EXHIBIT 4.1
EXECUTION COPY
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NRG ENERGY, INC.
AND EACH OF THE GUARANTORS PARTY HERETO
8% SECOND PRIORITY SENIOR SECURED NOTES DUE 2013
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INDENTURE
Dated as of December 23, 2003
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Law Debenture Trust Company of New York
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................................... 7.10
(a)(2)................................................................... 7.10
(a)(3)................................................................... N.A.
(a)(4)................................................................... N.A.
(a)(5)................................................................... 7.10
(b)...................................................................... 7.10
(c)...................................................................... N.A.
311(a)...................................................................... 7.11
(b)...................................................................... 7.11
(c)...................................................................... N.A.
312(a)...................................................................... 2.05
(b)...................................................................... 13.03
(c)...................................................................... 13.03
313(a)...................................................................... 7.06
(b)(1)................................................................... N.A.
(b)(2)................................................................... 7.06; 7.07
(c)...................................................................... 7.06; 13.02
(d)...................................................................... 7.06
314(a)...................................................................... 4.03;13.02; 13.05
(b)...................................................................... N.A.
(c)(1)................................................................... 13.04
(c)(2)................................................................... 13.04
(c)(3)................................................................... N.A.
(d)...................................................................... N.A.
(e)...................................................................... 13.05
(f)...................................................................... N.A.
315(a)...................................................................... 7.01
(b)...................................................................... 7.05,13.02
(c)...................................................................... 7.01
(d)...................................................................... 7.01
(e)...................................................................... 6.11
316(a) (last sentence)...................................................... 2.09
(a)(1)(A)................................................................ 6.05
(a)(1)(B)................................................................ 6.04
(a)(2)................................................................... N.A.
(b)...................................................................... 6.07
(c)...................................................................... 2.12
317(a)(1)................................................................... 6.08
(a)(2)................................................................... 6.09
(b)...................................................................... 2.04
318(a)...................................................................... 13.01
(b)...................................................................... N.A.
(c)...................................................................... 13.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions...................................................... 1
Section 1.02 Other Definitions................................................ 35
Section 1.03 Incorporation by Reference of Trust Indenture Act................ 36
Section 1.04 Rules of Construction............................................ 36
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.................................................. 37
Section 2.02 Execution and Authentication..................................... 37
Section 2.03 Registrar and Paying Agent....................................... 38
Section 2.04 Paying Agent to Hold Money in Trust.............................. 38
Section 2.05 Holder Lists..................................................... 38
Section 2.06 Transfer and Exchange............................................ 39
Section 2.07 Replacement Notes................................................ 50
Section 2.08 Outstanding Notes................................................ 50
Section 2.09 Treasury Notes................................................... 50
Section 2.10 Temporary Notes.................................................. 51
Section 2.11 Cancellation..................................................... 51
Section 2.12 Defaulted Interest............................................... 51
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee............................................... 51
Section 3.02 Selection of Notes to Be Redeemed or Purchased................... 52
Section 3.03 Notice of Redemption............................................. 52
Section 3.04 Effect of Notice of Redemption................................... 53
Section 3.05 Deposit of Redemption or Purchase Price.......................... 53
Section 3.06 Notes Redeemed or Purchased in Part.............................. 53
Section 3.07 Optional Redemption.............................................. 54
Section 3.08 Mandatory Redemption............................................. 54
Section 3.09 Offer to Purchase by Application of Excess Proceeds.............. 54
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes................................................. 56
Section 4.02 Maintenance of Office or Agency.................................. 56
Section 4.03 Reports.......................................................... 57
Section 4.04 Compliance Certificate........................................... 57
Section 4.05 Taxes............................................................ 58
Section 4.06 Stay, Extension and Usury Laws................................... 58
Section 4.07 Restricted Payments.............................................. 58
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries... 61
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock....... 63
Section 4.10 Asset Sales...................................................... 67
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Section 4.11 Transactions with Affiliates..................................... 69
Section 4.12 Liens............................................................ 70
Section 4.13 Business Activities.............................................. 71
Section 4.14 Corporate Existence.............................................. 71
Section 4.15 Offer to Repurchase Upon Change of Control....................... 71
Section 4.16 Limitation on Sale and Leaseback Transactions.................... 73
Section 4.17 Payments for Consent............................................. 73
Section 4.18 Additional Subsidiary Guarantees................................. 73
Section 4.19 Designation of Restricted and Unrestricted Subsidiaries.......... 73
Section 4.20 Changes in Covenant When Notes Rated Investment Grade............ 74
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets......................... 74
Section 5.02 Successor Corporation Substituted................................ 75
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default................................................ 76
Section 6.02 Acceleration..................................................... 78
Section 6.03 Other Remedies................................................... 78
Section 6.04 Waiver of Past Defaults.......................................... 79
Section 6.05 Control by Majority.............................................. 79
Section 6.06 Limitation on Suits.............................................. 79
Section 6.07 Rights of Holders of Notes to Receive Payment.................... 80
Section 6.08 Collection Suit by Trustee....................................... 80
Section 6.09 Trustee May File Proofs of Claim................................. 80
Section 6.10 Priorities....................................................... 80
Section 6.11 Undertaking for Costs............................................ 81
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee................................................ 81
Section 7.02 Rights of Trustee................................................ 82
Section 7.03 Individual Rights of Trustee..................................... 84
Section 7.04 Trustee's Disclaimer............................................. 84
Section 7.05 Notice of Defaults............................................... 84
Section 7.06 Reports by Trustee to Holders of the Notes....................... 84
Section 7.07 Compensation and Indemnity....................................... 84
Section 7.08 Replacement of Trustee........................................... 85
Section 7.09 Successor Trustee by Merger, etc................................. 86
Section 7.10 Eligibility; Disqualification.................................... 86
Section 7.11 Preferential Collection of Claims Against Company................ 86
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance......... 87
Section 8.02 Legal Defeasance and Discharge................................... 87
Section 8.03 Covenant Defeasance.............................................. 87
Section 8.04 Conditions to Legal or Covenant Defeasance....................... 88
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Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions................................... 89
Section 8.06 Repayment to Company............................................. 89
Section 8.07 Reinstatement.................................................... 90
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.............................. 90
Section 9.02 With Consent of Holders of Notes................................. 91
Section 9.03 Compliance with Trust Indenture Act.............................. 92
Section 9.04 Revocation and Effect of Consents................................ 92
Section 9.05 Notation on or Exchange of Notes................................. 93
Section 9.06 Trustee to Sign Amendments, etc.................................. 93
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01 Equal and Ratable Sharing of Collateral by Holders of Parity
Lien Debt; Sharing Confirmation.................................. 93
Section 10.02 Ranking of Note Liens............................................ 94
Section 10.03 Release of Security Interest in Respect of Notes................. 94
ARTICLE 11.
SUBSIDIARY GUARANTEES
Section 11.01 Execution and Delivery of Subsidiary Guarantee................... 95
Section 11.02 Guarantors May Consolidate, etc., on Certain Terms............... 95
Section 11.03 Releases......................................................... 96
ARTICLE 12.
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge....................................... 97
Section 12.02 Application of Trust Money....................................... 98
ARTICLE 13.
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls..................................... 98
Section 13.02 Notices.......................................................... 98
Section 13.03 Communication by Holders of Notes with Other Holders of Notes.... 100
Section 13.04 Certificate and Opinion as to Conditions Precedent............... 100
Section 13.05 Statements Required in Certificate or Opinion.................... 100
Section 13.06 Rules by Trustee and Agents...................................... 100
Section 13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders..................................................... 100
Section 13.08 Governing Law.................................................... 101
Section 13.09 No Adverse Interpretation of Other Agreements.................... 101
Section 13.10 Successors....................................................... 101
Section 13.11 Severability..................................................... 101
Section 13.12 Counterpart Originals............................................ 101
Section 13.13 Table of Contents, Headings, etc................................. 101
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EXHIBITS AND SCHEDULES
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
Exhibit E FORM OF SUBSIDIARY GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Schedule I GUARANTORS
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INDENTURE dated as of December 23, 2003 among NRG Energy, Inc., a
Delaware corporation (the "Company"), the Guarantors (as defined) and Law
Debenture Trust Company of New York, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as
defined) of the 8% Second Priority Senior Secured Notes due 2013 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Account" has the meaning assigned to that term in the UCC.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Additional Non-Recourse Debt" means Indebtedness of an Excluded
Subsidiary of the Company that would qualify as Non-Recourse Debt but for the
fact that Excluded Subsidiaries are obligors with respect thereto.
"Additional Notes" means additional Notes (other than the Initial
Notes) issued under this Indenture in accordance with Sections 2.02 and 4.09
hereof, as part of the same series as the Initial Notes.
"Administrative Agent" means Credit Suisse First Boston, acting through
its Cayman Islands Branch, as administrative agent under the Credit Agreement.
"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 purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
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"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream, as applicable, that apply to such
transfer or exchange.
"Arrangers" means Credit Suisse First Boston, acting through its Cayman
Islands Branch, and Xxxxxx Brothers Inc., as joint lead arrangers under the
Credit Agreement.
"Asset Acquisition" means (1) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person if, as a result of such
Investment, such Person becomes a Restricted Subsidiary of the Company, or is
merged with or into the Company or any Restricted Subsidiary of the Company, or
(2) the acquisition by the Company or any Restricted Subsidiary of the Company
of all or substantially all of the assets of any other Person or any division or
line of business of any other Person.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets or
rights; provided that the sale, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by Section 4.15 hereof and/or Section 5.01
hereof and not by Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the Company's Restricted
Subsidiaries or the sale of Equity Interests in any of its Subsidiaries.
Notwithstanding the preceding, none of the following items will be
deemed to be an Asset Sale:
(1) any single transaction or series of related transactions for which
the Company or its Restricted Subsidiaries receive aggregate cash consideration
of less than $30.0 million;
(2) a transfer of assets or Equity Interests between or among the
Company and its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the
Company to the Company or to a Restricted Subsidiary of the Company;
(4) the sale or lease of products or services in the ordinary course of
business and any sale or other disposition of damaged, worn-out or obsolete
assets in the ordinary course of business;
(5) the sale or discount, in each case without recourse, of accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof;
(6) the licensing of intellectual property;
(7) the sale, lease, conveyance or other disposition for value of fuel
or emission credits in the ordinary course of business;
(8) the sale or other disposition of cash or Cash Equivalents;
(9) a Restricted Payment that does not violate Section 4.07 hereof or a
Permitted Investment; and
(10) a disposition of assets (other than any assets securing Secured
Debt) in connection with a foreclosure, transfer or deed in lieu of foreclosure
or other exercise of remedial action.
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"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP; provided,
however, that if such sale and leaseback transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined in
accordance with the definition of "Capital Lease Obligation."
"Bankruptcy Case" means any case under Title 11 of the United States
Code or any or any comparable foreign law equivalent, or any successor
bankruptcy law commenced voluntarily or involuntarily against the Company or any
other Obligor.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on behalf of such
board;
(2) with respect to a partnership, the Board of Directors of the
general partner of the partnership;
(3) with respect to a limited liability company, the managing member or
members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such
Person serving a similar function.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP, and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be prepaid by the lessee without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
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(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars, Euros or, in the case of any Foreign
Subsidiary, any local currencies held by it from time to time;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the United
States government (provided that the full faith and credit of the United States
is pledged in support of those securities) having maturities of not more than
six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding 12 months and overnight bank deposits,
in each case, with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications specified
in clause (3) above;
(5) commercial paper having one of the two highest ratings obtainable
from Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating Services and in
each case maturing within 12 months after the date of acquisition; and
(6) money market funds that invest primarily in securities described in
clauses (1) through (5) of this definition.
"Casualty Event" means any damage to or destruction of a Facility that
results in insurance proceeds in excess of $30.0 million.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets
of the Company and its Subsidiaries taken as a whole to any "person" (as that
term is used in Section 13(d) of the Exchange Act, but excluding any employee
benefit plan of the Company or any of its Restricted Subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of such plan);
(2) the adoption of a plan relating to the liquidation or dissolution
of the Company;
(3) the consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that any "person" (as
defined above) becomes the Beneficial Owner,
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directly or indirectly, of more than 50% of the Voting Stock of the Company,
measured by voting power rather than number of shares;
(4) the Company consolidates with, or merges with or into, any Person,
or any Person consolidates with, or merges with or into, the Company, in any
such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Company or such other Person is converted into or exchanged for
cash, securities or other property, other than any such transaction where the
Voting Stock of the Company outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified Stock) of
the surviving or transferee Person constituting a majority of the outstanding
shares of such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance); or
(5) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors.
"Change of Control Offer" has the meaning assigned to it in this
Indenture governing the Notes.
"Class" means all Secured Parties having the same priority.
"Clearstream" means Clearstream Banking, S.A.
"Collateral" means all properties and assets of the Obligors, now or
hereafter acquired, other than the Excluded Assets.
"Collateral Agent" means Credit Suisse First Boston, acting through its
Cayman Islands Branch, under the Credit Agreement.
"Collateral Trust Agreement" means that certain Collateral Trust
Agreement, dated as of December 23, 2003, by and among the Company, PMI, the
Guarantors party thereto, Credit Suisse First Boston, acting through its Cayman
Islands Branch, as Administrative Agent, the Trustee and the Collateral Trustee.
"Collateral Trustee" means Deutsche Bank Trust Company Americas in its
capacity as collateral trustee under the Collateral Trust Agreement, together
with its successors in such capacity.
"Commodity Account" has the meaning assigned to that term in the UCC.
"Commodity Contract" has the meaning assigned to that term in the UCC.
"Company" means NRG Energy, Inc., and any and all successors thereto.
"Confirmation Order" means a certified order confirming any of the
Plans.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus,
without duplication:
(1) an amount equal to any extraordinary loss (including any loss on
the extinguishment or conversion of Indebtedness) plus any net loss realized by
such Person or any of its Restricted Subsidiaries in connection with an Asset
Sale (without giving effect of the threshold provided in the definition
thereof), to the extent such losses were deducted in computing such Consolidated
Net Income; plus
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(2) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period, to the extent that such provision
for taxes was deducted in computing such Consolidated Net Income; plus
(3) the Fixed Charges of such Person and its Restricted Subsidiaries
for such period, to the extent that such Fixed Charges were deducted in
computing such Consolidated Net Income; plus
(4) all non-recurring costs and expenses of the Company and its
Restricted Subsidiaries incurred in connection with the Reorganization Events,
including but not limited to non-recurring costs and expenses incurred in the
related financing transactions and as a result of operating changes implemented
within 18 months of the completion of the Reorganization Events; plus
(5) the amount of any restructuring charges (including, without
limitation, retention, severance, facility closure costs and benefit charges)
related to the Reorganization Events; plus
(6) any professional and underwriting fees related to any equity
offering, Permitted Investment, acquisition, recapitalization or Indebtedness
permitted to be incurred under this Indenture and, in each case, deducted in
such period in computing Consolidated Net Income; plus
(7) any non-cash compensation charges, including any such charges
arising from stock options, restricted stock grants or other equity-incentive
programs to the extent that such charges were deducted in computing such
Consolidated Net Income; plus
(8) depreciation, depletion, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash charges and expenses (excluding any such
non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Restricted Subsidiaries
for such period to the extent that such depreciation, depletion, amortization
and other non-cash expenses were deducted in computing such Consolidated Net
Income; minus
(9) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of business;
in each case, on a consolidated basis and determined in accordance with GAAP;
provided, however, that Consolidated Cash Flow of the Company will exclude the
Consolidated Cash Flow attributable to Excluded Subsidiaries to the extent that
the declaration or payment of dividends or similar distributions by the Excluded
Subsidiary of that Consolidated Cash Flow is not, as a result of an Excluded
Subsidiary Debt Default, then permitted by operation of the terms of the
relevant Excluded Subsidiary Debt Agreement; provided that the Consolidated Cash
Flow of the Excluded Subsidiary will only be so excluded for that portion of the
period during which the condition described in the preceding proviso has
occurred and is continuing.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting will be included only
to the extent of the amount of dividends or similar distributions (including
pursuant to other intercompany payments) paid in cash to the specified Person or
a Restricted Subsidiary of the Person;
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(2) for purposes of Section 4.07 hereof only, the Net Income of any
Restricted Subsidiary will be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of
that Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders;
(3) the cumulative effect of a change in accounting principles will be
excluded; and
(4) notwithstanding clause (1) above, the Net Income of any
Unrestricted Subsidiary will be excluded, whether or not distributed to the
specified Person or one of its Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of this
Indenture; or
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members of
such Board at the time of such nomination or election.
"Core Collateral" shall mean all Equity Interests in, and property and
assets of, XXX Xxx-Xxxxxxxx, XXX Xxxxxxxxx xxx XXX Xxxxx Xxxxxxx and their
respective subsidiaries (other than NRG Sterlington Power LLC, Big Cajun I
Peaking Power LLC and Bayou Cove Peaking Power LLC for so long as such entities
shall constitute Excluded Project Subsidiaries), whether now owned or hereafter
acquired.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Agreement" means that certain Credit Agreement, dated as of
December 23, 2003 by and among the Company; PMI; the lenders party thereto;
Credit Suisse First Boston, acting through its Cayman Islands Branch, and Xxxxxx
Brothers, Inc., as joint lead book runners and joint lead arrangers; Credit
Suisse First Boston, acting through its Cayman Islands Branch, as administrative
agent and collateral agent; Xxxxxx Commercial Paper Inc., as syndication agent,
and General Electric Capital Corporation, as revolver agent; providing for up to
$1.450 billion of revolving credit and term loan borrowings, including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, restated,
modified, renewed, refunded, replaced (whether upon or after termination or
otherwise) or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time.
"Credit Agreement Agent" means, at any time, so long as the Credit
Agreement is in effect, the Person serving at such time as the "Administrative
Agent" under the Credit Agreement or any other representative of the Lenders
then most recently designated by the Lenders in accordance with the terms of the
Credit Agreement, in a written notice delivered to each Secured Debt
Representative and the Collateral Trustee, as the Credit Agreement Agent for the
purposes of each of the Priority Lien Documents, and, at any time when the
Credit Agreement shall no longer be in effect, the person serving at such time
as the "Agent" or the "Administrative Agent" under the applicable Credit
Facility or any other representative of the lenders thereunder then most
recently designated by such lenders in accordance with the terms of the
agreement relating to such facility, in a written notice delivered to each
Secured Debt
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Representative and the Collateral Trustee, as the Credit Agreement Agent for the
purposes of each of the Priority Lien Documents.
"Credit Agreement Documents" means the Credit Agreement and the
Security Documents relating to the Credit Agreement.
"Credit Facilities" means, one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case with banks or other institutional lenders providing for revolving
credit loans, term loans, credit-linked deposits (or similar deposits),
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time.
"Credit-Linked Deposits" means the cash deposit made by the Lenders to
reimburse drawings on certain letters of credit issued under the Credit
Agreement, which deposit is held by the Administrative Agent in accordance with
the Credit Agreement.
"Creditor Notes" shall mean unsecured notes issued by the Company in an
aggregate principal amount of up to $100.0 million which may be issued pursuant
to the NRG Plan of Reorganization to certain holders of unsecured pre-petition
claims against the Company and PMI to the extent that the Company does not
maintain a reserve for such claims after the date of this Indenture; provided
that such notes (a) shall have an interest rate not to exceed 10%, (b) shall not
be guaranteed by any Subsidiaries of the Company and (c) shall not have a stated
maturity, and shall not be subject to repurchase, redemption or amortization
(other than pursuant to customary asset sale or change of control provisions
requiring redemption or repurchase only if and to the extent permitted by this
Indenture), prior to the date that is seven years following the date of this
Indenture.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Deposit Account" shall have the meaning assigned to such term in the
UCC.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the date on which the Notes mature.
8
Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders of the Capital Stock have the
right to require the Company to repurchase such Capital Stock upon the
occurrence of a change of control or an asset sale will not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof. The
amount of Disqualified Stock deemed to be outstanding at any time for purposes
of this Indenture will be the maximum amount that the Company and its Restricted
Subsidiaries may become obligated to pay upon the maturity of, or pursuant to
any mandatory redemption provisions of, such Disqualified Stock, exclusive of
accrued dividends.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia or that guarantees or otherwise provides
direct credit support for any Indebtedness of the Company.
"Equally and Ratably" means, in reference to sharing of Liens or
proceeds thereof as between the Secured Parties of the same Class, that such
Liens or proceeds:
(1) shall be allocated and distributed first to each Secured Debt
Representative for each outstanding Series of Secured Debt within that Class,
for the account of the holders of such Series of Secured Debt, ratably in
proportion to the principal of (and, in the case of the Credit Agreement, any
Credit-Linked Deposits) and interest and premium (if any) and reimbursement
obligations (contingent or otherwise) with respect to letters of credit, if any,
outstanding (whether or not drawings have been made under such letters of
credit) on each outstanding Series of Secured Debt within that Class when the
allocation or distribution is made, and thereafter
(2) shall be allocated and distributed (if any remain after payment in
full of all of the principal of (and, in the case of the Credit Agreement, any
Credit-Linked Deposit) and interest and premium (if any) on all outstanding
Secured Obligations within that Class) to each Secured Debt Representative for
each outstanding series of Secured Obligations within that Class, for the
account of the holders of any remaining Secured Obligations within that Class
with respect to such outstanding Series of Secured Debt within that Class,
ratably in proportion to the aggregate unpaid amount of such remaining Secured
Obligations within that Class due and demanded (with written notice to the
applicable Secured Debt Representative and the Collateral Trustee) prior to the
date such distribution is made;
it being understood and agreed that Liens and proceeds will not be shared
between Classes.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means an offer and sale of Capital Stock (other than
Disqualified Stock) of the Company pursuant to (1) a public offering or (2) a
private placement to Persons who are not Affiliates of the Company.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant
to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
9
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Excluded Assets" means each of the following:
(1) any lease, license, contract, property right or agreement to which
any Obligor is a party or any of such Obligor's rights or interests thereunder
if and only for so long as the grant of a security interest under the Security
Documents shall constitute or result in a breach, termination, default or
invalidity under any such lease, license, contract, property right or agreement
(other than to the extent that any such term would be rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant
jurisdiction or any other applicable law or principles of equity); provided that
such lease, license, contract, property right or agreement shall be an Excluded
Asset only to the extent and for so long as the consequences specified above
shall result and shall cease to be an Excluded Asset and shall become subject to
the security interest granted under the Security Documents, immediately and
automatically, at such time as such consequences shall no longer result;
(2) any interests in real property owned or leased by any Obligor only
for so long as such interest represents an Excluded Perfection Asset;
(3) any Equity Interests in any Excluded Project Subsidiary the pledge
of which pursuant to the Security Documents would constitute a default under the
applicable Non-Recourse Debt in respect of which it is an obligor and any voting
Equity Interests in excess of 66% (or, in the case of NRG International Holdings
GmbH, NRG International Holdings (No.2) GmbH and NRGenerating International BV,
65%) of the total outstanding voting Equity Interests in any Excluded Foreign
Subsidiary;
(4) any Deposit Account, Securities Account or Commodities Account (and
all cash and cash equivalents and Commodity Contracts permitted by the terms of
the Secured Debt Documents that are held therein) if and only for so long as
such Deposit Account, Securities Account or Commodities Account is subject to a
Lien permitted under clause (19) of the definition of "Permitted Liens";
(5) the Equity Interests in, and all properties and assets of, NRG
Energy Insurance Ltd. (Cayman Islands);
(6) the Equity Interests in, and all properties and assets of,
NRGenerating Holdings (No. 4) GmbH (only for so long as such entity shall remain
a direct subsidiary of NRG International LLC and shall have no assets other than
those owned on the date of this Indenture), NRGenerating III (Gibraltar),
NRGenerating Holdings (No. 23) BV, NRGenerating IV Gibraltar, ONSITE Marianas
Corporation, NRG Pacific Corporate Services Pty Ltd., Coniti Holding BV (only
for so long as such entity shall own no assets other than the Equity Interests
in Tosli (Gibraltar) BV) and Tosli (Gibraltar) BV (only for so long as such
entity shall own no assets);
(7) the Equity Interests in, and all properties and assets of, NRG
Latin America Inc., Sterling Luxembourg (No. 4) S.a.r.l, NRGenerating Luxembourg
(No. 6) S.a.r.l., NRGenerating Holdings (No. 21) BV (only for so long as such
entity shall own no assets other than the stock of its subsidiaries owned on the
date of this Indenture) and Compania Boliviana de Energia Electrica S.A. (Cobee
Nova Scotia);
(8) the Equity Interests in NRG Sterlington Power LLC and Big Cajun I
Peaking Power LLC for so long as such Equity Interests are pledged within 90
days of the date of this Indenture to the lenders of Non-Recourse Debt of NRG
Peaker Finance Company LLC existing on the date of this Indenture;
10
(9) any Equity Interest of a person (other than a Subsidiary) held by
any Obligor if and for so long as the pledge thereof under the Security
Documents shall constitute or result in a breach, termination or default under
any joint venture, stockholder or partnership agreement between such Obligor and
one or more other holders of Equity Interests of such person; provided that (a)
such Obligor shall have used reasonable efforts to obtain the consent or waiver
of such other holders of Equity Interests of such person to such a pledge and
such consent or waiver shall not have been obtained and (b) such Equity Interest
shall be an Excluded Asset only to the extent and for so long as the
consequences specified above shall result and shall cease to be an Excluded
Asset and shall become subject to the security interest granted under the
Security Documents, immediately and automatically, at such time as such
consequences shall no longer result;
(10) all personal property and equipment (except two heat recovery
steam generators) of Meriden Gas Turbines LLC; provided that such equipment is
transferred to Dick Corporation within 180 days of the date of this Indenture;
(11) all properties and assets of NRG Energy Inc.'s resource recovery
facility located at North Newport, MN and all property and assets of NRG Energy
Inc.'s resource recovery facility located at Elk River, MN if and for so long as
the grant of a security interest therein under the Security Documents shall
constitute or result in a breach, termination or default under any service
agreement with the applicable municipalities in which such facilities reside;
provided that (a) the Company shall have used reasonable efforts to obtain the
consent or waiver of such municipalities to the grant of such security interests
and such consent or waiver shall not have been obtained and (b) such properties
and assets shall be an Excluded Asset only to the extent and for so long as the
consequences specified above shall result and shall cease to be an Excluded
Asset and shall become subject to the security interest granted under the
Security Documents, immediately and automatically, at such time as such
consequences shall no longer result;
(12) any Account of PMI solely to the extent that (a) such Account
relates to the sale by PMI of power or capacity that was purchased by PMI from a
Subsidiary that is an Excluded Project Subsidiary and (b) the grant of a
security interest in such Account under the Security Documents shall constitute
or result in a breach, termination or default under any agreement or instrument
governing the applicable Non-Recourse Debt of such Subsidiary (as such agreement
or instrument is in effect on the date of this Indenture);
(13) the Deposit Account (and all cash held therein not to exceed
$37,000,000) which has been pledged to ANZ Bank to cash collateralize a letter
of credit issued by ANZ Bank and the Deposit Account (and all cash held therein
not to exceed $600,000) which has been pledged to Xxxxxx Bank to cash
collateralize a letter of credit issued by Xxxxxx Bank; provided that each such
Deposit Account (and all cash held therein) shall automatically cease to be an
Excluded Asset from and after the date that is 60 days after the date of this
Indenture;
(14) the Equity Interests in (a) either of the NEO Companies and (b)
any of Commonwealth Atlantic Power LLC, Hanover Energy Company or Chickahominy
River Energy Corp., in the case of each of clause (a) and (b), to the extent
that a grant of a security interest in such Equity Interests under the Security
Documents shall constitute or result in a breach, termination or default under
any agreement or instrument governing the applicable Non-Recourse Debt of their
subsidiaries (as such agreement or instrument is in effect on the date of this
Indenture); provided that the Equity Interests in the entities listed in clause
(b) shall automatically cease to be Excluded Assets from and after the date that
is 180 days after the date of this Indenture;
11
(15) the Deposit Account established by the Company pursuant to the NRG
Plan of Reorganization in respect of the Consolidated Edison dispute and all
cash held therein not to exceed (a) $11,700,000 as of the date of this Indenture
plus (b) any amounts required by the NRG Plan of Reorganization to be deposited
therein in respect of invoices owing to Consolidated Edison; provided that such
Deposit Account (and all cash therein) shall automatically cease to be an
Excluded Asset from and after the date that such dispute is resolved in
accordance with the NRG Plan of Reorganization; and
(16) the Xcel Cash.
"Excluded Foreign Subsidiary" means, at any time, any Foreign
Subsidiary that is (or is treated as) for United States federal income tax
purposes either (1) a corporation or (2) a pass-through entity owned directly or
indirectly by another Foreign Subsidiary that is (or is treated as) a
corporation; provided that (a) none of NRG Mid-Atlantic, NRG Northeast or NRG
South Central or any of their respective Subsidiaries may at any time be an
Excluded Foreign Subsidiary and (b) notwithstanding the foregoing, the following
entities will be deemed to be "Excluded Foreign Subsidiaries": Sterling
Luxembourg (No. 4) S.a.r.l., Tosli Acquisition BV, NRGenerating (No. 6)
S.a.r.l., NRGenerating Holdings (No. 4) GmbH (only for so long as such entity
shall remain a direct subsidiary of NRG International LLC and shall have no
other assets other than those owned on the date of this Indenture), NRGenerating
Holdings (No. 23) BV, NRG Pacific Corporate Services Pty Ltd., NRGenerating III
(Gibraltar), NRGenerating IV (Gibraltar), Coniti Holding BV (only for so long as
such entity shall own no assets other than the Equity Interests in Tosli
(Gibraltar) BV) and Tosli (Gibraltar) BV (only for so long as such entity shall
own no assets). As of the date of this Indenture, the Excluded Foreign
Subsidiaries are: Compania Boliviana de Energia Electrica S.A - Bolivian Power
Company Limited; Csepel Luxembourg (No. 1) S.a.r.l.; Coniti Holding B.V.;
Entrade Holdings B.V.; Flinders Coal Pty Ltd; Flinders Labuan (No. 1) Ltd.;
Flinders Labuan (No. 2) Ltd.; Flinders Xxxxxxx Trading Pty Ltd; Flinders Power
Partnership; Gunwale B.V.; Xxxx Xx Energy Development Co., Ltd.; Itiquira
Energetica S.A.; Kiksis B.V.; Kladno Power (No. 1) B.V.; Kladno Power (No. 2)
B.V.; Lambique Beheer B.V.; NRG Andean Development Ltda.; NRG Australia Holdings
(No. 4) Pty Ltd.; NRG Caymans Company; NRG Caymans-C; NRG Caymans-P; NRG
Collinsville Operating Services Pty Ltd; NRG do Brasil Ltda.; NRG Energy
Development B.V. NRG Energy Development GmbH; NRG Energy Insurance, Ltd.; NRG
Energy Ltd.; NRG Flinders Operating Services Pty Ltd; NRG Gladstone Operating
Services Pty Ltd; NRG Gladstone Superannuation Pty Ltd - in liquidation; NRG
International Holdings (No. 2) GmbH; NRG International Holdings GmbH; Nrg
pacific Corporate Services Pty Ltd.; NRG Taiwan Holding Company Limited; NRG
Victoria I Pty Ltd; NRG Xxxxxxxx XX Pty Ltd; NRG Victoria III Pty Ltd;
NRGenerating (Gibraltar); NRGenerating Energy Trading Ltd; NRGenerating Holdings
(No. 11) B.V..; NRGenerating Holdings (No. 13) B.V.; NRGenerating Holdings (No.
14) B.V.; NRGenerating Holdings (No. 15) B.V.; NRGenerating Holdings (No. 16)
B.V.; NRGenerating Holdings (No. 18) B.V.; NRGenerating Holdings (No. 19) B.V.;
NRGenerating Holdings (No. 2) GmbH; NRGenerating Holdings (No. 23) B.V.;
NRGenerating Holdings (No. 24) B.V.; NRGenerating Holdings (No. 3) B.V.;
NRGenerating Holdings (No. 4) B.V.; NRGenerating Holdings (No. 4) GmbH;
NRGenerating Holdings (No. 5) B.V.; NRGenerating Holdings (No. 6) B.V.;
NRGenerating Holdings (No. 7) B.V.; NRGenerating Holdings (No. 8) B.V.;
NRGenerating Holdings GmbH; NRGenerating II (Gibraltar); NRGenerating III
(Gibraltar); NRGenerating International B.V.; NRGenerating IV (Gibraltar);
NRGenerating Luxembourg (No. 1) S.a.r.l.; NRGenerating Luxembourg (No. 2)
S.a.r.l.; NRGenerating Luxembourg (No. 6) S.a.r.l.; NRGenerating Xxxxxx B.V.;
NRGenerating, Ltd.; ONSITE Marianas Corporation; OU NRG Energy Est - Dissolution
in Progress; P.T. NRG West Java; Rybnik Power B.V.; Saale Energie GmbH; Saale
Energie Services GmbH; Sachsen Holding B.V.; Servicios Energeticos, S.A;
Sterling (Gibraltar); Sterling Luxembourg (No. 1) s.a.r.l.; Sterling Luxembourg
(No. 2) s.a.r.l.; Sterling Luxembourg (No. 4) s.a.r.l.; Sunshine State Power
(No. 2) B.V.; Sunshine State Power B.V.; Tosli Acquisition B.V. and Tosli
Gibraltar B.V.
12
"Excluded NEO Subsidiaries" means NEO Hackensack LLC and NEO Prima
Deshecha LLC, in each case, if and for so long as the provision of a full and
unconditional guarantee by such subsidiary of the Notes will constitute or
result in a breach, termination or default under the agreement or instrument
governing the applicable Non-Recourse Debt of such subsidiary; provided that
such subsidiary shall be an Excluded NEO Subsidiary only to the extent that and
for so long as the requirements and consequences above shall exist.
"Excluded Perfection Assets" means each of the following:
(1) any Specified Assets Held for Sale if and only to the extent that
the grant of a security interest with respect thereto cannot be perfected by the
filing of a financing statement under the UCC of the relevant jurisdiction or,
in the case of any Specified Assets Held for Sale that consist of Equity
Interests, either the filing of a financing statement under the UCC of the
relevant jurisdiction or the possession of certificates representing such Equity
Interests; provided that any of such Specified Assets Held for Sale that are not
sold or otherwise disposed of by the Company or any of its Subsidiaries to any
person other than the Company or any of its subsidiaries within 12 months of the
issue date of the Notes shall cease to be an Excluded Perfection Asset; and
(2) any other property or assets (other than any Core Collateral except
(i) the lease of Dunkirk Power LLC relating to 000 Xxxxxx Xxxxxx, Xxxxxxx, XX,
(ii) the lease of Astoria Gas Turbine Power LLC relating to the Consolidated
Edison site located at 00-00 00xx Xxxxxx, Xxxxxxx, XX, (xxx) the lease of
Astoria Gas Turbine Power LLC relating to the A-11 dock located at 00-00 00xx
Xxxxxx, Xxxxxxx, XX, (iv) the lease of NRG New Roads Holding LLC relating to the
turbine storage facilities located at GTS Duratek, 0000 Xxxx Xxxxxx, Xxxxxxx,
XX, (v) the lease of NRG New Roads Holding LLC relating to the turbine storage
facilities located at Liebherr American Inc., 0000 Xxxxxxxx, Xxxxxxx Xxxx, XX
and (vi) the lease of NRG New Roads Holding LLC relating to the warehouse
facilities for turbine storage located at Tidewater Warehouses, Bay 3, 000
Xxxxxx Xxxxxx, Xxxxxxx, XX) in which a security interest cannot be perfected by
the filing of a financing statement under the UCC of the relevant jurisdiction
or, in the case of Equity Interests, either the filing of a financing statement
under the UCC of the relevant jurisdiction or the possession of certificates
representing such Equity Interests; provided that such property or assets shall
not have a Fair Market Value at any time exceeding $2.0 million (or, if such
property or asset is a Deposit Account or Securities Account, $250,000)
individually or $20.0 million in the aggregate and, to the extent that the Fair
Market Value of any such property or asset shall exceed $2.0 million (or, if
such property or asset is a Deposit Account or Securities Account, $250,000)
individually, such property or asset shall cease to be an Excluded Perfection
Asset and, to the extent that the Fair Market Value of such property or assets
shall exceed $20.0 million in the aggregate at any time, such property or assets
shall cease to be Excluded Perfection Assets to the extent of such excess Fair
Market Value.
"Excluded Proceeds" means any Net Proceeds of an Asset Sale involving
the sale of Specified Assets Held for Sale.
"Excluded Project Subsidiary" shall mean, at any time, (a) any
subsidiary of the Company existing on the date of this Indenture that is an
obligor with respect to Non-Recourse Debt outstanding at such time and (b) any
Subsidiary that is an Excluded Project Subsidiary as of the date of this
Indenture (so long as such Subsidiary does not become (and remain for a period
of 365 days or more) a Guarantor after the date of this Indenture) or any
Subsidiary that becomes a Subsidiary after the date of this Indenture that is an
obligor with respect to Additional Non-Recourse Debt outstanding at such time,
in each case, if and for so long as the grant of a security interest in the
property or assets of such subsidiary or the pledge of the Equity Interests of
such subsidiary, in each case in favor of the Collateral Trustee for the benefit
of the Secured Parties, shall constitute or result in a breach, termination or
default under the
13
agreement or instrument governing the applicable Non-Recourse Debt; provided
that such subsidiary shall be an Excluded Project Subsidiary only to the extent
that and for so long as the requirements and consequences above shall exist;
provided further, that none of NRG Mid-Atlantic, NRG Northeast or NRG South
Central or any of their respective Subsidiaries (other than NRG Sterlington
Power LLC, NRG Big Cajun I Peaking Power LLC and Bayou Cove Peaking Power LLC
for so long as such entities shall constitute Excluded Project Subsidiaries) may
at any time be an Excluded Project Subsidiary. As of the date of this Indenture,
the Excluded Project Subsidiaries are: Bayou Cove Peaking Power LLC; Big Cajun I
Peaking Power LLC; Cadillac Renewable Energy LLC; Camas Power Boiler Limited
Partnership; Commonwealth Atlantic, Limited Partnership; Flinders Power Finance
Pty Ltd; LSP Batesville Funding Corporation; LSP Batesville Holding LLC; LSP
Energy Limited Partnership; LSP Energy, Inc.; LSP Equipment, LLC; LSP-Energy,
LLC; LSP-Xxxxxxx Energy, LLC; LSP-Xxxxxx Energy, LLC; Northbrook New York, LLC;
NRG Audrain Generating LLC; NRG Audrain Holding LLC; NRG Batesville LLC; NRG
Cadillac, Inc.; NRG Capital II LLC; NRG Energy Center Dover LLC; NRG Energy
Center Harrisburg Inc.; NRG Energy Center Minneapolis LLC; NRG Energy Center
Xxxxxx LLC; NRG Energy Center Pittsburgh LLC; NRG Energy Center Rock Tenn LLC;
NRG Energy Center San Diego LLC; NRG Energy Center San Francisco LLC; NRG Energy
Center Smyrna LLC; NRG Energy Center Washco LLC; NRG XxXxxxx LLC; NRG Xxxxxx
Turbines LLC; NRG Peaker Finance Company LLC; NRG Rockford Equipment II LLC; NRG
Rockford II LLC; NRG Rockford LLC; NRG Sterlington Power LLC; NRG Thermal LLC;
NRG Thermal Operating Services LLC; NRG Thermal Services LLC; Statoil Energy
Power/PA, Inc.; and NRG Cadillac Inc.
"Excluded Subsidiaries" means the Excluded Project Subsidiaries, the
Excluded Foreign Subsidiaries, the Excluded NEO Subsidiaries and the Immaterial
Subsidiaries.
"Excluded Subsidiary Debt Agreement" means the agreement or documents
governing the relevant Indebtedness referred to in the definition of "Excluded
Subsidiary Debt Default."
"Excluded Subsidiary Debt Default" shall mean, with respect to any
Excluded Subsidiary, the failure of such Excluded Subsidiary to pay any
principal or interest or other amounts due in respect of any Indebtedness, when
and as the same shall become due and payable, or the occurrence of any other
event or condition that results in any Indebtedness of such Excluded Subsidiary
becoming due prior to its scheduled maturity or that enables or permits (with or
without the giving of notice, lapse of time or both) the holder or holders of
such Indebtedness or any trustee or agent on its or their behalf to cause such
Indebtedness to become due, or to require the prepayment, repurchase, redemption
or defeasance thereof, prior to its scheduled maturity.
"Exempt Subsidiaries" means, collectively, NRG Ilion LP LLC, NRG Ilion
Limited Partnership, Meriden Gas Turbine LLC, LSP Xxxxxxx Energy LLC, LSP-Pike
Energy LLC, LSP-Xxxxxx Energy LLC, NRG Xxxxxx Turbines LLC, NRG Xxxxxxx Valley
Energy I, Inc., NRG XxXxxxx LLC, NRG Audrain Holding LLC, NRG Audrain Generating
LLC, LSP Energy Limited Partnership, NRG Batesville LLC, LSP Batesville Funding
Corporation, LSP Batesville Holding LLC, LSP Energy, Inc., NRG Peaker Finance
Company LLC, Bayou Cove Peaking Power, LLC, Big Cajun I Peaking Power LLC, NRG
Rockford LLC, NRG Rockford II LLC and NRG Sterlington Power LLC.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture, until such amounts are repaid.
"Facility" means a power or energy generation facility.
14
"Facility Instruments" has the meaning set forth in the (i) Affirmation
Agreement, dated as of August 9, 1993, by and among Northern States Power
Company, the Company and Xxxxxx and Washington Counties and (ii) the Agreement
and Consent for Transfer to the Company, dated as of August 20, 2001, between
Northern States Power Company, the Company, Anoka County, Hennepin County,
Xxxxxxxxx County and Tri-County Solid Waste Management Commission, as in effect
on the date of this Indenture.
"Fair Market Value" means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the Board of Directors
of the Company (unless otherwise provided in this Indenture).
"Fixed Charge Coverage Ratio" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Restricted Subsidiaries incurs,
assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital borrowings) or
issues, repurchases or redeems preferred stock subsequent to the commencement of
the period for which the Fixed Charge Coverage Ratio is being calculated and on
or prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge
Coverage Ratio will be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase, redemption, defeasance or other
discharge of Indebtedness, or such issuance, repurchase or redemption of
preferred stock, and the use of the proceeds therefrom, as if the same had
occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person or any of
its Restricted Subsidiaries, including through mergers or consolidations, or any
Person or any of its Restricted Subsidiaries acquired by the specified Person or
any of its Restricted Subsidiaries, and including any related financing
transactions and including increases in ownership of Restricted Subsidiaries,
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date will be given pro forma effect (in
accordance with Regulation S-X under the Securities Act, but including all Pro
Forma Cost Savings) as if they had occurred on the first day of the four-quarter
reference period and Consolidated Cash Flow for such reference period will be
calculated on the same pro forma basis;
(2) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses (and
ownership interests therein) disposed of prior to the Calculation Date, will be
excluded;
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses (and ownership
interests therein) disposed of prior to the Calculation Date, will be excluded,
but only to the extent that the obligations giving rise to such Fixed Charges
will not be obligations of the specified Person or any of its Restricted
Subsidiaries following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the Calculation Date
will be deemed to have been a Restricted Subsidiary at all times during such
four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the Calculation
Date will be deemed not to have been a Restricted Subsidiary at any time during
such four-quarter period; and
15
(6) if any Indebtedness that is being incurred on the Calculation Date
bears a floating rate of interest, the interest expense on such Indebtedness
will be calculated as if the rate in effect on the Calculation Date had been the
applicable rate for the entire period (taking into account any Hedging
Obligation applicable to such Indebtedness if such Hedging Obligation has a
remaining term as at the Calculation Date in excess of 12 months).
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, including, without
limitation, amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations in respect of interest
rates; plus
(2) the consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus
(3) any interest accruing on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries, whether or
not such Guarantee or Lien is called upon; plus
(4) the product of (a) all dividends, whether paid or accrued and
whether or not in cash, on any series of preferred stock of such Person or any
of its Restricted Subsidiaries, other than dividends on Equity Interests payable
solely in Equity Interests of the Company (other than Disqualified Stock) or to
the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
"Foreign Subsidiary" means any Restricted Subsidiary that is not a
Domestic Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2),
which is required to be placed on all Global Notes issued under this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
16
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).
"Guarantee and Collateral Agreement" means that certain Guarantee and
Collateral Agreement, dated as of December 23, 2003, by the Company, PMI and
certain of the subsidiaries of the Company in favor of the Collateral Trustee,
Credit Suisse First Boston, acting through its Cayman Islands Branch, as
Administrative Agent, and the Trustee.
"Guarantors" means each of:
(1) the Company's Restricted Subsidiaries other than the Excluded
Foreign Subsidiaries, the Excluded Project Subsidiaries, the Excluded NEO
Subsidiaries and the Immaterial Subsidiaries; and
(2) any other Restricted Subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions of this Indenture;
and their respective successors and assigns. As of the date of this Indenture,
the Guarantors are comprised of the entities set forth on Schedule I hereof.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or
from floating to fixed), interest rate cap agreements and interest rate collar
agreements;
(2) other agreements or arrangements designed to manage interest rates
or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange rates or commodity prices.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors.
"Immaterial Subsidiary" shall mean, at any time, any Restricted
Subsidiary of the Company that is designated by the Company as an "Immaterial
Subsidiary" if and for so long as such Restricted Subsidiary, together with all
other Immaterial Subsidiaries, has (i) total assets at such time not exceeding
5% of the Company's consolidated assets as of the most recent fiscal quarter for
which balance sheet information is available and (ii) total revenues and
operating income for the most recent 12-month period for which income statement
information is available not exceeding 5% of the Company's consolidated revenues
and operating income, respectively; provided that such Restricted Subsidiary
shall be an Immaterial Subsidiary only to the extent that and for so long as all
of the above requirements are satisfied. As of the date of this Indenture, the
Immaterial Subsidiaries are: NRG Rockford Acquisition LLC; NRG Bourbonnais
Equipment LLC; NRG Bourbonnais LLC; NRG Ilion LP LLC; NRG Ilion Limited
17
Partnership; NRG Rockford Equipment LLC; NRG PacGen Inc.; Pacific Generation
Company; Pacific Xxxxxxxx Holdings, Inc.; Energy National, Inc.; Enigen, Inc.;
ESOCO, Inc.; ESOCO Orrington, Inc.; Enifund, Inc.; Camas Power Boiler, Inc.;
Camas Power Boiler Limited Partnership; Pacific Generation Holdings Company;
Pacific Generation Development Company; ONSITE Energy, Inc.; Pacific-Mt. Poso
Corporation; NRG Granite Acquisition LLC; Granite Power Partners II, L.P.;
Granite II Holding, LLC; NRG Telogia Power LLC; NRG Brazos Valley LP LLC; NRG
Brazos Valley GP LLC; NRG Energy Xxxxxxx Valley I, Inc.; NRG Energy Xxxxxxx
Valley II, Inc.; San Xxxxxxx Valley Energy I, Inc.; San Xxxxxxx Valley Energy
IV, Inc.; Tacoma Energy Recovery Company; NRG Mextrans Inc.; NRG Processing
Solutions LLC; NRG ComLease LLC; Meriden Gas Turbines LLC; Elk River Resource
Recovery, Inc.; and O Brien Cogeneration, Inc. II.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable Debt in
respect of sale and leaseback transactions;
(5) representing the balance deferred and unpaid of the purchase price
of any property (including trade payables) or services due more than six months
after such property is acquired or such services are completed; or
(6) representing the net amount owing under any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit,
Attributable Debt and Hedging Obligations) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others secured by
a Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the
Guarantee by the specified Person of any Indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means the first $1.25 billion aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"Initial Purchasers" means Xxxxxx Brothers Inc., Credit Suisse First
Boston LLC, Citigroup Global Markets Inc. and Deutsche Bank Securities Inc.
"Insolvency Proceeding" means:
18
(1) any proceeding for the reorganization, recapitalization or
adjustment or marshalling of the assets or liabilities of the Company or any
other Obligor, any receivership or assignment for the benefit of creditors
relating to the Company or any other Obligor or any similar case or proceeding
relative to the Company or any other Obligor or its creditors, as such, in each
case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities
or other winding up of or relating to the Company or any other Obligor, in each
case whether or not voluntary and whether or not involving bankruptcy or
insolvency; or
(3) any other proceeding of any type or nature in which substantially
all claims of creditors of the Company or any other Obligor are determined and
any payment or distribution is or may be made on account of such claims.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Investment Grade Rating" means a rating equal to or higher than BBB-
by S&P and equal to or higher than Baa3 by Moody's.
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company, the Company will be deemed to have made an Investment
on the date of any such sale or disposition equal to the Fair Market Value of
the Company's Investments in such Subsidiary that were not sold or disposed of
in an amount determined as provided in the final paragraph of Section 4.07
hereof. The acquisition by the Company or any Subsidiary of the Company of a
Person that holds an Investment in a third Person will be deemed to be an
Investment by the Company or such Subsidiary in such third Person in an amount
equal to the Fair Market Value of the Investments held by the acquired Person in
such third Person in an amount determined as provided in the final paragraph of
Section 4.07 hereof. Except as otherwise provided in this Indenture, the amount
of an Investment will be determined at the time the Investment is made and
without giving effect to subsequent changes in value.
"LA Generating Subsidiaries" means Louisiana Generating LLC and its
subsidiaries.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lenders" means, at any time, the parties to the Credit Agreement then
holding (or committed to provide) loans, letters of credit, Credit-Linked
Deposits or other extensions of credit that constitute (or when provided will
constitute) Priority Lien Debt outstanding under the Credit Agreement.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
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"Lien" means, with respect to any asset:
(1) any mortgage, deed of trust, deed to secure debt, lien (statutory
or otherwise), pledge, hypothecation, encumbrance, restriction, collateral
assignment, charge or security interest in, on or of such asset;
(2) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset; and
(3) in the case of Equity Interests or debt securities, any purchase
option, call or similar right of a third party with respect to such Equity
Interests or debt securities.
"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"Material Adverse Effect" shall mean a material adverse change in or
material adverse effect on (a) the condition (financial or otherwise), results
of operations, assets, liabilities or prospects of the Company and its
Subsidiaries, taken as a whole, or (b) the validity or enforceability of the
Credit Agreement or any of the Security Documents or the rights and remedies of
the Arrangers, the Administrative Agent, the Collateral Agent, the Collateral
Trustee or the secured parties under the Credit Agreement or any of the Security
Documents.
"Mid-Atlantic Subsidiaries" means NRG Mid-Atlantic Generating LLC and
its Subsidiaries.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
entity.
"NEO Companies" means NEO Hackensack LLC and NEO Prima Deshecha LLC.
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends or accretion, excluding,
however:
(1) any gain or loss, together with any related provision for taxes on
such gain or loss, realized in connection with: (a) any Asset Sale (without
giving effect to the threshold provided for in the definition thereof); or (b)
the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and
(2) any extraordinary gain (but not loss), together with any related
provision for taxes on such extraordinary gain (but not loss).
"Net Proceeds" means:
(1) the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale) or a Casualty Event, net of the direct
costs relating to such Asset Sale, including, without limitation, legal,
accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale or a Casualty Event,
taxes paid or payable as a result of the Asset Sale or a Casualty Event, in each
case, after taking into account any available tax deductions and any tax sharing
arrangements, and amounts required to be applied to the repayment of
Indebtedness, other than Indebtedness under a Credit Facility,
20
secured by a Lien on the asset or assets that were the subject of such Asset
Sale or Casualty Event and any reserve for adjustment in respect of the sale
price of such asset or assets established in accordance with GAAP; and
(2) all proceeds of any insurance, indemnity, warranty or guaranty
payable from time to time with respect to any Casualty Event that are not
applied to the repair, replacement or rebuilding of the applicable Facility to
the extent commercially feasible, other than business interruption insurance
proceeds net of direct costs relating to the collection of such proceeds.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (b) is directly or
indirectly liable as a guarantor or otherwise, or (c) constitutes the lender,
except to the extent otherwise permitted by the Credit Agreement as in effect on
the date of this Indenture;
(2) no default with respect to which (including any rights that the
holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both any
holder of any other Indebtedness of the Company (other than the Notes, the
Priority Lien Debt and any Parity Lien Debt) or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment of the Indebtedness to be accelerated or payable prior to its Stated
Maturity; and
(3) in the case of Non-Recourse Debt incurred after the date of this
Indenture, as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any of its
Restricted Subsidiaries except as otherwise permitted by clauses (1) or (2)
above.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Northeast Subsidiaries" means NRG Northeast Generating LLC and its
Subsidiaries.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.
"Note Documents" means this Indenture, the Notes, each Sharing
Confirmation and the Security Documents.
"NRG Mid-Atlantic" means NRG Mid-Atlantic Generating LLC, a Delaware
limited liability company.
"NRG Northeast" means NRG Northeast Generating LLC, a Delaware limited
liability company.
"NRG Plan of Reorganization" means the plan of reorganization dated
October 10, 2003, filed by the Company and certain of its affiliates, including
NRG Power Marketing, Inc., under Chapter 11 of the Bankruptcy Code, as the same
was modified and confirmed by the Bankruptcy Court in an order dated November
24, 2003, which, among other things, provides for (1) a settlement with Xcel
pursuant to the Xcel Settlement Agreement under which the Company is expected to
receive $640 million from Xcel Energy Inc., in exchange for a global release of
claims from the Company and its creditors and (2) the pro
21
rata distribution to certain creditors of (a) Xcel Cash of which (i) $515
million will be paid to certain of the pre-petition creditors in 2004, (ii) an
additional $25 million (to the extent that the Company satisfies certain
liquidity requirements) is expected to be paid to certain of the pre-petition
creditors in 2004 and (iii) the remaining $100 million (to the extent that the
Company satisfies certain liquidity requirements) may be used by the Company for
any other purpose permitted by the terms of this Indenture; (b) 100 million
shares of the Company's common stock; and (c) the potential issuance of $100.0
million of Creditor Notes.
"NRG South Central" means NRG South Central Generating LLC, a Delaware
limited liability company.
"Obligations" means any principal (including reimbursement obligations
with respect to letters of credit whether or not any drawings has been made
thereon and including, in the case of the Credit Agreement, any obligations to
return Credit-Linked Deposits), interest (including any interest accruing at the
then applicable rate provided in any applicable Secured Debt Document after the
maturity of the loans or notes and reimbursement obligations therein and
interest accruing at the then applicable rate provided in any applicable Secured
Debt Document after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding), penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any Indebtedness.
"Obligor" means the Company and the applicable Guarantors.
"Offering Memorandum" means the Company's Offering Memorandum dated
December 17, 2003 relating to the initial offering of the Notes.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 13.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
13.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Parity Debt Representative" means:
(1) in the case of the Notes, the Trustee; or
(2) in the case of any other Series of Parity Lien Debt, the trustee,
agent or representative of the holders of such Series of Parity Lien Debt who
maintains the transfer register for such Series of Parity Lien Debt and is
appointed as a Parity Debt Representative (for purposes related to the
administration of the Security Documents) pursuant to this Indenture, credit
agreement or other agreement governing such Series of Parity Lien Debt, and who
has executed a collateral trust joinder.
22
"Parity Lien" means a Lien granted by a Security Document to the
Collateral Trustee upon any property of the Company or any other Obligor to
secure Parity Lien Obligations.
"Parity Lien Debt" means:
(1) the Notes; and
(2) any other Indebtedness (including Additional Notes) that is
permitted to be incurred under Section 4.09:
(a) the net proceeds of which are used to refund, refinance,
replace, defease or discharge Indebtedness of an Excluded Subsidiary
outstanding as of the date of this Indenture or other Parity Lien Debt
if such Indebtedness constitutes Permitted Refinancing Indebtedness; or
(b) on the date of incurrence of such Indebtedness, after
giving pro forma effect to the incurrence thereof and the application
of the proceeds therefrom, the Secured Leverage Ratio would not be
greater than 2.75:1.0;
provided, in the case of each issue or series of Indebtedness referred to in
this clause (2), that:
(i) on or before the date on which such Indebtedness was incurred by
the Company such Indebtedness is designated by the Company, in an officers'
certificate delivered to each Parity Debt Representative and the Collateral
Trustee on or before such date, as Parity Lien Debt for the purposes of this
Indenture and the Collateral Trust Agreement;
(ii) such Indebtedness is governed by an indenture or other agreement
that includes a Sharing Confirmation; and
(iv) all requirements set forth in the Collateral Trust Agreement as to
the confirmation, grant or perfection of the Liens granted to the Collateral
Trustee, for the benefit of the Secured Parties, to secure such Indebtedness or
Obligations in respect thereof are satisfied (and the satisfaction of such
requirements and the other provisions of this clause (iv) shall be conclusively
established, for purposes of entitling the holders of such Indebtedness to share
Equally and Ratably with the other holders of Parity Lien Debt in the benefits
and proceeds of the Collateral Trustee's Liens on the Collateral, if the Company
delivers to the Collateral Trustee an Officers' Certificate stating that such
requirements and other provisions have been satisfied and that such Indebtedness
is Parity Lien Debt, together with an opinion of counsel stating that such
officers' certificate has been duly authorized by the Board of Directors of the
Company and has been duly executed and delivered, and the holders of such
Indebtedness and Obligations in respect thereof will be entitled to rely
conclusively thereon).
"Parity Lien Documents" means, collectively, the Note Documents, and
this Indenture or agreement governing each other Series of Parity Lien Debt and
all agreements binding on any Obligor related thereto.
"Parity Lien Obligations" means Parity Lien Debt and all other
Obligations in respect thereof.
"Parity Lien Secured Parties" mean the holders of Parity Lien
Obligations and any Parity Lien Debt.
23
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means the business of acquiring, constructing,
managing, developing, improving, owning and operating Facilities, as well as any
other activities reasonably related to the foregoing activities (including
acquiring and holding reserves), including investing in Facilities.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted Subsidiary of the
Company that is a Guarantor;
(2) any Investment in an Immaterial Subsidiary;
(3) any Investment in an Excluded Foreign Subsidiary for so long as the
Excluded Foreign Subsidiaries do not collectively own more than 20% of the
consolidated assets of the Company as of the most recent fiscal quarter end for
which financial statements are publicly available;
(4) any issuance of letters of credit in an aggregate amount not to
exceed $125.0 million solely for working capital requirements and general
corporate purposes of any of the Excluded Subsidiaries;
(5) any Investment in Cash Equivalents (and, in the case of Excluded
Subsidiaries only, Cash Equivalents or other liquid investments permitted under
any Credit Facility to which it is a party);
(6) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company
and a Guarantor or an Immaterial Subsidiary; or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company
that is a Guarantor;
(7) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.10 hereof;
(8) Investments made solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company;
(9) any Investments received in compromise or resolution of (a)
obligations of trade creditors or customers that were incurred in the ordinary
course of business of the Company or any of its Restricted Subsidiaries,
including pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer; or (b) litigation,
arbitration or other disputes with Persons who are not Affiliates;
(10) Investments represented by Hedging Obligations;
(11) loans or advances to employees made in the ordinary course of
business in an aggregate principal amount not to exceed $1.0 million at any one
time outstanding;
24
(12) repurchases of the Notes or pari passu Indebtedness;
(13) any Investment in securities of trade creditors or customers
received in compromise of obligations of those Persons incurred in the ordinary
course of business, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or
customers;
(14) negotiable instruments held for deposit or collection in the
ordinary course of business;
(15) receivables owing to the Company or any Restricted Subsidiary of
the Company created or acquired in the ordinary course of business and payable
or dischargeable in accordance with customary trade terms; provided, however,
that such trade terms may include such concessionary trade terms as the Company
of any such Restricted Subsidiary of the Company deems reasonable under the
circumstances;
(16) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business;
(17) Investments resulting from the acquisition of a Person that at the
time of such acquisition held instruments constituting Investments that were not
acquired in contemplation of the acquisition of such Person;
(18) any Investment made since the date of this Indenture in Persons
engaged primarily in Permitted Businesses, if after giving effect to such
Investment, such Person is or will become a Restricted Subsidiary of the
Company; provided that the aggregate Fair Market Value of Investments made
pursuant to this clause (18) (measured on the date each such Investment was made
and without giving effect to subsequent changes in value), when taken together
with all other Investments made pursuant to this clause (18) that are at the
time outstanding, does not exceed 10% of the consolidated assets of the Company
as of the most recent fiscal quarter end for which financial statements are
publicly available; and
(19) other Investments made since the date of this Indenture in any
Person having an aggregate Fair Market Value (measured on the date each such
Investment was made and without giving effect to subsequent changes in value),
when taken together with all other Investments made pursuant to this clause (19)
that are at the time outstanding not to exceed $200.0 million; provided,
however, that if any Investment pursuant to this clause (19) is made in any
Person that is not a Restricted Subsidiary of the Company and a Guarantor at the
date of the making of the Investment and such Person becomes a Restricted
Subsidiary and a Guarantor after such date, such Investment shall thereafter be
deemed to have been made pursuant to clause (1) above, and shall cease to have
been made pursuant to this clause (19).
"Permitted Liens" means:
(1) Liens held by the Collateral Trustee on assets of the Company or
any Guarantor securing Priority Lien Obligations of the Company or such
Guarantor relating to Priority Lien Debt having an aggregate principal amount
not exceeding the Priority Lien Cap;
(2) Liens held by the Collateral Trustee Equally and Ratably securing
the Notes to be issued on the date of this Indenture and all future Parity Lien
Debt and other Parity Lien Obligations;
(3) Liens on assets of Excluded Subsidiaries securing Indebtedness of
Excluded Subsidiaries that was permitted by the terms of this Indenture to be
incurred;
25
(4) Liens (a) in favor of the Company or any of the Guarantors; (b)
incurred by Excluded Project Subsidiaries in favor of any other Excluded Project
Subsidiary and (c) incurred by Excluded Foreign Subsidiaries in favor of any
other Excluded Foreign Subsidiary;
(5) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature incurred
in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by Section 4.09(b)(4) hereof covering only the assets acquired with or
financed by such Indebtedness;
(7) Liens existing on the date of this Indenture;
(8) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded; provided that any
reserve or other appropriate provision as is required in conformity with GAAP
has been made therefor;
(9) Liens imposed by law, such as carriers', warehousemen's, landlords'
and mechanics' Liens, in each case, incurred in the ordinary course of business;
(10) survey exceptions, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real property that were not incurred in connection with
Indebtedness and that do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person;
(11) Liens created for the benefit of (or to secure) the Notes (or the
Subsidiary Guarantees);
(12) Liens to secure any Permitted Refinancing Indebtedness permitted
to be incurred under this Indenture; provided, however, that:
(a) the new Lien shall be limited to all or part of the same
property and assets that secured or, under the written agreements
pursuant to which the original Lien arose, could secure the original
Lien (plus improvements and accessions to, such property or proceeds or
distributions thereof); and
(b) the Indebtedness secured by the new Lien is not increased
to any amount greater than the sum of (x) the outstanding principal
amount or, if greater, committed amount, of the Permitted Referencing
Indebtedness and (y) an amount necessary to pay any fees and expenses,
including premiums, related to such refinancings, refunding, extension,
renewal or replacement;
(13) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security;
(14) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of the Company or
any of its Restricted Subsidiaries, including rights of offset and set-off;
(15) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its Restricted
Subsidiaries;
26
(16) inchoate statutory Liens arising under ERISA incurred in the
ordinary course of business;
(17) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Company or any Subsidiary of the
Company; provided that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with the Company or the Subsidiary;
(18) Liens on property (including Capital Stock) existing at the time
of acquisition of the property by the Company or any Subsidiary of the Company;
provided that such Liens were in existence prior to, such acquisition, and not
incurred in contemplation of, such acquisition;
(19) Liens to secure obligations with respect to (i) contracts (other
than for Indebtedness) for commercial and trading activities in the ordinary
course of business for the purchase, transmission, distribution, sale, lease or
hedge of any energy related commodity or service, (ii) agreements relating to
Hedging Obligations or netting agreements representing commodity price contracts
or derivatives or (iii) agreements relating to Hedging Obligations entered into
with qualified counterparties representing interest rate swaps or derivatives;
(20) Liens arising from Uniform Commercial Code financing statements
filed on a precautionary basis in respect of operating leases intended by the
parties to be true leases (other than any such leases entered into in violation
of this Indenture);
(21) Liens on assets and Equity Interests of a Subsidiary that is an
Excluded Subsidiary as of the date of this Indenture;
(22) Liens granted in favor of Xcel Energy, Inc. pursuant to the Xcel
Settlement Agreement as in effect on the date of this Indenture on the Company's
interest in all revenues received by the Company pursuant to the Facility
Instruments; and
(23) Liens incurred in the ordinary course of business of the Company
or any Subsidiary of the Company with respect to obligations that do not exceed
$25.0 million at any one time outstanding.
"Permitted Prior Liens" means (a) Liens securing Priority Lien
Obligations not exceeding the Priority Lien Cap, (b) Liens that arise by
operation of law and are not voluntarily granted, to the extent entitled by law
to priority over the security interests created by the Security Documents.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to refund, refinance, replace, defease or discharge
other Indebtedness of the Company or any of its Restricted Subsidiaries (other
than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest on the
Indebtedness and the amount of all expenses and premiums incurred in connection
therewith);
(2) such Permitted Refinancing Indebtedness has a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to Maturity of,
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
27
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes, such
Permitted Refinancing Indebtedness is subordinated in right of payment to, the
Notes on terms at least as favorable to the Holders of Notes as those contained
in the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(4) such Indebtedness is incurred either by the Company (and may be
guaranteed by any Guarantor) or by the Restricted Subsidiary who is the obligor
on the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and
(5) (a) if the Stated Maturity of the Indebtedness being refinanced is
earlier than the Stated Maturity of the Notes, the Permitted Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being refinanced or (b) if the Stated Maturity of the Indebtedness
being refinanced is later than the Stated Maturity of the Notes, the Permitted
Refinancing Indebtedness has a Stated Maturity at least 91 days later than the
Stated Maturity of the Notes.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Plans" means (a) the NRG Plan of Reorganization, (b) the joint plan of
reorganization with respect to NRG Northeast and NRG South Central, or (c) any
other plan of reorganization with respect to any other Significant Subsidiary of
the Company, or group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary of the Company.
"PMI" means NRG Power Marketing Inc., a Delaware corporation.
"Priority Debt Representative" means:
(1) in the case of the Credit Agreement, the Administrative Agent; or
(2) in the case of any other Series of Priority Lien Debt, the trustee,
agent or representative of the holders of such Series of Priority Lien Debt who
maintains the transfer register for such Series of Priority Lien Debt and is
appointed as a Priority Debt Representative (for purposes related to the
administration of the Security Documents) pursuant to the credit agreement,
indenture or other agreement governing such Series of Priority Lien Debt, and
who has executed a collateral trust joinder.
"Priority Lien" means a Lien granted by a Security Document to the
Collateral Trustee, for the benefit of the Priority Lien Secured Parties, upon
any property of the Company or any other Obligor to secure Priority Lien
Obligations.
"Priority Lien Cap" means, as of any date, an amount equal to the
Indebtedness outstanding under, and the aggregate Credit-Linked Deposits made
pursuant to, the Credit Agreement and/or the Indebtedness outstanding under any
other Credit Facility in an aggregate principal amount not to exceed the sum of
the amount provided by clause (1) of the definition of Permitted Debt, as of any
date, plus the amount provided by clause (16) of the definition of Permitted
Debt. For purposes of this definition of Priority Lien Cap, all letters of
credit shall be valued at face amount, whether or not drawn.
"Priority Lien Debt" means:
(1) the Indebtedness under, together with the aggregate amount of all
Credit-Linked Deposits made pursuant to, the Credit Agreement; and
28
(2) Indebtedness, including any deposit that is similar to the
Credit-Linked Deposits, under any other Credit Facility that is secured by a
Priority Lien that was permitted to be incurred under clause (1) of the
definition of "Permitted Liens,"
but only if on or before the day on which such Indebtedness under a Credit
Facility described in clause (2) above is incurred by any applicable Obligor
such Indebtedness is designated by the Obligor, in an Officers' Certificate
delivered to each Parity Debt Representative and the Collateral Trustee on or
before such date, as Priority Lien Debt for the purposes of each of the Parity
Lien Documents and the Collateral Trust Agreement.
"Priority Lien Documents" means the Credit Agreement, the Credit
Agreement Documents, the Security Documents, indenture or other agreement
governing any other Credit Facility pursuant to which any Priority Lien Debt is
incurred and all other agreements governing, securing or related to any Priority
Lien Obligations.
"Priority Lien Obligations" means the Priority Lien Debt and all other
Obligations in respect of Priority Lien Debt and includes, in the case of the
Credit Agreement and any other Credit Facility the Indebtedness under which
constitutes Priority Lien Debt, any Hedging Obligations that are permitted to be
incurred by the terms of each Secured Debt Document and are permitted by the
terms of the Priority Lien Documents relating to each Series of Priority Lien
Debt to be secured Equally and Ratably with the Priority Lien Obligations
thereunder.
"Priority Lien Secured Parties" means the holders of Priority Lien
Obligations and any Priority Lien Debt.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Pro Forma Cost Savings" means, with respect to any period, reductions
in costs and related adjustments that occurred during the four-quarter reference
period or after the end of the four-quarter reference period and on or prior to
the transaction date that were (1) directly attributable to an Asset Acquisition
or Asset Sale and calculated on a basis that is consistent with Article 11 of
Regulation S-X under the Securities Act or (2) actually implemented by the
Company or the business that was the subject of such Asset Acquisition or Asset
Sale within six months of the date of the Asset Acquisition or Asset Sale and
that are supportable and quantifiable by the underlying accounting records of
such business, as if, in the case of each of clauses (1) and (2), all such
reductions in costs and related adjustments had been effected as of the
beginning of such period.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Refinancing Transactions" has the meaning set forth under the caption
"Summary -- The Financing Transactions" in the Offering Memorandum.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of December 23, 2003, among the Company, the Guarantors and
the other parties named on the signature pages thereof, as such agreement may be
amended, modified or supplemented from time to time and, with respect to any
Additional Notes, one or more registration rights agreements among the Company,
the Guarantors and the other parties thereto, as such agreement(s) may be
amended, modified or supplemented from time to time, relating to rights given by
the Company to the purchasers of Additional Notes to register such Additional
Notes under the Securities Act.
29
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903 of
Regulation S.
"Reorganization Events" has the meaning set forth under the caption
"Summary -- The Plans of Reorganization" in the Offering Memorandum.
"Responsible Officer," when used with respect to the Trustee, means any
officer (including any managing director, director, vice president, assistant
vice president, trust officer or corporate secretary) within the Corporate Trust
Administration of the Trustee (or any successor group of the Trustee) 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 his knowledge of and familiarity with the particular
subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance period as
set forth in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Revolving Loans" means the revolving loans and commitments made by the
Lenders under the Credit Agreement.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Sale of Collateral" means any Asset Sale involving a sale or other
disposition of Collateral.
"S&P" means Standard & Poor's Ratings Group or any successor entity.
"Secured Debt" means Parity Lien Debt and Priority Lien Debt.
"Secured Debt Documents" means the Parity Lien Documents and the
Priority Lien Documents.
"Secured Debt Representative" means each Parity Debt Representative and
each Priority Lien Representative.
30
"Secured Leverage Ratio" means, on any date, the ratio of:
(1) the aggregate principal amount of Secured Debt outstanding on such
date plus all Indebtedness of Restricted Subsidiaries of the Company outstanding
on such date including, without limitation, Non-Recourse Debt (and, for this
purpose, letters of credit will be deemed to have a principal amount equal to
the maximum potential liability of the Company and its Restricted Subsidiaries
thereunder) to
(2) the aggregate amount of the Company's Consolidated Cash Flow for
the most recent four-quarter period for which financial information is
available.
In addition, for purposes of calculating the Secured Leverage Ratio:
(1) acquisitions that have been made by the specified Person or any of
its Restricted Subsidiaries, including through mergers or consolidations or
acquisitions of assets, or any Person or any of its Restricted Subsidiaries
acquired by merger, consolidation or the acquisition of all or substantially all
of its assets by the specified Person or any of its Restricted Subsidiaries, and
including any related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period
or subsequent to such reference period and on or prior to the date on which the
event for which the calculation of the Secured Leverage Ratio is made (the
"Leverage Calculation Date") will be given pro forma effect in accordance with
Regulation S-X under the Securities Act) as if they had occurred on the first
day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses (and
ownership interests therein) disposed of prior to the Leverage Calculation Date,
will be excluded;
(3) any Person that is a Restricted Subsidiary on the Leverage
Calculation Date will be deemed to have been a Restricted Subsidiary at all
times during such four-quarter period;
(4) any Person that is not a Restricted Subsidiary on the Leverage
Calculation Date will be deemed not to have been a Restricted Subsidiary at any
time during such four-quarter period; and
(5) if any Indebtedness bears a floating rate of interest, the interest
expense on such Indebtedness will be calculated as if the rate in effect on the
Leverage Calculation Date had been the applicable rate for the entire period
(taking into account any Hedging Obligation applicable to such Indebtedness if
such Hedging Obligation has a remaining term as at the Calculation Date in
excess of 12 months).
"Secured Obligations" means the Parity Lien Obligations and the
Priority Lien Obligations.
"Securities Account" shall have the meaning assigned to such term in
the UCC.
"SEC" means the Securities and Exchange Commission.
"Security Documents" means one or more security agreements, pledge
agreements, collateral assignments, mortgages, collateral agency agreements,
control agreements, deeds of trust or other grants or transfers for security
executed and delivered by the Company or any other Obligor creating (or
purporting to create) a Lien upon Collateral in favor of the Collateral Trustee,
for the benefit of the Secured Parties, in each case, as amended, modified,
renewed, restated or replaced, in whole or in part, from time to time, in
accordance with its terms.
31
"Secured Parties" means the Parity Lien Secured Parties and the
Priority Lien Secured Parties.
"Series of Parity Lien Debt" means, severally, the Notes and each other
issue or series of Parity Lien Debt for which a single transfer register is
maintained.
"Series of Priority Lien Debt" means, severally, the extensions of
credit under the Credit Agreement and each other issue or series of Priority
Lien Debt for which a single transfer register is maintained and shall include,
in the case of the Credit Agreement and any other Credit Facility the
Indebtedness under which constitutes Priority Lien Debt, any obligations in
respect of Hedging Agreements that are permitted to be incurred by the terms of
the Priority Lien Documents relating to each Series of Priority Lien Debt to be
secured Equally and Ratably with the Priority Lien Obligations.
"Series of Secured Debt" means, severally, the Notes and each other
Series of Parity Lien Debt, the extensions of credit under the Credit Agreement
and each Series of Priority Lien Debt.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of the indenture.
"Sharing Confirmation" means, as to any Series of Parity Lien Debt, the
written agreement of the holders of such Series of Parity Lien Debt, as set
forth in this Indenture or other agreement governing such Series of Parity Lien
Debt, for the enforceable benefit of all holders of each other existing and
future Series of Parity Lien Debt and each existing and future Parity Debt
Representative, that all Parity Lien Obligations shall be and are secured
Equally and Ratably by all Liens at any time granted by the Company or any other
Obligor to secure any Obligations in respect of such Series of Parity Lien Debt,
whether or not upon property otherwise constituting Collateral, that all such
Liens shall be enforceable by the Collateral Trustee for the benefit of all
holders of Parity Lien Obligations Equally and Ratably, and that the holders of
Obligations in respect of such Series of Parity Lien Debt are bound by the
provisions in the Collateral Trust Agreement relating to the order of
application of proceeds from enforcement of such Liens, and consent to and
direct the Collateral Trustee to perform its obligations under the Collateral
Trust Agreement.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Specified Assets Held for Sale" means:
(1) some or all of the Company's equity interest in, or assets of, NRG
XxXxxxx LLC; Energy National, Inc.; Penoboscot Energy Recovery Company, Limited
Partnership; ESOCO, Inc.; ESOCO Orrington, Inc.; NEO Corporation and its direct
or indirect subsidiaries, except for NEO California Power LLC; NRG Cadillac,
Inc.; Cadillac Renewable Energy LLC; Commonwealth Atlantic Power LLC; Hanover
Energy Company; Chickahominy River Energy Corp.; Commonwealth Atlantic Limited
Partnership; Xxxxx River Power LLC; Capistrano Cogeneration Company; Xxxxx River
Cogeneration Company; Saguaro Power LLC; Eastern Sierra Energy Company; Saguaro
Power Company, L.P.; NRG Saguaro Operations, Inc.; Meridan Gas Turbine LLC; NRG
Illion LP, LLC; NRG Rockford Acquisition LLC; NRG Illion Limited Partnership;
ENIGEN, Inc., Energy National, Inc.; The PowerSmith Cogeneration Project,
Limited Partnership; ONSITE Energy, Inc.; and Xxxxxx Falls Limited Partnership;
(2) some or all of the Company's equity and/or debt interest in, or
assets of, NRGenerating Holdings (No. 4) B.V.;
32
(3) some or all of the Company's equity and/or debt interest in, or
assets of, TermoRio S.A and some or all of the Company's equity and/or debt
interest in NRG International Holdings (No.2) GmbH or such other interests as
may be necessary to comply with any decision of the arbitral tribunal in the
pending arbitration in Brazil between Petroleo Brasileiro S.A. -- Petrobas et
al. and NRG International Holdings (No.2) GmbH and NRGenerating Luxembourg
(No.2) S.a.r.l.;
(4) some or all of the Company's equity and/or debt interest in, or
assets of, Compania Bolivia De Energia Electrica S.A. -- Bolivian Power Company
Limited or in NRGenerating Luxembourg (No. 6) S.a.r.l. or NRGenerating Holdings
(No. 21) B.V.;
(5) some or all of the Company's equity and/or debt interest in, or
assets of, Itiquira Energetica S.A. or in Tosli Acquisition B.V., NRGenerating
Luxembourg (No. 6) S.a.r.l. or NRGenerating Holdings (No. 21) B.V.;
(6) some or all of the Company's equity and/or debt interest in, or
assets of, Xxxx Xx Energy Development Co. Ltd., NRG Taiwan Holding Company Ltd
or NRGenerating Holdings (No. 19) B.V.; and
(7) some of all of the Company's equity and/or debt interest in, or
assets of, Enfield Holdings B.V., Enfield Operations LLC or indirect interest in
Enfield Energy Centre Ltd;
in each case, as they exist on the date of this Indenture and assets acquired
subsequent to the date of this Indenture in the ordinary course of business
other than assets acquired from an Affiliate of the Company.
"Specified Joint Venture Sale" means the sale after the date of this
Indenture by the Company or a Subsidiary of the Company of its Equity Interest
in Enfield Energy Centre Limited or TermoRio S.A. to one or more holders of the
remaining Equity Interest therein pursuant to the terms of the joint venture
agreements relating thereto.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of this Indenture, and will not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency and after giving effect to any
voting agreement or stockholders' agreement that effectively transfers voting
power) to vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are that Person or one or more Subsidiaries
of that Person (or any combination thereof).
"Subsidiary Guarantee" means the Guarantee by each Guarantor of the
Company's obligations under this Indenture and on the Notes, evidenced by the
Guarantee and Collateral Agreement and executed pursuant to the provisions of
this Indenture.
33
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
thereunder.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York or any other applicable jurisdiction.
"Unrestricted Global Note" means a Global Note that does not bear and
is not required to bear the Private Placement Legend.
"Unrestricted Definitive Note" means a Definitive Note that does not
bear and is not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party to any
agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results except as otherwise permitted by the Credit
Agreement as in effect on the date of this Indenture; and
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries except as otherwise permitted by the Credit Agreement as in effect
on the date of this Indenture.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
officers' certificate certifying that such designation complied with the
conditions set forth in Section 4.19 hereof and was permitted by Section 4.07
hereof. If, at any time, any Unrestricted Subsidiary fails to meet the
requirements as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date by Section 4.09 hereof, the Company will be in default
of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation will be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1) such
Indebtedness is permitted by Section 4.09 hereof, calculated on a pro forma
basis as if such designation
34
had occurred at the beginning of the four-quarter reference period; and (2) no
Default or Event of Default would be in existence following such designation.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect of the
Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly-Owned Subsidiary" of any specified Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares or foreign national qualifying
Capital Stock or other ownership interests) will at the time be owned by such
Person or by one or more wholly-owned Restricted Subsidiaries of such Person.
"Xcel" means Xcel Energy Inc., a Minnesota corporation.
"Xcel Cash" means all amounts paid in cash by Xcel Energy Inc. to the
Company or any of its Subsidiaries after the date of this Indenture in
connection with the Xcel Settlement Agreement.
"Xcel Settlement Agreement" means the Settlement Agreement, delivered
as of the effective date of the NRG Plan of Reorganization, by and among Xcel
Energy Inc., the Company and each of the subsidiaries party thereto, which was
approved by the United States Bankruptcy Court for the Southern District of New
York on November 24, 2003.
"Xcel Note" means that certain promissory note made by the Company in
favor of Xcel in an initial principal amount of $10.0 million and issued
pursuant to the terms and conditions of the NRG Plan of Reorganization approved
by the United States Bankruptcy Court for the Southern District of New York on
November 24, 2003.
Section 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"................................ 4.11
"Asset Sale Offer"..................................... 3.09
"Authentication Order"................................. 2.02
"Change of Control Offer".............................. 4.15
"Change of Control Payment"............................ 4.15
"Change of Control Payment Date"....................... 4.15
"Covenant Defeasance".................................. 8.03
"DTC".................................................. 2.03
35
Defined in
Term Section
---- -------
"Event of Default"..................................... 6.01
"Excess Proceeds"...................................... 4.10
"incur"................................................ 4.09
"Legal Defeasance"..................................... 8.02
"Offer Amount"......................................... 3.09
"Offer Period"......................................... 3.09
"Paying Agent"......................................... 2.03
"Permitted Debt"....................................... 4.09
"Payment Default" ..................................... 6.01
"Purchase Date"........................................ 3.09
"Redemption Date" ..................................... 3.07
"Registrar"............................................ 2.03
"Restricted Payments".................................. 4.07
"Suspended Covenants" ................................. 4.20
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Subsidiary Guarantees means the Company
and the Guarantors, respectively, and any successor obligor upon the Notes and
the Subsidiary Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
36
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will be
deemed to include substitute, replacement of successor sections or rules adopted
by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication will be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note will be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes. Notes issued in global form will be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form will be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note will represent such of the outstanding Notes
as will be specified therein and each shall provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream Banking" and "Customer Handbook" of Clearstream will be applicable
to transfers of beneficial interests in the Regulation S Global Note that are
held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of
the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
37
The Trustee will, upon receipt of a written order of the Company signed
by an Officer (an "Authentication Order"), authenticate Notes for (i) original
issue up to the aggregate principal amount stated in paragraph 4 of the Notes
and (ii) Additional Notes in such amounts as may be specified from time to time
without limit, subject to Article 4 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company will maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar will keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company will notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
will notify the Trustee in writing of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) will have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company will furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
38
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee written notice from
the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice
from the Depositary; or
(2) the Company in its sole discretion determines that the
Global Notes should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee; or
(3) there has occurred and is continuing a Default or Event of
Default with respect to the Notes.
Upon the occurrence of either of the preceding events in (1), (2) or
(3) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
will be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes will be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also will require
compliance with either subparagraph (1) or (2) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Regulation S Global
Note may not be made to a U.S. Person or for the account or benefit of
a U.S. Person (other than an Initial Purchaser). Beneficial interests
in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(1) above,
the transferor of such beneficial interest must deliver to the
Registrar either:
39
(A) both:
(i) a written order from a Participant
or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an
amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance
with the Applicable Procedures containing information
regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a Participant
or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to
be transferred or exchanged; and
(ii) instructions given by the
Depositary to the Registrar containing information
regarding the Person in whose name such Definitive
Note shall be registered to effect the transfer or
exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Global Note,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transferee will take delivery in the
form of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted
40
Global Note may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
41
interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Restricted Definitive Note, then, upon receipt by the Registrar of
the following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest
42
for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(2) hereof, the Trustee will
cause the aggregate principal amount of the applicable Unrestricted
Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company will execute and the Trustee will authenticate
and deliver to the Person designated in the instructions an
Unrestricted Definitive Note in the appropriate principal amount. Any
Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(3) will be registered in such
name or names and in such authorized denomination or denominations as
the holder of such beneficial interest requests through instructions to
the Registrar from or through the Depositary and the Participant or
Indirect Participant. The Trustee will deliver such Unrestricted
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Unrestricted Definitive Note
43
issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(3) will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI
Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an
44
Unrestricted Global Note or transfer such Restricted Definitive Note to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive
Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Unrestricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has not
yet been issued, the Company will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee will authenticate one or more Unrestricted
45
Global Notes in an aggregate principal amount equal to the principal
amount of Unrestricted Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar will register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder must present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to
Rule 144A, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer will be made pursuant to
Rule 903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (i) a broker-dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
46
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are
not affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee will cause
the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B)
below, each Restricted Global Note and each Restricted
Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially
the following form:
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"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
(B) IN ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF THE STATES OF THE UNITED
STATES."
(B) Notwithstanding the foregoing, any
Unrestricted Global Note or Unrestricted Definitive Note
issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3),
(d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06
(and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF NRG ENERGY, INC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT 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. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
48
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company will execute and the Trustee will authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order in accordance
with Section 2.02 or at the Registrar's request.
(2) No service charge will be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15
and 9.05 hereof).
(3) The Registrar will not be required to register the
transfer of or exchange of any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close
of business on the day of selection;
(B) to register the transfer of or to exchange
any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a
Note between a record date and the next succeeding interest
payment date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered
49
as the absolute owner of such Note for the purpose of receiving payment
of principal, premium or Liquidated Damages, if any, or interest on
such Notes and for all other purposes, and none of the Trustee, any
Agent or the Company shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company will issue and the Trustee, upon receipt of an
Authentication Order, will authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
will be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section
3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Guarantor, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Guarantor, will be considered as though not outstanding, except that for the
purposes of
50
determining whether the Trustee will be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of
this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else will cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and will destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes will be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
may be less than 2 Business Days prior to the related payment date for such
defaulted interest. At least 5 Business Days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) will mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at
least 30 days (or such shorter period as agreed to by the Trustee) but not more
than 60 days before a redemption date, an Officers' Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
51
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee will select Notes for redemption or
purchase as follows:
(1) if the Notes are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities
exchange, on a pro rata basis, by lot or by such other method as the
Trustee shall deem fair and appropriate.
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 25 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Company will mail or cause
to be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Notes or a satisfaction and
discharge of this Indenture pursuant to Articles 8 or 12 of this Indenture.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
52
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee will give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company has delivered to the Trustee, at least 35 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase date, the Company
will deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption or purchase price of and accrued interest and Liquidated Damages,
if any, on all Notes to be redeemed or purchased on that date. The Trustee or
the Paying Agent will promptly return to the Company any money deposited with
the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued interest and
Liquidated Damages, if any, on, all Notes to be redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption or purchase date, interest will cease to accrue on
the Notes or the portions of Notes called for redemption or purchase. If a Note
is redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is
not so paid upon surrender for redemption or purchase because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption or purchase date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Company will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
53
Section 3.07 Optional Redemption.
(a) At any time prior to December 15, 2006, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount of
Notes issued under this Indenture at a redemption price of 108% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided that:
(1) at least 65% of the aggregate principal amount of Notes
originally issued under this Indenture (excluding Notes held by the
Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption; and
(2) the redemption must occur within 45 days of the date of
the closing of such Equity Offering.
(b) On or after December 15, 2008, the Company may redeem all or a
part of the Notes upon not less than 30 nor more than 60 days notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on December 15 of the years indicated below, subject to the rights of the
Holders of the Notes on the relevant record date to receive interest on the
relevant interest payment date:
Year Percentage
---- ----------
2008....................................................... 104.000%
2009....................................................... 102.667%
2010....................................................... 101.333%
2011 and thereafter........................................ 100.000%
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company is
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain
open for a period of at least 20 Business Days following its commencement and
not more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than three Business
Days after the termination of the Offer Period (the "Purchase Date"), the
Company will apply all Excess Proceeds (the "Offer Amount") to the purchase of
Notes and such other pari passu Indebtedness (on a pro rata basis, if
applicable) or, if less than the Offer Amount has been tendered, all Notes and
other Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will be made in the same manner as interest payments are
made.
54
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
will contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the
terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset
Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
(4) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer will
cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may elect to have Notes purchased in integral
multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to
any Asset Sale Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" attached to the
Notes completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase
Date;
(7) that Holders will be entitled to withdraw their election
if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and other
pari passu Indebtedness surrendered by holders thereof exceeds the
Offer Amount, the Company will select the Notes and other pari passu
Indebtedness to be purchased on a pro rata basis based on the principal
amount of Notes and such other pari passu Indebtedness surrendered
(with such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples
thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and will
deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers' Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in
55
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, will promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company, will promptly issue a new
Note, and the Trustee, upon written request from the Company will authenticate
and mail or deliver (or cause to be transferred by book entry) such new Note to
such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company will publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, premium, if
any, and interest and Liquidated Damages, if any, on the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any, and interest
and Liquidated Damages, if any will be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company will pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission will in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
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The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03
hereof.
Section 4.03 Reports.
(a) Whether or not required by the SEC's rules and regulations, so
long as any Notes are outstanding, the Company will furnish to the Holders of
Notes or cause the Trustee to furnish to the Holders of Notes, within the time
periods specified in the SEC's rules and regulations:
(1) all quarterly and annual reports that would be required to
be filed with the SEC on Forms 10-Q and 10-K if the Company were
required to file such reports; and
(2) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such
reports.
(b) All such reports will be prepared in all material respects in
accordance with all of the rules and regulations applicable to such reports.
Each annual report on Form 10-K will include a report on the Company's
consolidated financial statements by the Company's certified independent
accountants. In addition, following the consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, the Company will file a copy
of each of the reports referred to in clauses (1) and (2) above with the SEC for
public availability within the time periods specified in the rules and
regulations applicable to such reports (unless the SEC will not accept such a
filing) and will post the reports on its website within those time periods.
(c) If, at any time after consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, the Company is no longer
subject to the periodic reporting requirements of the Exchange Act for any
reason, the Company will nevertheless continue filing the reports specified in
the preceding paragraph with the SEC within the time periods specified above
unless the SEC will not accept such a filing. The Company agrees that it will
not take any action for the purpose of causing the SEC not to accept any such
filings. If, notwithstanding the foregoing, the SEC will not accept the
Company's filings for any reason, the Company will post the reports referred to
in the preceding paragraph on its website within the time periods that would
apply if the Company were required to file those reports with the SEC.
In addition, the Company and the Guarantors agree that, for so long as
any Notes remain outstanding, at any time they are not required to file the
reports required by the preceding paragraphs with the SEC, they will furnish to
the Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such
Guarantor is so required under the TIA) shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and the Security
Documents, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and the Security Documents and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture or
the Security Documents (or, if a Default or Event of Default has occurred,
describing all such Defaults or Events of Default of
57
which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as any of the Notes are outstanding, the Company will
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the
Company or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the Company's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or to the Company or a Restricted
Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the
Company or any direct or indirect parent of the Company (other than any
such Equity Interests owned by the Company or any Restricted Subsidiary
of the Company);
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of the Company or any Guarantor that is contractually
subordinated to the Notes or any Subsidiary Guarantee (excluding any
intercompany Indebtedness between or among the Company and any of its
Restricted
58
Subsidiaries), except (a) a payment of interest or principal at the
Stated Maturity thereof or (b) a payment, purchase, redemption,
defeasance, acquisition or retirement of any subordinated Indebtedness
in anticipation of satisfying a sinking fund obligation, principal
installment or payment at final maturity, in each case due within one
year of the date of payment, purchase, redemption, defeasance,
acquisition or retirement; or
(4) make any Restricted Investment
(all such payments and other actions set forth in these clauses (1) through (4)
above being collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment;
and
(2) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof; and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries since the date of this Indenture (excluding
Restricted Payments permitted by clauses (2), (3), (4), (6), (7), (8),
(9) and (10) of paragraph (b) below), is less than the sum, without
duplication, of:
(a) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the beginning of
the first fiscal quarter commencing after the date of this Indenture to
the end of the Company's most recently ended fiscal quarter for which
financial statements are publicly available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit), plus
(b) 100% of the aggregate net cash proceeds received
by the Company since the date of this Indenture as a contribution to
its common equity capital or from the issue or sale of Equity Interests
of the Company (other than Disqualified Stock) or from the issue or
sale of convertible or exchangeable Disqualified Stock or convertible
or exchangeable debt securities of the Company that have been converted
into or exchanged for such Equity Interests (other than Equity
Interests (or Disqualified Stock or debt securities) sold to a
Subsidiary of the Company), plus
(c) 100% of the aggregate net cash proceeds received
upon the sale or other disposition of any Investment (other than a
Permitted Investment) made since the date of this Indenture; plus the
net reduction in Investments (other than Permitted Investments) in any
Person resulting from dividends, repayments of loans or advances or
other transfers of assets subsequent to the date of this Indenture, in
each case to the Company or any Restricted Subsidiary from such Person;
plus to the extent that the ability to make Restricted Payments was
reduced as the result of the designation of an Unrestricted Subsidiary,
the portion (proportionate to the Company's Equity Interest in such
Subsidiary) of the Fair Market Value of the net assets of such
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
redesignated, or liquidated or merged into, a Restricted Subsidiary;
provided, in each case, that the foregoing may not exceed, in the
59
aggregate, the amount of all Investments which previously reduced the
ability to make Restricted Payments, plus
(d) 50% of any dividends received by the Company or a
Restricted Subsidiary of the Company that is a Guarantor after the date
of this Indenture from an Unrestricted Subsidiary of the Company, to
the extent that such dividends were not otherwise included in
Consolidated Net Income of the Company for such period.
(b) The provisions of Section 4.07(a) will not prohibit:
(1) the payment of any dividend within 60 days after the date
of declaration of the dividend, if at the date of declaration the
dividend payment would have complied with the provisions of this
Indenture;
(2) so long as no Default has occurred and is continuing or
would be caused thereby, the making of any Restricted Payment in
exchange for, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of, Equity
Interests of the Company (other than Disqualified Stock) or from the
contribution of common equity capital to the Company; provided that the
amount of any such net cash proceeds that are utilized for any such
Restricted Payment will be excluded from clause (3) (b) of the
preceding paragraph;
(3) so long as no Default has occurred and is continuing or
would be caused thereby, the defeasance, redemption, repurchase or
other acquisition of Indebtedness of the Company or any Guarantor that
is contractually subordinated to the Notes or to any Subsidiary
Guarantee with the net cash proceeds from a substantially concurrent
incurrence of Permitted Refinancing Indebtedness;
(4) the payment of any dividend (or, in the case of any
partnership or limited liability company, any similar distribution) by
a Restricted Subsidiary of the Company to the holders of its Equity
Interests on a pro rata basis;
(5) so long as no Default has occurred and is continuing or
would be caused thereby, (a) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the
Company or any Restricted Subsidiary of the Company held by any current
or former officer, director or employee of the Company or any of its
Restricted Subsidiaries pursuant to any equity subscription agreement,
stock option agreement, severance agreement, shareholders' agreement or
similar agreement, employee benefit plan or (b) the cancellation of
Indebtedness owing to the Company or any of its Restricted Subsidiaries
from any current or former officer, director or employee of the Company
or any of its Restricted Subsidiaries in connection with a repurchase
of Equity Interests of the Company or any of its Restricted
Subsidiaries; provided that the aggregate price paid for the actions in
clause (a) may not exceed $1.0 million in any twelve-month period and
$5.0 million in the aggregate since the date of this Indenture;
provided, further that (i) such amount in any calendar year may be
increased by the cash proceeds of "key man" life insurance policies
received by the Company and its Restricted Subsidiaries after the date
of this Indenture less any amount previously applied to the making of
Restricted Payments pursuant to this clause (5) and (ii) cancellation
of the Indebtedness owing to the Company from employees, officers,
directors and consultants of the Company or any of its Restricted
Subsidiaries in connection with a repurchase of Equity Interests of the
Company from such Persons shall be permitted under this clause (5) as
if it were a repurchase, redemption, acquisition or retirement for
value subject hereto;
60
(6) the repurchase of Equity Interests in connection with the
exercise of stock options to the extent such Equity Interests represent
a portion of the exercise price of those stock options;
(7) so long as no Default has occurred and is continuing or
would be caused thereby, the declaration and payment of regularly
scheduled or accrued dividends to holders of any class or series of
Disqualified Stock of the Company or any Restricted Subsidiary of the
Company issued on or after the date of this Indenture in accordance
with the terms of this Indenture;
(8) payments, not to exceed $2.0 million in the aggregate
since the date of this Indenture, to holders of the Company's Capital
Stock in lieu of the issuance of fractional shares of its Capital
Stock;
(9) the consummation of the Refinancing Transactions and the
transactions specifically provided for in the NRG Plan of
Reorganization as in effect on the date of this Indenture;
(10) the purchase, redemption, acquisition, cancellation or
other retirement for a nominal value per right of any rights granted to
all the holders of Capital Stock of the Company pursuant to any
shareholders' rights plan adopted for the purpose of protecting
shareholders from unfair takeover tactics; provided that any such
purchase, redemption, acquisition, cancellation or other retirement of
such rights is not for the purpose of evading the limitations of this
covenant (all as determined in good faith by the Board of Directors of
the Company);
(11) so long as no Default has occurred and is continuing or
would be caused thereby, upon the occurrence of a Change of Control and
after the completion of the offer to repurchase the Notes pursuant to
the provisions of Section 4.15 hereof (including the purchase of all
Notes tendered), any purchase, defeasance, retirement, redemption or
other acquisition of Capital Stock or Indebtedness that is
contractually subordinated to the Notes or any subsidiary guarantee
required under the terms of such Capital Stock or Indebtedness as a
result of such Change of Control; and
(12) so long as no Default has occurred and is continuing or
would be caused thereby, other Restricted Payments in an aggregate
amount not to exceed $50.0 million since the date of this Indenture.
The amount of all Restricted Payments (other than cash) will be the
Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to be valued
by this Section 4.07 will be determined by the Board of Directors of the Company
whose resolution with respect thereto shall be delivered to the Trustee. The
Board of Directors' determination must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the Fair Market Value exceeds $35.0 million.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries, or
with respect to any other interest or participation in, or
61
measured by, its profits, or pay any indebtedness owed to the Company
or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or
any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness, the Creditor
Notes, if any, and Credit Facilities as in effect on the date of this
Indenture and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of
those agreements; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole,
with respect to such dividend and other payment restrictions than those
contained in those agreements on the date of this Indenture;
(2) this Indenture, the Notes, the Security Documents and the
Subsidiary Guarantees (including the Exchange Notes and related
Subsidiary Guarantees);
(3) applicable law, rule, regulation or order;
(4) customary non-assignment provisions in contracts,
agreements, leases, permits and licenses entered into in the ordinary
course of business;
(5) purchase money obligations for property acquired in the
ordinary course of business and Capital Lease Obligations that impose
restrictions on the property purchased or leased of the nature
described in clause (3) of Section 4.08(a) hereof;
(6) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending the sale or other disposition;
(7) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as
a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(8) Liens permitted to be incurred under the provisions of
Section 4.12 hereof that limit the right of the debtor to dispose of
the assets subject to such Liens;
(9) provisions limiting the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements and other similar
agreements entered into with the approval of the Company's Board of
Directors, which limitation is applicable only to the assets that are
the subject of such agreements;
(10) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business;
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(11) restrictions or conditions contained in any trading,
netting, operating, construction, service, supply, purchase, sale or
similar agreement to which the Company or any Restricted Subsidiary of
the Company is a party entered into in the ordinary course of business;
provided that such agreement prohibits the encumbrance of solely the
property or assets of the Company or such Restricted Subsidiary that
are the subject of that agreement, the payment rights arising
thereunder and/or the proceeds thereof and not to any other asset or
property of the Company or such Restricted Subsidiary or the assets or
property of any other Restricted Subsidiary;
(12) any instrument governing Indebtedness or Capital Stock of
a Person acquired by the Company or any of its Restricted Subsidiaries
as in effect at the time of such acquisition (except to the extent such
Indebtedness or Capital Stock was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person,
so acquired; provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be
incurred;
(13) Indebtedness of a Restricted Subsidiary of the Company
existing at the time it became a Restricted Subsidiary if such
restriction was not created in connection with or in anticipation of
the transaction or series of transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired by
the Company;
(14) with respect to clause (3) of Section 4.08(a) hereof
only, restrictions encumbering property at the time such property was
acquired by the Company or any of its Restricted Subsidiaries, so long
as such restriction relates solely to the property so acquired and was
not created in connection with or in anticipation of such acquisition;
and
(15) any encumbrance or restrictions of the type referred to
in clauses (1), (2) and (3) of Section 4.08(a) hereof imposed by any
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (14) of
this Section 4.08(b); provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the
Company's Board of Directors, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the
dividend or other payment restrictions prior to such amendment,
modification, restatement, renewals, increase, supplement, refunding,
replacement or refinancing.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt), and the Company will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock; provided, however, that the Company may
incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and
the Guarantors may incur Indebtedness or issue preferred stock, if the Fixed
Charge Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which financial statements are publicly available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued would have been at least 2.0 to
1, determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred or
Disqualified Stock or the preferred stock had been issued, as the case may be,
at the beginning of such four-quarter period.
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(b) The provisions of Section 4.09(a) will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(1) the incurrence by the Company and PMI (and the guarantee
thereof by the Guarantors) of additional Indebtedness and letters of
credit under Credit Facilities in an aggregate principal amount at any
one time outstanding under this clause (1) (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the Company and its Restricted Subsidiaries thereunder)
not to exceed $1.45 billion less the aggregate amount of all
repayments, optional or mandatory, of the principal of any term
Indebtedness under a Credit Facility that have been made by the Company
or any of its Restricted Subsidiaries since the date of this Indenture
with the Net Proceeds of Asset Sales (other than Excluded Proceeds) and
Casualty Events and less, without duplication, the aggregate amount of
all repayments or commitment reductions with respect to any revolving
credit borrowings under a Credit Facility that have been made by the
Company or any of its Restricted Subsidiaries since the date of this
Indenture as a result of the application of the Net Proceeds of Asset
Sales (other than Excluded Proceeds) and Casualty Events in accordance
with Section 4.10 hereof (excluding temporary reductions in revolving
credit borrowings as contemplated by Section 4.10 hereof);
(2) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the related Subsidiary
Guarantees to be issued on the date of this Indenture and the Exchange
Notes and the related Subsidiary Guarantees to be issued pursuant to
the Registration Rights Agreement;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase
price or cost of design, construction, installation or improvement or
lease of property (real or personal), plant or equipment used in the
business of the Company or any of its Restricted Subsidiaries, in an
aggregate principal amount, including all Permitted Refinancing
Indebtedness incurred to refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause (4), not to
exceed $150.0 million at any time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance, replace,
defease or discharge Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under
Section 4.09(a) or clauses (2), (3), (4), (5), (11), (13) or (16) of
this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on
such Indebtedness and the payee is not the Company or a Guarantor, such
Indebtedness must be expressly subordinated to the prior payment in
full in cash of all Obligations then due with respect to the Notes, in
the case of the Company, or the Subsidiary Guarantee, in the case of a
Guarantor; and
64
(b) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than the Company or a Restricted Subsidiary of the Company and
(ii) any sale or other transfer of any such Indebtedness to a Person
that is not either the Company or a Restricted Subsidiary of the
Company; will be deemed, in each case, to constitute an incurrence of
such Indebtedness by the Company or such Restricted Subsidiary, as the
case may be, that was not permitted by this clause (6);
(7) the issuance by any of the Company's Restricted
Subsidiaries to the Company or to any of its Restricted Subsidiaries of
shares of preferred stock; provided, however, that:
(a) any subsequent issuance or transfer of Equity
Interests that results in any such preferred stock being held by a
Person other than the Company or a Restricted Subsidiary of the
Company; and
(b) any sale or other transfer of any such preferred
stock to a Person that is not either the Company or a Restricted
Subsidiary of the Company;
will be deemed, in each case, to constitute an issuance of such preferred stock
by such Restricted Subsidiary that was not permitted by this clause (7);
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations in the ordinary course of business
and not for speculative purposes;
(9) the guarantee by (i) the Company or any of the Guarantors
of Indebtedness of the Company or a Restricted Subsidiary of the
Company that was permitted to be incurred by another provision of this
covenant; (ii) any of the Excluded Project Subsidiaries of Indebtedness
of any other Excluded Project Subsidiary; and (iii) any of the Excluded
Foreign Subsidiaries of Indebtedness of any other Excluded Foreign
Subsidiary; provided that if the Indebtedness being guaranteed is
subordinated to or pari passu with the Notes, then the guarantee shall
be subordinated to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
(except in the case of daylight overdrafts) inadvertently drawn against
insufficient funds in the ordinary course of business, so long as such
Indebtedness is covered within five Business Days;
(11) the Xcel Note and the Creditor Notes, if any;
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of workers' compensation
claims, self-insurance obligations, bankers' acceptance and performance
and surety bonds provided by the Company or a Restricted Subsidiary in
the ordinary course of business;
(13) the incurrence of Additional Non-Recourse Debt by any
Excluded Subsidiary if, immediately after giving effect to the
incurrence of such Additional Non-Recourse Debt and the application of
the proceeds therefrom, the Company's pro forma Secured Leverage Ratio
would not exceed 2.75 to 1.0;
(14) the incurrence of Indebtedness that may be deemed to
arise as a result of agreements of the Company or any Restricted
Subsidiary of the Company providing for
65
indemnification, adjustment of purchase price or any similar
obligations, in each case, incurred in connection with the disposition
of any business, assets or Equity Interests of any Subsidiary; provided
that the aggregate maximum liability associated with such provisions
may not exceed the gross proceeds (including non-cash proceeds) of such
disposition;
(15) the incurrence by the Company or any Restricted
Subsidiary of the Company of Indebtedness represented by letters of
credit, guarantees of Indebtedness or other similar instruments to the
extent (i) such instruments are cash collateralized and (ii) the
Company or such Restricted Subsidiary would have been permitted to
expend the funds used to cash collateralize such instrument directly
under the terms of this Indenture; and
(16) the incurrence by the Company and/or any of its
Restricted Subsidiaries of additional Indebtedness in an aggregate
principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred
to refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (16), not to exceed $250.0 million.
The Company will not incur, and will not permit any Guarantor to incur,
any Indebtedness (including Permitted Debt) that is contractually subordinated
in right of payment to any other Indebtedness of the Company or such Guarantor
unless such Indebtedness is also contractually subordinated in right of payment
to the Notes and the applicable Subsidiary Guarantee on substantially identical
terms; provided, however, that no Indebtedness will be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Company solely by virtue of being unsecured or by virtue of being secured on a
first or junior Lien basis.
For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (16) above,
or is entitled to be incurred pursuant to Section 4.09(a), the Company will be
permitted to classify such item of Indebtedness on the date of its incurrence,
or later reclassify all or a portion of such item of Indebtedness, in any manner
that complies with this Section 4.09. Indebtedness under Credit Facilities
outstanding on the date on which Notes are first issued and authenticated under
this Indenture will initially be deemed to have been incurred on such date in
reliance on the exception provided by clause (1) of the definition of Permitted
Debt. The accrual of interest, the accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of Disqualified Stock
will not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Stock for purposes of this Section 4.09; provided, in each such
case, that the amount thereof is included in Fixed Charges of the Company as
accrued.
For purposes of determining compliance with any U.S. dollar-denominated
restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent
principal amount of Indebtedness denominated in a foreign currency will be
calculated based on the relevant currency exchange rate in effect on the date
such Indebtedness was incurred; provided that if such Indebtedness is incurred
to refinance other Indebtedness denominated in a foreign currency, and such
refinancing would cause the applicable U.S. dollar-dominated restriction to be
exceeded if calculated at the relevant currency exchange rate in effect on the
date of such refinancing, such U.S. dollar-dominated restriction shall be deemed
not to have been exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed the principal amount of the Indebtedness being
refinanced.
The amount of any Indebtedness outstanding as of any date will be:
66
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of
any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a
Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such asset at the date
of determination, and
(b) the amount of the Indebtedness of the other
Person;
provided that any changes in any of the above shall not give rise to a default
under this Section 4.09.
Section 4.10 Asset Sales.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale (including a Sale of
Collateral) unless:
(1) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of the Asset Sale at least equal
to the Fair Market Value of the assets or Equity Interests issued or
sold or otherwise disposed of or, in the case of Specified Joint
Venture Sales, receives consideration at least equal to the value
prescribed by the agreements relating to such specified joint ventures
as in effect on the date of this Indenture;
(2) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of
cash. For purposes of this provision, each of the following will be
deemed to be cash:
(a) any liabilities, as shown on the Company's most
recent consolidated balance sheet, of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are
by their terms subordinated to the Notes or any Subsidiary Guarantee)
that are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Company or such
Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations
received by the Company or any such Restricted Subsidiary from such
transferee that are converted by the Company or such Restricted
Subsidiary into cash within 180 days of the receipt of such securities,
notes or other obligations, to the extent of the cash received in that
conversion; and
(c) except in the case of a Sale of Collateral, any
stock or assets of the kind referred to in clauses (3) or (5) of the
next paragraph of this Section 4.10; and
(3) in the case of a Sale of Collateral, the Company (or the
Restricted Subsidiary, as the case may be) will deposit the Net
Proceeds (other than Excluded Proceeds) as cash collateral in a
segregated account held by the Collateral Trustee or its agent to
secure the Secured Obligations.
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, other than Excluded Proceeds and other than Net Proceeds from a Sale of
Collateral, the Company (or the applicable Restricted Subsidiary, as the case
may be) may apply those Net Proceeds:
67
(1) to repay Priority Lien Debt and, if such Priority Lien
Debt is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto;
(2) in the case of a sale of assets pledged to secured
Indebtedness (including Capital Lease Obligations) other than Secured
Debt, to repay the Indebtedness secured by those assets;
(3) to acquire all or substantially all of the assets of, or
any Capital Stock of, another Person engaged primarily in a Permitted
Business, if, after giving effect to any such acquisition of Capital
Stock, such Person is or becomes a Wholly-Owned Subsidiary of the
Company;
(4) to make a capital expenditure;
(5) to acquire other assets that are not classified as current
assets under GAAP and that are used or useful in a Permitted Business;
or
(6) any combination of the foregoing.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale that constitutes a Sale of Collateral, other than Excluded Proceeds, or
from a Casualty Event, the Company (or the Restricted Subsidiary that owned
those assets, as the case may be) may apply those Net Proceeds to purchase other
assets (which may include Capital Stock) that would constitute Collateral or to
repay Priority Lien Debt and, if such Priority Lien Debt is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto.
Any Net Proceeds from Asset Sales (including Sales of Collateral but
excluding Excluded Proceeds) or Casualty Events that are not applied or invested
as provided in the preceding paragraphs will constitute "Excess Proceeds." When
the aggregate amount of Excess Proceeds exceeds $50.0 million, within fifteen
days thereof, the Company will make an Asset Sale Offer to all Holders of Notes
and all holders of other Parity Lien Debt containing provisions similar to those
set forth in this Indenture with respect to offers to purchase or redeem with
the proceeds of sales of assets to purchase the maximum principal amount of
Notes and such Parity Lien Debt that may be purchased out of the Excess
Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of
principal amount plus accrued and unpaid interest and Liquidated Damages, if
any, to the date of purchase, and will be payable in cash. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes and other Parity Lien Debt
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
applicable trustee will select the Notes and such other Parity Lien Debt to be
purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
Section 3.09 or 4.10 of this Indenture, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under Section 3.09 or this Section 4.10 by virtue of
such conflict.
68
Section 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of the Company (each, an "Affiliate Transaction"),
unless:
(1) the Affiliate Transaction is on terms that are no less
favorable to the Company (as reasonably determined by the Company) or
the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, a resolution of the
Board of Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate Transaction
complies with clause (1) of Section 4.11(a) and that such
Affiliate Transaction has been approved by a majority of the
disinterested members of such Board of Directors; and
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $35.0 million, an opinion as to the
fairness to the Company or such Restricted Subsidiary of such
Affiliate Transaction from a financial point of view issued by
an accounting, appraisal or investment banking firm of
national standing.
(b) The following items will not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of Section
4.11(a):
(1) any employment agreement or director's engagement
agreement, employee benefit plan, officer and director indemnification
agreement or any similar arrangement entered into by the Company or any
of its Restricted Subsidiaries in the ordinary course of business or
approved by the Board of Directors of the Company in good faith;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted
Subsidiary of the Company) that is an Affiliate of the Company solely
because the Company owns, directly or through a Restricted Subsidiary,
an Equity Interest in, or controls, such Person;
(4) payment of reasonable directors' fees to Persons who are
not otherwise Affiliates of the Company;
(5) any issuance of Equity Interests (other than Disqualified
Stock) of the Company or its Restricted Subsidiaries to Affiliates of
the Company;
(6) Restricted Payments that do not violate Section 4.07
hereof;
69
(7) any agreement in effect as of the date of this Indenture
or any amendment thereto or replacement thereof and any transaction
contemplated thereby or permitted thereunder, so long as any such
amendment or replacement agreement taken as a whole is not more
disadvantageous to the Holders than the original agreement as in effect
on the date of this Indenture;
(8) payments or advances to employees or consultants that are
incurred in the ordinary course of business or that are approved by the
Board of Directors of the Company in good faith;
(9) the existence of, or the performance by the Company or any
of its Restricted Subsidiaries of its obligations under the terms of,
any stockholders agreement (including any registration rights agreement
or purchase agreement related thereto) to which it is a party as of the
date of this Indenture and any similar agreements which it may enter
into thereafter; provided, however, that the existence of, or the
performance by the Company or any of its Restricted Subsidiaries of
obligations under, any future amendment to any such existing agreement
or under any similar agreement entered into after the date of this
Indenture shall only be permitted by this clause (9) to the extent that
the terms of any such amendment or new agreement are not otherwise more
disadvantageous to the Holders of the Notes in any material respect;
(10) transactions permitted by, and complying with, the
provisions of Section 5.01 hereof;
(11) transactions with customers, clients, suppliers, joint
venture partners or purchasers or sellers of goods or services, in each
case, in the ordinary course of business (including pursuant to joint
venture agreements) and otherwise in compliance with the terms of this
Indenture that are fair to the Company and its Restricted Subsidiaries,
in the reasonable determination of the Board of Directors of the
Company or the senior management thereof, or are on terms not
materially less favorable taken as a whole as might reasonably have
been obtained at such time from an unaffiliated party;
(12) any repurchase, redemption or other retirement of Capital
Stock of the Company held by employees of the Company or any of its
Subsidiaries at a price not in excess of the Fair Market Value thereof
and, if greater than $1.0 million, approved by the Board of Directors
of the Company;
(13) loans or advances to employees or consultants in the
ordinary course of business not to exceed $2.0 million in the aggregate
at any one time outstanding;
(14) the Reorganization Events and the Refinancing
Transactions and the payment of all fees and expenses related thereto;
and
(15) any agreement to do any of the foregoing.
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind on any asset now owned or hereafter acquired, except
Permitted Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, grant or permit to exist a Lien upon any property (whether then
held by it or to be acquired by it at a future time) as security for any Parity
Lien Debt, unless (1) such Lien secures all Parity Lien Obligations (including
the Notes) on
70
an equal and ratable basis and (2) the Collateral Trustee holds an enforceable
and perfected Lien upon such property as security Equally and Ratably for all
Parity Lien Obligations.
Section 4.13 Business Activities.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than Permitted Businesses, except
to such extent as would not be material to the Company and its Restricted
Subsidiaries taken as a whole.
Section 4.14 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate, partnership or
other existence of each of its Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from
time to time) of the Company or any such Subsidiary; and
(2) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Subsidiaries, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the Notes.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company will
make an offer (a "Change of Control Offer") to each Holder to repurchase all or
any part (equal to $1,000 or an integral multiple of $1,000) of each Holder's
Notes at a purchase price equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages, if any, on the
Notes repurchased, if any, to the date of purchase, subject to the rights of the
Holders of the Notes on the relevant record date to receive interest due on the
relevant interest payment date (the "Change of Control Payment"). Within 30 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and stating:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Notes tendered will be accepted for
payment;
(2) the purchase price and the purchase date, which shall be
no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest after the
Change of Control Payment Date;
71
(5) that Holders electing to have any Notes purchased pursuant
to a Change of Control Offer will be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" attached to
the Notes completed, or transfer by book-entry transfer, to the Paying
Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing his election
to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change in Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of Sections 3.09, 4.10 or 4.15 of this Indenture, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under Section 3.09, 4.10 or this Section
4.15 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company will, to
the extent lawful:
(1) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Company.
The Paying Agent will promptly mail (but in any case not later than
fifteen days after the Change of Control Payment Date) to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each new Note will be in a
principal amount of $1,000 or an integral multiple of $1,000. The Company will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15,
the Company will not be required to make a Change of Control Offer upon a Change
of Control if (1) a third party makes the Change of Control Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in this
Section 4.15 and Section 3.09 hereof and purchases all Notes properly tendered
and not withdrawn under the Change of Control Offer, or (2) notice of redemption
has been given pursuant to Section 3.07 hereof, unless and until there is a
default in payment of the applicable redemption price.
72
Section 4.16 Limitation on Sale and Leaseback Transactions.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction;
provided that the Company or any Guarantor may enter into a sale and leaseback
transaction if:
(1) the Company or that Guarantor, as applicable, could have
(a) incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction under the Fixed Charge
Coverage Ratio test in Section 4.09(a) hereof and (b) incurred a Lien
to secure such Indebtedness pursuant to the provisions of Section 4.12
hereof;
(2) the gross cash proceeds of that sale and leaseback
transaction are at least equal to the Fair Market Value of the property
that is subject of that sale and leaseback transaction, as determined
in good faith by the Board of Directors of the Company; and
(3) if such sale and leaseback transaction constitutes an
Asset Sale, the transfer of assets in that sale and leaseback
transaction is permitted by, and the Company applies the proceeds of
such transaction in compliance with, Section 4.10 hereof.
Section 4.17 Payments for Consent.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 4.18 Additional Subsidiary Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or
creates another Domestic Subsidiary (other than an Excluded Subsidiary) after
the date of this Indenture or if any Excluded Subsidiary that is a Domestic
Subsidiary ceases to be an Excluded Subsidiary after the date of this Indenture,
then such newly acquired or created Subsidiary, or former Excluded Subsidiary,
will become a Guarantor and execute a Subsidiary Guarantee pursuant to a
supplemental indenture in form and substance satisfactory to the Trustee and
deliver an Opinion of Counsel to the Trustee within thirty Business Days of the
date on which it was acquired or created or ceased to be an Excluded Subsidiary
to the effect that such supplemental indenture has been duly authorized,
executed and delivered by that Domestic Subsidiary and constitutes a valid and
binding agreement of that Domestic Subsidiary, enforceable in accordance with
its terms (subject to customary exceptions). The form of such Subsidiary
Guarantee is attached as Exhibit E hereto.
Section 4.19 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary designated as
Unrestricted will be deemed to be an Investment made as of the time of the
designation and will reduce the amount available for Restricted Payments under
Section 4.07 hereof or under one or more clauses of the definition of Permitted
Investments, as determined by the Company. That designation will only be
73
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors of the Company may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.
Section 4.20 Changes in Covenants When Notes Rated Investment Grade.
(a) If on any date following the date of this Indenture:
(1) the rating assigned to the Notes by each of S&P and
Xxxxx'x is an Investment Grade Rating; and
(2) no Default or Event of Default shall have occurred and be
continuing, then, beginning on that day and subject to the provisions
of the following two paragraphs, Sections 4.10 (other than any
provisions contained therein relating to the Sale of Collateral and the
application of the proceeds therefrom), 4.07, 4.08, 4.09, 4.19, 4.11
and clause (4) of Section 5.01 hereof (collectively, the "Suspended
Covenants") shall be suspended as to the Notes.
(b) During any period that the foregoing covenants have been
suspended, the Company's Board of Directors may not designate any of its
Subsidiaries as Unrestricted Subsidiaries pursuant to Section 4.19 hereof or the
second paragraph of the definition of "Unrestricted Subsidiary."
(c) If at any time the Notes are downgraded from an Investment
Grade Rating by either S&P or Moody's, the Suspended Covenants will thereafter
be reinstated as if such covenants had never been suspended and be applicable
pursuant to the terms of this Indenture (including in connection with performing
any calculation or assessment to determine compliance with the terms of this
Indenture), unless and until the Notes subsequently attain an Investment Grade
Rating from each of S&P and Xxxxx'x (in which event the Suspended Covenants will
again be suspended for such time that the Notes maintain an Investment Grade
Rating from each of S&P and Moody's); provided, however, that no Default, Event
of Default or breach of any kind will be deemed to exist under this Indenture,
the Notes or the Subsidiary Guarantees with respect to the Suspended Covenants
based on, and none of the Company or any of its Subsidiaries will bear any
liability for, any actions taken or events occurring after the Notes attain an
Investment Grade Rating from each of S&P and Xxxxx'x and before any
reinstatement of the Suspended Covenants as provided above, or any actions taken
at any time pursuant to any contractual obligation arising prior to the
reinstatement, regardless of whether those actions or events would have been
permitted if the applicable Suspended Covenant had remained in effect during
such period.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company shall not, directly or indirectly: (1) consolidate or merge
with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person; unless:
(1) either: (a) the Company is the surviving corporation; or
(b) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment,
transfer, conveyance or other disposition has been made is a
corporation, partnership or limited liability company organized or
existing under the laws of the United States, any state of
74
the United States or the District of Columbia; provided that if the
Person is a partnership or limited liability company, then a
corporation wholly-owned by such Person organized or existing under the
laws of the United States, any state of the United States or the
District of Columbia that does not and will not have any material
assets or operations shall become a co-issuer of the Notes pursuant to
a supplemental indenture duly executed by the Trustee;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of the Company under the Notes, this
Indenture, the Registration Rights Agreement and the Security Documents
pursuant to supplemental agreements reasonably satisfactory to the
Trustee and the Collateral Trustee;
(3) immediately after such transaction, no Default or Event of
Default exists; and
(4) (i) the Company or the Person formed by or surviving any
such consolidation or merger (if other than the Company), or to which
such sale, assignment, transfer, conveyance or other disposition has
been made will, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section 4.09
hereof or (ii) the Company's Fixed Charge Coverage Ratio is greater
after giving pro forma effect to such consolidation or merger and any
related financing transactions as if the same had occurred at the
beginning of the applicable four-quarter period than the Company's
actual Fixed Charge Coverage Ratio for the period.
In addition, the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.
This Section 5.01 will not apply to:
(1) a merger of the Company with an Affiliate solely for the
purpose of reincorporating the Company in another jurisdiction; and
(2) any sale, transfer, assignment, conveyance, lease or other
disposition of assets between or among the Company and its Restricted
Subsidiaries, including by way of merger or consolidation.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), 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; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets in a transaction that is subject to, and that complies with
the provisions of, Section 5.01 hereof.
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ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) the Company defaults for 30 days in the payment when due
of interest on, or Liquidated Damages with respect to, the Notes;
(2) the Company defaults in the payment when due (at maturity,
upon redemption or otherwise) of the principal of, or premium, if any,
on the Notes;
(3) the Company or any of its Restricted Subsidiaries fails to
comply with the provisions of Section 4.15 or 5.01 hereof;
(4) the Company or any of its Restricted Subsidiaries fails to
observe or perform any other covenant, representation, warranty or
other agreement in this Indenture or the Notes or the Security
Documents for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class;
(5) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists, or is created after
the date of this Indenture, if that default:
(A) is caused by a failure to pay principal of,
or interest or premium, if any, on such Indebtedness prior to
the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment
Default"); or
(B) results in the acceleration of such
Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$50.0 million or more (excluding any amounts paid out of the
claims reserve established pursuant to the NRG Plan of
Reorganization); provided that this clause (5) shall not apply
to (i) secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets
securing such Indebtedness to a Person that is not an
Affiliate of the Company; (ii) Non-Recourse Debt of NRG Peaker
Finance Company LLC; and (iii) Non-Recourse Debt of the
Company or any of its Restricted Subsidiaries (except to the
extent that the Company or any of its Restricted Subsidiaries
that are not parties to such Non-Recourse Debt becomes
directly or indirectly liable, including pursuant to any
contingent obligation, for any Indebtedness thereunder and
such liability, individually or in the aggregate, exceeds
$50.0 million (excluding any amounts paid out of the claims
reserve established pursuant to the NRG Plan of
Reorganization));
(6) one or more judgments for the payment of money in an
aggregate amount in excess of $50.0 million (excluding therefrom any
amount covered by insurance as to which the insurer
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has acknowledged in writing its coverage obligation) or other judgments
that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect shall be rendered against the
Company or any Restricted Subsidiary of the Company or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
levy upon assets or properties of the Company or any of its Restricted
Subsidiaries to enforce any such judgment;
(7) material breach by the Company or any of its Restricted
Subsidiaries of any material representation or warranty or agreement in
the Security Documents, the repudiation by the Company or any of its
Restricted Subsidiaries of any of its material obligations under any of
the Security Documents or the unenforceability of any of the Security
Documents against the Company or any of its Restricted Subsidiaries for
any reason with respect to Collateral having an aggregate Fair Market
Value of $25.0 million or more;
(8) except as permitted by this Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect
or any Guarantor (or any group of Guarantors) that constitutes a
Significant Subsidiary, or any Person acting on behalf of any Guarantor
(or any group of Guarantors) that constitutes a Significant Subsidiary,
shall deny or disaffirm its or their obligations under its or their
Subsidiary Guarantee(s);
(9) the Company or any of its Restricted Subsidiaries (other
than the Exempt Subsidiaries) that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company (other than the Exempt
Subsidiaries) that, taken together, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a custodian
of it or for all or substantially all of its property,
(D) makes a general assignment for the benefit
of its creditors, or
(E) generally is not paying its debts as they
become due;
(10) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of
its Restricted Subsidiaries (other than the Exempt
Subsidiaries) that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company (other than the Exempt
Subsidiaries) that, taken together, would constitute a
Significant Subsidiary in an involuntary case;
(B) appoints a custodian of the Company or any
of its Restricted Subsidiaries (other than the Exempt
Subsidiaries) that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company (other than the Exempt
Subsidiaries) that, taken together, would constitute a
Significant Subsidiary or for all or substantially all of the
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property of the Company or any of its Restricted Subsidiaries
(other than the Exempt Subsidiaries) that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the
Company (other than the Exempt Subsidiaries) that, taken
together, would constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or any
of its Restricted Subsidiaries (other than the Exempt
Subsidiaries) that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company (other than the Exempt
Subsidiaries) that, taken together, would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (9) or (10) of
Section 6.01 hereof, with respect to the Company or any of its Restricted
Subsidiaries (other than Exempt Subsidiaries) that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company (other than the Exempt
Subsidiaries) that, taken together, would constitute a Significant Subsidiary,
all outstanding Notes will become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may, on behalf of all of the
Holders, rescind an acceleration or waive any existing Default or Event of
Default and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium or Liquidated Damages, if any, that has become
due solely because of the acceleration) have been cured or waived.
If an Event of Default occurs on or after December 15, 2008 by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to December 15,
2008 by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable in an amount, for each of the years beginning on December 15 of the
years set forth below, as set forth below (expressed as a percentage of the
principal amount of the Notes on the date of payment that would otherwise be due
but for the provisions of this sentence):
YEAR PERCENTAGE
---- ----------
2003....................................................... 108.0%
2004....................................................... 107.2%
2005....................................................... 106.4%
2006....................................................... 105.6%
2007....................................................... 104.8%
Section 6.03 Other Remedies.
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If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, premium and
Liquidated Damages, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture including, but not
limited to issuing a Notice of Actionable Default under the Collateral Trust
Agreement.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by written notice to the Trustee may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of the principal of, premium and Liquidated Damages, if any, or
interest on, the Notes (including in connection with an offer to purchase);
provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it including, but not limited to issuing a Notice of Actionable
Default under the Collateral Trust Agreement. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if:
(1) the Holder of a Note gives to the Trustee written notice
that an Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to
the Trustee security or indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity, if requested; and
(5) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with the request.
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A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of, premium and Liquidated
Damages, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), 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;
provided that a Holder shall not have the right to institute any such suit for
the enforcement of payment if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of the Lien of this
Indenture upon any property subject to such Lien.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to 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 the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, as administrative expenses associated with any such proceeding, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
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First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium and Liquidated Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default of which
a Responsible Officer has actual knowledge of or receives written notice:
(1) the duties of the Trustee will be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; 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. However, 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 will examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
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(c) The Trustee may not be relieved from liabilities for its own
grossly negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is determined by
a court of competent jurisdiction that the Trustee was grossly
negligent in ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to
expend or risk its own funds or incur any liability, financial or otherwise, in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or indemnity reasonably satisfactory to it against such risk or
liability is not reasonably assured to it, and none of the provisions contained
in this Indenture shall in any event require the Trustee to perform, or be
responsible or liable for the manner of performance of, any obligations of the
Company under this Indenture or any related document. The Trustee will be under
no obligation to exercise any of its rights and powers under this Indenture, or
to institute, conduct or defend any litigation hereunder or in relation hereto,
at the request, order or direction of any Holders, unless such Holder has
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense, which may be incurred therein or thereby.
(f) The Trustee will not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law or the terms of this Indenture.
(g) The Trustee shall not be a trustee for or have any fiduciary
obligation to any party hereto and no implied covenants or obligations shall be
read into this Indenture against the Trustee.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon, and shall be fully
protected in relying upon, any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
will not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel will be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Trustee may act directly, or by or through its attorneys,
agents, custodians or nominees and will not be responsible for the misconduct or
negligence on the part of, or for the supervision of, any agent, attorney,
custodian or nominee appointed with due care.
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(d) The Trustee will not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company will be sufficient if
signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders have offered to the Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall have no obligation to invest or reinvest any
amounts held hereunder in the absence of such written investment direction. In
no event shall the Trustee be liable for the selection of investments or for
investment losses incurred thereon. The Trustee shall have no liability in
respect of losses incurred as a result of the liquidation of any such investment
prior to its stated maturity or the failure of a party directing such investment
to provide timely written investment direction.
(h) Neither the Trustee nor any of its officers, directors,
employees or agents shall be liable for any action taken or omitted under this
Indenture or in connection therewith except to the extent caused by the
Trustee's gross negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, no longer subject to appeal or
review.
(i) The Company (for itself and any person or entity claiming
through it) hereby releases, waives, discharges, exculpates and covenants not to
xxx the Trustee for any action taken or omitted under this Indenture except to
the extent caused by the Trustee's gross negligence or willful misconduct.
(j) Anything in this Indenture to the contrary notwithstanding, in
no event shall the Trustee be liable for special, indirect or consequential loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
(k) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, officers' certificate, or other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document.
(l) The Trustee shall not be bound to ascertain or inquire as to
the performance or observance of any covenants, conditions or agreements on the
part of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company.
(m) For so long as the Trustee shall serve as Registrar and Paying
Agent, it shall be afforded in such capacities, the same rights, protections,
immunities and indemnities provided to the Trustee herein.
(n) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its gross negligence or willful default.
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Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee (if this Indenture has been qualified under
the TIA) or resign. Any Agent may do the same with like rights and duties.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if the
Trustee receives written notice of, or a Responsible Officer of the Trustee has
actual knowledge of, such Default or Event of Default, the Trustee will mail to
Holders of Notes a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in payment
of principal of, premium or Liquidated Damages, if any, or interest on, any
Note, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
will comply with TIA Section 313(b)(2). The Trustee will also transmit by mail
all reports as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the
Holders of Notes will be mailed by the Trustee to the Company and filed by the
Trustee with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA Section 313(d). The Company will promptly notify the Trustee
when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time
reasonable compensation as agreed in writing between the Company and the Trustee
for its acceptance of this Indenture and services hereunder. The Trustee's
compensation will not be limited by any law on compensation of a trustee of an
express trust. The Company will reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
connection with this Indenture and any
84
related document in addition to the compensation for its services. Such expenses
will include the compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company and the Guarantors will indemnify and hold
harmless and, at their option, defend the Trustee and its officers, directors,
employees, representatives and agents against and reimburse it and them for any
obligation, injuries (to person, property, or natural resources), penalty,
action, suit, judgment, reasonable cost and expense (including reasonable
attorney's and agent's fees and expenses) and all losses, liabilities or
expenses incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture and any documents related
thereto, including the costs and expenses of enforcing this Indenture against
the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors, any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its gross negligence or
bad faith. The Trustee will notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company will not
relieve the Company or any of the Guarantors of their obligations hereunder. The
Company or such Guarantor will defend the claim and the Trustee will cooperate
in the defense. The Trustee may have separate counsel and the Company will pay
the reasonable fees and expenses of such counsel. Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this
Section 7.07 will survive the satisfaction and discharge of this Indenture and
the resignation or removal of the Trustee.
(d) To secure the Company's and the Guarantors' payment
obligations in this Section 7.07, the Trustee will have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes. Such Lien will
survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(9) or (10) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law or law relating to creditor rights generally.
(f) The Trustee will comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
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(3) a custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10 hereof,
such Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will promptly transfer all property held by it
as Trustee to the successor Trustee, provided all fees, expenses and
indemnification amounts owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 hereof will continue for the benefit of the
retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100.0
million (or $50.0 million, in the case of the initial Trustee) as set forth in
its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
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ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, and at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Subsidiary Guarantees) on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company and the Guarantors will be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes (including the Subsidiary Guarantees), which will thereafter
be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and
the other Sections of this Indenture referred to in clauses (1) and (2) below,
and to have satisfied all their other obligations under such Notes, the
Subsidiary Guarantees and this Indenture (and the Trustee, on written demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which will survive
until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium and
Liquidated Damages, if any, on such Notes when such payments are due
from the trust referred to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties, immunities and
indemnities of the Trustee hereunder and the Company's and the
Guarantors' obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19
and 4.20 hereof and clause (4) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter, "Covenant Defeasance"), and the Notes will
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes will not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance
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means that, with respect to the outstanding Notes and Subsidiary Guarantees, the
Company and the Guarantors may omit to comply with and will have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply will
not constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes and
Subsidiary Guarantees will be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(3) through 6.01(8) hereof will not constitute
Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
(a) In order to exercise either Legal Defeasance or Covenant
Defeasance under either Section 8.02 or 8.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm, or firm of independent
public accountants, to pay the principal of, premium and Liquidated
Damages, if any, and interest on the outstanding Notes on the stated
date for payment thereof or on the applicable redemption date, as the
case may be, and the Company must specify whether the Notes are being
defeased to such maturity or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the
Company must deliver to the Trustee an Opinion of Counsel confirming
that:
(A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has
been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not
occurred;
(3) in the case of an election under Section 8.03 hereof, the
Company must deliver to the Trustee an Opinion of Counsel confirming
that the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) and the deposit will not result in a breach or violation of,
or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;
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(5) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
(b) Upon the occurrence of a Legal Defeasance or a Covenant
Defeasance, the Collateral will be released from the Lien Securing the Notes
pursuant to Section 10.03 hereof.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Liquidated Damages, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(1) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
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, premium or
Liquidated Damages, if any, or interest on any Note and remaining unclaimed for
two years after such principal, premium or Liquidated Damages, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) will be discharged from such trust; and the
Holder of such Note will thereafter be permitted to 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, will thereupon cease;
89
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, shall at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Guarantors' obligations under this
Indenture and the Notes and the Subsidiary Guarantees will be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.02 or 8.03 hereof, as the case may be;
provided, however, that, if the Company makes any payment of principal of,
premium or Liquidated Damages, if any, or interest on any Note following the
reinstatement of its obligations, the Company will be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes or to alter the provisions of Article 2
hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;
(3) to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders of the Notes by a successor to
the Company pursuant to Article 5 or Article 11 hereof;
(4) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any such Holder;
(5) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(6) to make, complete or confirm any grant of Collateral
permitted or required by this Indenture or any of the Security
Documents or any release of Collateral that becomes effective as set
forth in this Indenture or any of the Security Documents;
(7) to conform the text of this Indenture, the Security
Documents or the Notes to any provision of the "Description of Notes"
section of the Company's Offering Memorandum, to the
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extent that such provision in that "Description of Notes" was intended
to be a verbatim recitation of a provision of this Indenture, the
Subsidiary Guarantees, the Security Documents or the Notes;
(8) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the
date hereof; or
(9) to allow any Guarantor to execute a supplemental indenture
and/or a Subsidiary Guarantee with respect to the Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee will join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture (including, without limitation,
Section 3.09, 4.10 and 4.15 hereof) and the Notes with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
voting as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium or Liquidated Damages, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes). Section 2.08 hereof shall determine which Notes are considered to be
"outstanding" for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee will
join with the Company and the Guarantors in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental Indenture.
It is not necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company will mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, will not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by
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the Company with any provision of this Indenture or the Notes. However, without
the consent of each Holder affected, an amendment, supplement or waiver under
this Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any Note or alter or waive any of the provisions with respect to the
redemption of the Notes except as provided above with respect to
Sections 3.09, 4.10 and 4.15 hereof;
(3) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of
principal of or premium or Liquidated Damages, if any, or interest on
the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the
then outstanding Notes and a waiver of the payment default that
resulted from such acceleration);
(5) make any Note payable in money other than that stated in
the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of, or interest or premium or
Liquidated Damages, if any, on the Notes;
(7) waive a redemption payment with respect to any Note (other
than a payment required by Sections 3.09, 4.10 or 4.15 hereof);
(8) release any Guarantor from any of its obligations under
its Subsidiary Guarantee or this Indenture, except in accordance with
the terms of such Subsidiary Guarantee and this Indenture;
(9) release any Collateral from the Liens created by the
Security Documents except as specifically provided for in this
Indenture and the Security Documents; or
(10) make any change in the foregoing amendment and waiver
provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
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Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities, indemnities or immunities of the
Trustee; provided that any amendment or supplement that modifies in any way the
Trustee's duties, obligations or covenants hereunder shall be reasonably
satisfactory in form and substance to the Trustee. The Company may not sign an
amended or supplemental indenture until its Board of Directors approves it. In
executing any amended or supplemental indenture, the Trustee will be entitled to
receive and (subject to Section 7.01 hereof) will be fully protected in
conclusively relying upon, in addition to the documents required by Section
13.04 hereof, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture and an Officers' Certificate stating that such
supplement or amendment is not inconsistent with the terms of the Collateral
Trust Agreement or any Priority Lien Document (as defined in the Collateral
Trust Agreement).
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01 Equal and Ratable Sharing of Collateral by Holders of Parity Lien
Debt; Sharing Confirmation.
Notwithstanding (1) anything to the contrary contained in the Security
Documents, (2) the time of incurrence of any Series of Parity Lien Debt, (3) the
order or method of attachment or perfection of any Liens securing any Series of
Parity Lien Debt, (4) the time or order of filing or recording of financing
statements, mortgages or other documents filed or recorded to perfect any Lien
upon any Collateral, (5) the time of taking possession or control over any
Collateral or (6) the rules for determining priority under any law governing
relative priorities of Liens:
(A) all Liens at any time granted by the Company
or any other Obligor to secure any of the Parity Lien Debt
shall secure, Equally and Ratably, all present and future
Parity Lien Obligations; and
(B) all proceeds of all Liens at any time
granted by the Company or any Obligor to secure any of the
Parity Lien Debt and other Parity Lien Obligations shall be
allocated and distributed Equally and Ratably on account of
the Parity Lien Debt and other Parity Lien Obligations.
The foregoing provision is intended for the benefit of, and shall be
enforceable as a third party beneficiary by, each present and future holder of
Parity Lien Obligations, each present and future Parity Debt Representative and
the Collateral Trustee as holder of Parity Liens. The Company shall not incur
any future Series of Parity Lien Debt unless the Parity Debt Representative of
each future Series of Parity
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Lien Debt delivers a Sharing Confirmation to the Trustee at the time of
incurrence of such Series of Parity Lien Debt.
Section 10.02 Ranking of Note Liens
Notwithstanding:
(1) anything to the contrary contained in the Security
Documents,
(2) the time of incurrence of any Series of Secured Debt,
(3) the order or method of attachment or perfection of any
Liens securing any Series of Secured Debt,
(4) the time or order of filing or recording of financing
statements, mortgages or other documents filed or recorded to perfect
any Lien upon any Collateral,
(5) the time of taking possession or control over any
Collateral or
(6) the rules for determining priority under any law governing
relative priorities of Liens,
all Liens at any time granted by the Company or any other Obligor to secure any
of the Parity Lien Debt shall be subject and subordinate to Priority Liens
securing Priority Lien Obligations up to the Priority Lien Cap.
The foregoing provision is intended for the benefit of, and shall be
enforceable as a third party beneficiary by, each present and future holder of
Priority Lien Obligations, each present and future Priority Debt Representative
and the Collateral Trustee as holder of Priority Liens. No other Person shall be
entitled to rely on, have the benefit of or enforce this provision.
In addition, the foregoing provision is intended solely to set forth
the relative ranking, as Liens, of the Liens securing Parity Lien Debt as
against the Priority Liens. Neither the Notes nor any other Parity Lien
Obligations nor the exercise or enforcement of any right or remedy for the
payment or collection thereof are intended to be, or shall ever by reason of the
foregoing provision, in any respect subordinated, deferred, postponed,
restricted or prejudiced.
Section 10.03 Release of Security Interest in Respect of Notes
The Collateral Trustee's Liens upon the Collateral shall no longer
secure the Notes or any other Obligations under this Indenture, and the right of
the Holders of the Notes and Obligations to the benefits and proceeds of the
Collateral Trustee's Liens on Collateral shall terminate and be discharged:
(1) upon satisfaction and discharge of this Indenture in
accordance with Article 12 hereof;
(2) upon a Legal Defeasance or Covenant Defeasance of the
Notes in accordance with Article 8 hereof; or
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(3) upon payment in full and discharge of all Notes
outstanding under this Indenture and all related Obligations that are
outstanding, due and payable under this Indenture at the time the Notes
are paid in full and discharged.
Section 10.04 Collateral Trustee.
(a) The Company has appointed Deutsche Bank Trust Company Americas
to serve as the Collateral Trustee for the benefit of the holders of:
(1) the Notes;
(2) all other Parity Lien Obligations outstanding from time to
time; and
(3) all Priority Lien Obligations outstanding from time to
time.
(b) The Collateral Trustee (directly or through co-trustees,
agents or sub-agents) will hold, and will be entitled to enforce, all Liens on
the Collateral created by the Security Documents.
(c) Except as provided in the Collateral Trust Agreement or as
directed by an Act of Instructing Debtholders (as defined in the Collateral
Trust Agreement), the Collateral Trustee will not be obligated:
(1) to act upon directions purported to be delivered to it by
any other Person;
(2) to foreclose upon or otherwise enforce any Lien; or
(3) to take any other action whatsoever with regard to any or
all of the Security Documents, the Liens created thereby or the
Collateral.
ARTICLE 11.
SUBSIDIARY GUARANTEES
Section 11.01 Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee, each Guarantor hereby agrees that
the Guarantee and Collateral Agreement substantially in the form attached as
Exhibit E hereto will be executed by an Officer of such Guarantor.
In the event that the Company or any of its Restricted Subsidiaries
creates or acquires any Domestic Subsidiary after the date of this Indenture, if
required by Section 4.18 hereof, the Company will cause such Domestic Subsidiary
to comply with the provisions of Section 4.18 hereof and this Article 11, to the
extent applicable.
Section 11.02 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 11.03 hereof, no Guarantor may
sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:
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(1) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(2) either:
(a) subject to Section 11.03 hereof, the Person
acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger unconditionally
assumes all the obligations of that Guarantor, pursuant to supplemental
agreements in form and substance reasonably satisfactory to the Trustee
and the Collateral Trustee, under this Indenture, the Subsidiary
Guarantee, the relevant Security Documents and the Registration Rights
Agreement (unless all material obligations in that agreement have been
performed) on the terms set forth herein or therein; and
(b) the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of
this Indenture, including without limitation, Section 4.10 hereof.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor and
the execution and delivery of the Assumption Agreement in accordance with the
terms of the Guarantee and Collateral Agreement, such successor Person will
succeed to and be substituted for the Guarantor with the same effect as if it
had been named herein as a Guarantor. Such successor Person thereupon may cause
to be signed any or all of the Subsidiary Guarantees which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Subsidiary
Guarantees so issued will in all respects have the same legal rank and benefit
under this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of such
Subsidiary Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes will prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or will prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
Section 11.03 Releases.
(a) In the event of any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the Capital
Stock of any Guarantor, in each case to a Person that is not (either before or
after giving effect to such transactions) the Company or a Restricted Subsidiary
of the Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the Capital
Stock of such Guarantor) or the corporation acquiring the property (in the event
of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under its Subsidiary
Guarantee; provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture,
including without limitation Section 4.10 hereof. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance
with the provisions of this Indenture, including without limitation Section 4.10
hereof, the Trustee will execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its Subsidiary
Guarantee.
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(b) Upon designation of any Guarantor as an Unrestricted
Subsidiary in accordance with the terms of this Indenture, such Guarantor will
be released and relieved of any obligations under its Subsidiary Guarantee.
(c) Upon Legal Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance with Article 12
hereof, each Guarantor will be released and relieved of any obligations under
its Subsidiary Guarantee.
(d) Upon a dissolution of any Guarantor that is permitted by the
terms of this Indenture, such Guarantor will be released and relieved of any
obligations under its Subsidiary Guarantee.
Any Guarantor not released from its obligations under its Subsidiary
Guarantee as provided in this Section 11.03 will remain liable for the full
amount of principal of and interest on the Notes and for the other obligations
of any Guarantor as provided in the Guarantee and Collateral Agreement.
ARTICLE 12.
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated (except
lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust
and thereafter repaid to the Company) have been delivered to the
Trustee for cancellation; or
(b) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become due and
payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, without consideration
of any reinvestment of interest, to pay and discharge the entire
Indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium and Liquidated Damages, if any, and accrued
interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) and the deposit will not result in a breach or violation of,
or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid
all sums payable by it under this Indenture; and
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(4) the Company has delivered irrevocable written instructions
to the Trustee under this Indenture to apply the deposited money toward
the payment of the Notes at maturity or the redemption date, as the
case may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the provisions of Sections 12.02 and 8.06 will survive. In
addition, nothing in this Section 12.01 will be deemed to discharge those
provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited
with the Trustee pursuant to Section 12.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes 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 (and premium and
Liquidated Damages, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 12.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.01 hereof; provided that if the Company has made any
payment of principal of, premium or Liquidated Damages, if any, or interest on
any Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 13.
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties will control.
Section 13.02 Notices.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
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If to the Company and/or any Guarantor:
NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
With a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
If to the Trustee:
Law Debenture Trust Company of New York
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
With a copy to:
Xxxxxx & Xxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Kalyan "Kal" Das
The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) will
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, upon confirmation of receipt by addressee; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery upon confirmation of receipt by addressee.
Any notice or communication to a Holder will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication will also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it will
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it will mail
a copy to the Trustee and each Agent at the same time.
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Section 13.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 13.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 13.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) must comply with the provisions of TIA
Section 314(e) and must include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(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 such Person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantors under the Notes, this
Indenture, the Subsidiary Guarantees, the Security Documents or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the
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consideration for issuance of the Notes. The waiver may not be effective to
waive liabilities under the federal securities laws.
Section 13.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 13.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 13.10 Successors.
All agreements of the Company in this Indenture and the Notes will bind
its successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 11.05.
Section 13.11 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 13.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
Section 13.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and will in no
way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
101
SIGNATURES
Dated as of December 23, 2003
NRG ENERGY, INC.
By: ________________________________________
Name:
Title:
EACH GUARANTOR LISTED ON SCHEDULE I
HEREOF
By: ________________________________________
Name:
Title:
LAW DEBENTURE TRUST COMPANY OF NEW YORK
By: ________________________________________
Name:
Title:
EXHIBIT A
[Face of Note]
CUSIP/CINS ____________
8% Second Priority Senior Secured Notes due 2013
No. ___ $____________
NRG ENERGY, INC.
promises to pay to _______ or registered assigns,
the principal sum of __________________________________________________________
DOLLARS on December 15, 2013.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated: _______________, 200_
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IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
NRG ENERGY, INC.
By: ________________________________________
Name:
Title:
Dated:
This is one of the Notes referred to
in the within-mentioned Indenture:
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee
By: ________________________________
Authorized Signatory
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[Back of Note]
8% Second Priority Senior Secured Notes due 2013
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
[Insert the Unit Legend, if applicable pursuant to the provisions of the
Indenture]
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. NRG Energy, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this
Note at 8% per annum from ________________, 20__ until maturity and
shall pay the Liquidated Damages, if any, payable pursuant to Section 5
of the Registration Rights Agreement referred to below. The Company
will pay interest and Liquidated Damages, if any, semi-annually in
arrears on June 15 and December 15 of each year, or if any such day is
not a Business Day, on the next succeeding Business Day (each, an
"Interest Payment Date"). Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date; provided further that the
first Interest Payment Date shall be June 15, 2004. The Company will
pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and premium, if any, from time
to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it will pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages, if any, (without regard to any
applicable grace periods) from time to time on demand at the same rate
to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) and Liquidated Damages, if any, to
the Persons who are registered Holders of Notes at the close of
business on the June 1 or December 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal, premium and Liquidated Damages,
if any, and interest at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or,
at the option of the Company, payment of interest and Liquidated
Damages, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment
by wire transfer of immediately available funds will be required with
respect to principal of and interest, premium and Liquidated Damages,
if any, on, all Global Notes and all other Notes the Holders of which
will have provided wire transfer instructions to the Company or the
Paying Agent. Such payment will be in such coin or currency of the
United States of America as at the time of payment is legal tender for
payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, Law Debenture Trust
Company of New York, the Trustee under the Indenture, will act as
Paying Agent and Registrar. The Company
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may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture
dated as of December 23, 2003 (the "Indenture") among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to
the TIA (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act
for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are secured
obligations of the Company limited to $1.25 billion in aggregate
principal amount. Additional Notes may be issued pursuant to the
Indenture and will be part of the same series as the Initial Notes. The
Notes are secured on a second-priority basis by security interests in
the Collateral pursuant to the Security Documents referred to in the
Indenture.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5,
the Company will not have the option to redeem the Notes prior to December 15,
2008. On or after December 15, 2008, the Company will have the option to redeem
the Notes, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the applicable redemption date, if redeemed during the twelve-month
period beginning on December 15 of the years indicated below, subject to the
rights of Holders of the Notes on the relevant record date to receive interest
on the relevant interest payment date:
Year Percentage
---- ----------
2008............................................. 104.000%
2009............................................. 102.667%
2010............................................. 101.333%
2011 and thereafter.............................. 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to December 15, 2006, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under the Indenture with the net cash proceeds of one or more Equity
Offerings at a redemption price equal to 108% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any; provided that
at least 65% in aggregate principal amount of the Notes originally issued under
the Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption and that such
redemption occurs within 45 days of the date of the closing of such Equity
Offering.
(6) MANDATORY REDEMPTION.
The Company will not be required to make mandatory redemption payments
with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, the Company will
be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral
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multiple thereof) of each Holder's Notes at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of
purchase (the "Change of Control Payment"). Within 10 days following
any Change of Control, the Company will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
(b) If the Company or a Restricted Subsidiary of the
Company consummates any Asset Sales, within fifteen days of each date
on which the aggregate amount of Excess Proceeds exceeds $50.0 million,
the Company will commence an offer to all Holders of Notes and all
holders of other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of sales of
assets (an "Asset Sale Offer") pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes and other
pari passu Indebtedness that may be purchased out of the Excess
Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date fixed for the closing
of such offer, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and other
pari passu Indebtedness tendered pursuant to an Asset Sale Offer is
less than the Excess Proceeds, the Company (or such Restricted
Subsidiary) may use such deficiency for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes
and other pari passu Indebtedness surrendered by holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes and other pari passu Indebtedness to be purchased on a pro rata
basis. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any related
purchase date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" attached to the
Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days
prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction or discharge of the
Indenture. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted
by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part.
Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented
with the consent of the Holders of at
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least a majority in principal amount of the then outstanding Notes
voting as a single class, and any existing Default or Event of Default
or compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes voting as a single class. Without
the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency;
to provide for uncertificated Notes in addition to or in place of
certificated Notes; to provide for the assumption of the Company's or
any Guarantor's obligations to Holders of the Notes in case of a merger
or consolidation; to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such
Holder; to comply with the requirements of the SEC in order to effect
or maintain the qualification of the Indenture under the TIA; to make,
complete or confirm any grant of Collateral permitted or required by
the indenture or any of the Security Documents or any release of
Collateral that becomes effective pursuant to the Indenture or any of
the Security Documents; to conform the text of the Indenture, the
Security Agreements or the Notes to any provision of the "Description
of Notes" section of the Company's Offering Memorandum dated December
17, 2003, relating to the initial offering of the Notes, to the extent
that such provision in that "Description of Notes" was intended to be a
verbatim recitation of a provision of the Indenture, the Subsidiary
Guarantees, the Security Agreements or the Notes; to provide for the
Issuance of Additional Notes in accordance with the limitations set
forth in the Indenture; or to allow any Guarantor to execute a
supplemental indenture to the Indenture and/or a Subsidiary Guarantee
with respect to the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest or Liquidated
Damages on the Notes; (ii) default in payment when due of principal of
or premium, if any, on the Notes when the same becomes due and payable
at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise, (iii) failure by the Company to comply with
Section 4.15 or 5.01 of the Indenture; (iv) failure by the Company for
60 days after notice to the Company by the Trustee or the Holders of at
least 25% in principal amount of the Notes then outstanding voting as a
single class to comply with any other covenant, representation,
warranty or other agreement in the Indenture, the Notes or the Security
Documents; (v) default under one or more instruments evidencing or
securing Indebtedness of the Company or any of its Restricted
Subsidiaries having an outstanding principal amount of $50.0 million or
more that has resulted in the acceleration of the payment of such
Indebtedness or failure to pay principal of, or interest or premium, if
any, when due, subject to certain exceptions; (vi) certain judgments
for the payment of money in an amount of $50.0 million or more or other
judgments that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, in each case, that
remain undischarged for a period of 30 consecutive days; (vii) a
material breach by the Company or any of its Restricted Subsidiaries of
any material representation or warranty or agreement in the Security
Documents, the repudiation by the Company or any of its Restricted
Subsidiaries of any of its material obligations under any of the
Security Documents or the unenforceability of any of the Security
Documents with respect to Collateral having an aggregate Fair Market
Value of $25.0 million or more; (viii) except as permitted by the
Indenture, any Subsidiary Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason
to be in full force and effect or any Guarantor (or any group of
Guarantors) that constitutes a Significant Subsidiary, or any Person
acting on behalf of any Guarantor (or any group of Guarantors) that
constitutes a Significant Subsidiary, shall deny or disaffirm its or
their obligations under its or their Subsidiary Guarantees; and (ix)
certain events of bankruptcy or insolvency with respect to the Company
or any of its Restricted Subsidiaries (other than Exempt Subsidiaries)
that is a Significant Subsidiary or any group of Restricted
Subsidiaries (other than Exempt Subsidiaries) that, when taken
together, would constitute a Significant Subsidiary. If any Event of
Default occurs and is
A-6
continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be
due and payable. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable without further action or
notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the
payment of principal or interest) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee
may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. The Company is required to
deliver to the Trustee annually a statement regarding compliance with
the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
the Trustee.
(14) NO RECOURSE AGAINST OTHERS. A director, officer,
employee, incorporator or stockholder, of the Company or any of the
Guarantors, as such, will not have any liability for any obligations of
the Company or such Guarantor under the Notes, the Subsidiary
Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
(15) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes will have all the rights set
forth in the Registration Rights Agreement dated as of December 23,
2003, among the Company, the Guarantors and the other parties named on
the signature pages thereof or, in the case of Additional Notes,
Holders of Restricted Global Notes and Restricted Definitive Notes will
have the rights set forth in one or more registration rights
agreements, if any, among the Company, the Guarantors and the other
parties thereto, relating to rights given by the Company and the
Guarantors to the purchasers of any Additional Notes (collectively, the
"Registration Rights Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the
Trustee may use CUSIP numbers in notices of redemption as a
A-7
convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
(19) Guarantees. This Note shall be entitled to the benefits
of the Subsidiary Guarantees made by the Guarantors pursuant to the
Guarantee and Collateral Agreement. Additional Guarantors may be added
and Guarantors may be released from their Subsidiary Guarantees as
provided in the Indenture and the Subsidiary Guarantee.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Treasurer
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature: ____________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
- Section 4.10 - Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$___________________________
Date: _______________
Your Signature: _____________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.: _____________________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount
of this
Amount of decrease Amount of increase in Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
of of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- ---------------- ---------------- ------------- ---------
* This schedule should be included only if the Note is issued in global form.
A-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Law Debenture Trust Company of New York
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 8% Second Priority Senior Secured Notes due 2013
Reference is hereby made to the Indenture, dated as of December 23,
2003 (the "Indenture"), among NRG Energy, Inc., as issuer (the "Company"), the
Guarantors party thereto and Law Debenture Trust Company of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note 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 a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a Person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a
B-1
U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note, and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ]such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144, Rule
903 or Rule 904, and the Transferor hereby further certifies that it
has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit
D to the Indenture and (2) an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Note and/or the Restricted Definitive Notes
and in the Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or
B-2
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_______________________________________
[Insert Name of Transferor]
By: ___________________________________
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Law Debenture Trust Company of New York
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 8% Second Priority Senior Secured Notes due 2013
(CUSIP _____________)
Reference is hereby made to the Indenture, dated as of December 23,
2003 (the "Indenture"), among NRG Energy, Inc., as issuer (the "Company"), the
Guarantors party thereto and Law Debenture Trust Company of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the Securities Act of 1933,
as amended (the "Securities Act"), (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is
C-1
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] [ ]144A Global Note, [ ] Regulation S Global Note, [ ] IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_______________________________________
[Insert Name of Transferor]
By: ___________________________________
Name:
Title:
Dated: ______________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Law Debenture Trust Company of New York
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 8% Second Priority Senior Secured Notes due 2013
Reference is hereby made to the Indenture, dated as of December 23,
2003 (the "Indenture"), among NRG Energy, Inc., as issuer (the "Company"), the
Guarantors party thereto and Law Debenture Trust Company of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes has not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and an Opinion
of Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United States
in accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_______________________________________
[Insert Name of Accredited Investor]
By: ___________________________________
Name:
Title:
Dated: _______________________
D-2
EXHIBIT E
[FORM OF SUBSIDIARY GUARANTEE]
E-1
EXHIBIT F
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, 200__, among __________________ (the "Guaranteeing
Subsidiary"), a subsidiary of NRG Energy, Inc. (or its permitted successor), a
Delaware corporation (the "Company"), the Company, the other Guarantors (as
defined in the Indenture referred to herein) and Law Debenture Trust Company of
New York, as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of December 23, 2003 providing
for the issuance of ___% Second Priority Senior Secured Notes due 2013 (the
"Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees to provide an unconditional Guarantee on the terms and subject to the
conditions set forth in the Subsidiary Guarantee and in this Indenture.
4. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
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6. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: _______________________________
Name:
Title:
[COMPANY]
By: _______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _______________________________
Name:
Title:
[TRUSTEE],
as Trustee
By: _______________________________
Authorized Signatory
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SCHEDULE I
Guarantors
Xxxxxx Kill Power LLC
Astoria Gas Turbine Power LLC
Berrians I Gas Turbine Power LLC
Big Cajun II Unit 4 LLC
Capistrano Cogeneration Company
Chickahominy River Energy Corp.
Cobee Energy Development LLC
Commonwealth Atlantic Power LLC
Conemaugh Power LLC
Connecticut Jet Power LLC
Devon Power LLC
Dunkirk Power LLC
Eastern Sierra Energy Company
El Segundo Power II LLC
Hanover Energy Company
Xxxxxxx Power LLC
Indian River Operations Inc.
Indian River Power LLC
Xxxxx River Power LLC
Xxxxxxx Xxxxx XX
Keystone Power LLC
Louisiana Generating LLC
MidAtlantic Generation Holding LLC
Middletown Power LLC
Montville Power LLC
NEO California Power LLC
NEO Xxxxxxx-Gen LLC
NEO Corporation
NEO Freehold-Gen LLC
NEO Landfill Gas Holdings Inc.
NEO Landfill Gas Inc.
NEO Nashville LLC
NEO Power Services Inc.
NEO Tajiguas LLC
Northeast Generation Holding LLC
Norwalk Power LLC
NRG Affiliate Services Inc.
NRG Xxxxxx Kill Operations Inc.
NRG Asia-Pacific, Ltd.
NRG Astoria Gas Turbine Operations Inc.
NRG Bayou Cove LLC
NRG Cabrillo Power Operations Inc.
NRG Cadillac Operations Inc.
NRG California Peaker Operations LLC
NRG Central U.S. LLC
NRG Connecticut Affiliate Services Inc.
NRG Devon Operations Inc.
NRG Dunkirk Operations Inc.
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NRG Eastern LLC
NRG El Segundo Operations Inc.
NRG Xxxxxxx Operations Inc.
NRG International LLC
NRG Xxxxxxx LLC
NRG Mesquite LLC
NRG MidAtlantic Affiliate Services Inc.
NRG MidAtlantic Generating LLC
NRG MidAtlantic LLC
NRG Middletown Operations Inc.
NRG Montville Operations Inc.
NRG New Jersey Energy Sales LLC
NRG New Roads Holdings LLC
NRG North Central Operations Inc.
NRG Northeast Affiliate Services Inc.
NRG Northeast Generating LLC
NRG Norwalk Harbor Operations Inc.
NRG Operating Services, Inc.
NRG Oswego Harbor Power Operations Inc.
NRG Power Marketing Inc.
NRG Rocky Road LLC
NRG Saguaro Operations Inc.
NRG South Central Affiliate Services Inc.
NRG South Central Generating LLC
NRG South Central Operations Inc.
NRG West Coast LLC
NRG Western Affiliate Services Inc.
Oswego Harbor Power LLC
Saguaro Power LLC
Somerset Operations Inc.
Somerset Power LLC
South Central Generation Holding LLC
Vienna Operations Inc.
Vienna Power LLC
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