_____________________________________________________
ENERGY WEST INCORPORATED
and
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
Trustee
_____________________________________________________
INDENTURE
Dated as of ______, 1997
_____________________________________________________
$8,000,000
__% Notes due June 1, 2012
_____________________________________________________
ENERGY WEST INCORPORATED
Reconciliation and tie between Trust Indenture Act of 1939, as amended,
and Indenture, dated as of __________, 1997
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . 7.10(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 7.10(a)
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . 7.12
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . N.A.**
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . 7.10(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . N.A.**
311 (a) . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . N.A.**
312 (a) . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . N.A.**
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . 4.02; 4.10; 11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . N.A.**
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . N.A.**
(d) . . . . . . . . . . . . . . . . . . . . . . . N.A.**
(e) . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . N.A.**
315 (a) . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(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). . . . . . . . . . . . . . . . . . . . 6.14
317(a)(1). . . . . . . . . . . . . . . . . . . . 6.08
(a)(2). . . . . . . . . . . . . . . . . . . . 6.09
(b). . . . . . . . . . . . . . . . . . . . 2.04
318 (a). . . . . . . . . . . . . . . . . . . . 11.01
(b). . . . . . . . . . . . . . . . . . . . N.A.**
(c). . . . . . . . . . . . . . . . . . . . 11.01
____________________________
* This reconciliation and tie shall not, for any purpose, be
deemed to be part of the Indenture.
** N.A. means not applicable.
TABLE OF CONTENTS
SECTION HEADING PAGE
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . 1
1.01 Definitions. . . . . . . . . . . . . . . . . . . . 1
1.02 Other Definitions. . . . . . . . . . . . . . 6
1.03 Incorporation by Reference of Trust Indenture Act 6
1.04 Rules of Construction. . . . . . . . . . . . . . . 6
THE NOTES. . . . . . . . . . . . . . . . . . . . . 7
2.01 Authorization and Description; Form and Dating . . 7
2.02 Execution and Authentication . . . . . . . . . . . 8
2.03 Registrar and Paying Agent . . . . . . . . . . . . 8
2.04 Paying Agent to Hold Money in Trust. . . . . . . . 9
2.05 Noteholder Lists . . . . . . . . . . . . . . . . . 9
2.06 Transfer and Exchange. . . . . . . . . . . . . . . 9
2.07 Replacement Notes. . . . . . . . . . . . . . . . . 10
2.08 Outstanding Notes. . . . . . . . . . . . . . . . . 10
2.09 Treasury Notes . . . . . . . . . . . . . . . . . . 11
2.10 Temporary Notes. . . . . . . . . . . . . . . . . . 11
2.11 Cancellation . . . . . . . . . . . . . . . . . . . 11
2.12 Defaulted Interest . . . . . . . . . . . . . . . . 11
2.13 Persons Deemed Owners. . . . . . . . . . . . . . . 11
REDEMPTION OF NOTES AT CORPORATION'S OPTION. . . . 12
3.01 Redemption Right at Corporation's Option . . . . . 12
3.02 Notices to Trustee . . . . . . . . . . . . . . . . 12
3.03 Selection of Notes to be Redeemed. . . . . . . . . 12
3.04 Notice of Redemption . . . . . . . . . . . . . . . 13
3.05 Effect of Notice of Redemption . . . . . . . . . . 13
3.06 Deposit of Redemption Price. . . . . . . . . . . . 13
3.07 Notes Redeemed in Part . . . . . . . . . . . . . . 13
COVENANTS. . . . . . . . . . . . . . . . . . . . . 14
4.01 Payment of Notes . . . . . . . . . . . . . . . . . 14
4.02 Reporting. . . . . . . . . . . . . . . . . . . . . 14
4.03 Corporate Existence. . . . . . . . . . . . . . . . 14
4.04 Payment of Taxes and Other Claims. . . . . . . . . 14
4.05 Restrictions on Sale of Assets . . . . . . . . . . 15
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4.06 Restrictions on Liens or Secured Indebtedness . . 15
4.07 Restrictions on Incurring Additional Fund Debt . . 16
4.08 Restrictions on the Declaration of Dividends . . . 17
4.09 Reports to Governmental Agencies . . . . . . . . . 17
4.10 Compliance Certificate . . . . . . . . . . . . . . 17
SUCCESSORS . . . . . . . . . . . . . . . . . . . . 18
5.01 When Corporation May Merge, etc. . . . . . . . . . 18
DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . 18
6.01 Events of Default. . . . . . . . . . . . . . . . . 18
6.02 Acceleration . . . . . . . . . . . . . . . . . . . 21
6.03 Other Remedies . . . . . . . . . . . . . . . . . . 21
6.04 Waiver of Past Default . . . . . . . . . . . . . . 21
6.05 Control by Majority. . . . . . . . . . . . . . . . 21
6.06 Limitation on Suits. . . . . . . . . . . . . . . . 22
6.07 Rights of Holders to Receive Payment . . . . . . . 22
6.08 Collection Suit by Trustee . . . . . . . . . . . . 22
6.09 Trustee May File Proofs of Claim . . . . . . . . . 22
6.10 Priorities . . . . . . . . . . . . . . . . . . . . 23
6.11 Undertaking for Costs. . . . . . . . . . . . . . . 23
6.12 Waiver of Stay or Extension Laws . . . . . . . . . 23
6.13 Restoration of Rights and Remedies . . . . . . . . 24
6.14 Record Date. . . . . . . . . . . . . . . . . . . . 24
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 24
7.01 Duties of Trustee. . . . . . . . . . . . . . . . . 24
7.02 Rights of Trustee. . . . . . . . . . . . . . . . . 25
7.03 Individual Rights of Trustee . . . . . . . . . . . 26
7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . 26
7.05 Notice of Defaults . . . . . . . . . . . . . . . . 26
7.06 Reports by Trustee to Holders. . . . . . . . . . . 26
7.07 Compensation and Indemnity . . . . . . . . . . . . 26
7.08 Replacement of Trustee . . . . . . . . . . . . . . 27
7.09 Successor Trustee by Xxxxxx, etc.. . . . . . . . . 28
7.10 Eligibility; Disqualification. . . . . . . . . . . 28
7.11 Preferential Collection of Claim Against Corporation 30
7.12 Appointment of Co-Trustee. . . . . . . . . . . . . 30
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DISCHARGE OF INDENTURE . . . . . . . . . . . . . . 31
8.01 Termination of Corporation's Obligations . . . . . 31
8.02 Application of Trust Money . . . . . . . . . . . . 32
8.03 Repayment to Corporation . . . . . . . . . . . . . 32
AMENDMENTS, SUPPLEMENTS, AND WAIVERS . . . . . . . 32
9.01 Without Consent of Holders . . . . . . . . . . . . 32
9.02 With Consent of Holders. . . . . . . . . . . . . . 32
9.03 Compliance with Trust Indenture Act. . . . . . . . 33
9.04 Revocation and Effect of Consents. . . . . . . . . 33
9.05 Notation on or Exchange of Notes . . . . . . . . . 33
9.06 Trustee Protected. . . . . . . . . . . . . . . . . 33
REDEMPTION OF NOTES AT HOLDER'S OPTION . . . . . . 33
10.01 Redemption Right at Holder's Option. . . . . . . . 33
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 33
11.01 Trust Indenture Act Controls . . . . . . . . . . . 33
11.02 Notices. . . . . . . . . . . . . . . . . . . . . . 33
11.03 Communication by Holders with Other Holders. . . . 35
11.04 Certificate and Opinion as to Conditions Precedent 35
11.05 Statements Required in Certificate or Opinion. . . 35
11.06 Rules by Trustee and Agent . . . . . . . . . . . . 35
11.07 Legal Holidays . . . . . . . . . . . . . . . . . . 36
11.08 No Recourse Against Others . . . . . . . . . . . . 36
11.09 Duplicate Originals. . . . . . . . . . . . . . . . 36
11.10 Governing Law. . . . . . . . . . . . . . . . . . . 36
11.11 Table of Contents, Headings, etc.. . . . . . . . . 36
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . 37
ACKNOWLEDGEMENTS. . . . . . . . . . . . . . . . . . . . . . . 38
EXHIBIT A - FORM OF GLOBAL SECURITY . . . . . . . . . . . . . A-1
EXHIBIT B - FORM OF NOTE. . . . . . . . . . . . . . . . . . . B-1
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INDENTURE dated as of _________, 1997, between ENERGY
WEST INCORPORATED, a Montana corporation ("Corporation"), and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association organized and
existing under the laws of the United States of America ("Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Corporation's
__% Notes due June 1, 2012 ("Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"AFFILIATE" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Corporation.
"AGENT" means any Registrar, Paying Agent or co-registrar
or agent for service of notices and demands. See Section 2.03.
"BENEFICIAL OWNER" is the Person who has the right to sell,
transfer or otherwise dispose of an interest in the Notes and the right to
receive the proceeds therefrom, as well as interest, principal and premium (if
any) payable in respect thereof.
"BOARD OF DIRECTORS" means the Board of Directors of the
Corporation or any authorized committee of the Board.
"BOARD RESOLUTION" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Corporation to have been duly
adopted by the Board of Directors and to be in full force and effect.
"CAPITALIZED LEASE" means any lease of property (real,
personal or mixed) which in accordance with generally accepted accounting
principles in effect from time to time during the term (original or renewal)
of such lease is required to be capitalized on a balance sheet of the lessee.
"CAPITALIZED LEASE OBLIGATION" means at any time, the
aggregate amount included as a liability on the balance sheet of the lessee
with respect to the present value of the minimum rental commitment under a
Capitalized Lease of the lessee.
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"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock.
"COMMON STOCK" means the common stock, par value $0.15
per share, of the Corporation as the same exists at the date of this
Indenture or as such stock shall be constituted from time to time.
"CONSOLIDATED", when used in conjunction with any other
defined term means the aggregate amount of the items included within the
defined term of the Corporation and any Subsidiary (provided, however, that
in the case of a Subsidiary, the amount of the items included within the defined
term of such Subsidiary shall be calculated only with respect to the
Corporation's percentage ownership interest in such Subsidiary) on a
consolidated basis eliminating inter-company items.
"CONSOLIDATED NET INCOME" for any period means the aggregate
of the net income of the Corporation and its Subsidiaries for such period after
eliminating all inter-company items and portions of earnings properly
attributable to minority interests, if any, in shares of capital stock of such
Subsidiaries, and after eliminating any extraordinary gains or losses on the
sale or other disposition of investments, fixed assets or capital assets, and
any tax deductions or credits on account of such excluded gains or losses, all
computed in accordance with generally accepted accounting principles.
"CONSOLIDATED NET INCOME AVAILABLE FOR INTEREST CHARGES"
for any period means Consolidated Net Income for such period, plus (without
duplication) all amounts deducted in the computation thereof on account of
(i) Interest Charges on Consolidated Indebtedness, and (ii) taxes in respect
of income and excess profits.
"CORPORATE TRUST OFFICE" means the office of the Trustee
located in Minneapolis, Minnesota, at which at any time its corporate trust
business shall be principally administered, which office at the date of
execution of this Indenture is located at Norwest Center, Sixth Street and
Marquette Avenue, Minneapolis, Minnesota 55479-0069, Attention: Corporate Trust
Department.
"CORPORATION" means the party named as such above until a
successor replaces it pursuant to the applicable provisions of the Indenture and
thereafter means the successor.
"DEFAULT" means any event which is, or after notice or
passage of time would be, an Event of Default.
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"DEFERRED INCOME TAXES" means all taxes in respect of income
and excess profits not due within one year from the date of accrual thereof in
accordance with generally accepted accounting principles.
"DEPOSITORY" means The Depository Trust Company in the City
of New York and any successor to such Person.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
from time to time amended.
"FUNDED DEBT" means all Indebtedness maturing one year or
more from the date of the creation thereof. Deferred Income Taxes do not
constitute Funded Debt.
"GLOBAL SECURITY" means a security evidencing all of the
Notes issued to the Depository or its nominee and registered in the name of such
Depository or nominee.
"HOLDER" OR "NOTEHOLDER" means a person in whose name a Note
is registered; provided, however, that for purposes of Sections 6.06 and 6.07
and Article 10 hereof, such terms shall also include the Beneficial Owner of any
Note.
"INDEBTEDNESS" of a Person means (i) all amounts in respect
of borrowed money (excluding capital stock, earned and capital surplus and
general contingency reserves) which would be shown on the liabilities side of a
balance sheet of such Person prepared in accordance with generally accepted
accounting principles as of such date; (ii) all indebtedness secured by any
mortgage, pledge, lien, security interest or conditional sale or other title
retention agreement to which any property or asset owned or held by such Person
is subject, whether or not the indebtedness secured thereby shall have been
assumed; (iii) all Capitalized Lease Obligations; and (iv) all indebtedness of
others which such Person has guaranteed.
For the purpose of computing the Indebtedness of any Person,
there shall be excluded any particular Indebtedness to the extent that, upon or
prior to the maturity thereof, there shall have been deposited with the proper
depository in trust the necessary funds, or evidences of such Indebtedness, if
permitted by the instrument creating such Indebtedness, for the payment,
redemption or satisfaction of such Indebtedness.
"INDENTURE" means this Indenture as amended from time to
time.
"INTEREST CHARGES" on any Indebtedness of any Person for any
period, means all amounts which would, in accordance with generally accepted
accounting principles, be deducted in computing net income for such Person for
such period on
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account of interest on such Indebtedness, including imputed interest in respect
of Capitalized Lease Obligations and amortization of debt discount and expense.
"NOTE" OR "NOTES" means the Notes described above issued
under this Indenture.
"OFFICERS" means the Chairman of the Board, any Vice
Chairman, the President, any Senior Vice President, Executive Vice President,
Vice President or Assistant Vice President, the Treasurer, the Controller, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the
Corporation.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers, one of whom must be the Chairman of the Board, a Vice Chairman,
President, a Senior Vice President, an Executive Vice President, a Vice
President or the Treasurer of the Corporation. See Section 11.04 and 11.05.
"OPINION OF COUNSEL" means a written opinion from legal
counsel who may be an employee of or counsel to the Corporation or the Trustee
and who is acceptable to the Trustee. See Sections 11.04 and 11.05.
"PERSON" means any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"PRINCIPAL" of any Note means the principal of such Note
plus the premium, if any, on such Note.
"PRO FORMA ANNUAL INTEREST CHARGES" means as of any date,
the net amount (without duplication) of (i) Interest Charges in respect of
Consolidated Indebtedness outstanding on such date, after giving effect to any
Consolidated Indebtedness being retired out of the proceeds of any Indebtedness
being created, assumed, incurred or guaranteed on such date, for the period of
12 full calendar months next preceding such date, plus (ii) Interest Charges in
respect of any Indebtedness being created, assumed, incurred or guaranteed on
such date for the period of 12 full calendar months next succeeding such date.
"REDEMPTION DATE" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"REDEMPTION PRICE" when used with respect to any Note to be
redeemed means the price at which it is to be redeemed pursuant to this
Indenture and the Note.
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"SEC" means the Securities and Exchange Commission.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary within the
meaning of Rule 12b-2 under the Exchange Act, as the same may be amended from
time to time.
"STOCKHOLDERS' EQUITY" means, as applied to any Person on
any date of determination, the amount which would be shown on the balance sheet
of such Person as the difference between such Person's total assets and total
liabilities, which amount will include capital stock, capital surplus and
retained earnings, all as calculated in accordance with generally accepted
accounting principles.
"SUBSIDIARY" means any company (i) a majority (by number of
votes) of the outstanding shares of any class or classes of which shall at the
time be owned by the Corporation or by any Subsidiary of the Corporation if the
holders of the shares of such class or classes are ordinarily, in the absence of
contingencies, entitled to vote for the election of a majority of the directors
(or persons performing similar functions) of the issuer thereof, even though the
right so to vote has been suspended by the happening of such a contingency; or
(ii) a majority of other ownership interests of which shall be owned by the
Corporation or by any Subsidiary of the Corporation, including, without
limitation partnership interests, joint venture interests or ownership by means
of asset ownership and control.
"TANGIBLE ASSETS" means, as applied to any Person at any
date, all assets other than those which would be treated as intangibles under
generally accepted accounting principles, including, without limitation, as
intangibles such items as good will, trademark, trade names, service marks,
brand names, copyrights, patents, licenses and rights with respect to the
foregoing, unamortized debt discount and expense, and organization expenses.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date shown above except as provided
in Section 9.03.
"TOTAL CAPITALIZATION" means as applied to any Person on any
date of determination, the sum of such Person's Funded Debt and Stockholder's
Equity.
"TRUSTEE" means the party named as such above until a
successor replaces it pursuant to the applicable provisions of the Indenture and
thereafter means the successor.
"TRUST OFFICER" means the Chairman of the Board, the
President or any other officer or assistant officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"UNITED STATES" means the United States of America.
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"U.S. GOVERNMENT OBLIGATIONS" means securities that are
(x) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) obligations of a person controlled
or supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States, which, in either case, are not
callable or redeemable at the option of the issuer thereof.
"VOTING STOCK" means stock having the present right to vote
for the election of directors of a corporation.
SECTION 1.02 OTHER DEFINITIONS.
Term Defined in Section
"BANKRUPTCY LAW" 6.01
"CUSTODIAN" 6.01
"EVENTS OF DEFAULT" 6.01
"LEGAL HOLIDAY" 11.07
"PAYING AGENT" 2.03
"REGISTRAR" 2.03
"REPRESENTATIVE" 10.01
"REDEMPTION REQUEST" 10.02
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 Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUST" or "INSTITUTIONAL TRUSTEE" means the
Trustee.
"OBLIGOR" on the indenture securities means the Corporation.
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All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings assigned to them.
SECTION 1.04. 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
generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and
in the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) "Section" shall refer to a Section of this
Indenture.
ARTICLE 2
THE NOTES
SECTION 2.01. AUTHORIZATION AND DESCRIPTION; FORM AND
DATING. There is hereby authorized to be issued under this Indenture a single
issue or series of Notes designated __% Notes due June 1, 2012, limited in
aggregate principal amount to $8,000,000. The form of the Notes to be
originally issued as Global Securities shall be substantially in the form of
Exhibit A attached hereto and the form of the Notes to be issued in exchange
for a Global Security shall be substantially in the form of Exhibit B attached
hereto, respectively, with such insertions, omissions and other variations as
may be necessary to conform to the provisions of this Indenture, the terms of
such Exhibits A and B being incorporated herein by reference and made a part of
this Indenture. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall mature and become payable on June 1, 2012 and
shall bear interest from the date set forth in the form of Note contained herein
at the rate of __% per annum.
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SECTION 2.02. EXECUTION AND AUTHENTICATION. Two Officers
shall sign the Notes for the Corporation by manual or facsimile signature. The
Corporation's seal shall be reproduced on the Notes.
If an Officer whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall nevertheless
be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall authenticate Notes for original issue up
to aggregate principal amount of $8,000,000 upon a written order of the
Corporation signed by two Officers. The aggregate principal amount of Notes
outstanding at any time may not exceed that amount except as provided in Section
2.07.
The Trustee may appoint an authenticating agent acceptable
to the Corporation 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 of such
agent. An authenticating agent has the same rights as an Agent to deal with the
Corporation or an Affiliate.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Corporation
shall maintain an office or agency where Notes may be presented for registration
of transfer or for exchange ("Registrar"), an office or agency where Notes may
be presented for payment ("Paying Agent") and an office or agency where notices
and demands to or upon the Corporation in respect of the Notes and this
Indenture may be served. The Registrar shall keep a register of the Notes and
of their transfer and exchange. The Corporation may appoint one or more
co-registrars and one or more additional paying agents. The Corporation or any
Subsidiary may act as Registrar or Paying Agent. The term "Paying Agent"
includes any additional paying agent.
The Corporation shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. If the Corporation fails to
maintain a Registrar, Paying Agent or agent for service of notices and demands
or fails to give the foregoing notice, the Trustee shall act as such.
The Corporation initially appoints Norwest Bank Minnesota,
National Association, as Registrar, Paying Agent and agent for service of
notices and demands.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. The
Corporation shall require each Paying Agent other than the Trustee to agree in
writing that the
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Paying Agent will hold in trust for the benefit of Noteholders or the Trustee
all money held by the Paying Agent for the payment of principal or interest on
the Notes, and will notify the Trustee of any Default by the Corporation in
making 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 Corporation 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 shall have no further
liability for the money. If the Corporation (or any Subsidiary) acts as Paying
Agent, it shall segregate and hold as a separate trust fund all money held by it
as Paying Agent.
SECTION 2.05. NOTEHOLDER LISTS. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Noteholders. If the Trustee is not the
Registrar, the Corporation shall furnish to the Trustee on or before each
interest payment date and at such other times as the Trustee may request in
writing a list of names and addresses of Noteholders in such form and as of such
date as the Trustee may reasonably require.
SECTION 2.06. TRANSFER AND EXCHANGE. When Notes are
presented to the Registrar or a co-registrar with a request to register the
transfer or to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall register the transfer or make the exchange,
provided that every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the Registrar duly executed
by the Holder thereof or by his or her attorney duly authorized in writing. To
permit registrations of transfer and exchanges, the Trustee shall authenticate
Notes at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange of Notes, but the Corporation may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto, other than exchanges pursuant to
Sections 2.10 or 3.07. A Global Security shall be exchangeable pursuant to this
Section 2.06 for Notes registered in the names of Persons other than the
Depository or its nominee only as provided in this paragraph. A Global Security
shall be exchangeable pursuant to this Section 2.06 if (x) such Depository
notifies the Company that it is unwilling or unable to continue as Depository
for such series or at any time ceases to be a clearing agency registered as such
under the Exchange Act, (y) the Corporation executes and delivers to the Trustee
an Officers' Certificate providing that such Global Security shall be so
exchangeable or (z) there shall have occurred and be continuing an Event of
Default which entitles the Holders to accelerate the maturity thereof. Notes so
issued in exchange for a Global Security shall be of like tenor and maturity, in
authorized denominations and in the aggregate having the same principal amount
as the Global Security to be exchanged, and shall be registered in such names as
the Depository for such Global Security shall direct.
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Notwithstanding any other provisions of this Section 2.06, a
Global Security may not be transferred except as a whole by the Depository to a
nominee of such Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository.
SECTION 2.07. REPLACEMENT NOTES. If the Holder of a Note
claims that the Note has been lost, destroyed or wrongfully taken, the
Corporation shall issue and the Trustee shall authenticate a replacement Note if
the Trustee's requirements are met. If required by the Trustee or the
Corporation, an indemnity bond must be obtained and be sufficient in the
judgment of both to protect the Corporation, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Note is
replaced. The Corporation may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Corporation.
SECTION 2.08. OUTSTANDING NOTES. The Notes outstanding at
any time are all the Notes authenticated by the Trustee except for those
cancelled by it, and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If Notes are considered paid under Section 4.01, they cease
to be outstanding and interest on them ceases to accrue.
A Note does not cease to be outstanding because the
Corporation or an Affiliate holds the Note.
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 Corporation or an Affiliate
shall be disregarded, except for purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent. Only
Notes which the Trustee knows are so owned shall be disregarded.
SECTION 2.10. TEMPORARY NOTES. Until definitive Notes are
ready for delivery, the Corporation may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the
form of definitive Notes but may have variations that the Corporation considers
appropriate for temporary Notes. Without unreasonable delay, the Corporation
shall prepare and the Trustee shall authenticate definitive Notes in exchange
for temporary Notes.
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SECTION 2.11 CANCELLATION. The Corporation at any time may
deliver Notes to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all
Notes surrendered for registration of transfer, exchange or payment and shall
dispose of cancelled Notes as the Corporation directs. The Corporation may not
issue new Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation.
SECTION 2.12. DEFAULTED INTEREST. If the Corporation
defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner. It may pay the defaulted interest, plus any
interest payable on the defaulted interest, to the persons who are Noteholders
on a subsequent record date. The Corporation shall fix the special record date
and payment date in a manner satisfactory to the Trustee. At least 15 days
before the special record date, the Corporation shall mail to Noteholders a
notice that states a special record date, the payment date and the amount of
interest to be paid.
SECTION 2.13. PERSONS DEEMED OWNERS. Prior to due
presentment of a Note for registration of transfer, the Corporation, the
Trustee and any agent of the Corporation or the Trustee may treat the Person in
whose name such Note is registered as the owner of such Note for purposes of
receiving payment of principal of (and premium, if any) and (subject to
Section 2.12) interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Corporation,
the Trustee nor any agent of the Corporation or the Trustee shall be affected by
notice to the contrary. All such payments so made to any such Person, or upon
such Person's order, shall be valid, and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Note.
Except to the extent provided in Section 6.06 and 6.07
hereof, no Beneficial Owner of any interest in any Global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such Global Security, and such Depository may be treated by the Corporation,
the Trustee, and any agent of the Corporation or the Trustee as the owner of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depository and such
Beneficial Owners of interests, the operation of customary practices governing
the exercise of the rights of the Depository as holder of any Note.
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ARTICLE 3
REDEMPTION OF NOTES AT
CORPORATION'S OPTION
SECTION 3.01. REDEMPTION RIGHT AT CORPORATION'S OPTION.
The Corporation has the right to redeem the Notes prior to maturity at its sole
option, in whole or in part, at any time and from time to time on or after
December 1, 2002 at the Redemption Prices specified in paragraph 5 of the Note,
subject to the terms and conditions set forth in this Article 3. The election
of the Corporation to redeem any Note shall be evidenced by a Board Resolution.
SECTION 3.02. NOTICES TO TRUSTEE. If the Corporation
wishes to redeem Notes pursuant to paragraph 5 of the Note, it shall notify the
Trustee of the Redemption Date and the principal amount and maturities of Notes
to be redeemed. The Corporation shall give the notice provided for in this
Section not less than 45 days prior to the Redemption Date.
SECTION 3.03. SELECTION OF NOTES TO BE REDEEMED. If less
than all the Notes are to be redeemed, the Trustee shall select the Notes to be
redeemed by lot. The Trustee shall make the selection not more than 60 days
before the Redemption Date from Notes then outstanding that have not been
previously called for redemption. The Trustee may select for redemption
portions of the principal of Notes that have denominations larger than $1,000.
Notes and portions of Notes that the Trustee selects shall be in amounts of
$1,000 or integral multiples of $1,000. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
SECTION 3.04. NOTICE OF REDEMPTION. At least 30 days but
not more than 60 days before a Redemption Date, the Corporation shall mail
notice of redemption to each Holder whose Notes are to be redeemed.
The notice shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be
surrendered to the Paying Agent to collect the
Redemption Price;
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(5) that interest on Notes called for redemption
ceases to accrue on and after the Redemption
Date (unless the Corporation shall default in
the payment of the Redemption Price): and
(6) if less than all of the Notes outstanding are
to be redeemed, the identification (and in the
case of partial redemption, the respective
principal amounts) of the Notes to be redeemed.
At the Corporation's request, the Trustee shall give notice
of redemption in the Corporation's name and at its expense.
SECTION 3.05. EFFECT OF NOTICE OF REDEMPTION. Once notice
of redemption is mailed, Notes called for redemption become due and payable on
the Redemption Date at the Redemption Price.
SECTION 3.06. DEPOSIT OF REDEMPTION PRICE. On or before
the Redemption Date, the Corporation shall deposit with the Paying Agent cash
sufficient to pay the Redemption Price and accrued interest on all Notes to be
redeemed.
SECTION 3.07. NOTES REDEEMED IN PART. Upon surrender of a
Note that is redeemed in part, the Trustee shall authenticate for the Holder a
new Note having the same maturity as, and equal in principal amount to, the
unredeemed portion of the Note surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Corporation shall pay
the principal of and interest on the Notes on the dates and in the manner
provided in the Notes. Principal and interest shall be considered paid on the
date due if the Trustee or any Paying Agent holds on that date money sufficient
to pay all principal and interest then due, provided that if Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made.
The Corporation shall pay interest on overdue principal at
the rate borne by the Notes; it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
SECTION 4.02. REPORTING. The Corporation shall file with
the Trustee within 30 days after it files them with the SEC copies of the annual
reports and of
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the information, documents, and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which the
Corporation is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Corporation also shall comply with the other provisions
of TIA Section 314(a).
SECTION 4.03. CORPORATE EXISTENCE. Subject to Article 5,
the Corporation will continue to be qualified to do business as a Montana
corporation and will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence (charter and statutory)
and franchises of the Corporation; provided however, that the Corporation shall
not be required to preserve any such right or franchise, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Corporation and that the loss thereof is
not, and will not be, adverse in any material respect to the Holders.
SECTION 4.04. PAYMENT OF TAXES AND OTHER CLAIMS. The
Corporation will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and governmental
charges levied or imposed upon it or upon the income, profits or property of the
Corporation and (ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Corporation;
provided, however, that the Corporation shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 4.05. RESTRICTIONS ON SALE OF ASSETS. The
Corporation will not directly or indirectly sell or otherwise dispose of any of
its properties or assets (except (i) properties or assets disposed of in the
ordinary course of business, (ii) properties or assets which the Corporation
determines in good faith are no longer usable or of economic advantage in the
conduct of any business by the Corporation or any Subsidiary or (iii) properties
or assets transferred by any Subsidiary to the Corporation or a Subsidiary) if,
as a result of such sale or other disposition, the aggregate net book value of
all properties and assets so disposed of during the twelve-month period next
preceding the date of such sale or other disposition would constitute more than
15% of the aggregate book value (on a consolidated basis for the Corporation and
its Subsidiaries) of all Tangible Assets of the Corporation and its
Subsidiaries; provided, however, that any such sale may be disregarded for the
purposes of this Section 4.05 if the proceeds therefrom are reinvested within
twelve months in businesses related to the business of the Corporation or are
used to prepay Notes upon their terms.
SECTION 4.06. RESTRICTIONS ON LIENS OR SECURED
INDEBTEDNESS. The Corporation and its Subsidiaries will not directly or
indirectly, create, incur, assume
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or permit to exist any mortgage, lien, charge or encumbrance on, or security
interest in, or pledge of, or conditional sale or other title retention
agreement (all such mortgages, liens, charges, encumbrances, security
interests, pledges and agreements being hereinafter referred to in this
Section 4.06 as "liens") with respect to any property or asset (including any
document or instrument in respect of goods or accounts receivable) now owned
or hereafter acquired by the Corporation or any Subsidiary, or any interest
therein or income or profits therefrom, without equally and ratably securing
the Notes with a lien ranking ratably with, and equal to, such secured
indebtedness; provided, however, that the restrictions of this Section 4.06
shall not prohibit:
(1) liens for taxes, assessments or governmental charges or claims
the payment of which is not at the time required by Section 4.04 hereof;
(2) statutory liens of landlords and liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary course
of business for sums not yet due or being contested in good faith and
by appropriate proceedings promptly initiated and diligently conducted,
if such reserve or other appropriate provision, if any, as shall be
required by generally accepted accounting principles shall have been
made therefor and if no material items of property would be lost,
forfeited or materially damaged as a result of such contest;
(3) liens incurred or deposits made in the ordinary course of
business in connection with workmen's compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payments of borrowed
money);
(4) any judgment lien, unless the judgment it secures shall not,
within 60 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been
discharged within 60 days after the expiration of any such stay;
(5) leases or subleases granted to others in ordinary course of
business and not interfering with the ordinary conduct of the business
of the Corporation or any Subsidiary;
(6) easements, rights of way, restrictions and other similar
charges or encumbrances incurred in the ordinary course of business
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and not interfering with the ordinary conduct of the business of the
Corporation or any Subsidiary;
(7) liens on the property or assets of any Subsidiary securing
Indebtedness of such Subsidiary owing to the Corporation;
(8) liens to secure the purchase price or construction cost of
capital assets acquired by or constructed for the Corporation or any
Subsidiary after the date hereof or existing on assets of the Company or
any Subsidiary acquired at the time of acquisition provided that (i)
each such lien shall at all times be confined solely to the asset in
question, (ii) the aggregate principal amount of Indebtedness secured
by any such lien shall not exceed 100% of the cost of the acquisition
or construction of the asset subject thereto or the fair market value
of such asset, whichever is lower and (iii) any such lien on any
property acquired, constructed or improved by the Company or any
Subsidiary after the date of this Indenture shall be created or
assumed contemporaneously with, or within 180 days after, such
acquisition, or completion of such construction or improvement, or
within six months thereafter pursuant to a firm commitment for
financing arranged with a lender or investor within such 180 day
period; and
(9) any other liens or charges securing indebtedness not exceeding
$1,000,000 in the aggregate.
SECTION 4.07. RESTRICTIONS ON INCURRING ADDITIONAL FUNDED DEBT. The
Corporation will not create, assume or incur additional Funded Debt unless:
(1) Consolidated Net Income Available for Interest Charges in two
of the three preceding fiscal years shall have exceeded 150% of the
Pro Forma Annual Interest Charges of the Corporation and its
Subsidiaries. If the proceeds from the additional Funded Debt are to be
used to acquire an operating company which will become a Subsidiary of
the Corporation, Consolidated Net Income Available for Interest Charges
will be determined as if such company was a Subsidiary of the
Corporation during the three preceding fiscal years; and
(2) Consolidated Funded Debt of the Corporation, after giving
effect to the additional Funded Debt to be incurred, will not exceed 65%
of the Total Capitalization of the Corporation, after giving effect to
the additional Funded Debt and the use of the proceeds therefrom.
SECTION 4.08. RESTRICTIONS ON THE DECLARATION OF DIVIDENDS. The
Corporation shall not declare or pay any dividends (other than dividends payable
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solely in shares of Common Stock of the Corporation or solely in rights to
purchase Capital Stock of the Corporation) on, or set apart any sum for the
payment of any dividends on, or make any other distribution, by reduction of
capital or otherwise, in respect of, any shares of any class of Capital Stock
of the Corporation unless after giving effect to such action the aggregate
amount of dividend payments and related distributions made in the immediately
preceding 60-month period would not exceed Consolidated Net Income for such
period.
SECTION 4.09. REPORTS TO GOVERNMENTAL AGENCIES. The Corporation
will furnish to agencies of the State of Montana, including but not limited
to the Public Service Commission of the State of Montana, the Commissioner of
Insurance and the Securities Commissioner, such periodic reports or
statements as they may reasonably require by law or regulation throughout the
period in which the Notes remain outstanding.
SECTION 4.10. COMPLIANCE CERTIFICATE. The Corporation shall deliver
to the Trustee within 120 days after the end of each fiscal year of the
Corporation an Officers' Certificate stating whether or not the signers know
of any Default that occurred during fiscal year. If they do, the certificate
shall describe the Default and its status. The certificate need not comply
with Section 11.05.
ARTICLE 5
SUCCESSORS
SECTION 5.01. WHEN CORPORATION MAY MERGE, ETC. The Corporation
will not dissolve or otherwise dispose of all or substantially all of its
assets, and will not consolidate with or merge into another corporation,
partnership or other entity; provided that the Corporation may consolidate
with or merge into a corporation or partnership organized and existing under
the laws of one of the states of the United States, or sell or otherwise
transfer to another domestic corporation or partnership all or substantially
all of its assets and thereafter dissolve, if the surviving, resulting or
transferee corporation or partnership, as the case may be (if other than the
Corporation): (i) assumes by supplemental indenture all of the obligations
of the Corporation under this Indenture and further agrees that it will
continue to operate its facilities as part of a system comprising a public
utility regulated by the Public Service Commission of the State of Montana or
another federal or state agency or authority; and (ii) has a net worth
immediately subsequent to such acquisition, consolidation or merger equal to
or greater than $10,000,000; and (iii) immediately after such acquisition,
consolidation or merger, is not in default in the performance of any covenant
or condition under this Indenture; and (iv) immediately after giving effect
to such transaction, no Default, shall have happened and be continuing. For
purposes of this Section 5.01, the term "net worth" shall mean the
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Consolidated assets of the Corporation and its Consolidated Subsidiaries,
less the Consolidated liabilities of the Corporation and its Consolidated
Subsidiaries as determined in accordance with generally accepted accounting
principles.
At least 30 days prior to the consummation of any of the actions
contemplated by this Section the Corporation shall deliver to the Trustee an
Officers' Certificate and Opinion of Counsel each stating that the
transaction and supplemental indenture comply with this Article. The
surviving, resulting or transferee corporation or partnership, as the case
may be, shall be the successor to the Corporation and deemed to and be
substituted for the Corporation under the Indenture, and the predecessor
Corporation in the case of a transfer or lease shall be released from all
obligations and covenants under the Indenture and the Notes.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs if:
(1) the Corporation defaults in the payment of interest on any Note
when the same becomes due and payable and the Default continues for
a period of 30 days;
(2) the Corporation defaults in the payment of the principal of (or
premium, if any, on) any Note when the same becomes due and payable
at maturity, upon redemption or otherwise;
(3) the Corporation fails to comply with any of its other agreements in
the Notes or this Indenture and the Default continues for the period
and after the notice specified below;
(4) if an event of default as defined in any mortgage, indenture or
instrument under which there is outstanding, or by which there may
be secured or evidenced, any (A) Indebtedness for money borrowed
for which the Corporation or a Subsidiary is responsible or liable
as obligor, guarantor or otherwise or (B) obligations of the
Corporation or a Subsidiary as a lessee under leases required to be
capitalized under generally accepted accounting principles, in
either case in an aggregate principal amount of $1,000,000 or more,
whether such Indebtedness or obligation now exists or shall
hereafter be created, shall happen and shall result in such
Indebtedness or obligation becoming or being declared due and
payable prior to the date on which it
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would otherwise become due and payable, and such acceleration shall
not be rescinded or annulled, or such Indebtedness or obligation
shall not have been discharged, within a period of 10 days after
written notice has been given to the Corporation by the Trustee or
to the Corporation and the Trustee by the Holders of at least 25% in
principal amount of the Notes then outstanding, specifying such
event of default and requiring the Corporation to cause such
acceleration to be rescinded or annulled or to cause such
Indebtedness or obligation to be discharged and stating that such
notice is a "Notice of Default" hereunder.
(5) the Corporation or any Significant Subsidiary, pursuant to or
within the meaning of any 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, or
(D) makes a general assignment for the benefit of its creditors; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law, and the order or decree remains unstayed and in
effect for 60 days, that:
(A) is for relief against the Corporation or any Significant
Subsidiary, in an involuntary case,
(B) appoints a Custodian of the Corporation, or any Significant
Subsidiary, or for all or substantially all of the property of
the Corporation, or any Significant Subsidiary, or
(C) orders the liquidation of the Corporation, or any Significant
Subsidiary.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal and State law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
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A Default under clause (3) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the Notes then
outstanding notify the Corporation of the Default and the Corporation does
not cure the Default within 30 days after receipt of the notice. The notice
must specify the Default, demand that it be remedied and state that the
notice is a "Notice of Default." The Trustee shall, if requested to do so by
the holders of 25% in principal amount of the Notes, notify the Corporation
of the Default pursuant to this Section.
Subject to the provisions of Sections 7.01 and 7.02, the Trustee
shall not be charged with knowledge of any Event of Default (except for
defaults to clauses (1) and (2) of Section 6.01 for which no written notice
shall be required) unless written notice thereof shall have been given to a
Trust Officer of the Trustee at the Corporate Trust Office by the
Corporation, the Paying Agent, the Holder of a Note or an agent of such
Holder or, in the case of an Event of Default under clause (4), by the
trustee acting under any mortgage, indenture, or other instrument under which
the event of default shall have occurred or by the holder or the agent of any
holder of such Indebtedness.
SECTION 6.02. ACCELERATION. If an Event of Default occurs and is
continuing, the Trustee, by notice to the Corporation, or the Holders of at
least 25% in principal amount of the Notes then outstanding, by notice to the
Corporation and the Trustee, may declare the principal of, and accrued
interest on, all the Notes to be due and payable. Upon such declaration, the
principal and interest shall be due and payable immediately.
The Holders of a majority in principal amount of the Notes then
outstanding, by notice to the Trustee, may rescind an acceleration of all the
Notes and its consequences if (i) all existing Events of Default have been
cured or waived except nonpayment of the principal and interest that has
become due solely because of the acceleration and (ii) if the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction. No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any to them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute
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a waiver of or acquiescence in such Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULT. The Holders of a majority in
principal amount of the Notes, by notice to the Trustee, may waive an
existing Default and its consequences, except a Default in the payment of
principal of or interest on any Note, an uncured failure to make any
redemption payment or an uncured Default with respect to a provision which
cannot be modified under the terms of this Indenture without the consent of
each Holder affected.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Notes then outstanding may direct the time (subject
to the reasonable time requirements of the Trustee), method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, is
unduly prejudicial to the rights of other Noteholders, or, unless the Trustee
is provided with indemnity pursuant to Section 7.01(e), would involve the
Trustee in personal liability; provided, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 6.06. LIMITATION ON SUITS. A Noteholder may pursue a remedy
with respect to this Indenture or the Notes only if:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default;
(2) the Holders of at least 25% in principal amount of the Notes then
outstanding make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity 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 indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the Notes then outstanding do not give the Trustee a
direction inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over another Noteholder.
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SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal and interest on the Note, on or after the
respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default in
payment of interest or principal specified in Section 6.01(1) or (2) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Corporation for the whole amount of
unpaid principal and accrued interest remaining unpaid.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may
file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Noteholders allowed in any judicial
proceedings relative to the Corporation, its creditors or its property, and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the
same, and any Custodian in any such judicial proceeding is hereby authorized
by each Noteholder to make such payment to the Trustee, and in the event that
the Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses and disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. PRIORITIES. If the Trustee collects any money
pursuant to this Article, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Noteholders for amounts due and unpaid on the
Notes for principal and interest, ratably, without preference
or priority of any kind, according to the amounts due and
payable on the Notes for principal and interest, respectively;
and
THIRD: to the Corporation.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Article.
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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 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
does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the
Notes.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. The Corporation
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of the Indenture; and the Corporation (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 6.13. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
the Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Corporation, the Trustee and the Holders
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 6.14. RECORD DATE. The Corporation may set a record date
for purposes of determining the identity of Noteholders entitled to vote or
consent to any action by vote or consent authorized or permitted by Section
7.04 and Section 7.05 of this Indenture. Such record date shall be the later
of 30 days prior to the first solicitation of such consent or the date of the
most recent list of holders furnished to the Trustee pursuant to Section 2.05
of this Indenture prior to such solicitation.
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others.
(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, the Trustee shall examine
the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section;
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
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(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as otherwise agreed with the Corporation. Money held in
trust by the Trustee need not be segregated from other funds except to
the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE. Except as otherwise provided in
Section 7.01:
(a) The Trustee may rely on 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. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its
rights or powers.
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 Corporation or an Affiliate with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Corporation's use of the proceeds from
the Notes, and it shall not be responsible for any statement in the Notes
other than its authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to
Noteholders a notice of the Default within 90 days after it occurs. Except
in the case of Default in payment on any Note, the Trustee may withhold the
notice if and so long as a committee of
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its Trust Officers in good faith determines that withholding the notice is in
the interests of Noteholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. If required, within 60
days after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Noteholder a brief report, dated as
of such reporting date, that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Section 313(b)(2).
A copy of each report at the time of its mailing to Noteholders shall
be filed with the SEC, each stock exchange on which the Notes are listed and
the Corporation. The Corporation shall notify the Trustee when the Notes are
listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Corporation shall pay
to the Trustee from time to time reasonable compensation for its services,
including, following an Event of Default, the reasonable extraordinary fees
and expenses of the Trustee for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Corporation shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it. Such expenses shall
include the reasonable compensation and out-of-pocket expenses of the
Trustee's agents and counsel.
The Corporation shall indemnify the Trustee against any loss or
liability incurred by it, with respect to the Trustee's fulfillment of its
duties hereunder. The Trustee shall notify the Corporation promptly of any
claim for which it may seek indemnity. The Corporation shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Corporation shall pay the reasonable fees and
expenses of such counsel. The Corporation need not pay for any settlement
made without its consent.
The Corporation need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Corporation's payment obligations in this Section, the
Trustee shall 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 of and
interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
this Section.
The Trustee may resign by so notifying the Corporation. The Holders
of a majority in principal amount of the Notes may remove the Trustee by so
notifying the Trustee and the Corporation. The Corporation may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Corporation shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Corporation
or the Holders of at least 10% in principal amount of the Notes then
outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10(b), any Noteholder
who has been a bond fide Holder of Notes for at least six months may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee if the Trustee fails to comply with the
written request of such Noteholder to comply with Section 7.10(b).
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Corporation. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Noteholders. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the
lien provided for in Section 7.07.
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 resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
(a) This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a
combined capital and surplus of at least $150,000 as set forth in its most
recent published annual report of condition.
(b) In no event shall the Corporation, or any person directly or
indirectly controlling, controlled or under common control with the
Corporation, serve as Trustee or Co-Trustee.
(c) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section and if the default to which such conflicting interest
related has not been cured or duly waived or otherwise eliminated within 90
days after the Trustee has ascertained that it has such conflicting interest,
the Trustee shall within such 90-day period either eliminate such conflicting
interest or resign in the manner and with the effect hereinabove specified in
Section 7.08 of this Article, such resignation to become effective upon the
appointment of a successor trustee and such successor's acceptance of such
appointment, and the Corporation shall take prompt steps to have a successor
appointed in the manner provided in Section 7.08.
(d) In the event that the Trustee shall fail to comply with the
provisions of paragraph (c) of this Section, the Trustee shall, within 10
days after the expiration of such 90-day period, transmit by mail to all
Holders, as their names and address appear in the register of Noteholders,
notice of such failure.
(e) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest if the Notes are in default and:
(1) the Trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the Corporation are outstanding or is Trustee for more
than one outstanding series of securities under a single indenture of
the Corporation, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Notes issued under
this Indenture, provided that there shall be excluded from the operation
of this paragraph any other indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Corporation are outstanding, if
(A) this Indenture and such other indenture or indentures (and all
series of securities issuable thereunder) are wholly unsecured and
rank equally, and such other indenture or indentures (and
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such series) are hereafter qualified under the TIA, unless the SEC
shall have found and declared by order pursuant to Section 305(b)
or Section 307(c) of the TIA that differences exist between the
provisions of this Indenture (or such series) and the provisions
of such other indenture or indentures (or such series) which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors
to disqualify the Trustee from acting as such under one of such
indentures, or
(B) the Corporation shall have sustained the burden of proving, on
application to the SEC and after opportunity for hearing thereon,
that trusteeship under this Indenture and such other indenture or
under more than one outstanding series under a single indenture is
not so likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
one of such indentures or with respect to such series; or
(2) the Trustee shall come within the provisions of paragraphs (2) through
(10) of TIA Section 310(b), subject to the exception permitted by the
second sentence of TIA Section 310(b)(9).
(f) Except in the case of Default in payment on any Note, the Trustee
shall not be required to resign as provided in this Indenture if the Trustee
sustains the burden of proving, on application to the SEC and after
opportunity for hearing thereon, that
(1) the Default under this Indenture may be cured or waived during a
reasonable period and under the procedures of such application, and
(2) a stay of the Trustee's duty to resign will not be inconsistent with
the interests of the Noteholders.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST CORPORATION.
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 is subject to TIA Section 311(a) to the extent indicated.
SECTION 7.12. APPOINTMENT OF CO-TRUSTEE. It is the purpose of this
Indenture that there shall be no violation of any law of any jurisdiction
denying or restricting the right of banking corporations or associations to
transact business as trustees in such jurisdiction. It is recognized that in
case of litigation under this
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Indenture, and in particular in case of the enforcement on an Event of
Default, or in case the Trustee deems that by reason of any present or future
law of any jurisdiction it may not exercise any of the powers, rights or
remedies herein granted to the Trustee in trust, as herein granted, or take
any other action which may be desirable or necessary in connection therewith,
it may be necessary that an additional individual or institution be appointed
as a separate or Co-Trustee.
At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction, the Trustee and the Corporation may appoint
an additional individual or institution as a separate or Co-Trustee, in which
event each and every remedy, power, right, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this
Indenture, to be exercised by or vested in or conveyed to the Trustee with
respect thereto shall be exercisable by and vest in such separate or
Co-Trustee but only to the extent necessary to enable such separate or
Co-Trustee to exercise such powers, rights and remedies, and every covenant
and obligation necessary to the exercise thereof by such separate or
Co-Trustee shall run to and be enforceable by either of them. If the
Corporation does not join in such appointment within 15 days after receipt by
it of a request so to do, or in case an Event of Default has occurred and is
continuing, the Trustee alone shall have power to make such appointment.
Should any deed, conveyance or instrument in writing from the
Corporation be required by the separate or Co-Trustee so appointed by the
Trustee for more fully and certainly vesting in and confirming to it such
properties, rights, powers, trusts, duties and obligations, including
particularly the right to be paid its fees and expenses for services
rendered, any and all such deeds, conveyances and instruments in writing
shall, on request, be executed, acknowledged and delivered by the
Corporation. In case any separate or Co-Trustee, or a successor to either,
shall die, become incapable of acting, resign or be removed, all the estates,
properties, rights, powers, trusts, duties and obligations of such separate
or Co-Trustee, so far as permitted by law, shall vest in and be exercised by
the Trustee until the appointment of a new Trustee or successor to such
separate or Co-Trustee.
The rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of this Indenture shall be conferred or
imposed upon and exercised or performed by the Trustee or by the Trustee and
such separate or Co-Trustee jointly, as shall be provided in the instrument
appointing such separate or Co-Trustee, except to the extent that under any
law of any jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such separate or Co-Trustee.
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ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF CORPORATION'S OBLIGATIONS. The Corporation
may at any time terminate all of its obligations under this Indenture if:
(1) the Notes mature within one year or all of them are to be called
for redemption within one year under arrangements satisfactory to
the Trustee for giving the notice of redemption, or, if the
earliest date on which the Notes may be called for redemption is
more than one year from such date, all of them are to be called for
redemption on the earliest date on which they may be redeemed under
arrangements satisfactory to the Trustee for giving the notice of
redemption; and
(2) the Corporation irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations sufficient to pay principal
and interest on the Notes at maturity or on redemption, as the case
may be, and any interest payments due prior to maturity or
redemption.
However, the Corporation's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 4.01, 7.07, 7.08 and 8.03 shall survive until the Notes are no longer
outstanding. Thereafter, the Corporation's obligations in Sections 7.07 and
8.03 shall survive.
After a deposit the Trustee upon request shall acknowledge in writing
the discharge of the Corporation's obligations under this Indenture except
for those surviving obligations specified above.
In order to have money available on a payment date to pay principal or
interest on the Notes, the U.S. Government Obligations shall be payable as to
principal or interest on or before such payment date in such amounts as will
provide the necessary money. The U.S. Government Obligations shall not be
callable at the issuer's option.
SECTION 8.02. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to
Section 8.01. It shall apply the deposited money and the money from the U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal and interest on the Notes.
SECTION 8.03. REPAYMENT TO CORPORATION. The Trustee and the Paying
Agent shall promptly pay to the Corporation upon request any excess money or
securities held by them at any time. The obligation of the Trustee and the
Paying Agent to pay such excess money or securities to the Corporation shall
survive the
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payment and/or cancellation of all of the Notes until all such excess funds
or securities have been so paid.
The Trustee and the Paying Agent shall pay to the Corporation upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years. After payment to the Corporation,
Noteholders entitled to the money must look to the Corporation for payment as
general creditors unless an applicable abandoned property law designates
another person.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The Corporation and the
Trustee may amend or supplement this Indenture or the Notes without notice to
or consent of any Noteholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01; or
(3) to make any change that does not materially adversely affect the
rights of any Noteholder.
SECTION 9.02. WITH CONSENT OF HOLDERS. The Corporation and the Trustee
may amend or supplement this Indenture or the Notes with the written consent
of the Holders of at least a majority in principal amount of the Notes then
outstanding. Without the consent of each Noteholder affected, however, an
amendment under this Section may not:
(1) reduce the amount of Notes whose Holders must consent to an amendment
or waiver;
(2) reduce the rate of or change the time for payment of interest on any
Note;
(3) reduce the principal of or change the maturity of any Note;
(4) waive a Default in the payment of the principal of or interest on any
Note;
(5) make any Note payable in money other than that stated in the Note; or
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(6) modify the provisions of Sections 6.04, 6.07 and 9.02 (second
sentence).
After an amendment or supplement under this Section becomes effective,
the Corporation shall mail to Noteholders a notice briefly describing the
amendment.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
or supplement of this Indenture or the Notes shall be set forth in a
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 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 or subsequent Holder may revoke the consent as to such Note or
portion of a Note if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective.
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 Corporation in exchange for all Notes may
issue and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
SECTION 9.06. TRUSTEE PROTECTED. The Trustee need not sign any
supplemental indenture that adversely affects its rights.
ARTICLE 10
REDEMPTION OF NOTES AT HOLDER'S OPTION
SECTION 10.01. REDEMPTION RIGHT AT HOLDER'S OPTION. Representatives of
deceased Holders and, in the case of a Global Security, representatives of
deceased Beneficial Owners of such Global Security, have certain optional
redemption rights as set forth in the forms of Notes attached as Exhibits A
and B hereto.
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ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies, or conflicts with the duties imposed by TIA
Section 310 to Section 317, the duties so imposed by the TIA shall control.
SECTION 11.02. NOTICES. Any notice or communication by the Corporation
or the Trustee to the other is duly given if in writing and delivered in
person or mailed by first-class mail addressed as follows:
if to the Corporation
ENERGY WEST INCORPORATED
0 Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Treasurer
if to the Trustee:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Norwest Center
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0069
Attn: Corporate Trust Department
The Corporation or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Noteholder shall be mailed by
first-class mail to his or her address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders.
If a notice of 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 Corporation mails a notice or communication to Noteholders, it
shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications shall be in writing, except as set forth
below.
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In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Noteholders
may communicate pursuant to TIA Section 312(b) with other Noteholders with
respect to their rights under this Indenture or the Notes. The Corporation,
the Trustee, the Registrar and anyone else shall have the protection of TIA
Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Corporation to the Trustee to take any
action under this Indenture, the Corporation shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate (other than certificates provided pursuant to TIA
Section 314(a)(4)) or Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such Officers' Certificate or
Opinion of Counsel 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 Officers' Certificate or Opinion of Counsel 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 complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 11.06. RULES BY TRUSTEE AND AGENT. The Trustee may make
reasonable rules for action by or at a meeting of Noteholders. The Registrar
or
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Paying Agent may make reasonable rules and set reasonable requirements for
its functions.
SECTION 11.07. LEGAL HOLIDAYS. A "Legal Holiday" is a Saturday, a
Sunday, or a day on which banking institutions in the relevant jurisdiction
are not required to be open. 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 for the intervening
period.
SECTION 11.08. NO RECOURSE AGAINST OTHERS. No liability under the
Notes shall inure to any director, officer, employee or stockholders, as
such, of the Corporation and each Noteholder, by accepting a Note, waives and
releases all such liability.
SECTION 11.09. DUPLICATE ORIGINALS. The parties may sign any number of
copies of this Indenture. One signed copy is enough to prove this Indenture.
SECTION 11.10. GOVERNING LAW. The laws of the State of Montana shall
govern this Indenture and the Notes.
SECTION 11.11. TABLE OF CONTENTS, HEADINGS, ETC. The table of
contents, cross-reference sheet 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 hereof, and shall in no way modify or restrict any of
the terms or provisions hereof.
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SIGNATURES
ENERGY WEST INCORPORATED
By __________________________________
Name _____________________________
Title ____________________________
Attest:
_________________________________
Name _______________________
Title ______________________
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By ____________________________________
Xxxxxx X. Xxxxxxxxx,
Assistant Vice President
-37-
EXHIBIT A
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Energy West
Incorporated, a Montana corporation, or its agent for registration of
transfer, exchange, or payment, and any certificate issued is registered in
the name of Cede & Co. (or in such other name as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
ENERGY WEST INCORPORATED
__% Note due June 1, 2012
No. _________________ $______________________
CUSIP No. ______________
ENERGY WEST INCORPORATED, a Montana corporation, for value received,
hereby promises to pay to ______________________ , or registered assigns, the
principal sum of ____________________ DOLLARS on June 1, 2012 and to pay
interest on said principal sum at the rate of __% per annum calculated on the
basis of a 360-day year of twelve 30-day months.
1. Interest.
ENERGY WEST INCORPORATED ("Corporation"), a Montana corporation,
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. The Corporation will pay interest semi-annually on
-38-
June 1 and December 1 of each year, commencing June 1, 1997. Interest on
the Notes will accrue from the most recent date to which interest has been
paid, or, if no interest has been paid previously, from the date of original
issuance of this Note; 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 below and the next succeeding interest payment date, interest
shall accrue from the next interest payment date.
2. Method of Payment.
The Corporation will pay interest on the Notes (except defaulted
interest) to the persons who are registered holders of Notes at the close of
business on the record date next preceding the interest payment date. The
Corporation will pay interest to such holders on the next interest payment
date even though Notes are cancelled after the record date but on or before
the interest payment date. The record date for payments on any June 1 shall
be the immediately preceding May 15, and the record date for payments on any
December 1, shall be the immediately preceding November 15. Holders must
surrender Notes to a Paying Agent to collect principal payments. The
Corporation will pay principal and interest in money of the United States
that at the time of payment is legal tender for payment of public and private
debts. However, the Corporation may pay principal and interest by check
payable in such money. The Corporation may mail an interest check to a
holder's registered address.
3. Paying Agent and Registrar.
Initially, Norwest Bank Minnesota, National Association, Norwest Center,
Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0069 will act
as Paying Agent and Registrar. The Corporation may change any Paying Agent,
Registrar or Co-Registrar without notice. The Corporation or any of its
Subsidiaries may act in any such capacity.
4. Indenture.
The Corporation issued the Notes under an Indenture dated as of _______,
1997 (the "Indenture"), between the Corporation 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 Trust Indenture Act of 1939 (15 U.S.C. Section
Section 77aaa-77bbbb) (the "Act") as in effect on the date of the Indenture.
The Notes are subject to all such terms, and Noteholders are referred to
the Indenture and the Act for a statement of such terms. The Notes are
unsecured general obligations of the Corporation limited to $8,000,000 in
aggregate principal amount.
-39-
5. Redemption at Corporation's Option.
The Corporation may, at its option, at any time on or after June 1,
2002 redeem prior to maturity all the Notes or some of them from time to time
after issuance at the following redemption prices (expressed in percentages
of principal amount of the Notes) plus unpaid accrued interest to the
redemption date.
If redeemed during the twelve-month period beginning June 1:
Year Percentage
---- ----------
2002 103%
2003 102%
2004 101%
2005 until maturity 100%
6. Notice of Redemption.
Notice of redemption at the Corporation's option will be mailed at least
30 days but not more than 60 days before the redemption date to each holder
of Notes to be redeemed at such holder's registered address as set forth in
the register. Notes in denominations larger than $1,000 may be redeemed in
part but only in integral multiples of $1,000. On and after the redemption
date (if there is no default in the payment of the redemption price by the
Corporation), interest ceases to accrue on Notes or portions thereof called
for redemption.
7. Redemption at Beneficial Owner's Option.
For purposes hereof, "Beneficial Owner" means the Person who has the
right to sell, transfer or otherwise dispose of an interest in the Notes and
the right to receive the proceeds therefrom, as well as interest, principal
and premium (if any) payable in respect thereof. In general, a determination
of beneficial ownership in the Notes will be subject to the rules,
regulations and procedures governing the Depository and institutions that
have accounts with the Depository or a nominee thereof ("Participants").
Participants may hold interests in the Notes as Beneficial Owners for their
own accounts or as nominees for other Persons.
Unless (i) the Notes have been declared due and payable prior to their
maturity by reason of an Event of Default or (ii) the Corporation has mailed
a notice of redemption, then in the event of the death of a Beneficial Owner,
such Beneficial Owner's personal representative or surviving joint tenant(s)
(the "Representative") has the right to request redemption of the Notes
beneficially owned by such
-40-
Beneficial Owner prior to death, subject to the terms and conditions set
forth in this paragraph 7.
To request redemption of all or part of such deceased Beneficial Owner's
interest in the Notes, the Representative shall deliver to the Trustee a
written request for redemption in form satisfactory to the Trustee, signed by
the Representative, accompanied by (i) a statement of the principal amount of
the interest in the Notes to be redeemed (which amount shall be an integral
multiple of $1,000), (ii) appropriate evidence of the Beneficial Owner's
death and beneficial ownership at the time of death and (iii) appropriate
evidence of the authority of the Representative (a "Redemption Request").
The Representative may withdraw any Redemption Request by delivering a
written request for withdrawal to the Trustee prior to the payment of the
redemption price of such interest.
The Trustee shall promptly inform the Corporation of the receipt of a
proper Redemption Request. On or before the date 60 days following the date
on which the Trustee receives a proper Redemption Request, the Corporation
shall deposit with the Paying Agent cash sufficient to redeem the interests
covered by such Redemption Request at a price equal to 100% of their
principal amount, plus accrued interest to the date of such deposit. Subject
to arrangements with the Depository, all payments for interests in this Note
that are to be redeemed pursuant to a Redemption Request shall be made to the
Depository.
The Corporation's obligation to redeem an interest in the Notes
following receipt of a Redemption Request is subject to the following
limitations: (i) the Corporation is not obligated to redeem on behalf of any
deceased Beneficial Owner any interest in the Notes that exceeds an aggregate
principal amount of $25,000 and (ii) in any 12-month period beginning June 1
the Corporation shall not be obligated to redeem interests in the Notes in
excess of two percent (2%) of the aggregate principal amount of the Notes
originally issued. Representatives may present Redemption Requests to the
Trustee at any time and in any principal amount. Any interests in Notes that
are not redeemed in any 12-month period beginning June 1 as the result of
the two percent (2%) limitation will be held for redemption in the succeeding
year. The Corporation may, at its discretion, exceed the $25,000 and two
percent (2%) limitations. If the Corporation, although not obligated to do
so, chooses to redeem interests of a deceased Beneficial Owner in excess of
the $25,000 limitation, such redemption, to the extent that it exceeds the
$25,000 limitation, shall not be included in the computation of the two
percent (2%) limitation.
8. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. The transfer of Notes may be
registered and
-41-
Notes may be exchanged as provided in the Indenture. The Registrar may
require a holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not exchange or register the transfer
of any Note or portion of a Note selected for redemption. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before
a selection of Notes to be redeemed.
9. Persons Deemed Owners.
The registered holder of a Note may be treated as its owner for all
purposes.
10. Amendments, Supplements and Waivers.
Subject to certain exceptions, the Indenture or the Notes may be amended
or supplemented, and any existing default may be waived, with the consent of
holders of a majority in principal amount of the Notes then outstanding.
Without the consent of any Noteholder, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for assumption of Corporation obligations to Noteholders or to make
any change that does not materially adversely affect the rights of any
Noteholder.
11. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of interest on
the Notes; default in payment of principal on the Notes; failure by the
Corporation for 30 days after notice to it to comply with any of its other
agreements in the Indenture or the Notes; default in the payment of
indebtedness having an outstanding principal balance of $1,000,000 or more
under certain circumstances; and certain events of bankruptcy or insolvency.
If an Event of Default occurs and is continuing, the Trustee or the holders
of at least 25% in principal amount of the Notes may declare all the Notes to
be due and payable immediately. Noteholders may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Notes.
Subject to certain limitations, holders of a majority in principal amount of
the Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Noteholders notice of any continuing default
(except a default in payment of principal or interest) if it determines that
withholding notice is in their interests. The Corporation must furnish an
annual compliance certificate to the Trustee.
-42-
12. Trustee Dealings with Corporation.
Norwest Bank Minnesota, National Association, the Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and preform services for the Corporation or its Affiliates,
and may otherwise deal with the Corporation or its Affiliates, as if it were
not Trustee.
13. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the
Corporation shall not have any liability for any obligations of the
Corporation under the Notes or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each
Noteholder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Notes.
14. Authentication.
This Note shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.
15. Abbreviations.
Customary abbreviations may be used in the name of a Noteholder 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.
Dated: ______________________
Authenticated:
NORWEST BANK MINNESOTA, ENERGY WEST INCORPORATED
NATIONAL ASSOCIATION, as Trustee
By ______________________________ By ____________________________________
Its Authorized Signer Its
By ____________________________________
Its Treasurer
(SEAL)
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__________________________
The Corporation will furnish to any Noteholder upon written request and
without charge a copy of the Indenture.
Requests may be made to: Treasurer, Energy West Incorporated, 0 Xxxxx Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000.
-44-
ASSIGNMENT FORM
I/We assign and transfer this Note to
[ ]
(Insert assignee's social
security or tax I.D. number)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint _____________________________________ as agent to
transfer this Note on the books of the Corporation. The agent may substitute
another to act for him.
Date:_________________ Signature _____________________________
(Sign exactly as your name
appears on the other side of
this Note)
-45-
EXHIBIT B
(Face of Note)
ENERGY WEST INCORPORATED
__% Note due June 1, 2012
No. R- $
--------------------- ------------------
CUSIP No.
----------------------
ENERGY WEST INCORPORATED, a Montana corporation, for value
received, hereby promises to pay to , or registered
--------------------------
assigns, the principal sum of DOLLARS on June 1,
----------------------------
2012 and to pay interest on said principal sum at the rate of per annum
---------
calculated on the basis of a 360-day year of twelve 30-day months.
Dated:
-----------------------
Authenticated:
NORWEST BANK MINNESOTA, ENERGY WEST INCOPORATED
NATIONAL ASSOCIATION,
as Trustee
By By
-------------------------- ----------------------------
Its Authorized Signer Its
-------------------------
By
----------------------------
Its Treasurer
(SEAL)
B-1
(REVERSE OF NOTE)
1. Interest.
ENERGY WEST INCORPORATED ("Corporation"), a Montana
corporation, promises to pay interest on the principal amount of
this Note at the rate per annum shown above. The Corporation will
pay interest semi-annually on June 1 and December 1 of each year,
commencing June 1, 1997. Interest on the Notes will accrue from
the most recent date to which interest has been paid, or, if no
interest has been paid previously, from the date of original
issuance of this Note; 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 below and the next
succeeding interest payment date, interest shall accrue from the
next interest payment date.
2. Method of Payment.
The Corporation will pay interest on the Notes (except
defaulted interest) to the persons who are registered holders of
Notes at the close of business on the record date next preceding
the interest payment date. The Corporation will pay interest to
such holders on the next interest payment date even though Notes
are cancelled after the record date but on or before the interest
payment date. The record date for payments on any June 1 shall be
the immediately preceding May 15, and the record date for payments
on any December 1, shall be the immediately preceding November 15.
Holders must surrender Notes to a Paying Agent to collect principal
payments. The Corporation will pay principal and interest in money
of the United States that at the time of payment is legal tender
for payment of public and private debts. However, the Corporation
may pay principal and interest by check payable in such money. The
Corporation may mail an interest check to a holder's registered
address.
3. Paying Agent and Registrar.
Initially, Norwest Bank Minnesota, National Association,
Norwest Center, Sixth Street and Marquette Avenue, Minneapolis,
Minnesota 55479-0069, will act as Paying Agent and Registrar. The
Corporation may change any Paying Agent, Registrar or Co-Registrar
without notice. The Corporation or any of its Subsidiaries may act
in any such capacity.
4. Indenture.
The Corporation issued the Notes under an Indenture dated
as of _______, 1997 (the "Indenture"), between the Corporation and
the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the
B-2
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) (the "Act") as in effect on the date of the Indenture.
The Notes are subject to all such terms, and Noteholders
are referred to the Indenture and the Act for a statement of such
terms. The Notes are unsecured general obligations of the
Corporation limited to $8,000,000 in aggregate principal amount.
5. Redemption at Corporation's Option.
The Corporation may, at its option, at any time on or after
June 1, 2002 redeem prior to maturity all the Notes or some of them from
time to time after issuance at the following redemption prices (expressed in
percentages of principal amount of the Notes) plus unpaid accrued interest to
the redemption date.
If redeemed during the twelve-month period beginning June 1:
Year Percentage
---- ----------
2002 103%
2003 102%
2004 101%
2005 until maturity 100%
6. Notice of Redemption.
Notice of redemption at the Corporation's option will be mailed
at least 30 days but not more than 60 days before the redemption date to each
holder of Notes to be redeemed at his registered address as set forth in the
register. Notes in denominations larger than $1,000 may be redeemed in part
but only in integral multiples of $1,000. On and after the redemption date
(if there is no default in the payment of the redemption price by the
Corporation), interest ceases to accrue on Notes or portions thereof called
for redemption.
7. Redemption at Beneficial Owner's Option.
For purposes hereof, "Beneficial Owner" means the Person who has
the right to sell, transfer or otherwise dispose of an interest in the Notes
and the right to receive the proceeds therefrom, as well as interest,
principal and premium (if any) payable in respect thereof.
Unless (i) the Notes have been declared due and payable prior to
their maturity by reason of an Event of Default or (ii) the Corporation has
mailed a notice of redemption, then in the event of the death of a Beneficial
Owner, such Beneficial
B-3
Owner's personal representative or surviving joint tenant(s) (the
"Representative") has the right to request redemption of the Notes
beneficially owned by such Beneficial Owner prior to death, subject to the
terms and conditions set forth in this paragraph 7.
To request redemption of all or part of such deceased Beneficial
Owner's interest in the Notes, the Representative shall deliver to the
Trustee a written request for redemption in form satisfactory to the Trustee,
signed by the Representative, accompanied by (i) a statement of the principal
amount of the interest in the Notes to be redeemed (which amount shall be an
integral multiple of $1,000), (ii) appropriate evidence of the Beneficial
Owner's death and beneficial ownership at the time of death and (iii)
appropriate evidence of the authority of the Representative (a "Redemption
Request"). The Representative may withdraw any Redemption Request by
delivering a written request for withdrawal to the Trustee prior to the
payment of the redemption price of such interest.
The Trustee shall promptly inform the Corporation of the receipt
of a proper Redemption Request. On or before the date 60 days following the
date on which the Trustee receives a proper Redemption Request, the
Corporation shall deposit with the Paying Agent cash sufficient to redeem the
interests covered by such Redemption Request at a price equal to 100% of
their principal amount, plus accrued interest to the date of such deposit.
The Corporation's obligation to redeem an interest in the Notes
following receipt of a Redemption Request is subject to the following
limitations: (i) the Corporation is not obligated to redeem on behalf of any
deceased Beneficial Owner any interest in the Notes that exceeds an aggregate
principal amount of $25,000 and (ii) in any 12-month period beginning June 1
the Corporation shall not be obligated to redeem interests in the Notes in
excess of two percent (2%) of the aggregate principal amount of the Notes
originally issued. Representatives may present Redemption Requests to the
Trustee at any time and in any principal amount. Any interests in Notes that
are not redeemed in any 12-month period beginning June 1 as the result of
the two percent (2%) limitation will be held for redemption in the succeeding
year. The Corporation may, at its discretion, exceed the $25,000 and two
percent (2%) limitations. If the Corporation, although not obligated to do
so, chooses to redeem interests of a deceased Beneficial Owner in excess of
the $25,000 limitation, such redemption, to the extent that it exceeds the
$25,000 limitation, shall not be included in the computation of the two
percent (2%) limitation.
B-4
8. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in denominations
of $1,000 and integral multiples thereof. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar may require a holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or
register the transfer of any Note or portion of a Note selected for
redemption. Also, it need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed.
9. Persons Deemed Owners.
The registered holder of a Note may be treated as its owner for
all purposes.
10. Amendments, Supplements and Waivers.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented, and any existing default may be waived, with the
consent of holders of a majority in principal amount of the Notes then
outstanding. Without the consent of any Noteholder, the Indenture or the
Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for assumption of Corporation obligations to
Noteholders or to make any change that does not materially adversely affect
the rights of any Noteholder.
11. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on the Notes; default in payment of principal on the Notes; failure
by the Corporation for 30 days after notice to it to comply with any of its
other agreements in the Indenture or the Notes; default in the payment of
indebtedness having an outstanding principal balance of $1,000,000 or more
under certain circumstances; and certain events of bankruptcy or insolvency.
If an Event of Default occurs and is continuing, the Trustee or the holders
of at least 25% in principal amount of the Notes may declare all the Notes to
be due and payable immediately. Noteholders may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Notes.
Subject to certain limitations, holders of a majority in principal amount of
the Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Noteholders notice of any continuing default
(except a default in payment of principal or interest) if it determines that
B-5
withholding notice is in their interests. The Corporation must furnish an
annual compliance certificate to the Trustee.
12. Trustee Dealings with Corporation.
Norwest Bank Minnesota, National Association, the Trustee under
the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Corporation or its
Affiliates, and may otherwise deal with the Corporation or its Affiliates, as
if it were not Trustee.
13. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the
Corporation shall not have any liability for any obligations of the
Corporation under the Notes or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each
Noteholder by accepting this Note waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Notes.
14. Authentication.
This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
15. Abbreviations.
Customary abbreviations may be used in the name of a Noteholder
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.
-------------------------------------------------
The Corporation will furnish to any Noteholder upon
written request and without charge a copy of the Indenture.
Requests may be made to: Treasurer, Energy West Incorporated, 0
Xxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000.
B-6
ASSIGNMENT FORM
I/We assign and transfer this Note to
[ ]
(Insert assignee's social
security or tax I.D. number)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint as agent to
-------------------------------------------
transfer this Note on the books of the Corporation. The agent may substitute
another to act for him.
Date: Signature
---------------------------- --------------------------
(Sign exactly as your name
appears on the other side
of this Note)
