities
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 V 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.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities
(a) Except during the continuance of a default with respect to the
Securities of any series,
(1) the Trustee undertakes to perform such duties and 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; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case a default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be conclusively determined
by a court of competent jurisdiction that the Trustee was negligent in
ascertaining the pertinent facts;
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(3) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if repayment of such funds or adequate indemnity
against such risk or liability satisfactory to the Trustee has not been
assured to it; and
(4) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders of not less than a majority in principal amount of the
Outstanding Securities of any series, determined as provided in Section
5.05, relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct of, or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.01.
SECTION 6.02. Notice of Defaults
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series notice of such default hereunder
actually known to a Responsible Officer of the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest,
if any, on any Security of such series, the Trustee shall be fully protected in
withholding such notice if and so long as a trust committee or a Responsible
Officer of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities of such series; and
provided, further, that in the case of any default of the character specified in
Section 5.01(3) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section 6.02, the term "default" means any event which is,
or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 6.03. Certain Rights of Trustee
Subject to the provisions of Section 6.01:
(a) the Trustee may rely conclusively and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
or as otherwise expressly provided herein and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel of its selection, and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to expend or risk
its own funds or to exercise, at the request or direction of any of the
Holders, any of the rights or powers vested in it by this Indenture
pursuant to this Indenture, unless such Holders shall have offered to
the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled upon reasonable
prior request and during normal business hours to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(g) 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 shall not be
liable for the actions or omissions of such agents, attorneys,
custodians or nominees appointed by it with due care; and
(h) The Trustee shall not be charged with knowledge of any
default or Event of Default, as the case may be, with respect to the
Securities of any series unless either (1) a Responsible Officer of the
Trustee shall have actual knowledge of the default or an Event of
Default, as the case may be, or (2) written notice of such default or
Event of Default, as the case may be, shall have been given to the
Trustee by the Company pursuant to Section 10.08 hereof, by any other
obligor on such Securities or by any Holder of such Securities.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities
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The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent nor any party
hereto (other than the Company) assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent nor any party hereto (other than the Company) shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.05. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Exchange Agent/Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Exchange Agent/Registrar or such other agent.
SECTION 6.06. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time such compensation as is agreed
upon in writing, which compensation shall not be limited by any provision
of law regarding compensation of the trustee of an express trust;
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel, which compensation, expenses and
disbursements shall be set forth in sufficient written detail to the
satisfaction of the Company), except any such expense, disbursement or
advance as may be attributable to its or their negligence or willful
misconduct; and
(3) to indemnify each of the Trustee, its officers, directors, agents and
employees for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, bad faith, or willful misconduct on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
Obligations under this
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Section 6.07(3) will survive the satisfaction and discharge of this
Indenture pursuant to Section 4.01 hereof or the earlier resignation or
removal of the Trustee.
SECTION 6.08. Disqualification; Conflicting Interests
If the Trust Indenture Act shall be applicable to a series of
Securities issued hereunder and if the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, then the
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be eligible
to act as trustee under the Trust Indenture Act and which shall have a combined
capital and surplus of at least $50,000,000. If the Trustee does not have an
office in The City of New York, the Trustee may appoint an agent in The City of
New York reasonably acceptable to the Company to conduct any activities which
the Trustee may be required under this Indenture to conduct in The City of New
York. If the Trustee does not have an office in The City of New York or has not
appointed an agent in The City of New York, the Trustee shall be a Participant
in DTC and in the FAST distribution systems. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of a United States federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section 6.09,
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. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee with respect to the Securities of such series, subject to Section 6.09.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a
66
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee within 30 days of such removal, the Trustee subject to such removal may
petition any court of competent jurisdiction at the expense of the Company for
the appointment of a successor Trustee with respect to the Securities of such
series, subject to Section 6.09.
(d) If at any time:
(1) the Trustee shall fail to comply with section 310(b) of the Trust
Indenture Act pursuant to Section 6.08, with respect to any series of
Securities to which the Trust Indenture Act may be applicable, after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
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, (i) the Company by a Board Resolution may remove the
Trustee with respect to all the Securities, or (ii) subject to Section 5.12, any
Holder who has been a bona fide Holder of a Security 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 with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of either series) and shall comply with the applicable
requirements of Section 6.11. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company and
accepted appointment in the manner required by Section 6.11, any Holder who has
been a bona fide Holder of a Security of 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 appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by giving
notice in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
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SECTION 6.11. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall 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; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that series
to which the appointment of such successor Trustee relates; but on request of
the Company or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section 6.11, as the case may be.
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(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collecting of Claims Against Company
The Trustee shall comply with Trust Indenture Act Section 311(a),
excluding any creditor relationship listed in Trust Indenture Act Section
311(b). A Trustee who has resigned or been removed shall be subject to Trust
Indenture Act Section 311(a) to the extent indicated.
SECTION 6.14. Authenticating Agents
From time to time the Trustee, with the prior written approval of the
Company, may appoint one or more Authenticating Agents with respect to one or
more series of Securities with power to act on the Trustee's behalf and subject
to its direction in the authentication and delivery of Securities of such series
issued upon original issuance and upon exchange, registration of transfer or
partial redemption thereof or in connection with transfers and exchanges under
Sections 3.03, 3.04, 3.05, 3.06, 3.07 and 11.07 as fully to all intents and
purposes as though the Authenticating Agent had been expressly authorized by
those Sections of this Indenture to authenticate and deliver Securities of such
series. For all purposes of this Indenture, the authentication and delivery of
Securities by an Authenticating Agent pursuant to this Section 6.14 shall be
deemed to be authentication and delivery of such Securities "by the Trustee".
Each such Authenticating Agent shall be acceptable to the Company and shall at
all times be a corporation organized and doing business under the laws of the
United States, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
Federal, State or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 6.14 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
69
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 6.14.
Any corporation into which any Authenticating Agent may be merged or
with which it may be consolidated, or any corporation resulting from, any merger
or consolidation or to which any Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of any Authenticating Agent, shall be the successor of the
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.14, without the execution or filing of any paper
or any further act on the part of the parties hereto or the Authenticating Agent
or such successor corporation.
An Authenticating Agent may resign at any time by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may appoint a successor Authenticating Agent with the prior written
approval of the Company and shall mail notice of such appointment to all Holders
of Securities of the series with respect to which such Authenticating Agent will
serve, as the names and addresses of such Holders appear on the Security
Register. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 6.14.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.14 as may be
agreed in a separate writing among the Company, the Trustee and such
Authenticating Agent.
If an appointment with respect to one or more series of Securities is
made pursuant to this Section 6.14, the Securities 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 is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
as Authenticating Agent
Dated: By:
------------ --------------------------------
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Authorized Signatory
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee with
respect to the Registered Securities of each series
(a) semi-annually, not later than 15 days after each Regular Record
Date, or, in the case of any series of Registered Securities on which
semi-annual interest is not payable, not more than 15 days after such
semi-annual dates as may be specified by the Trustee, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders as
of such Regular Record Date or semi-annual date, as the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee is Security Exchange
Agent/Registrar for any series of Registered Securities, no such list shall be
required to be furnished with respect to any such series.
SECTION 7.02. Preservation of Information; Communications to Holders
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Exchange Agent/Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
SECTION 7.03. Reports by Trustee
(a) As promptly as practicable after each May 15 beginning with the May
15 following the date of this Indenture, and in any event prior to July 15 in
each year, the Trustee shall mail to each Holder a brief report dated as of such
May 15 that complies with Trust Indenture Act Section 313(a). The Trustee also
shall comply with Trust Indenture Act Section 313(b). The Trustee shall also
transmit by mail all reports required by Trust Indenture Act Section 313(c).
(b) A copy of each report at the time of its mailing to Holders shall
be filed with the Commission and each U.S. stock exchange (if any) on which the
Securities are listed.
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The Company agrees to notify promptly the Trustee whenever the Securities become
listed on any U.S. stock exchange and of any delisting thereof.
SECTION 7.04. Reports by Company
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms
The Company shall not consolidate with or merge with or into any Person
(other than CILCORP in the Merger), or convey, transfer or lease its
consolidated properties and assets substantially as an entirety (in one
transaction or in a series of related transactions) to any Person, or permit any
Person to merge into or consolidate with the Company, unless (i)(x) the Company
will be the surviving or continuing Person or (y) if other than the Company, the
surviving or continuing Person or purchaser or lessee will be an entity
organized under the laws of the United States, one of the States thereof or the
District of Columbia and expressly assumes by supplemental indenture,
substantially in the form of Annex I hereto, the Company's obligations under
each series of the Securities under the Indenture, (ii) immediately after giving
effect to such transaction, (x) no Event of Default shall have occurred and be
continuing, and (y) the Company obtains written confirmation from the Rating
Agencies that such transaction will not result in a Ratings Downgrade below such
Rating Agency's Initial Rating, and (iii) the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel stating that such
consolidation, merger, transfer or lease and such supplemental indenture (if
any) complies with this Indenture.
SECTION 8.02. Successor Corporation to be Substituted
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, and upon the effectiveness of the Merger, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made (which, in the case of the
Merger, shall be CILCORP) shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter the predecessor entity shall be relieved of all obligations and
covenants under this Indenture and the Securities. In the case of the Merger,
CILCORP shall immediately following the effective time of the Merger, by
supplemental indenture expressly assume the Company's obligations under each
series of the Securities under
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the Indenture. Such supplemental indenture shall be entered into by CILCORP and
the Trustee without the consent of any Holder of either series of Securities or
any other action on the part of any Person.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indenture without Consent of Holders
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another entity to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities;
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series);
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form, or to permit or facilitate the issuance
of extendible Securities;
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only as
to the Securities of any series created by such supplemental indenture and
Securities of any series subsequently created to which such change or
elimination is made applicable by the subsequent supplemental indenture
creating such series;
(6) to secure the Securities pursuant to the requirements of Section 10.04
or otherwise;
(7) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b);
(8) to provide for any rights of the Holders of Securities of any series to
require the repurchase of Securities of such series by the Company;
(9) to modify the restrictive legends set forth on the face of the form of
Security, or modify the form of certificate set forth in Section 3.12;
provided, however, that any such modification shall not materially and
adversely affect the interest of the Holders of the Securities;
(10) to amend this Indenture to conform to the provisions of the Trust
Indenture Act as in effect at the time of the execution of such
supplemental indenture;
(11) to cure any ambiguity, omission or defect, to correct or supplement
any provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
materially and adversely affect the interests of the Holders of Securities
of any series; or
(12) to modify, alter, amend or supplement this Indenture in any other
respect which is not materially adverse to Holders, which does not involve
a change described in clauses (1), (2),(3) or (4) of Section 9.02 hereof
and which, in the judgment of the Trustee, is not to the prejudice of the
Trustee, or in order to provide for the duties, responsibilities and
compensation of the Trustee as a transfer agent in the event one registered
Security of any series is issued in the aggregate principal amount of all
outstanding Securities of such series in which Holders will hold an
interest.
SECTION 9.02. Supplemental Indentures with Consent of Holders
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest, if any, on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, or reduce any premium
payable upon the redemption thereof, or change any Place of Payment where,
or the coin or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
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enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, 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
(3) modify any of the provisions of this Section 9.02, Section 5.04 or
Section 10.09, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 9.02, or the deletion of
this proviso, in accordance with the requirements of Sections 6.11(b) and
9.01(7), or
(4) except in accordance with the terms thereof, (i) release any collateral
from the Lien created by the Pledge Agreement, (ii) amend such terms, (iii)
terminate the Lien created by the Pledge Agreement or (iv) deprive the
holders of the security afforded by the Lien created by the Pledge
Agreement.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities 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 Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, other than the supplemental indenture
referenced in the last sentence of Section 8.02, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Officer's Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
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SECTION 9.04. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article,
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 Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article shall,
if so required by the Trust Indenture Act, conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 9.07. Amendments to the Pledge Agreement
The Company shall not amend, modify or supplement, or permit or consent
to any amendment, modification or supplement of, the Pledge Agreement in any way
that would be adverse to the Holders of the Securities.
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium, if any, and Interest
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and interest on
the Securities of that series in accordance with the terms of the Securities and
this Indenture. An installment of principal of or interest on the Securities of
a series shall be considered paid on the date it is due if the Trustee or Paying
Agent holds at 11:00 a.m. New York City Time on that date money deposited by the
Company in immediately available funds and designated for, and sufficient to
pay, the installment in full.
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Neither the Company nor any agent of the Company (including but not
limited to the Paying Agent) will have any responsibility or liability for any
aspect relating to payments made or to be made by the Depositary to DTC in
respect of the Global Securities of a series or the beneficial interests
therein, subject only to limited indemnification rights of the Depository. None
of the Company, the Trustee, the Paying Agent, the Depositary or any agent of
any of the foregoing will have any responsibility or liability for any aspect
relating to payments made or to be made by DTC on account of a Participant's or
Indirect Participant's ownership of a beneficial interest in a Global Security
or for maintaining, supervising or reviewing any records relating to a
Participant's interests in such Global Security.
SECTION 10.02. Maintenance of Office or Agency
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities of any series may be presented or
surrendered for payment, and where notices and demands to or upon the Company in
respect of the Securities of such series and this Indenture may be served and an
office or agency of a Security Exchange Agent/Registrar in such Place of Payment
where Securities may be surrendered for registration of transfer or exchange.
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, all such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee and the Company hereby appoints the Paying Agent as its
agent to receive all such presentations, surrenders, notices and demands. In the
event any such notice or demands are so made or served on the Paying Agent, the
Paying Agent shall promptly forward copies thereof to the Company and the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of such Place of Payment) where the
Securities of one or more series and any appurtenant coupon may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for any series of Securities for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation and any change in the location of any such other office or agency.
SECTION 10.03. Money for Securities Payments to Be Held in Trust
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
in writing of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for any
series of the Securities, it will, no later than 10:00 a.m. New York City Time,
on each due date of the principal of (and premium, if any) or interest, if any,
on any Securities of that series, deposit with a Paying Agent a sum in
immediately available funds sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled thereto.
The Company will cause each Paying Agent for any series of the
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 10.03, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Securities of that series 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;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal (and premium, if any) or interest, if any, on the Securities of
that series; and
(3) 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.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by the Company or by any Paying Agent
to the Trustee, the Company or such Paying Agent, as the case may be, shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest, if any, on any Security of any series and remaining unclaimed
for two years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease.
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SECTION 10.04. Limitation on Liens
(i) Immediately upon the effectiveness of the Merger, CILCORP will not
secure any Indebtedness by CILCORP or any other Person by a Lien upon any
capital stock of CILCO without effectively providing that the outstanding
Securities (together with, if CILCORP so determines, any other indebtedness or
obligation then existing or thereafter created ranking equally with the
Securities) will be secured equally and ratably with (or prior to) such
Indebtedness so long as such Indebtedness is so secured. The limitation on Liens
pursuant to this Section 10.04(i) will not, however, apply to:
(a) any Lien securing amounts not more than 180 days overdue or
otherwise being contested in good faith;
(b) (1) any Lien incurred or deposits made in the
ordinary course of business, including, but not
limited to, (x) any mechanics', materialmen's,
carriers', workmen's, vendors' and other like Liens
and (y) any Liens securing amounts in connection with
workers' compensation, unemployment insurance and
other types of social security; and
(2) any Lien incurred or deposits made securing the
performance of tenders, bids, leases, trade contracts
(other than for borrowed money), statutory
obligations, surety bonds, appeal bonds, government
contracts, performance bonds, return-of-money bonds,
letters of credit not securing borrowings and other
obligations of like nature incurred in the ordinary
course of business;
(3) any Lien securing reimbursement obligations under
letters of credit, guaranties and other forms of
credit enhancement given in connection with the
purchase of goods and equipment in the ordinary
course of business;
(c) (1) Liens required by any contract, statute or
regulation in order to permit CILCORP or a
Significant Subsidiary to perform any contract or
subcontract made by it with or at the request of a
governmental entity or any governmental department,
agency or instrumentality, or to secure partial,
progress, advance or any other payments by CILCORP or
a Significant Subsidiary to such governmental unit
under the provisions of any contract, statute or
regulation; and
(2) any Lien securing taxes or assessments or other
applicable governmental charges or levies;
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(d) any Lien which arises under any order of attachment, restraint
or similar legal process arising in connection with court
proceedings and any Lien which secures the reimbursement
obligation for any bond obtained in connection with an appeal
taken in any court proceeding, so long as the execution or
other enforcement of such Lien arising under such legal
process is effectively stayed and the claims secured by that
Lien are being contested in good faith and, if appropriate, by
appropriate legal proceedings, and any Lien in favor of a
plaintiff or defendant in any action before a court or
tribunal as security for costs and/or expenses; and
(e) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part,
of any Liens referred to in the foregoing clauses, for amounts
not exceeding the principal amount of the Indebtedness secured
by the Lien so extended, renewed or replaced, provided that
such extension, renewal or replacement Lien is limited to all
or a part of the capital stock of CILCO that was covered by
the Lien extended, renewed or replaced.
(ii) Each of the Company and any Significant Subsidiary will not issue,
assume or guarantee any Indebtedness secured by a Lien upon any property or
assets (other than any capital stock of CILCO or cash or cash equivalents) of
the Company or such Significant Subsidiary, as applicable, without effectively
providing that the Outstanding Securities (together with, if the Company so
determines, any other indebtedness or obligation then existing or thereafter
created ranking equally with such Securities) shall be secured equally and
ratably with (or prior to) such Indebtedness so long as such Indebtedness shall
be so secured. The foregoing limitation on Liens will not, however, apply to:
(a) Liens in existence on the date of original issue of the Securities;
(b) any Lien created or arising over any property which is acquired,
constructed or created by the Company or any of its Significant
Subsidiaries, but only if (i) such Lien secures only principal amounts (not
exceeding the cost of such acquisition, construction or creation) raised
for the purposes of such acquisition, construction or creation, together
with any costs, expenses, interest and fees incurred in relation thereto or
a guarantee given in respect thereof, (ii) such Lien is created or arises
on or before 180 days after the completion of such acquisition,
construction or creation and (iii) such Lien is confined solely to the
property so acquired, constructed or created;
(c) any Lien securing amounts not more than 180 days overdue or
otherwise being contested in good faith;
(d) (i) rights of financial institutions to offset credit balances in
connection with the operation of cash management programs established for
the benefit of the Company and/or a Significant Subsidiary or in connection
with the issuance of letters of credit for the benefit of the Company
and/or a Significant Subsidiary; (ii) any Lien on
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accounts receivable securing indebtedness of the Company and/or a
Significant Subsidiary incurred in connection with the financing of such
accounts receivable; (iii) any Lien incurred or deposits made in the
ordinary course of business, including, but not limited to, (A) any
mechanics', materialmen's, carriers', workmen's, vendors' or other like
Liens and (B) any Liens securing amounts in connection with workers'
compensation, unemployment insurance and other types of social security;
(iv) any Lien upon specific items of inventory or other goods and proceeds
of the Company and/or a Significant Subsidiary securing obligations of the
Company and/or a Significant Subsidiary in respect of bankers' acceptances
issued or created for the account of such person to facilitate the
purchase, shipment or storage of such inventory or other goods; (v) any
Lien incurred or deposits made securing the performance of tenders, bids,
leases, trade contracts (other than for borrowed money), statutory
obligations, surety bonds, appeal bonds, government contracts, performance
bonds, return-of-money bonds, letters of credit not securing borrowings and
other obligations of like nature incurred in the ordinary course of
business; (vi) any Lien created by the Company or a Significant Subsidiary
under or in connection with or arising out of a Currency, Interest Rate or
Commodity Agreement or any transactions or arrangements entered into in
connection with the hedging or management of risks relating to the
electricity or natural gas distribution industry, including by a right of
set off or right over a margin call account or any form of cash or cash
collateral or any similar arrangement for obligations incurred in respect
of Currency, Interest Rate or Commodity Agreements; (vii) any Lien arising
out of title retention or like provisions in connection with the purchase
of goods and equipment in the ordinary course of business; and (viii) any
Lien securing reimbursement obligations under letters of credit, guaranties
and other forms of credit enhancement given in connection with the purchase
of goods and equipment in the ordinary course of business;
(e) Liens in favor of the Company or a Subsidiary;
(f) (i) Liens on any property or assets acquired from an entity which
is merged with or into the Company or a Significant Subsidiary or any Liens
on the property or assets of any entity existing at the time such entity
becomes a Subsidiary of the Company and, in either case, is not created in
anticipation of the transaction (unless such Lien is created to secure or
provide for the payment of any part of the purchase price of such entity);
(ii) any Lien on any property or assets existing at the time of acquisition
thereof and which is not created in anticipation of such acquisition
(unless such Lien was created to secure or provide for the payment of any
part of the purchase price of such property or assets) and (iii) any Lien
created or outstanding on or over any asset of any entity which becomes a
Significant Subsidiary on or after the date of the issuance of the
Securities, where such Lien is created prior to the date on which such
entity becomes a Significant Subsidiary;
(g) (i) Liens required by any contract, statute or regulation in order
to permit the Company or a Significant Subsidiary to perform any contract
or subcontract made by it with or at the request of a governmental entity
or any department, agency or
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instrumentality thereof, or to secure partial, progress, advance or any
other payments by the Company or a Significant Subsidiary to such
governmental unit pursuant to the provisions of any contract, statute or
regulation; (ii) any Lien securing industrial revenue, development,
pollution control or similar bonds issued by or for the benefit of the
Company or a Significant Subsidiary, provided that such industrial revenue,
development, pollution control or similar bonds do not provide recourse
generally to the Company and/or such Significant Subsidiary; and (iii) any
Lien securing taxes or assessments or other applicable governmental charges
or levies;
(h) any Lien which arises pursuant to any order of attachment,
restraint or similar legal process arising in connection with court
proceedings and any Lien which secures the reimbursement obligation for any
bond obtained in connection with an appeal taken in any court proceeding,
so long as the execution or other enforcement of such Lien arising pursuant
to such legal process is effectively stayed and the claims secured thereby
are being contested in good faith and, if appropriate, by appropriate legal
proceedings, and any Lien in favor of a plaintiff or defendant in any
action before a court or tribunal as security for costs and/or expenses;
(i) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Liens referred to
in the foregoing clauses, for amounts not exceeding the principal amount of
the Indebtedness secured by the Lien so extended, renewed or replaced,
provided that such extension, renewal or replacement Lien is limited to all
or a part of the same property or assets that were covered by the Lien
extended, renewed or replaced (plus improvements on such property or
assets);
(j) any Lien created in connection with Project Finance Debt;
(k) any Lien created by CILCO that is then permitted to be created
under the term of its then existing mortgages and indentures on the terms
in effect at the time of creation of the Lien;
(l) any Lien created in connection with the securitization of some or
all of the assets of CILCO and the associated issuance of Indebtedness as
authorized by applicable state or federal law in connection with the
restructuring of jurisdictional electric or gas businesses; and
(m) any Lien on stock created in connection with a mandatorily
convertible or exchangeable stock or debt financing, provided that any such
financing may not be secured by or otherwise involve the creation of a Lien
on any capital stock of CILCO or any successor thereto.
Notwithstanding the foregoing, the Company and its Significant
Subsidiaries may create Liens over any of their respective property or assets,
so long as the aggregate amount of Indebtedness secured by all such Liens
(excluding therefrom the amount of Indebtedness secured by Liens set forth in
clauses (a) through (m), inclusive, above) does not exceed 10% of
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Consolidated Net Tangible Assets in the aggregate calculated as of the date of
creation of such Liens (based upon the Consolidated Net Tangible Assets
appearing on the most recently available balance sheet for the most recently
concluded calendar quarter).
SECTION 10.05. Limitation on Distributions and Intercompany Loans
The Company shall not (1) declare, recommend, make or pay any
Distribution to any of its shareholders or (2) make any intercompany loan to AES
or any of its affiliates (other than CILCORP or any of its direct or indirect
subsidiaries) unless there exists no Event of Default and no such Event of
Default will result from the making of such Distribution or intercompany loan
and either:
(a) at the time and as a result of such Distribution or intercompany
loan, the Company's Leverage Ratio does not exceed 0.67:1, and the
Company's Interest Coverage Ratio is not less than 2.0:1 during fiscal
years 1999 and 2000 and not less than 2.2:1 thereafter; or
(b) if the Company is not in compliance with the foregoing ratios at
such time its senior long-term debt rating from the Rating Agencies is at
least BB+ (or its then equivalent) with S&P, Baa2 (or its then equivalent)
with Xxxxx'x and BBB (or its then equivalent) with Duff & Xxxxxx.
Prior to making any Distribution or intercompany loan described in this
Section 10.05, an independent director of the CILCORP Board of Directors shall
confirm that such Distribution or intercompany loan complies with the terms of
this Section 10.05, provided that, in the case of a Distribution or intercompany
loan to be made under the circumstances described Section 10.05(a), such
independent director shall have first obtained (1) a compliance certificate from
an officer of CILCORP that, at the time and after giving effect to such
Distribution or intercompany loan, CILCORP is in compliance with the Leverage
Ratio and the Interest Coverage Ratio set forth in Section 10.05(a) and (2) a
written confirmation by a nationally recognized accounting firm as to their
agreement with the calculations specified in the compliance certificate;
provided further that the foregoing independent director approval will not be
required in the case of intercompany loans if the aggregate amount of
intercompany loans outstanding at any one time does not exceed $20 million.
The foregoing limitation on Distributions and intercompany loans shall
cease to be in effect if the Rating Agencies confirm that without the
limitations contained in this Section 10.05 the Company's senior long term debt
would still be rated at least the initial ratings (or its then equivalent)
received from S&P, the initial ratings (or its then equivalent) received from
Xxxxx'x, and the initial ratings (or its then equivalent) received from Duff &
Xxxxxx (collectively, the "Initial Ratings"). If the limitation on Distributions
and intercompany loans set forth in this Section 10.05 ceases to be in effect,
the Company will be under no obligation to reinstate such limitation or
otherwise observe its terms in the event such ratings are thereafter lowered or
withdrawn.
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In order to obtain the release of the limitation on Distributions and
intercompany loans, the Company shall deliver to a Responsible Officer of the
Trustee written confirmation from each Rating Agency of the ratings conditions
as described in the preceding paragraph. Securities of any series which are
entitled to the benefit of this Section 10.05 and are authenticated and
delivered after the release of the limitation on Distributions and intercompany
loans may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to the current inapplicability of such limitation.
SECTION 10.06. Limitation on Indebtedness of the Company
The Company shall not incur any Indebtedness other than (i) as part of
the Company's permitted businesses and activities that are described in Section
10.07 hereof, (ii) Indebtedness outstanding on the date of original issue of the
Securities under CILCORP's agreements then in existence and extensions of such
Indebtedness, or (iii) other Indebtedness (including Permitted Debt) incurred
subsequent to receipt of written confirmation from the Rating Agencies that such
incurrence would not result in a Ratings Downgrade.
The foregoing limitation on Indebtedness shall cease to be in effect if
the Rating Agencies confirm that without the limitations contained in this
Section 10.06 the Company's senior long term debt would still be rated at least
the Initial Ratings. If the limitation on Indebtedness set forth in this Section
10.06 ceases to be in effect, the Company will be under no obligation to
reinstate such limitation or otherwise observe its terms in the event such
ratings are thereafter lowered or withdrawn.
In order to obtain the release of the limitation on Indebtedness, the
Company shall deliver to a Responsible Officer of the Trustee written
confirmation from each Rating Agency of the ratings conditions as described in
the preceding paragraph. Securities of any series which are entitled to the
benefit of this Section 10.06 and are authenticated and delivered after the
release of the limitation on Distributions may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to the current
inapplicability of such limitation.
SECTION 10.07. Limitation on Business Activities
(a) The Company shall, and shall cause its Significant Subsidiaries to,
engage only in (x) those types of businesses and other activities in which
CILCORP or any of its direct or indirect subsidiaries or controlled partnerships
or joint ventures are engaged on the date hereof (including, without limitation,
any geographic or other expansion of such businesses or activities) and (y) any
other business or activity which is deemed necessary, useful or desirable in
connection with such existing businesses and activities or any such permitted
additional geographic or other expansions of such businesses and activities
provided, that CILCORP may enter into additional business operations from time
to time in the future if, prior to doing so, it shall have obtained written
confirmation from the Rating Agencies that the entering into of such new
businesses will not result in a Ratings Downgrade.
SECTION 10.08. Statement by Officers as to Default
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The Company will give a Responsible Officer of the Trustee notice, in
the form of an Officers' Certificate, of any Event of Default relating to the
Company or of any condition or event which, with the giving of notice or the
lapse of time or both, would constitute an Event of Default relating to the
Company within five (5) days after the occurrence of such Event of Default
becomes known to the Company, and of the measures it is taking to remedy such
Event of Default.
The Company will deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate, stating that in the
course of the performance by the signers thereof of their duties as Officers of
the Company they would normally have knowledge of any default by the Company in
the performance and observance of any of the covenants contained in the
Indenture, and stating whether or not the signers have knowledge of any such
default without regard to any period of grace or requirement of notice and, if
so, specifying each such default of which such signer has knowledge and the
nature thereof; provided, however, that a failure by the Company to deliver such
notice of a default shall not constitute a default of the Indenture if the
Company has remedied such default within any applicable cure period.
SECTION 10.09. Modification or Waiver of Certain Covenants
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in this Indenture with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either modify the covenant or
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, provided that no such modification shall without
the consent of each Holder of Securities of such series (a) change the stated
maturity upon which the principal of or the interest on the Securities of such
series is due and payable, (b) reduce the principal amount or redemption price
thereof or the rate of interest thereon, (c) change any place of payment or the
currency in which the Securities of such series or any premium or the interest
thereon is payable, (d) impair the right to institute suit for the enforcement
of any such payment on or after the stated maturity thereof (or, in the case of
redemption, on or after Redemption Date), (e) except in accordance with the
terms thereof, (i) release any collateral from the Lien created by the Pledge
Agreement, (ii) or amend such terms, (iii) or terminate the Lien created by the
Pledge Agreement or (iv) deprive the Holders of the Security afforded by the
Lien created by the Pledge Agreement, or (f) reduce the percentage in principal
amount of the outstanding Securities of such series, 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. The Securities owned by the Company or any of its affiliates
shall be deemed not to be Outstanding for, among other purposes, consenting to
any such modification.
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SECTION 10.10. Further Assurances
The Company and the Trustee shall execute and deliver all such other
documents, instruments and agreements and do all such other acts and things as
may be reasonably required to enable the Trustee to exercise and enforce its
rights under this Indenture and under the documents, instruments and agreements
required under this Indenture and to carry out the intent of this Indenture.
SECTION 10.11. Copies Available to Holders
Copies of this Indenture shall be furnished only to Holders upon the
written request of such holder, without change, provided that such written
request is made to the Company in accordance with Section 1.05.
SECTION 10.12. Reports by Company
Notwithstanding that the Company may not be required to be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, from and
after the date of effectiveness of any registration statement required to be
filed by the Company pursuant to the Registration Rights Agreement or otherwise
relating to a particular series of Securities, the Company shall file with the
Commission or cause to be filed with the Commission and provide copies to the
Trustee (and, if the Company is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, to the Holders of the Securities) with the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) that the
Company is (or would be if it were still so subject) required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act.
Prior to the date on which the Company becomes subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act, the Company
will provide, without charge, upon the written request of (x) a Holder of any
Securities or (y) a prospective Holder of any of the Securities who is a QIB and
is designated by an existing Holder of any of the Securities (in each case, with
a copy to the Trustee), with the information with respect to the Company
required to be delivered under Rule 144A(d)(4) under the Securities Act to
enable resales of the Securities to be made pursuant to Rule 144A. The Company
shall also comply with the other provisions of Section 314(a) of the Trust
Indenture Act. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Optional Redemption
The Securities may be redeemed, in whole or in part, at the option of
the Company pursuant to the terms set forth in paragraph 2 of the series of
Securities to be redeemed, in accordance with the provisions of this Article XI.
SECTION 11.02. Election to Redeem; Notice to Trustee
The election of the Company to redeem any Securities shall be
authorized by a Board Resolution and evidenced by an Officers' Certificate. In
case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, not less than 30 days nor more than
60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, the terms and of the principal amount of Securities of such
series to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or pursuant to an election by the
Company which is subject to a condition specified in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction or
condition.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed
If less than all the Securities of any series are to be redeemed, the
particular securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate (and which method the Company and the Trustee
agree shall be selection by lot, on a pro rata basis, or such other method as
agreed to) and which may provide for the selection for redemption of portions
equal to the minimum authorized denomination for Securities of that series (or
any integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series.
Securities shall be excluded from eligibility for selection for
redemption if they are identified by certificate number in a written statement
signed by an authorized officer of the Company and delivered to the Security
Exchange Agent/Registrar at least 45 days prior to the Redemption Date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company or (b) an entity specifically identified in such written
statement which is an Affiliate of the Company.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.04. Notice of Redemption
Notice of redemption shall be given not less than 30 days nor more than
60 days prior to the Redemption Date to each Holder of Securities to be redeemed
in accordance with Section 1.06.
All notices of redemption shall include the description of the issue
and the CUSIP number and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date, and
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price
By 11:00 a.m. New York time on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 10.03)
an amount of money in same day funds sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that
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date (to the extent that such amounts are not already on deposit at such time in
accordance with the provisions of Sections 4.01, 4.02 or 10.09).
SECTION 11.06. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued and
unpaid interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, and in the case of Registered Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.05.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption due to the failure of the Company to pay the
Redemption Price, the principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 11.07. Securities Redeemed in Part
Any Security (including any Global Security) which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee upon written direction shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the security so surrendered;
provided, that if a Global Security is surrendered for partial redemption, no
new Global Security shall be issued but instead the principal amount of the
surrendered Global Security shall be reduced by an endorsement to Schedule A to
such Global Security by the Security Exchange Agent/Registrar equal to the
redeemed portion of the principal of the Global Security so surrendered,
whereupon such Global Security shall be delivered to the Depositary; and
provided further that following any such partial redemption the Securities
selected for redemption and any beneficial interests therein shall not have had
their principal amount reduced below the minimum authorized denomination for
Securities of such series and for any beneficial interests therein. In the case
of a partial redemption of the Global Securities, DTC (and, in turn, its
Participants) shall have the responsibility to select the interests in such
Global Securities to be redeemed in accordance with Applicable Procedures.
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ARTICLE XII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 12.01. Purposes of Meeting
A meeting of the Holders may be called at any time from time to time
pursuant to this Article XII for any of the following purposes:
(1) to give any notice to the Company and to the Trustee, or to consent to
the waiving of any default hereunder and its consequences, or to take any
other action authorized to be taken by Holders pursuant to Article IX
hereof;
(2) to remove the Trustee and appoint a successor trustee pursuant to
Article VI hereof;
(3) to consent to the execution of an indenture supplemental hereto
pursuant to Section 9.02 hereof.
SECTION 12.02. Place of Meetings
(a) The Trustee may at any time (upon not less than 21 days' notice)
call a meeting of Holders to be held at such time and at such place in the
location determined by the Trustee pursuant to this Section 12.02. Notice of
every meeting of Holders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
mailed to each Holder and published in the manner contemplated by Section 1.06
hereof.
(b) In case at any time the Company or the Holders of at least an
aggregate principal amount of the Securities sufficient to take action requested
in such notice, shall have requested the Trustee to call a meeting of the
Holders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first giving of the notice of such meeting within 20 days after receipt of such
request, then the Company or the Holders in the amount above specified may
determine the time (not less than 21 days after notice is given) and the place
in the location determined by the Company or the Holders pursuant to this
Section 12.02 for such meeting and may call such meeting to take any action
authorized in Section 12.01 hereof by giving notice thereof as provided in
Section 12.02(a) hereof.
SECTION 12.03. Voting at Meetings
To be entitled to vote at any meeting of Holders, a Person shall be (i)
a Holder or (ii) a Person appointed by an instrument in writing as proxy for a
Holder or Holders by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons so entitled to vote at such meeting and their counsel, any
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representatives of the Trustee and its counsel, and any representatives of the
Company and its counsel.
SECTION 12.04. Voting Rights, Conducts and Adjournment
(a) 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 Securities of a series 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 deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities of a series shall be
proved in the manner specified in Article II hereof and the appointment of any
proxy shall be proved in such manner as is deemed appropriate by the Trustee or
by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker or trust company customarily authorized to
certify to the holding of a security such as a Global Note.
(b) At any meeting of Holders, the representative of Persons holding or
representing Securities of a series in an aggregate principal amount sufficient
under the appropriate provision of this Indenture to take action upon the
business for the transaction of which such meeting was called shall constitute a
quorum. Any meetings of Holders duly called pursuant to Section 12.03 hereof may
be adjourned from time to time by vote of the Holders (or proxies for the
Holders) of a majority of the Securities of a series represented at the meeting
and entitled to vote, whether or not a quorum shall be present; and the meeting
may be held as so adjourned without further notice. No action at a meeting of
Holders shall be effective unless approved by Persons holding or representing
Securities of a series in the aggregate principal amount required by the
provision of this Indenture pursuant to which such action is being taken.
(c) At any meeting of Holders, each Holder or proxy shall be entitled
to one vote for each $1,000 principal amount of outstanding Securities of a
series held or represented.
SECTION 12.05. Revocation of Consent by Holders
At any time prior to (but not after) the evidencing to the Trustee of
the taking of any action at a meeting of Holders by the Holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any Holder of a Security the serial
number of which is included in the Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
principal corporate trust office and upon proof of holding as provided herein,
revoke such consent so far as concerns such Securities. Except as aforesaid any
such consent given by the Holder of any Securities shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Securities and of any Securities issued in exchange therefore, in lieu thereof
or upon transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon such Securities. Any action taken by the Holders of the
percentage in aggregate principal amount of
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the Holders specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all the
Securities.
ARTICLE XIII
SECURITY AND COLLATERAL
SECTION 13.01. Pledge Agreement
The full and punctual payment when due and the full and punctual
performance of all of the obligations of the Company under the Securities and
this Indenture to the Holders and the Trustee, according to the provisions of
this Indenture or the Securities (the "Obligations"), shall be secured as of the
Pledge Effective Date, as provided in the Pledge Agreement. Each Holder of the
Securities, by its acceptance thereof, consents and agrees to the terms of the
Pledge Agreement (including, without limitation, the provisions providing for
foreclosure and release of Collateral) as the same may be in effect or may be
amended from time to time in accordance with its terms and authorizes and
directs the Collateral Agent to enter into the Pledge Agreement and to perform
its obligations and exercise its rights thereunder in accordance therewith. The
Company shall cause CILCORP to deliver to the Trustee copies of all documents
delivered to the Collateral Agent pursuant to the Pledge Agreement, and shall
cause to be done all such acts and things as may be necessary or proper, or as
may be required by the provisions of the Pledge Agreement, to assure and confirm
to the Trustee and the Collateral Agent that the security interest in the
Collateral contemplated hereby, by the Pledge Agreement or any parts thereof, as
from time to time constituted, so as to render the same available for the
security and benefit of this Indenture and the Securities, secured hereby,
according to the intent and purposes herein expressed. The Company shall cause
to be taken any and all actions reasonably required to cause the Pledge
Agreement to create and maintain, as security for the Obligations of the
Company, hereunder, a valid and enforceable perfected first priority Lien in and
on all the Collateral, in favor of the Collateral Agent for the benefit of the
Trustee and Holders and other Secured Parties (as defined in the Pledge
Agreement), if any, superior to and prior to the rights of all third Persons and
subject to no other Liens than Permitted Liens.
SECTION 13.02. Recording and Opinions
(a) The Company shall furnish to the Collateral Agent and the Trustee
upon the Pledge Effective Date an Opinion of Counsel either (i) stating that in
the opinion of such counsel all action has been taken with respect to the
recording, registering and filing of this Indenture, financing statements or
other instruments necessary to make effective the Lien intended to be created by
the Pledge Agreement, and reciting with respect to the security interests in the
Collateral, the details of such action, or (ii) stating that, in the opinion of
such counsel, no such action is necessary to make such Lien effective.
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(b) The Company shall furnish to the Collateral Agent and the Trustee
within 3 months after each anniversary of the Pledge Effective Date, an Opinion
of Counsel, dated as of such date, either (i) (A) stating that, in the opinion
of such counsel, action has been taken with respect to the recording,
registering, filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien of the
Pledge Agreement and reciting with respect to the security interests in the
Collateral the details of such action or referring to prior Opinions of Counsel
in which such details are given, (B) stating that, based on relevant laws as in
effect on the date of such Opinion of Counsel, all financing statements and
continuation statements have been executed and filed that are necessary as of
such date and during the succeeding 12 months fully to preserve and protect, to
the extent such protection and preservation are possible by filing, the rights
of the Holders and the Collateral Agent and the Trustee hereunder and under the
Pledge Agreement with respect to the security interests in the Collateral, or
(ii) stating that, in the opinion of such counsel, no such action is necessary
to maintain such Lien and assignment.
(c) The Company shall otherwise comply with the provisions of TIA
Section 314(b).
SECTION 13.03. Release of Collateral
(a) Subject to subsections (b), (c) and (d) of this Section 13.03 and
the terms of the Pledge Agreement, Collateral may be released from the Lien and
security interest created by the Pledge Agreement at any time or from time to
time in accordance with the provisions of the Pledge Agreement. In addition,
subject to the terms of the Pledge Agreement, upon the request of the Company
pursuant to an Officers' Certificate certifying that all conditions precedent
hereunder have been met and (at the sole cost and expense of the Company) the
Collateral Agent shall release the Collateral that is sold, conveyed or disposed
of in compliance with the provisions of the Pledge Agreement and this Indenture.
Upon receipt of such Officers' Certificate, the Collateral Agent shall execute,
deliver or acknowledge any necessary or proper instruments of termination,
satisfaction or release to evidence the release of any Collateral permitted to
be released pursuant to this Indenture or the Pledge Agreement, as prepared by
the Company.
(b) No Collateral shall be released from the Lien and security interest
created by the Pledge Agreement pursuant to the provisions of the Pledge
Agreement unless there shall have been delivered to the Collateral Agent the
certificate required by this Section 13.03.
(c) At any time when a Default or Event of Default shall have occurred
and be continuing and the maturity of the Securities shall have been accelerated
(whether by declaration or otherwise) and the Trustee shall have delivered a
notice of acceleration to the Collateral Agent, no release of Collateral
pursuant to the provisions of the Pledge Agreement shall be effective as against
the Holders of Securities.
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(d) The release of any Collateral from the terms of this Indenture and
the Pledge Agreement shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms of this Indenture or the terms of
the Pledge Agreement. To the extent applicable, the Company shall cause TIA
Section 313(b), relating to reports, and TIA Section 314(d), relating to the
release of property or securities from the Lien and security interest of the
Pledge Agreement and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Pledge
Agreement, to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an Officer of the Company except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected by the Company in a manner consistent with the
requirements of the TIA.
SECTION 13.04. Certificates of the Company
The Company shall furnish to the Trustee and the Collateral Agent,
prior to each proposed release of Collateral pursuant to the Pledge Agreement,
(i) all documents required by TIA Section 314(d) and (ii) an Opinion of Counsel,
which may be rendered by internal counsel to the Company to the effect that such
accompanying documents constitute all documents required by TIA Section 314(d).
SECTION 13.05. Certificates of the Trustee
In the event that the Company wishes to release Collateral in
accordance with the Pledge Agreement and has delivered the certificates and
documents required by the Pledge Agreement and Sections 13.03 and 13.04 hereof
and the Trustee has received, all documentation required by TIA Section 314(d)
in connection with such release, and (ii) the Opinion of Counsel delivered
pursuant to Section 13.04(b), the Trustee shall deliver a certificate to the
Collateral Agent setting forth that it has received all such documentation.
SECTION 13.06. Authorization of Actions to be Taken by the Collateral
Agent Under the Pledge Agreement
Subject to the provisions of Sections 6.01 and 6.03 hereof and the
Pledge Agreement, the Trustee may, with the consent of the Holders of a majority
in principal amount of the Securities, direct the Collateral Agent to take all
actions it deems necessary or appropriate in order to (a) enforce any of the
terms of the Pledge Agreement and (b) collect and receive any and all amounts
payable in respect of the Obligations of the Company hereunder.
SECTION 13.07. Authorization of Receipt of Refunds by the Trustee Under
the Pledge Agreement
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Pledge Agreement, and to make further
distributions of such funds to the Holders of Securities according to the
provisions of this Indenture.
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SECTION 13.08. Termination of Security Interest
Upon the payment in full of all Obligations of the Company, under this
Indenture and the Securities, or upon Defeasance or Covenant Defeasance, the
Trustee shall, upon receipt of an Officer's Certificate, deliver a certificate
to the Collateral Agent stating that such Obligations have been paid in full,
and, subject to the terms of the Pledge Agreement, instruct the Collateral Agent
to release the Liens pursuant to this Indenture and the Pledge Agreement.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. Consent to Jurisdiction; Appointment of Agent to Accept
Service of Process
(a) The Company irrevocably consents and agrees, for the benefit of the
Holders from time to time of the Securities and the Trustee, that any legal
action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection with this
Indenture or the Securities may be brought in the United States District Court
for the Southern District of New York or in the Supreme Court of New York in New
York County, and, until amounts due and to become due in respect of the
Securities have been paid, hereby irrevocably consents and submits to the
nonexclusive jurisdiction of each such court and any appellate court of either
of them in personam, generally and unconditionally with respect to any action,
suit or proceeding for itself and in respect of its properties, assets and
revenues.
(b) The Company hereby designates, appoints, and empowers CT
Corporation System, acting through its office at 000 0xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as the Company's designee, appointee and agent (the
"Authorized Agent") to receive, accept and acknowledge for and on its behalf,
and its properties, assets and revenues, service of any and all legal process,
summons, notices and documents which may be served in any action, suit or
proceeding brought against the Company pursuant to paragraph (a) of this
Section. Such appointment shall be irrevocable until all amounts in respect of
the principal of and any premium and interest due and to become due on or in
respect of all the Securities issued under this Indenture have been paid by the
Company to the Trustee pursuant to the terms hereof and of the Securities.
Notwithstanding the foregoing, the Company reserves the right to appoint another
Person and located or with an office in the Borough of Manhattan, The City of
New York, as a successor Authorized Agent, and upon acceptance of such
appointment by such a successor the appointment of the prior Authorized Agent
shall terminate. The Company shall give notice to the Trustee and all Holders of
the appointment by it of a successor Authorized Agent. If for any reason CT
Corporation System ceases to be able to act as the Authorized Agent or to have
an address in the Borough of Manhattan, The City of New York, the Company will
appoint a successor Authorized Agent in accordance with the two preceding
sentences. The Company further agrees to take any and all action, including the
filing of any and all documents and instruments as may be necessary to continue
such designation and appointment of such agent in
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full force and effect until this Indenture has been satisfied and discharged in
accordance with Article IV hereof. The Company further hereby irrevocably
consents and agrees to the service of any and all legal process, summons,
notices and documents in any action, suit or proceeding against the Company by
serving a copy thereof upon the relevant agent for service of process referred
to in this Section 14.01 (whether or not the appointment of such agent shall for
any reason prove to be ineffective or such agent shall accept or acknowledge
such service) or by mailing copies thereof by registered or certified air mail,
postage prepaid, to the Company at its address specified in or designated
pursuant to this Indenture. The Company agrees that the failure of any such
designee, appointee and agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon. Nothing herein shall in any
way be deemed to limit the ability of the holders of the Securities and the
Trustee, to serve any such legal process, summons, notices and documents in any
other manner permitted by applicable law or to obtain jurisdiction over the
Company or bring actions, suits or proceedings against the Company in such other
jurisdictions, and in such manner, as may be permitted by applicable law. The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions, suits or proceedings arising out of or in
connection with this Indenture brought in the United States District Court for
the Southern District of New York or in the Supreme Court of New York in New
York County, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
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SECTION 14.02. Counterparts
This instrument may be executed in any number of Counterparts, each of
which 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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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers or directors duly authorized thereto,
all as of the day and year first above written.
MIDWEST ENERGY, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK, as Trustee
By: /s/ XxxxXxxx Xxxxxxx
---------------------------------
Name: XxxxXxxx Xxxxxxx
Title: Vice President
