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EXHIBIT 4.7
TRUST AGREEMENT
between
NRG ENERGY, INC.
and
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Trustee
Dated as of March 20, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Assumptions.........................................................................2
Section 1.1 Definitions..............................................................2
Section 1.2 Rules of Construction...................................................15
ARTICLE II
Declaration of Trust; Issuance of Certificates.....................................................15
Section 2.1 Creation and Declaration of Trust; Purchase
of the Senior Notes.....................................................15
Section 2.2 Representations and Warranties..........................................16
Section 2.3 Breach of Representation, Warranty or Covenant..........................17
Section 2.4 Agreement to Authenticate and Deliver Certificates......................18
ARTICLE III
Administration of Trust............................................................................18
Section 3.1 Administration of Trust.................................................18
Section 3.2 Receipt of Trust Asset Payments.........................................18
Section 3.3 Certificate Account.....................................................18
Section 3.4 Repurchase of Certificates Upon a Change of Control.....................21
Section 3.5 Realization Upon Defaulted Senior Notes.................................23
Section 3.6 Access to Certain Documentation.........................................23
Section 3.7 Expenses of Trust.......................................................23
Section 3.8 No Merger or Consolidation of Trust.....................................24
Section 3.9 Exchange Rate Agency Agreement..........................................24
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ARTICLE IV
Distributions and Reports to Certificateholders; Transfer of Certificates..........................24
Section 4.1 Distributions...........................................................24
Section 4.2 Final Distributions.....................................................26
Section 4.3 Reports to Certificateholders...........................................27
Section 4.4 Compliance with Withholding Requirements;
Tax Treatment and Reporting.............................................28
Section 4.5 Transfer of Certificates................................................28
Section 4.6 Rule 144A Information...................................................30
ARTICLE V
Security Forms.....................................................................................30
Section 5.1 Forms Generally.........................................................30
Section 5.2 Restricted Legend.......................................................31
ARTICLE VI
The Certificates...................................................................................33
Section 6.1 Designation; Certificate Principal Amount
and Denominations.......................................................33
Section 6.2 Execution, Authentication and Delivery..................................34
Section 6.3 Registration; Registration of Transfer and Exchange.....................34
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates.......................37
Section 6.5 Distribution of Available Funds; Computations...........................38
Section 6.6 Persons Deemed Owners...................................................39
Section 6.7 Cancellation............................................................39
Section 6.8 Global Securities.......................................................39
Section 6.9 Notices to Depository...................................................42
Section 6.10 Conditions of Authentication and Delivery...............................42
Section 6.11 Appointment of Paying Agent.............................................42
Section 6.12 Authenticating Agent....................................................43
Section 6.13 Remedies................................................................44
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ARTICLE VII
The Company........................................................................................45
Section 7.1 Liability of the Company................................................45
Section 7.2 Limitation on Liability of the Company..................................45
Section 7.3 The Company May Purchase Certificates...................................46
ARTICLE VIII
Concerning the Currency Swap, the Call Option and
the Early Redemption Right.........................................................................46
Section 8.1 Currency Swap and Call Option...........................................46
Section 8.2 Obligations to the Callholder...........................................48
Section 8.3 Early Redemption Right..................................................48
ARTICLE IX
Concerning the Trustee.............................................................................49
Section 9.1 Duties of Trustee; Notice of Defaults...................................49
Section 9.2 Certain Matters Affecting the Trustee...................................50
Section 9.3 Trustee Not Liable for Recitals in Certificates
or Trust Assets.........................................................52
Section 9.4 Trustee May Own Certificates............................................52
Section 9.5 Trustee's Fees and Expenses; Indemnification............................52
Section 9.6 Eligibility Requirements for Trustee....................................53
Section 9.7 Resignation or Removal of the Trustee...................................53
Section 9.8 Successor Trustee.......................................................54
Section 9.9 Merger or Consolidation of Trustee......................................55
Section 9.10 Appointment of Office or Agency.........................................55
Section 9.11 Representations and Warranties of Trustee...............................55
Section 9.12 Limitation of Powers and Duties.........................................56
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ARTICLE X
Termination........................................................................................57
Section 10.1 Termination.............................................................57
ARTICLE XI
Miscellaneous Provisions...........................................................................58
Section 11.1 Amendment...............................................................58
Section 11.2 Counterparts............................................................59
Section 11.3 Limitation on Rights of Certificateholders..............................60
Section 11.4 Governing Law...........................................................61
Section 11.5 Notices.................................................................61
Section 11.6 Severability of Provisions..............................................62
Section 11.7 Notice to Rating Agencies...............................................62
Section 11.8 Non-petition Covenant...................................................62
Section 11.9 Article and Section References..........................................63
Section 11.10 Compliance Certificates and Opinions, etc...............................63
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Exhibit A.........................................................................................A-1
Exhibit B........................................................................................ B-1
Exhibit C.........................................................................................C-1
Exhibit D.........................................................................................D-1
Exhibit E.........................................................................................E-1
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TRUST AGREEMENT dated as of March 20, 2000, between NRG
Energy, Inc., a company incorporated under the laws of the State of Delaware
(the "Company"), and The Bank of New York, a banking corporation duly organized
and existing under the laws of New York, as trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Trustee have duly authorized the
execution and delivery of this Agreement to create and establish a new trust to
be known as the NRG Energy Pass-Through Trust 2000-1 and trust certificates to
be issued thereby, which certificates shall be known as the 8.70 % Remarketable
or Redeemable Securities ("ROARS") Due March 15, 2005 (the "Certificates"), and
the Company and the Trustee shall herein specify certain terms and conditions in
respect thereof.
WHEREAS, the Certificates shall have an aggregate Initial
Certificate Principal Balance of $250,000,000 and shall entitle the holders
thereof (the "Holders" or "Certificateholders") to distributions thereon to the
extent of (i) collections on pound sterling 160,000,000 principal amount of
Reset Senior Notes Due March 15, 2020 issued by the Company (the "Senior
Notes"), (ii) Dollar Swap Payments by the Swap Counterparty with respect to the
Currency Swap received by the Trustee and (iii) any other funds contained in the
Certificate Account to the extent set forth herein.
WHEREAS, all representations, covenants and agreements made
herein by the Company and the Trustee are for the benefit and security of the
Certificateholders.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each party, for the
benefit of the other parties and for the benefit of the Certificateholders,
hereby agrees as follows:
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ARTICLE I
Definitions and Assumptions
Section 1.1 Definitions
Except as otherwise specified herein or as the context may
otherwise require, the following terms have the respective meanings set forth
below for all purposes of this Agreement.
"Affiliate": With respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement": This Agreement and all supplements hereto and
modifications or amendments hereof, including the terms of the Certificates.
"Applicable Procedures": As defined in Section 5.2(b).
"Authenticating Agent": As defined in Section 6.12.
"Available Funds": For any Distribution Date, the aggregate
amount deposited in the Certificate Account since the last Distribution Date
with respect to (a) for so long as the Senior Notes are denominated in Pounds
Sterling and no Swap Termination Event has occurred, any Dollar Swap Payment or
other Dollar amount paid by the Swap Counterparty to the Trustee under the
Currency Swap, (b) if a Swap Termination Event (other than as a result of a
Conversion Event, Optional Tax Redemption or a Change of Control Repurchase) has
occurred, the semi-annual interest payments on the Senior Notes and payments on
or in respect of the principal of the Senior Notes made by the Company
thereunder and received by the Trustee or, if applicable, any Swap Termination
Payment (subject to Section 6.13) or Unpaid Amounts, (c) if a Conversion Event
has occurred , the semi-annual interest payments on the Senior Notes and
payments on or in respect of the principal of the Senior Notes made by the
Company thereunder and received by the Trustee or, if applicable, any Unpaid
Amounts, (d) all Option Proceeds and (e) all Liquidation Proceeds.
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"Board of Directors": The Board of Directors of the Company.
"Business Day": With respect to (i) the Call Option, as
defined therein, (ii) the Currency Swap, as defined therein, (iii) the Senior
Notes, as defined in the Indenture, and (iv) this Agreement, each day which is
not a Saturday, Sunday or a day on which banking institutions and foreign
exchange markets in New York and London are authorized or obligated by law to
remain closed.
"Call Exercise Date": February 15, 2005, or if such date is
not a Business Day, the next preceding Business Day.
"Call Option": The Call Option, dated as of the Closing Date,
between the Trustee and the Callholder, pursuant to the ISDA Master Agreement
between such parties, dated March 20, 2000, the form of the confirmation for
which is substantially in the form attached hereto as Exhibit B.
"Call Price": An amount equal to 100% of the outstanding
principal amount of the then outstanding Senior Notes.
"Callholder": Bank of America, N.A., or any permitted assignee
thereof.
"Certificateholder" or "Holder": With respect to any
Outstanding Certificate, the Person in whose name a Certificate is registered in
the Certificate Register on the applicable Record Date.
"Certificate Account": As defined in Section 3.3.
"Certificate Owner": A beneficial owner of a Certificate
represented by a Global Security.
"Certificate Principal Amount": $250,000,000, or such lesser
principal amount outstanding following a partial repurchase due to a Change of
Control Offer.
"Certificate Principal Balance": With respect to an
Outstanding Certificate, as determined at any time, the maximum amount that the
Holder thereof is entitled to receive as a distribution of principal.
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"Certificate Register" and "Certificate Registrar": As defined
in Section 6.3.
"Certificates": The 8.70% Remarketable or Redeemable
Securities ("ROARS") Due March 15, 2005 issued by the Trust and authorized by,
and authenticated and delivered under, this Agreement.
"Change of Control": The occurrence of one or more of the
following events: (i) NSP (or its successors) shall cease to own a majority of
the outstanding Voting Stock of the Company, (ii) at any time following the
occurrence of the event described in clause (i), a Person or group (as that term
is used in Section 13(d)(3) of the Exchange Act) of Persons (other than NSP)
shall have become the beneficial owner directly or indirectly, or shall have
acquired the absolute power to direct the vote, of more than 35% of the
outstanding Voting Stock of the Company, or (iii) during any twelve-month
period, individuals who at the beginning of such period constituted the Board of
Directors (together with any new directors whose election or nomination was
approved by a majority of the directors then in office who were either directors
at the beginning of such period or who were previously so approved) shall have
ceased for any reason to constitute a majority of the Board of Directors.
Notwithstanding the foregoing, a Change of Control shall be deemed not to have
occurred if one or more of the above events occurs or circumstances exist and,
after giving effect thereto, the Senior Notes are rated Investment Grade. For
purposes of clause (i), NSP's "successors" shall be deemed to include NSP, as
the "surviving corporation," as that term is used in the Agreement and Plan of
Merger, dated as of March 24, 1999, by and between NSP and New Century Energies,
Inc., if the merger contemplated by such agreement is consummated substantially
in accordance with the terms specified therein.
"Change of Control Offer": As defined in Section 3.4.
"Change of Control Repurchase": The repurchase of 100% of the
outstanding Certificates pursuant to Section 3.4.
"Clearstream, Luxembourg": Clearstream Banking, societe
anonyme (or any successor securities clearing agency).
"Closing Date": March 20, 2000.
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"Code": The Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Commission": The Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution and delivery of this Agreement such Commission is not
existing and performing the duties now assigned to it, then the body then
performing such duties.
"Company": NRG Energy, Inc., a Delaware corporation, and if a
successor Person shall have become the Company pursuant to any applicable
provisions of this Agreement, the "Company" shall mean such successor Person.
"Company Order" or "Company Request": A written order or
request, respectively, signed in the name of the Company, by any two of its
officers and delivered to the Trustee.
"Conversion Event": The declaration, at any time prior to the
Settlement Date, of the principal amount of the Senior Notes to be due and
payable immediately in accordance with Section 3.3 of the Indenture as a result
of the occurrence of an Event of Default thereunder.
"Corporate Trust Office": The office of the Trustee at which
its corporate trust business shall be principally administered.
"Currency Swap": The Currency Swap Agreement between the Swap
Counterparty and the Trustee, pursuant to an ISDA Master Agreement between such
parties, dated March 20, 2000, the form of the confirmation for which is annexed
hereto as Exhibit C.
"Definitive Certificates": As defined in Section 6.8.
"Depository": The Depository Trust Company.
"Distribution Dates": Each March 15 and September 15, or if
such day is not a Business Day, the next succeeding Business Day, commencing
September 15, 2000, through and including the Final Distribution Date.
"Dollar" or "$" or "USD": Such currency of the United States
as at the time of payment is legal tender for the payment of public and private
debts.
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"Dollar Distribution": A semi-annual Dollar payment calculated
at an annual interest rate of 8.70% on the basis of a 360-day year consisting
of twelve months of 30-days each, due on the Certificate Principal Amount.
"Dollar Swap Payment" a semi-annual Dollar payment made by the
Swap Counterparty to the Trustee on behalf of the Certificateholders which is
calculated at an annual interest rate of 8.70% on the basis of a 360-day year
consisting of twelve months of 30-days each due on the lesser of $250,000,000
aggregate notional amount or a notional amount equal to the outstanding
principal amount of the Certificates following a partial repurchase pursuant to
a Change of Control Offer.
"Early Redemption Notice": As defined in Section 8.3.
"Early Redemption Right": The right of the Trustee as holder
of the Senior Notes to require the Company to redeem all, but not less than all,
the Senior Notes at a redemption price payable in Pounds Sterling equal to 100%
of the principal amount thereof plus accrued but unpaid interest, if any, to
such redemption date on March 15, 2005, which right the parties hereto
acknowledge that the Trustee is required to exercise pursuant to Section 8.3
hereof.
"Eligible Account": Either (i) a segregated account maintained
with a federal or State chartered depositary institution or trust company the
long-term unsecured debt obligations of which are rated by the Rating Agencies
the higher of (x) at least the then current long-term rating of the Senior Notes
and (y) any one of its two highest long-term rating categories at the time any
amounts are held in deposit therein, or (ii) a trust account maintained as a
segregated account and held by a federal or State chartered depositary
institution or trust company in trust for the benefit of the Certificateholders;
provided, however, that with respect to this clause (ii), such depositary
institution or trust company has a long-term rating in one of the four highest
categories by the Rating Agencies.
"Eligible Expenses": All reasonable out of pocket expenses
incurred or made by the Trustee, including costs of collection, in addition to
the compensation agreed upon by the Company and the Trustee for the Trustee's
services. Such expenses shall include the reasonable compensation, expenses and
disbursements of the Trustee's agents, counsel and experts, which agents,
counsel and experts shall, prior to the occurrence of an Event of Default or an
event which with the giving of notice or passing of time or both would
constitute an Event of Default, be agreed upon by the Company and the Trustee.
The Company shall pay such expenses.
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"Euroclear": The Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default": An Event of Default under the Indenture.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Executive Officer": With respect to any corporation, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, the President, any Vice President, the Secretary, the Treasurer, any
Assistant Treasurer or any Assistant Secretary of such corporation.
"Final Distribution": Unless made earlier in the event of a
redemption of the Senior Notes pursuant to their terms, the distribution by the
Trustee on the Final Distribution Date (i) of all Option Proceeds following an
exercise of the Call Option by the Callholder or an exercise of the Early
Redemption Right (and, as long as a Swap Termination Event shall not have
occurred, upon receipt by the Trust from the Swap Counterparty of Dollars in an
amount equal to the Certificate Principal Amount pursuant to the Currency Swap
as a result of such exercise), as the case may be, or (ii) of all Liquidation
Proceeds received by the Trustee following a Trust Termination Event, and (iii)
of all Dollar Swap Payments received by the Trustee but not previously
distributed pursuant to Section 4.1 hereof.
"Final Distribution Date": (i) March 15, 2005 in connection
with an exercise of the Call Option or the Early Redemption Right or (ii) the
Business Day following the receipt by the Trustee of the Liquidation Proceeds in
connection with a Trust Termination Event.
"Global Security": The Rule 144A Global Security or the
Regulation S Global Security.
"Indenture": The Indenture dated as of March 20, 2000 between
the Company and The Bank of New York, as Trustee.
"Initial Certificate Principal Balance": The aggregate
Certificate Principal Balance as of the Closing Date, which is $250,000,000.
"Initial Purchasers": Banc of America Securities LLC, ABN AMRO
Incorporated and Deutsche Banc Securities Inc.
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"Investment Grade": With respect to the Certificates, a rating
of Baa3 or higher by Xxxxx'x Investors Service, Inc., and a rating of BBB- or
higher by Standard and Poor's Ratings Group (or, if either or both of the
foregoing Rating Agencies ceases to rate the Securities for reasons beyond the
control of the Company, equivalent ratings by one or two (as the case may be)
other nationally recognized statistical rating organizations (as such term is
defined in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act)); provided that if
either of the foregoing rating agencies shall change its ratings designations
while the Certificates are Outstanding, "Investment Grade" shall mean the lowest
ratings designation signifying "investment grade" issued by such agencies (or
higher).
"Liquidation Proceeds": All amounts, property or proceeds
received by the Trustee in connection with a Trust Termination Event.
"Moody's": Xxxxx'x Investors Service, Inc., or its successors.
"NSP": Northern States Power Company, a Minnesota corporation.
"Officer's Certificate": A certificate signed by any Executive
Officer of the Company or, in the case of the Trustee, a Responsible Officer.
"Opinion of Counsel": A written opinion of counsel, who may,
except as otherwise expressly provided in this Agreement, be internal counsel
for the Company, delivered to the Trustee.
"Option Proceeds": All amounts received by the Trust in
respect of an exercise of the Call Option by the Callholder or an exercise of
the Early Redemption Right by the Trustee, as the case may be.
"Optional Tax Redemption": The right of the Company to redeem
the Senior Notes upon the occurrence of certain events as described in Section
3.6 of the Indenture.
"Outstanding": When used with respect to Certificates, means,
as of the date of determination, all Certificates theretofore authenticated and
delivered under this Agreement (including, as of such date, all Certificates
represented by Restricted Global Securities authenticated and delivered under
this Agreement) , except:
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(1) Certificates theretofore cancelled by the
Certificate Registrar or delivered to the Certificate Registrar
for cancellation; and
(2) Certificates which have been issued pursuant to
Section 6.4 or in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to
this Agreement, unless proof satisfactory to the Trustee is
presented that any such Certificates are held by a bona fide
purchaser in whose hands such Certificates are valid obligations
of the Trust;
provided, however, that in determining whether the holders of the required
percentage of the aggregate Voting Rights of the Certificates have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Certificates beneficially owned by the Company or any Affiliate thereof shall be
disregarded and deemed not to be Outstanding, and the Voting Rights to which its
Holder would otherwise be entitled shall not be taken into account in
determining whether the requisite percentage of aggregate Voting Rights
necessary to effect any such consent or take any such action has been obtained,
except that (a) in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates which the Trustee actually knows to be so owned shall
be so disregarded, and (b) the foregoing shall not apply at any time when all of
the Outstanding Certificates are owned by the Company or an Affiliate thereof.
Certificates so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgor establishes to the satisfaction of the Trustee the
pledgor's right so to act with respect to such Certificates and that the pledgee
is not the Company or any Affiliate thereof.
"Participant": A broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Paying Agent": As defined in Section 6.11.
"Payment Date": The semi-annual dates on which interest
payments will be due on the Senior Notes as provided therein, being the 15th day
of each March and September, with the first payment following the Closing Date
to occur on September 15, 2000.
"Permitted Investments": One or more of the following:
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(i) obligations of or guaranteed as to principal and interest
by the United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United States;
(ii) federal funds, certificates of deposit, demand deposits,
time deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars of any U.S.
depository institution or trust company incorporated under the laws of the
United States or any state thereof or of any domestic branch of a foreign
depository institution or trust company; provided that the debt obligations of
such foreign depository institution or trust company (or, if the only Rating
Agency is S&P, in the case of the principal depository institution in a
depository institution holding company, the debt obligations of the depository
institution holding company) at the date of acquisition thereof have been rated
by each Rating Agency in its highest short-term rating available; and provided
further that, if the only Rating Agency is S&P and if the depository institution
or trust company is a principal subsidiary of a bank holding company and the
debt obligations of such subsidiary are not separately rated, the applicable
rating shall be that of the bank holding company; and, provided further that, if
the original maturity of such short-term obligations of a domestic branch of a
foreign depository institution or trust company shall exceed 30 days, the
short-term rating of such institution shall be AA in the case of S&P if S&P is
the Rating Agency or an equivalent rating by any other Rating Agency;
(iii) commercial paper (having an original maturity of not
more than 270 days or a remaining maturity of not more than 30 days) of any
corporation incorporated under the laws of the United States or any state
thereof which on the date of acquisition has been rated by each Rating Agency in
its highest short-term rating available;
(iv) a money market fund or a qualified investment fund rated
by each Rating Agency in its highest rating available.
"Person": Any legal person, including any individual,
corporation, partnership, limited liability company, joint venture, association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
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"Pounds Sterling": Such currency of the United Kingdom as at
the time of payment is legal tender for the payment of public and private debts.
"Predecessor Certificate": With respect to any particular
Certificate, every previous Certificate evidencing all or a portion of the same
interest as that evidenced by such particular Certificate; and, for the purpose
of this definition, any Certificate authenticated and delivered under Section
6.4 in lieu of a mutilated, lost, destroyed or stolen Certificate shall be
deemed to evidence the same interest as such mutilated, lost, destroyed or
stolen Certificate.
"Proceeding": Any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Agreement": The Purchase Agreement among the
Company, the Trust and the Initial Purchasers, dated March 14, 2000.
"Qualified Institutional Buyer" or "QIB": A "qualified
institutional buyer" as defined in paragraph (a) of Rule 144A.
"Rating Agencies": Moody's and S&P.
"Rating Agency Condition": With respect to any action, that
each of the Rating Agencies shall have been given 10 days (or such shorter
period as may be acceptable to each Rating Agency) prior notice thereof and that
each of the Rating Agencies shall have notified the Company and the Trustee in
writing that such action will not result in a reduction, withdrawal or
qualification of the then current rating of the Certificates.
"Record Date": With respect to any Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date; provided, however, that no Record Date shall be applicable to
distributions to be made on the Final Distribution Date.
"Regulation S": Regulation S promulgated under the Securities
Act.
"Regulation S Global Security": As defined in Section 5.1.
"Required Percentage": Unless otherwise specified herein, a
majority of the aggregate Voting Rights of the Certificates.
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"Required Percentage--Amendment": At least 66_ of the
aggregate Voting Rights of the Certificates.
"Required Percentage--Direction of Trustee": A majority of the
aggregate Voting Rights of the Certificates.
"Required Percentage--Remedies": At least 66_% of the
aggregate Voting Rights of the Certificates.
"Required Percentage--Waiver": At least 66_% of the aggregate
Voting Rights of the Certificates.
"Responsible Officer": The chairman or any vice-chairman of
the board of directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust committee, the
president, any vice president, any assistant vice president, the treasurer, any
assistant treasurer, any trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Rule 144": Rule 144 promulgated under the Securities Act.
"Rule 144A": Rule 144A promulgated under the Securities Act.
"Rule 144A Global Security": As defined in Section 5.1.
"Rule 144A Information": As defined in Section 4.6.
"S&P": Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, or its successor.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Notes": pound sterling 160,000,000 principal amount
of NRG Energy's Reset Senior Notes Due March 15, 2020, issued pursuant to the
Indenture.
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"Settlement Date": March 15, 2005 or, if such day is not a
Business Day, the next succeeding Business Day.
"State": Any one of the fifty states of the United States or
the District of Columbia.
"Sterling Swap Payment": a semi-annual payment to be made by
the Trustee to the Swap Counterparty which is calculated to equal the Pound
Sterling semi-annual interest payment required to be made by the Company on the
Senior Notes.
"Successor Certificate": Of any particular Certificate, every
Certificate issued after, and evidencing all or a portion of the same interest
as that evidenced by, such particular Certificate; and, for the purposes of this
definition, any Certificate authenticated and delivered under Section 6.4 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Certificate
shall be deemed to evidence the same interest as such mutilated, destroyed, lost
or stolen Certificate.
"Swap Counterparty": Bank of America, N.A., or its successors.
"Swap Payment": Either of a Dollar Swap Payment or a Sterling
Swap Payment.
"Swap Termination Event": shall mean the termination of the
Currency Swap in accordance with its terms on March 15, 2005 (or, if such day is
not a Business Day, the next succeeding Business Day), unless earlier terminated
as a result of (a) the failure for 30 days by the Trustee to make a Sterling
Swap Payment thereunder, (b) the failure by the Swap Counterparty to make a
Dollar Swap Payment thereunder if such failure is not remedied on or before the
third Business Day after notice of such failure is given by the Trustee to the
Swap Counterparty, (c) the occurrence of a Conversion Event, (d) the occurrence
of a redemption of the Senior Notes as a result of an Optional Tax Redemption,
(e) the occurrence of a repurchase of the Senior Notes as a result of a Change
of Control Repurchase, (f) the commencement of insolvency, conservatorship or
receivership in respect of the Trust or (g) certain other events as described in
the Currency Swap.
"Swap Termination Payment": Following a Swap Termination Event
(other than as a result of a Conversion Event, Optional Tax Redemption or a
Change
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of Control Repurchase), payment of the amount, if any, due to the Trustee
calculated as provided in the Currency Swap.
"Trust": NRG Energy Pass-Through Trust 2000-1, the trust
created hereby and to be administered hereunder for the benefit of the
Certificateholders, the corpus of which consists of the Trust Assets.
"Trust Assets": (i) the Senior Notes (including the rights
under the Early Redemption Right), (ii) the rights of the Trustee under the Call
Option, (iii) the rights of the Trustee under the Currency Swap and (iv) except
as otherwise provided by Section 3.3, any funds on deposit in the Certificate
Account, together with, in each case, any payments received by the Trustee in
connection with any such assets.
"Trust Termination Event": The first to occur of (a) the
discharge by the Company of all of its obligations in respect of the Senior
Notes following a Conversion Event, either by (i) payment in full of all amounts
thereby due and payable under the Senior Notes or (ii) payment of a lesser
amount which all Certificateholders agree shall be a complete satisfaction and
discharge of the Company's obligations in respect of the Senior Notes, or (b)
the final adjudication or settlement of all claims in respect of the Senior
Notes following a bankruptcy, reorganization or similar proceeding of the
Company, or (c) the occurrence of a redemption of the Senior Notes as a result
of an Optional Tax Redemption or (d) the occurrence of a repurchase of the
Senior Notes as a result of a Change of Control Repurchase.
"Trustee": The Bank of New York or any co-trustee appointed
pursuant to Section 9.8, until a successor Person shall have become the Trustee
pursuant to the applicable provisions of this Agreement, and thereafter
"Trustee" shall mean such successor Person.
"Uniform Commercial Code": The Uniform Commercial Code as in
effect in the relevant jurisdiction.
"United States": The United States of America (including the
States), its territories, its possessions and other areas subject to its
jurisdiction.
"Unpaid Amounts": Shall have the meaning set forth in the
Currency Swap.
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"Voting Rights": Each Certificate shall have the right to one
vote for each $1,000 of the Certificate Principal Balance thereof.
"Voting Stock": With respect to any Person, capital stock of
any class or kind ordinarily having the power to vote for the election of
directors (or persons fulfilling similar responsibilities) of such Person.
Section 1.2 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 as in effect in the United States from time
to time;
(3) "or" is not exclusive;
(4) the words "herein", "hereof"', "hereunder" and
other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision;
(5) "including" means including without limitation;
and
(6) words in the singular include the plural, and
words in the plural include the singular.
ARTICLE II
Declaration of Trust; Issuance of Certificates
Section 1.3 Creation and Declaration of Trust; Purchase of the
Senior Notes.
(1) Pursuant to the terms of this Agreement, a business trust
to be known as "NRG Energy Pass-Through Trust 2000-1" is hereby created.
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(2) Concurrently with the execution and delivery hereof, the
Trustee shall enter into the Purchase Agreement. Pursuant to the Purchase
Agreement, on the Closing Date, the Trustee shall (i) issue the Certificates,
each Certificate representing an undivided beneficial interest in the Trust
Assets, to or as requested by the Initial Purchasers, (ii) purchase the Senior
Notes from the Company, on behalf of and for the benefit of the
Certificateholders, in consideration for the net proceeds received by the Trust
from the issue of the Certificates and the Call Option, (iii) grant the Call
Option to the Callholder, on behalf of and for the benefit of the
Certificateholders, and (iv) enter into the Currency Swap on behalf of and for
the benefit of the Certificateholders. The Trust Assets shall be held by the
Trustee for the benefit of the Certificateholders.
(3) In connection with the establishment of the Trust, and for
the consideration stated in the Purchase Agreement, which the Trustee shall
cause to be remitted to the Company on the Closing Date, the Company shall, not
later than the Closing Date, issue the Senior Notes to the Trustee by physical
delivery of such Notes, duly executed, to the Trustee or its nominee.
(4) The Trustee hereby (i) accepts the trusts created
hereunder in accordance with the provisions of this Agreement, including,
without limitation, the Trustee's obligation, as and when the same may arise, to
make any payment or other distributions of Trust Assets as may be required
pursuant to this Agreement and the Certificates and (ii) agrees to perform the
duties herein required and that any failure to receive reimbursement of Eligible
Expenses under Section 9.5 hereof shall not release the Trustee from its duties
herein or therein.
Section 1.4 Representations and Warranties. (a) The Company
hereby represents and warrants to the Trustee that as of the Closing Date:
(1) the Company is a corporation duly organized,
validly existing and in good standing under Delaware law;
(2) the execution and delivery of this Agreement by
the Company and its performance of and compliance with the terms
of this Agreement will not violate the Company's articles of
incorporation or by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach or acceleration of, any
material contract, agreement or other instrument to which the
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Company is a party or which may be applicable to the Company or
any of its assets;
(3) the Company has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement and has duly executed and delivered
this Agreement; this Agreement, upon its execution and delivery by
the Company and assuming due authorization pursuant to the terms
hereof, execution and delivery by the Trustee, will constitute a
valid, legal and binding obligation of the Company, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to
or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law); and
(4) the Company is not in violation, and the execution
and delivery of this Agreement by the Company and its performance
and compliance with the terms of this Agreement will not
constitute a violation, of any order or decree of any court or any
order or regulation of any federal, State or municipal
governmental agency having jurisdiction over the Company or its
properties, other than those violations occurring in the ordinary
course of business which would not reasonably be expected to have
a material adverse effect on the condition (financial or
otherwise) or operations of the Company or its properties or on
the performance of its duties hereunder.
(2) It is understood and agreed that the representations and
warranties set forth in this Section 2.2 shall survive delivery of the
respective documents to the Trustee and shall inure to the benefit of the
Trustee on behalf of the Certificateholders.
Upon discovery by either the Company or the Trustee of a
breach of any of the foregoing representations and warranties which materially
and adversely affects the interests of the Certificateholders, the party
discovering such breach shall give prompt written notice thereof to the other
parties.
Section 1.5 Breach of Representation, Warranty or Covenant.
Within 60 days of the earlier of discovery by the Company or receipt of notice
by the Company of a breach of any of its representations or warranties set forth
in Section
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2.2 that materially and adversely affects the interests of the
Certificateholders, the Company shall cure such breach in all material respects.
Section 1.6 Agreement to Authenticate and Deliver
Certificates. The Trustee hereby agrees and acknowledges that it will,
concurrently with the receipt by it of the Senior Notes, the entering into of
the Currency Swap and the granting of the Call Option, cause to be authenticated
and delivered to or upon the order of the Initial Purchasers, in exchange for
the consideration set forth in the Purchase Agreement, Certificates duly
authenticated by or on behalf of the Trustee in authorized denominations
evidencing ownership of the entire Trust, all in accordance with the terms and
subject to the conditions of Sections 6.2 and 6.10.
ARTICLE III
Administration of Trust
Section 1.7 Administration of Trust.
(1) The Trustee shall administer the Trust Assets for the
benefit of the Certificateholders. Subject to Article IX hereof and the terms of
the Certificates, the Call Option and the Currency Swap, the Trustee shall have
full power and authority to do or cause to be done any and all things in
connection with such administration which it deems necessary to comply with the
terms of this Agreement.
Section 1.8 Receipt of Trust Asset Payments. The Trustee shall
receive and accept, for the benefit of Certificateholders, all payments made
under the Trust Assets in a manner consistent with the terms of this Agreement
and such Trust Assets.
Section 1.9 Certificate Account.
(1) The Trustee shall establish and maintain an Eligible
Account or Eligible Accounts held in trust for the benefit of the
Certificateholders (each, a "Certificate Account"). The Trustee on behalf of
such Certificateholders shall possess all right, title and interest in all funds
on deposit from time to time in each Certificate Account and in all proceeds
thereof. Each Certificate Account shall be under the sole dominion and control
of the Trustee for the benefit of the Certificateholders. The Trustee shall
deposit or cause to be deposited in each
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Certificate Account promptly (and in no event later than the close of business
(New York City time) on the day of receipt of such amounts) all amounts
collected with respect to the Trust Assets, including:
(1) for so long as the Senior Notes are denominated in
Pounds Sterling and no Swap Termination Event has occurred, the
semi-annual interest payments on the Senior Notes and payments of
or in respect of the principal of the Senior Notes made by the
Company thereunder and received by the Trustee in respect of the
Senior Notes and, after compliance by the Trustee with the next
succeeding paragraph, any Dollar Swap Payment or other Dollar
amount paid by the Swap Counterparty to the Trustee under the
Currency Swap;
(2) if a Swap Termination Event (other than as a
result of a Conversion Event, an Optional Tax Redemption or a
Change of Control Repurchase) has occurred, the semi-annual
interest payments on the Senior Notes and payments on or in
respect of the principal of the Senior Notes made by the Company
thereunder and received by the Trustee or, if applicable, any Swap
Termination Payment or Unpaid Amounts;
(3) if a Conversion Event has occurred, the
semi-annual interest payments on the Senior Notes and payments of
or in respect of the principal of the Senior Notes made by the
Company thereunder and received by the Trustee or, if applicable,
any Unpaid Amounts;
(4) all Option Proceeds; and
(5) all Liquidation Proceeds.
The Trustee shall withdraw or cause to be withdrawn from the
relevant Certificate Account, on the date of payment therefor, all Sterling Swap
Payments to be paid by the Trustee to the Swap Counterparty.
The proceeds of the Call Price shall be invested in Permitted
Investments which shall mature no later than the Final Distribution Date and may
be so invested as directed by the Callholder. Any interest or investment income
received on the Call Price from the Business Day prior to the Settlement Date to
the Settlement Date deposited in the Certificate Account will not constitute
property of the
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Trust and shall not be available to Certificateholders. The Trustee shall remit
all such income to the Callholder on the Final Distribution Date.
It is understood and agreed that payments in the nature of
prepayment or redemption penalties, late payment charges or assumption fees
which may be received by the Trustee shall be deposited by the Trustee in a
Certificate Account and shall not be retained by the Trustee for its own
account.
If, at any time, any Certificate Account ceases to be an
Eligible Account, the Trustee shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which the Rating Agency Condition
is met) establish a new Certificate Account meeting the conditions for an
Eligible Account and transfer any cash and any investments (as described in the
second preceding paragraph) on deposit in the ineligible Certificate Account to
such new Certificate Account, and from the date such new Certificate Account is
established, it shall be a Certificate Account.
(2) The Trustee shall give notice to the Company and the
Rating Agencies of any proposed change to the location of any Eligible Account
constituting a Certificate Account and shall not effect such change unless the
Rating Agency Condition is satisfied.
(3) As provided in the Currency Swap, on each March 15 and
September 15 (or, the immediately succeeding Business Day, if such March 15 or
September 15 is not a Business Day), commencing September 15, 2000, the Swap
Counterparty will pay a Dollar Swap Payment to the Trustee, and the Trustee will
pay a Sterling Swap Payment to the Swap Counterparty. Following a Swap
Termination Event under the Currency Swap, the Currency Swap will terminate, and
no further scheduled payments will be owed by the Trustee or the Swap
Counterparty under the Currency Swap (it being understood that any unpaid Dollar
Swap Payment or other Dollar amount owing by the Swap Counterparty at the time
of such Swap Termination Event shall remain due and owing and that, in the case
of a Swap Termination Event (other than as a result of a Conversion Event, an
Optional Tax Redemption or a Change of Control Repurchase), the Trustee on
behalf of the Certificateholders shall have a claim against the Swap
Counterparty for any Swap Termination Payment).
(4) Upon the occurrence of a Conversion Event, the Senior
Notes shall automatically become Dollar denominated Senior Notes with a
principal
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amount equal to the Certificate Principal Amount, effective from the date of the
immediately preceding interest payment date with respect to the Senior Notes,
with an annual interest rate of 8.70% until the Final Distribution Date, payable
on March 15 and September 15 of each year. Upon such conversion, all
distributions on the Certificates shall be payable from amounts paid by the
Company under the Senior Notes and received by the Trustee in respect of the
Senior Notes or, if applicable, any Unpaid Amounts.
Section 1.10 Repurchase of Certificates Upon a Change of
Control.
(a) Upon a Change of Control, each Holder shall have the right
to request the Trustee to repurchase such Holder's Certificates, in whole or in
part, at 101% of the principal amount plus accrued interest thereon, if any, to
the date of such repurchase, in accordance with the terms set forth in
subsection (b) below. Subsequent to such exercise on the part of any Holder, the
Trust shall exercise its option to require the Company to repurchase a pro rata
portion of the Senior Notes at 100% of the applicable principal amount thereof
plus accrued interest thereon, if any, to the date of such repurchase.
Concurrently, the Trustee shall require the Company to make a Dollar payment
equal to 1% of the principal amount of the Certificates to be repurchased. The
Trustee shall pay to such Holder the repurchase price of the Certificates from
the Dollar proceeds received from (a) the Swap Counterparty in exchange for the
Trustee's payment to the Swap Counterparty of the repurchase price and interest
received in Pounds Sterling from the Company's repurchase of such Senior Notes
and (b) the payment received from the Company in Dollars.
(1) Within 30 days following any Change of Control, the
Company shall notify the Trustee of such Change of Control, and the Trustee,
within 15 days of receipt of notice of a Change of Control from either the
Company or the Holder or Holders of not less than 10% of the principal amount of
the outstanding Certificates, shall mail a notice to each Holder stating:
(1) that a Change of Control has occurred and that such
Holder has the right to request the Trust to repurchase such Holder's
Certificates at a repurchase price in Dollars equal to 101% of the principal
amount thereof plus accrued interest, if any, to the date of repurchase (the
"Change of Control Offer");
(2) the circumstances and relevant facts regarding such
Change of Control (including information with respect to pro forma historical
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income, cash flow and capitalization of the Issuer after giving effect to such
Change of Control), if such information shall have been furnished to the
Trustee;
(3) the repurchase date (which shall be a Business Day
and be not earlier than 30 days or later than 60 days from the date such notice
is mailed) (the "Repurchase Date");
(4) that any Certificate not tendered for purchase will
continue to accrue interest;
(5) that interest on any Certificate accepted for
payment pursuant to the Change of Control Offer shall cease to accrue after the
repurchase of such Certificate on the Repurchase Date, if the repurchase
proceeds are paid to the Trustee on or prior to such date;
(6) that Holders electing to have a Certificate
purchased pursuant to a Change of Control Offer shall be required to surrender
the Certificate, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Certificate completed, to the Trustee at the address
specified in the notice prior to the close of business on the Business Day 10
days prior to the Repurchase Date;
(7) that a Holder shall be entitled to withdraw its
election if the Trustee receives, not later than the close of business on the
third Business Day (or such shorter period as may be required by applicable law)
preceding the Repurchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
Certificates the Holder delivered for repurchase, and a statement that such
Holder is withdrawing its election to have such Certificates repurchased; and
(8) that Holders that elect to have their Certificates
repurchased only in part will be issued new Certificates in a principal amount
equal to the unpurchased portion of the Certificates surrendered.
(2) On the Repurchase Date, the Trust shall (i) accept for
payment Certificates or portions thereof tendered pursuant to the Change of
Control Offer, (ii) make and receive payments as described in subsection (a)
above, and (iii) promptly authenticate and mail to such Holders new Certificates
in a principal amount equal to any unpurchased portion of the Certificates
surrendered. The
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Company shall publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Repurchase Date.
(3) The Company shall comply with Rule 14e-1 under the
Exchange Act and any other applicable laws and regulations in the event that a
Change of Control occurs and the Trust is required to make a Change of Control
Offer.
Section 1.11 Realization Upon Defaulted Senior Notes. Subject
to the provisions of Article IX hereof, the Trustee, on behalf of the
Certificateholders, shall take such reasonable steps as are necessary to receive
payment or to permit recovery with respect to the Senior Notes; provided,
however, that if, notwithstanding the Trustee's efforts, payment has not been
made on the Senior Notes and an Event of Default has occurred, the Trustee's
sole obligation in respect of the Senior Notes shall be to undertake the
procedures set forth in Section 6.13 hereof.
Section 1.12 Access to Certain Documentation. The Trustee
shall provide to any federal, State or local regulatory authority that may
exercise authority over any Certificateholder access to the documentation
regarding the Trust Assets required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Trustee. In addition, access
to the documentation regarding the Trust Assets will be provided to any
Certificateholder upon reasonable request during normal business hours at the
Corporate Trust Office of the Trustee at the expense of the Certificateholder
requesting such access. Additionally, the Trustee shall provide at the request
of any Certificateholder without charge to such Certificateholder the name and
address of each Certificateholder of Certificates hereunder as recorded in the
Certificate Register for purposes of contacting the other Certificateholders
with respect to their rights hereunder or for the purposes of effecting
purchases or sales of the Certificates, subject to the transfer restrictions set
forth herein. The Company shall assist the Trustee in fulfilling any such
request.
Section 1.13 Expenses of Trust. The Company hereby agrees to
pay to each Person to whom the Trust becomes indebted or liable the full amount,
when and as due, of any indebtedness, expenses or liabilities of the Trust,
other than under the Certificates, the Currency Swap or the Call Option. The
Trust hereby agrees not to incur any such other debt.
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Section 1.14 No Merger or Consolidation of Trust. The Trust
may not merge with or into, convert into, consolidate or amalgamate with or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any other Person.
Section 1.15 Exchange Rate Agency Agreement. The Trust will
appoint the Trustee as the agent under an exchange rate agency agreement, and
will enter into such an agreement with the Trustee, provided that such agreement
shall have such terms and provisions as are reasonably acceptable to the
Trustee, promptly upon the occurrence of any event that, with the passage of
time or the giving of notice or both, would constitute, and in no event later
than the occurrence of, a Swap Termination Event (other than as a result of a
Conversion Event, an Optional Tax Redemption or a Change of Control
Repurchase).
ARTICLE IV
Distributions and Reports to Certificateholders; Transfer of
Certificates
Section 1.16 Distributions.
(1) On each Distribution Date and so long as the Trustee shall
have received the Pound Sterling Interest Payment from the Company, the Trustee
shall distribute to the Certificateholders, to the extent of Available Funds, if
any, the Dollar Distribution; provided, however, that if any such date is not a
Business Day, the Trustee shall make such distribution on the next succeeding
Business Day; provided, further, that if the Trustee has not received a Dollar
Swap Payment or other Dollar amount owed by the Swap Counterparty to the Trustee
under the Currency Swap by 11:00 a.m. (New York City time) on such Distribution
Date (or, if such Distribution Date occurs on or after a Conversion Event, if
the Trustee has not received any payment owed on the Senior Notes by 11:00 a.m.
(New York City time) on such Distribution Date), or by 11:00 a.m. (New York City
time) on any Business Day succeeding such Distribution Date, as applicable, the
Trustee shall upon receipt of such funds make such distribution no later than
the next succeeding Business Day (and no additional amounts shall accrue on the
Certificates or be owed to Certificateholders as a result of any such delay);
and provided, further, that, on each Distribution Date occurring on or after a
Swap Termination Event (other than as a result of a Conversion Event, an
Optional Tax Redemption or a Change of Control Repurchase), the Trustee shall
distribute to the Certificateholders, to the extent of
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Available Funds, if any, a semi-annual Pounds Sterling payment calculated at an
annual interest rate as described in the Indenture on the basis of a 365 or
366-day, as applicable, year and the actual number of days elapsed due on the
principal amount of the Senior Notes (subject to the provisos set forth above).
Any funds held by the Trustee hereunder as a result of a delay shall be held
uninvested and without liability for interest thereon.
(2) Dollar Distributions or Pounds Sterling distributions, as
the case may be, to the Certificateholders with respect to each Distribution
Date will be made to the Certificateholders of record on the related Record Date
(except as otherwise provided in Section 10.1 hereof in respect of the Final
Distribution).
(3) All Dollar Distributions or Pounds Sterling distributions,
as the case may be, to Certificateholders shall be allocated pro rata among the
Certificateholders based on the respective principal balance of the Certificates
held by each such Certificateholder as of the Record Date with respect to such
Distribution Date.
(4) Subject to Section 4.1(a) and Section 4.2, the Trustee
will pay in immediately available funds on each Distribution Date all amounts
payable to each Certificateholder with respect to any Certificate held by such
Certificateholder or its nominee (without the necessity for any presentation or
surrender thereof or any notation of such payment thereon) in the manner and at
the address as each Certificateholder may from time to time direct the Trustee
in writing fifteen days prior to such Distribution Date requesting that such
payment will be so made and designating the bank account to which such payment
shall be made. The Trustee shall be entitled to rely on the last instruction
delivered by the Certificateholder pursuant to this Section 4.1(d) unless a new
instruction is delivered at least fifteen days prior to a Distribution Date.
(5) The rights of the Certificateholders to receive Dollar
Distributions or Pounds Sterling distributions, as the case may be, in respect
of the Certificates, and all interests of the Certificateholders in such Dollar
Distributions or Pounds Sterling distributions, as the case may be, shall be as
set forth herein. The Trustee shall in no way be responsible or liable to the
Certificateholders nor shall any Certificateholder in any way be responsible or
liable to any other Certificateholder in respect of amounts previously
distributed on the Certificates based on their respective Certificate Principal
Balances.
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Section 1.17 Final Distributions.
(1) On the Final Distribution Date, the Trustee shall
distribute to Certificateholders (in addition to the Dollar Distribution or
Pounds Sterling distribution, as the case may be, as provided in Section 4.1) an
amount equal to the Option Proceeds or the Liquidation Proceeds, as the case may
be, plus any other amount received in respect of the Currency Swap received on
the Final Distribution Date, plus any additional amounts remaining in the
Certificate Account on the Final Distribution Date after the payment of amounts,
if any, due to the Callholder pursuant to Section 3.3 hereof; provided, however,
if the Final Distribution Date is not a Business Day, the Trustee shall make
such distribution on the next succeeding Business Day; and provided, further,
that if the Trustee has not received such amounts by 11:00 a.m. (New York City
time) on any Business Day , the Trustee shall upon receipt of such funds make
such distribution no later than the next succeeding Business Day (and no
additional amounts shall accrue on the Certificates or be owed to
Certificateholders as a result of any such delay).
(2) Except as otherwise provided in Article X, the Final
Distribution shall be made to each Certificateholder only upon the presentation
and surrender of such Holder's Certificates at a designated office of the
Trustee in New York City or such other office of the Trustee as may be specified
in the notice referred to in Section 11.6.
(3) Except as otherwise provided in Article X, in connection
with the Final Distribution, no later than 30 days preceding the Final
Distribution Date, the Trustee shall give notice to each Certificateholder:
(1) of the date that the Trustee expects that the Final
Distribution will be made, but only upon presentation and
surrender of Certificates at the Corporate Trust Office or such
other office of the Trustee specified in such notice;
(2) of the expected amount of the Final Distribution
for each Certificate per initial $100,000 Certificate Principal
Balance; and
(3) that distributions will be made to
Certificateholders only upon presentation and surrender of the
Certificate or Certificates of each such Certificateholder at the
Corporate Trust Office or such other specified office or agency of
the Trustee.
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(4) Any funds not distributed to a Certificateholder on the
Final Distribution Date because of the failure of such Certificateholder to
tender its Certificate or Certificates shall, on such date, be set aside and
held in trust and credited to the account of such non-tendering
Certificateholder. If any Certificates as to which notice has been given
pursuant to this Section 4.2 shall not have been surrendered for cancellation
within six months after the date specified in such notice, the Trustee shall
give a second notice to the remaining non-tendering Certificateholders to
surrender their Certificates for cancellation in order to receive the Final
Distribution with respect thereto. If within one year after the second notice
all such Certificates shall not have been surrendered for cancellation, subject
to applicable laws with respect to escheat of funds, such amounts shall be
discharged from the Trust and be paid by the Trustee to the Company; and such
Certificateholder shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof (but only to the extent of the amounts so
paid to the Company), and all liability of the Trustee with respect to such
trust money shall thereupon cease. The costs and expenses of maintaining the
funds in trust shall be paid from the assets remaining in trust. No interest
shall accrue on or be payable to any Certificateholder on any amount held in
trust as a result of such Certificateholder's failure to surrender its
Certificate or Certificates for the Final Distribution in respect thereof in
accordance with this Section 4.2.
Section 1.18 Reports to Certificateholders. On the Business
Day following each Distribution Date, the Trustee shall forward or cause to be
forwarded to the Company and each Certificateholder a statement (which is based
on information provided to the Trustee by the Company for such purpose) setting
forth the amount of the distribution on such Distribution Date to
Certificateholders allocable to principal of and interest on the Senior Notes
and the amount of aggregate unpaid interest accrued on the Notes as of such
Distribution Date. Such amounts shall be expressed as a Dollar amount per
minimum denomination of Certificates or for such other specified portion
thereof. Within the prescribed period of time for tax reporting purposes after
the end of each calendar year during the term of this Agreement, the Trustee
shall furnish (or cause to be furnished), to each Person who at any time during
such calendar year shall have been a holder of record of Certificates and
received any payment thereon, a statement (prepared by the Company and delivered
to the Trustee) containing such information as may be required by the Code and
applicable Treasury Regulations to enable such Certificateholder to prepare its
federal income tax returns.
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Section 1.19 Compliance with Withholding Requirements; Tax
Treatment and Reporting.
(1) Notwithstanding any other provision of this Agreement to
the contrary, the Trustee shall comply with all federal withholding requirements
respecting distributions to beneficial owners of Certificates that the Trustee
reasonably believes are applicable under the Code (including any requirements to
withhold at reduced rates upon receipt of appropriate federal tax forms). The
consent of Certificateholders or beneficial owners of Certificates shall not be
required for such withholding. In the event the Trustee does withhold any amount
from distributions to any beneficial owners of Certificates pursuant to federal
withholding requirements, the Trustee shall indicate in the statement required
pursuant to Section 4.3 the amount so withheld.
(2) The Trustee shall (i) maintain (or cause to be maintained)
the books of the Trust on a calendar year basis using the accrual method of
accounting, (ii) pursuant to instructions from the Company, file such tax
returns relating to the Trust and make such elections as may from time to time
be required or appropriate under any applicable State or federal statute or rule
or regulation thereunder so as to maintain the Trust's characterization as a
grantor trust for federal income tax purposes, (iii) cause such tax returns to
be signed in the manner required by law, and (iv) collect and pay over (or cause
to be collected and paid over) to the appropriate governmental authority any
withholding tax as described in and in accordance with Section 4.4(a) with
respect to income or distributions to Certificateholders.
Section 1.20 Transfer of Certificates.
(1) General. A Certificateholder may, in any transaction or
series of transactions, directly or indirectly (each of the following, a
"transfer"), (i) sell, assign or otherwise in any manner dispose of all or any
part of its interest in any Certificate issued to it, whether by act, deed,
merger or otherwise, or (ii) mortgage, pledge or create a lien or security
interest in such beneficial interest, in each case, only if such transfer
satisfies the conditions set forth in this Section 4.5. No purported transfer of
any interest in any Certificate or any portion thereof which is not made in
accordance with this Section 4.5 shall be given effect by or be binding upon the
Trust or the Trustee, and any such purported transfer shall be null and void ab
initio and vest in the transferee no rights against the Trust or the Trustee.
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(2) Conditions to Transfer. Subject to the requirements
contained in Articles V and VI hereof, a Certificateholder may sell or otherwise
transfer a Certificate or its beneficial interest in a Certificate only (A)(i)
to the Trust, (ii) pursuant to a registration statement which has been declared
effective under the Securities Act, (iii) for so long as the Certificates are
eligible for resale pursuant to Rule 144A, to a person it reasonably believes is
a QIB that purchases for its own account or for the account of a QIB to whom
notice is given that the transfer is being made in reliance on Rule 144A, (iv)
pursuant to offers and sales to non-US persons that occur outside the US within
the meaning of Regulation S or (v) pursuant to any other available exemption
from the registration requirements of the Securities Act.
(3) Invalid Transfers. If the Trustee or the Certificate
Registrar determines that (i) a transfer or attempted or purported transfer of
any interest in any Certificate was consummated in reliance on an incorrect form
or certification from the transferee or purported transferee, (ii) a transferee
failed to deliver to the Trustee or the Certificate Registrar any form or
certificate required to be delivered hereunder or (iii) the holder of any
interest in a Certificate is in breach of any representation or agreement set
forth in any certificate or any deemed representation or agreement of such
holder, the Certificate Registrar will not register such attempted or purported
transfer, and, if a transfer has been registered, such transfer shall be
absolutely null and void ab initio and shall vest no rights in the purported
transferee (such purported transferee, a "Disqualified Transferee"), and the
last preceding Holder of such Certificate that was not a Disqualified Transferee
shall be restored to all rights as a Holder thereof retroactively to the date of
transfer of such Certificate by such Holder, except as to any payments made to
such transferee prior to receipt by the Trustee or the Certificate Registrar of
notice or other evidence that such transferee was a Disqualified Transferee.
In addition, the Trustee may require that the interest in the
Certificate purported to be transferred to a Disqualified Transferee be
transferred to any Person (other than the Company or one of its Affiliates)
designated by the Company at a price determined by the Company based upon its
estimation of the prevailing price of such interest and each Certificateholder,
by acceptance of an interest in a Certificate, authorizes the Trustee to take
such action. In any case, neither the Trustee nor the Certificate Registrar will
be held responsible for any losses that may be incurred as a result of any
required transfer under this Section 4.5(c).
Notwithstanding anything contained herein to the contrary,
neither the Trustee nor the Certificate Registrar shall be responsible for
ascertaining whether or
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not any transfer complies with the registration provisions of or exemptions
from, or is otherwise not subject to the provisions of, the Securities Act or
applicable State securities law; provided that if a certificate is specifically
required to be delivered to the Trustee or the Certificate Registrar by a
purchaser or transferee of a Certificate, the Trustee or the Certificate
Registrar shall be under a duty to examine the same to determine whether it
conforms to the requirements of this Agreement and shall promptly notify the
party delivering the same if such certificate does not conform.
Section 1.21 Rule 144A Information. At any time when the Trust
is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of
any Certificateholder and provided that the Company shall have complied with the
succeeding sentence, the Trust shall promptly furnish to such Certificateholder
or to a prospective purchaser of a Certificate designated by such
Certificateholder, as the case may be, the information required to be delivered
pursuant to paragraph (d)(4) of Rule 144A in order to permit compliance by such
Certificateholder with Rule 144A in connection with the resale of such
Certificate by such Certificateholder. The Company will provide the Trust, in a
timely manner, with the information required to be delivered by the Trust under
this Section 4.6.
ARTICLE V
Security Forms
Section 1.22 Forms Generally. The Certificates and the
Trustee's certificates of authentication thereof shall be in substantially the
forms set forth in Exhibit A, with such appropriate legends, insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Certificates, as evidenced by their execution of the Certificates.
Certificates offered and sold in their initial distribution in
reliance on Rule 144A shall be issued in the form of one or more Restricted
Global Securities (collectively, and, together with their Successor
Certificates, the "Rule 144A Global Security"). Certificates offered and sold in
their initial distribution in reliance on Regulation S shall be issued in the
form of one or more Regulation S Global Securities (collectively, and, together
with their Successor Certificates, the "Regulation S
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Global Security"). Each of the Rule 144A Global Security and the Regulation S
Global Security shall be in fully registered form without interest coupons,
substantially in the form of Certificate set forth in Exhibit A, with such
applicable legends as are provided for in Sections 5.2 and 6.8(a), except as
otherwise permitted herein, and initially shall be registered in the name of the
Depository or its nominee and deposited with The Bank of New York, as custodian
for the Depository, at the Corporate Trust Office of The Bank of New York, duly
executed by the Trust and authenticated by the Trustee as hereinafter provided,
for credit by the Depository to the respective accounts of beneficial owners of
the Certificates represented thereby (or such other accounts as they may
direct).
Section 1.23 Restricted Legend. (a) All Certificates initially
issued hereunder shall, upon issuance, bear the applicable legends as are
provided in Sections 5.2(c) and 6.8(a), and such legends shall not be removed
except as set forth in Section 5.2(b) or unless the Trustee determines otherwise
based upon a Company Order (which shall state that such Certificate may be
issued without such legend in accordance with applicable law) delivered to the
Trustee (and the Certificate Registrar, if other than the Trustee).
(1) Unless with respect to the whole or any portion of any
Certificate that bears or is required to bear the applicable legends as are
provided in Section 5.2(c) the Trustee determines otherwise as provided in
Section 5.2(a), such legends shall be removed by the Trustee (i) in the case of
the Rule 144A Global Security or any Definitive Certificate issued in exchange
for an interest therein, upon presentation thereof by the Certificateholder to
the Trustee at any time on or after the occurrence of the "Resale Restriction
Termination Date" specified in such legends, and (ii) in the case of the
Regulation S Global Security or any Definitive Certificate issued in exchange
for an interest therein, upon presentation thereof by the Certificateholder to
the Trustee at any time on or after the expiration of the "distribution
compliance period" (within the meaning of Regulation S ). If a holder of a
beneficial interest in the Rule 144A Global Security wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Regulation S Global Security, or if a
holder of a beneficial interest in the Regulation S Global Security wishes at
any time to transfer such interest to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Rule 144A Global Security,
upon receipt by the Trustee of (A) written instructions given in accordance with
the rules and procedures of the Depository (together with, as applicable, the
rules and procedures of Euroclear and Clearstream, Luxembourg, the "Applicable
Procedures") from the applicable Participant directing
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the Trustee to cause to be credited to another account of a Participant a
beneficial interest in the Regulation S Global Security or the Rule 144A Global
Security (as the case may be) equal to that of the beneficial interest in the
Rule 144A Global Security or the Regulation S Global Security (as the case may
be) to be so transferred, (B) a written order given in accordance with the
Applicable Procedures containing information regarding such other account, as
well as the account of Euroclear or Clearstream, Luxembourg (as the case may be)
for which such other account is held, to be credited with, and the account of
such applicable Participant to be debited for, such beneficial interest, and (C)
a certificate satisfactory to the Company, the Trust and the Trustee, as to such
transfer's compliance with the registration requirements of the Securities Act,
given by the transferor of such beneficial interest, the Trustee shall (1)
reduce or increase (as the case may be) the principal amount of the Rule 144A
Global Security, and increase or reduce (as the case may be) the principal
amount of the Regulation S Global Security, in each case by an amount equal to
the principal amount of the beneficial interest in the Rule 144A Global Security
or the Regulation S Global Security (as the case may be) to be so transferred,
as evidenced as provided in Section 6.8(c), and (2) instruct the Depository to
credit and debit such beneficial interests to the respective accounts specified
in the instructions referred to above.
(2) Each Certificate initially issued hereunder shall, upon
issuance, bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER THIS CERTIFICATE, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE TRUST OR ANY AFFILIATE
OF THE TRUST WAS THE OWNER OF THIS CERTIFICATE (OR ANY PREDECESSOR OF
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THIS CERTIFICATE) OR THE EXPIRATION OF SUCH SHORTER PERIOD AS MAY BE PRESCRIBED
BY RULE 144(K), OR ANY SUCCESSOR PROVISION THEREOF, UNDER THE SECURITIES ACT,
ONLY (A) TO THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS CERTIFICATE
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-US
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OF THE UNITED STATES, SUBJECT TO THE RIGHT OF THE TRUST, THE
COMPANY AND THE TRUSTEE PRIOR TO SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (D) OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE AS TO COMPLIANCE WITH
CERTAIN CONDITIONS TO TRANSFER IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE OR SUCH EARLIER TIME AS DETERMINED BY THE
TRUST IN ACCORDANCE WITH APPLICABLE LAW.
ARTICLE VI
The Certificates
Section 1.24 Designation; Certificate Principal Amount and Denominations. There
is hereby created a series of trust certificates to be issued pursuant to this
Agreement to be known as "8.70% Remarketable or Redeemable
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Securities ("ROARS") Due March 15, 2005". The Certificates shall be issued in
the form of one or more Global Securities as set forth in Article V and Section
6.8 hereof. Except as provided in Section 6.4, the maximum Certificate Principal
Balance that may be authenticated and delivered under this Agreement is
$250,000,000. The Certificates are issuable in minimum denominations of $100,000
and in integral multiples of $1,000 in excess thereof.
Section 1.25 Execution, Authentication and Delivery.
(1) The Certificates shall be executed by the Trustee, on
behalf of the Trust. The signature may be manual or facsimile. Certificates
bearing the manual or facsimile signature of individuals who were at any time
the proper officers of the Trustee shall be binding, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates.
(2) The Certificates that are executed, authenticated and
delivered by the Trustee to or upon the Company Order on the Closing Date shall
be dated the Closing Date. All other Certificates that are executed and
authenticated after the Closing Date for any other purpose under the Agreement
shall be dated the date of their authentication. Except as provided in Section
6.4, the Certificates shall all be originally issued on the Closing Date.
(3) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in one of the
forms provided for herein executed by the Trustee by the manual signature of one
of its authorized signatories, and such certificate upon any Certificate shall
be conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Agreement.
Section 1.26 Registration; Registration of Transfer and
Exchange.
(1) The Trustee shall cause to be kept in the Corporate Trust
Office a register for Certificates (the registers maintained in such office and
in any other office or agency of the Trustee in New York, New York being herein
sometimes collectively referred to as the "Certificate Register") in which a
transfer agent and registrar (which may be the Trustee) (the "Certificate
Registrar") shall provide for the registration of the Certificates and the
registration of transfers and exchanges
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of the Certificates. The Trustee is hereby initially appointed Certificate
Registrar for the purpose of registering the Certificates and transfers and
exchanges of Certificates as herein provided; provided, however, that the
Trustee may appoint one or more co-Certificate Registrars. Upon any resignation
of any Certificate Registrar, the Company shall promptly appoint a successor or,
in the absence of such appointment, arrange for an Affiliate of the Company to
assume the duties of Certificate Registrar.
(2) If a Person other than the Trustee is appointed by the
Company as Certificate Registrar, the Company will give the Trustee prompt
written notice of the appointment of such Certificate Registrar and of the
location, and any change in the location, of the Certificate Register, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Certificate Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Certificates and the principal amounts and
numbers of such Certificates.
(3) Every Certificate presented or surrendered for
registration of transfer or exchange shall (if so required by the Company, the
Trustee or the Certificate Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Trustee
and the Certificate Registrar, duly executed, by the Holder thereof or his
attorney duly authorized in writing, with such signature guaranteed by a
brokerage firm or financial institution that is a member of a Securities
Approved Medallion Programs, such as the Securities Transfer Agents Medallion
Program (STAMP), the Stock Exchange Medallion Program (SEMP) or the New York
Stock Exchange Inc. Medallion Signature Program (MSP).
(4) Upon surrender for registration of transfer of any
Certificate at the office or agency of the Trustee and subject to Section 4.5
and Article V, if the requirements of Section 8-401(a) of the Uniform Commercial
Code are met to the satisfaction of the Company, the Trustee shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of any authorized
denominations, of a like aggregate Certificate Principal Balance.
(5) At the option of the Holder, Certificates (other than the
Global Securities) may be exchanged for other Certificates of any authorized
denomination or denominations of like tenor and aggregate Certificate Principal
Balance and bearing the applicable legends set forth in Section 5.2(c) upon
surrender
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of the Certificates to be exchanged at the office or agency of the Trustee
maintained for such purpose.
(6) Whenever any Certificates are so surrendered for exchange,
the Trust shall execute, authenticate and deliver the Certificates that the
Holder making the exchange is entitled to receive.
(7) If at any time the Depository for the Certificates
notifies the Company that it is unwilling or unable to continue as Depository
for the Certificates or if at any time the Depository for the Certificates shall
no longer be eligible under Section 6.8(b), the Company shall appoint a
successor Depository with respect to the Certificates. If a successor Depository
for the Certificates is not appointed by the Company within 120 days after the
Company receives such notice or becomes aware of such ineligibility, or if
Certificateholders holding the Required Percentage so request, as set forth in
Section 6.13, the Trustee will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of Definitive Certificates,
will authenticate and deliver Definitive Certificates in an aggregate
Certificate Principal Balance equal to the aggregate Certificate Principal
Balance of the Global Security or Securities representing Certificates in
exchange for such Global Security or Securities.
(8) Upon surrender to the Trustee of a Global Security by the
Depository, accompanied by registration instructions, the Trustee shall execute
and the Trustee shall authenticate the Definitive Certificates in accordance
with the instructions of the Depository and the Company Order referred to in the
preceding paragraph (g). None of the Company, the Certificate Registrar or the
Trustee shall be liable for any delay in delivery of the Company Order and may
conclusively rely on, and shall be protected in relying on, the Company Order.
Upon the issuance of Definitive Certificates, the Trustee shall recognize the
holders of the Definitive Certificates as Holders.
(9) Upon the exchange of a Global Security for Definitive
Certificates, such Global Security shall be cancelled by the Trustee. Definitive
Certificates issued in exchange for a Global Security pursuant to this Section
6.3 shall be registered in such names and in such authorized denominations as
the Depository for such Global Security, pursuant to instructions from its
Participants, any indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Certificates to the Persons in whose
names such Certificates are so registered.
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(10) All Certificates issued upon any registration of transfer
or exchange of Certificates shall constitute complete and indefeasible evidence
of ownership in the Trust related to such Certificates and be entitled to the
same benefits under this Agreement as the Certificates surrendered upon such
registration of transfer or exchange.
(11) No service charge shall be made to a Holder for any
registration of transfer or exchange of Certificates, but the Company or the
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Certificates, other than exchanges pursuant to Section
6.3 not involving any transfer.
Section 1.27 Mutilated, Destroyed, Lost or Stolen
Certificates.
(a If (i) any mutilated Certificate is presented to the
Trustee or (ii) the Company and the Trustee receive (A) evidence to their
satisfaction of the mutilation, destruction, loss or theft of any Certificate
and (B) such security or indemnity as they may require to hold each of them and
any Paying Agent harmless, and neither the Company nor the Trustee receives
notice that such Certificate has been acquired by a bona fide purchaser, then
the Trustee shall execute and the Trustee, upon receipt of a Company Order,
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate a new Certificate of like
tenor, form, terms and principal amount, bearing a number not contemporaneously
Outstanding.
(1) If after the delivery of a replacement Certificate in
respect of a mutilated, destroyed, lost or stolen Certificate, a bona fide
purchaser of the original Certificate in lieu of which such replacement
Certificate was issued presents for payment such original Certificate, the
Trustee shall be entitled to recover such replacement Certificate (or such
distribution in respect of that Certificate) from the Person to whom it was
delivered or any Person taking such replacement Certificate from such Person to
whom such replacement Certificate was delivered or any assignee of such Person,
except a bona fide purchaser, and shall be entitled to recover upon security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Trustee in connection therewith.
(2) Upon the issuance of any new Certificate under this
Section 6.4, the Company or the Trustee may require the payment of a sum
sufficient to
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cover any tax or other governmental charge that may be imposed in respect
thereof and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
(3) Every new Certificate issued pursuant to this Section 6.4
shall constitute complete and indefeasible evidence of ownership in the Trust
and its income and assets, whether or not the mutilated, destroyed, lost or
stolen Certificate shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Agreement equally and proportionately with
any and all other Certificates duly issued hereunder.
(4) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 1.28 Distribution of Available Funds; Computations.
(1) Available Funds to be distributed to the Holder of any
Certificate that are payable and are punctually paid or duly provided for on any
Distribution Date shall be distributed to the Person in whose name such
Certificate (or one or more Predecessor Certificates) is registered at the close
of business on the related Record Date notwithstanding the cancellation of such
Certificate upon any transfer or exchange subsequent to such related Record
Date. The distribution of Available Funds to Certificateholders shall be made at
the Corporate Trust Office or, at the option of the Trustee, by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Certificate Register or by wire transfer to an account designated by the Holder.
(2) Subject to the foregoing provisions of this Section 6.5,
each Certificate delivered under this Agreement upon transfer of or in exchange
for or in lieu of any other Certificate shall carry the rights to receive
distributions of Available Funds that were carried by such other Certificate.
(3) With respect to any computations or calculations to be
made under this Agreement and the Certificates, except as otherwise provided,
(i) all percentages resulting from any calculation of accrued interest will be
rounded, if necessary, to the nearest 1/100,000 of 1% (.0000001), with five
one-millionths of a percentage point rounded downward, and (ii) all currency
amounts will be rounded to the nearest one-hundredth of a unit (with .005 of a
unit being rounded downward).
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Section 1.29 Persons Deemed Owners.
(1) The Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions of
Available Funds on such Certificate and for all other purposes whatsoever,
whether or not such Certificate be overdue, and neither the Company or the
Trustee, nor any agent of the Company or the Trustee, shall be affected by
notice to the contrary. All distributions made to any Holder, or upon his order,
shall be valid, and, to the extent of the sum or sums paid, effectual to satisfy
and discharge the liability for moneys distributable upon such Certificate.
(2) Neither the Company, the Certificate Registrar or the
Trustee nor any of their agents will have any responsibility or liability for
any aspect of the records relating to or distributions made on account of
beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 1.30 Cancellation. All Certificates surrendered for
payment, redemption, transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. No Certificates shall be authenticated in lieu of or in
exchange for any Certificates cancelled as provided in this Section 6.7, except
as expressly permitted by this Agreement. All cancelled Certificates may be held
or disposed of by the Trustee in accordance with its standard retention or
disposal policy as in effect at the time, unless the Company shall direct by
Company Order that they be returned to it; provided, however, that such Company
Order is timely and the Certificates have not been previously disposed of by the
Trustee. The Trustee shall certify to the Company that surrendered Certificates
have been duly cancelled and retained or destroyed, as the case may be.
Section 1.31 Global Securities.
(1) The Certificates shall be registered Certificates and will
be represented by one or more Global Securities issued in accordance with this
Section 6.8 and Article V and initially registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Trustee shall execute and the
Trustee shall authenticate and deliver one or more Global Securities that (i)
shall represent an
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aggregate initial Certificate Principal Balance equal to the aggregate initial
Certificate Principal Balance of the Certificates, (ii) shall be delivered by
the Trustee to the Depository or pursuant to the Depository's instruction and
(iii) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole for the individual Certificates represented
hereby, this Global Security 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 a
successor nominee or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository."
(2) No Holder of a Certificate will receive a Definitive
Certificate representing such Holder's interest in such Certificate or
Certificates, except as provided in Section 6.3 and Section 6.13. Unless and
until definitive, fully registered Certificates (the "Definitive Certificates")
have been issued to Holders pursuant to Section 6.3 or Section 6.13:
(1) the provisions of this Section 6.8 shall be in full
force and effect;
(2) the Certificate Registrar and the Trustee shall be
entitled to deal with the Depository for all purposes of this
Agreement (including the distribution of Available Funds with
respect to the Certificates and the giving of instructions or
directions hereunder) as the sole Holder of the Certificates, and
shall have no obligation to the Certificate Owners;
(3) to the extent that the provisions of this Section
6.8 conflict with any other provisions of this Agreement other
than Section 3.6, the provisions of this Section 6.8 shall
control;
(4) the rights of Certificate Owners shall be exercised
only through the Depository and shall be limited to those
established by law and agreements between such Certificate Owners
and the Depository or its Participants; and
(5) whenever this Agreement requires or permits actions
to be taken based upon instructions or directions of Holders of
Certificates evidencing a specified percentage of the aggregate
Voting Rights, the Depository shall be deemed to represent such
percentage only to the extent that it has received written
instructions to such effect from Certificate Owners or
Participants in the Depository's system owning or representing,
respectively,
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such required percentage of the beneficial interests in the
Certificates and has delivered such instructions to the Trustee.
(3) The Depository must, at all times while it serves as
Depository, be a clearing agency registered under the Exchange Act and any other
applicable statute or regulation.
(4) If any Global Security is to be exchanged for other
Certificates or cancelled in whole, it shall be surrendered by or on behalf of
the Depository or its nominee to the Trustee, as Certificate Registrar, for
exchange or cancellation as provided in this Article VI or, if the Trustee is
acting as custodian for the Depository or its nominee (or is party to a similar
arrangement) with respect to such Global Security, the principal amount thereof
shall be reduced to reflect that either all or none of the Certificates will be
held as a Global Security after giving effect to such exchange or transfer, as
the case may be, in each case by means of an appropriate adjustment made on the
records of the Trustee, whereupon the Trustee shall instruct the Depository or
its authorized representative to make a corresponding adjustment to its records
(including by crediting or debiting any Participant's account as necessary to
reflect any transfer or exchange of a beneficial interest pursuant to Section
5.2(b)). Upon any such surrender or adjustment of a Global Security, the Trustee
shall, subject to this Section 6.8 and as otherwise provided in this Article VI,
authenticate and deliver any Certificates issuable in exchange for such Global
Security to or upon the order of, and registered in such names as may be
directed by, the Depository or its authorized representative in writing. Upon
the request of the Trustee in connection with the occurrence of any of the
events specified in Section 6.3 or 6.13, the Company shall promptly make
available to the Trustee a reasonable supply of Certificates that are not in the
form of Global Securities. The Trustee shall be entitled to rely upon any order,
direction or request of the Depository or its authorized representative which is
given or made pursuant to this Article VI.
(5) Every Certificate authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Certificate is registered in the name of a Person
other than the Depository or a nominee thereof.
(6) Subject to the provisions in the applicable legends
required by Section 5.2(c) above, the registered Holder may grant proxies and
otherwise authorize any Person, including Participants and Persons who may hold
interests in
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Participants, to take any action that such Holder is entitled to take under this
Agreement.
(7) Neither Participants nor any other Persons on whose behalf
Participants may act shall have any rights under this Agreement with respect to
any Global Security held on their behalf by the Depository or under the Global
Security, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever.
Section 1.32 Notices to Depository. Whenever a notice or other
communication to the Certificate Owners represented by one or more Global
Securities is required under this Agreement, unless and until Definitive
Certificates shall have been issued to such Certificate Owners pursuant to
Section 6.3, the Trustee shall give all such notices and communications
specified herein to be given to Certificate Owners to the Depository, and shall
have no obligation to the Certificate Owners.
Section 1.33 Conditions of Authentication and Delivery. The
Company shall deliver Certificates to the Trustee, and the Trustee shall execute
on behalf of the Trust and authenticate and deliver such Certificates, shall
purchase the Senior Notes and shall execute and deliver the Call Option, the
Currency Swap and other closing documents in connection with the issue of the
Certificates, upon receipt of a Company Order.
Section 1.34 Appointment of Paying Agent. The Trustee may
appoint one or more paying agents (each, a "Paying Agent") with respect to the
Certificates. Any such Paying Agent shall be authorized to make distributions to
Certificateholders from a Certificate Account and shall report the amounts of
such distributions to the Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from a Certificate Account for the purpose of making the
distributions referred to above. The Trustee may revoke such power and remove
the Paying Agent if the Trustee determines in its sole discretion that the
Paying Agent shall have failed to perform its obligations under this Agreement
in any material respect. The Paying Agent shall initially be the Trustee and any
co-paying agent chosen by the Company and acceptable to the Trustee. Any Paying
Agent shall be permitted to resign as Paying Agent upon 30 days' written notice
to the Trustee and the Company. In the event that the Trustee shall no longer be
the Paying Agent, the Trustee shall appoint a successor or additional Paying
Agent. Any such successor or additional
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Paying Agent must be approved by the Company, whose approval shall not be
unreasonably withheld. The Trustee shall cause each successor Paying Agent or
additional Paying Agent to execute and deliver to the Trustee an instrument in
which such successor or additional Paying Agent shall agree with the Trustee
that it will hold all sums, if any, held by it for distribution to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be distributed to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Trustee and upon removal
shall also return all funds in its possession to the Trustee. The provisions of
Sections 9.1, 9.2, 9.3 and 9.5 shall apply to the Trustee also in its role as
Paying Agent, for so long as the Trustee shall act as Paying Agent and, to the
extent applicable, to any other Paying Agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise. Notwithstanding anything contained herein to the
contrary, the appointment of a Paying Agent pursuant to this Section 6.11 shall
not release the Trustee from the duties, obligations, responsibilities or
liabilities arising under this Agreement other than with respect to funds paid
to such Paying Agent.
Section 1.35 Authenticating Agent.
(1) The Trustee may appoint one or more Authenticating Agents
(each, an "Authenticating Agent") with respect to the Certificates which shall
be authorized to act on behalf of the Trustee in authenticating such
Certificates in connection with the issuance, delivery and registration of
transfer or exchange of such Certificates. Whenever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the
Company. Notwithstanding anything contained herein to the contrary, the
appointment of an Authenticating Agent pursuant to this Section 6.12 shall not
release the Trustee from the duties, obligations, responsibilities or
liabilities arising under this Agreement.
(2) Any institution succeeding to the corporate agency
business of any Authenticating Agent shall continue to be an Authenticating
Agent without the execution or filing of any power or any further act on the
part of the Trustee or such Authenticating Agent. An Authenticating Agent may at
any time resign by giving notice of resignation to the Trustee and to the
Company. The Trustee may at
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any time terminate the agency of an Authenticating Agent by giving notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be acceptable to the Trustee or the Company,
the Trustee promptly may appoint a successor Authenticating Agent. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless acceptable to the Company. The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 6.12. The provisions of Section
9.1, 9.2 and 9.3 shall be applicable to any Authenticating Agent.
(3) Pursuant to an appointment made under this Section 6.12,
the Certificates may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in substantially
the following form:
This is one of the Certificates described in the Trust
Agreement referred to herein.
--------------------------------------
--------------------------------------
as Authenticating Agent
for the Trustee
by
--------------------------------------
Authorized Signatory
Section 1.36 Remedies. Following the occurrence of an Event of
Default, or a payment default by the Swap Counterparty under the Currency Swap
or upon a Swap Termination Event, the Trustee shall, within five Business Days
of
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obtaining knowledge of such Event of Default or default, mail a notice of such
Event of Default or default to each Certificateholder of record as of the date
the Trustee obtained such knowledge. The Trustee shall request instructions from
Certificateholders as to what actions to take or cause to be taken or remedies
to exercise or cause to be exercised under the Senior Notes or the Currency
Swap, including with respect to, in the case of a payment default by the Swap
Counterparty under the Currency Swap, any unpaid Dollar Swap Payment or other
Dollar amount owing by the Swap Counterparty under the Currency Swap and, in the
case of a Swap Termination Event (other than as a result of a Conversion Event,
an Optional Tax Redemption or a Change of Control Repurchase), any claim against
the Swap Counterparty for any Swap Termination Payment and any Unpaid Amounts
whether or not such Swap Termination Payment shall constitute Available Funds.
The Trustee shall take or cause to be taken such actions, or shall exercise or
cause to be exercised such remedies, as are permitted under the Senior Notes or
the Currency Swap and as Certificateholders holding the Required Percentage
shall direct in writing; provided, however, that Definitive Certificates
representing 100% of the outstanding principal balance of the Certificates shall
be issued, in accordance with the provisions of Section 6.3 hereof, if any
Definitive Certificates are issued; and provided, further, that the Trustee may
not sell, liquidate or otherwise dispose of the Senior Notes other than in
connection with a Trust Termination Event; and provided, further, that the
Trustee shall be under no obligation to take any action at the request, order or
direction of Certificateholders unless such Certificateholders have offered the
Trustee reasonable security or indemnity. The Trustee shall have no liability
for any failure to act resulting from the Certificateholders' late return of, or
failure to return, directions requested by the Trustee from the
Certificateholders.
ARTICLE VII
The Company
Section 1.37 Liability of the Company. The Company shall be
liable in accordance herewith only to the extent of the obligations specifically
imposed by this Agreement.
Section 1.38 Limitation on Liability of the Company. Neither
the Company nor any of the directors, officers, employees or agents of the
Company shall be under any liability to the Trust or the Certificateholders for
any action taken, or for refraining from the taking of any action, in good faith
pursuant to this Agree-
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ment, or for errors in judgment; provided, however, that this provision shall
not protect the Company or any such person against any breach of warranties,
representations or covenants made herein, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of obligations
and duties hereunder.
The Company shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and, in its opinion, does not involve it
in any expense or liability; provided, however, that the Company may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder.
Section VII.1 The Company May Purchase Certificates. The
Company may at any time purchase Certificates in the open market or otherwise.
Certificates so purchased by the Company may, at the discretion of the Company,
be held or resold or presented to the Trustee for cancellation. Certificates
beneficially owned by the Company will be disregarded for purposes of
determining whether the required percentage of the aggregate Voting Rights has
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Certificates with respect to which the Company has provided the
Trustee an Officer's Certificate stating that such Certificates are so owned
shall be so disregarded.
ARTICLE VIII
Concerning the Currency Swap, the Call Option and the Early Redemption Right
Section 1.39 Currency Swap and Call Option.
(1) Concurrently with the issue of the Certificates, the
Trustee shall execute the Currency Swap and the Call Option. The Trustee shall
perform the Trust's obligations under the Currency Swap and the Call Option in
accordance with their respective terms.
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(2) The Trustee shall be permitted, without the consent of
Certificateholders, to enter into any amendment to the Currency Swap or the Call
Option, in accordance with the terms thereof, to cure any ambiguity in, or to
correct or supplement any provision of, the Currency Swap or the Call Option;
provided that (a) the Trustee has received an Opinion of Counsel to the effect
that such amendment (i) will not materially adversely affect the interests of
the Certificateholders and (ii) will not alter the status of the Trust as a
grantor trust for federal income tax purposes; provided, however, that counsel
giving such opinion may conclusively rely upon an Officer's Certificate of the
Company with respect to the absence of any materially adverse effects of a
non-legal nature. In the event the Trustee receives any other request from the
Swap Counterparty or the Callholder, as the case may be, for approval of any
consent relating to, or waiver or other modification of, the Currency Swap or
the Call Option, the Trustee shall promptly deliver notice of such proposed
consent, waiver or modification to each Certificateholder and shall request from
the Certificateholders instructions as to whether or not to give or execute such
consent, waiver or modification. Upon the direction of Holders of Certificates
evidencing not less than the Required Percentage--Direction of Trustee of the
aggregate Voting Rights of the Certificates, the Trustee shall enter into such
consent, waiver or other modification of the Currency Swap or the Call Option;
provided that the Trustee shall have received an Opinion of Counsel to the
effect that such consent, waiver or other modification will not alter the status
of the Trust as a grantor trust for federal income tax purposes; and provided
further that, except with the consent of 100% of the aggregate Voting Rights of
the Certificates, that the Trustee shall not enter into any such consent, waiver
or other modification if the Trustee determines (based upon advice of counsel,
upon which advice the Trustee may conclusively rely) that such consent, waiver
or other modification would, in the case of the Currency Swap, alter the date on
which any Dollar Swap Payments or other Dollar payments are to be made
thereunder or alter the amount thereof and, in the case of the Call Option,
alter the date on which the Call Option is exercisable or the amount payable
upon exercise of the Call Option.
(3) Notwithstanding Section 8.1(b), except with the consent of
100% of the aggregate Voting Rights of the Certificates, the Trustee shall not
enter into any amendment to, or give or execute any consent relating to or
waiver or other modification of, the Currency Swap or the Call Option unless the
Rating Agency Condition is satisfied.
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Section 1.40 Obligations to the Callholder.
(1) Upon the exercise of the Call Option in accordance with its
terms, the Trustee shall deliver or cause to be delivered the Senior Notes upon
the written direction of the Callholder, by 10:00 a.m. (New York City time) on
the Settlement Date, provided that the Trustee shall have received notice of the
exercise thereof from the Callholder on or prior to the Call Exercise Date in
accordance with the terms of the Call Option and shall have received from the
Callholder an amount, in immediately available funds in a form acceptable to the
Trustee, equal to the Call Price for the Senior Notes, by 2:00 p.m. (London
time) on the Business Day prior to the Settlement Date.
(2) Upon receipt of the Call Price in accordance with Section
8.2(a), the Trustee shall include any such amount in Available Funds with
respect to the Final Distribution (other than any interest received on the Call
Price from the Business Day prior to the Settlement Date to the Settlement Date,
which interest shall be payable to the Callholder).
Section 1.41 Early Redemption Right.
(1) If the Trustee fails to receive notice from the Callholder in
accordance with the Call Option on or prior to 4:00 p.m. (New York City time) on
the Call Exercise Date that it intends to exercise the Call Option, the Trustee,
on behalf of the Certificateholders, shall, immediately thereafter, give
irrevocable written notice to the Company (the "Early Redemption Notice") that
it will exercise the Early Redemption Right on the Settlement Date in accordance
with the terms of the Senior Notes and the Indenture.
(2) Subject to prior compliance with Section 8.3(a), the Early
Redemption Right shall be exercised by the Trustee by delivery of the Senior
Notes to the Company at the time and in the manner specified in the Senior
Notes, together with such other documents as may be required by, and by
satisfying such other applicable terms of, the Senior Notes.
(3) Notwithstanding any other term of this Agreement, if the
Callholder exercises the Call Option in accordance with the terms thereof but
fails to make payment in full thereon by 2:00 p.m. (London time) on the Business
Day preceding the Settlement Date, the Trustee, on behalf of the
Certificateholders, shall, immediately upon notice of or the occurrence of such
default by the Callholder, give
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irrevocable written notice to the Company that it intends to exercise the Early
Redemption Right on the Settlement Date in accordance with the terms of the
Senior Notes. In such event, the Early Redemption Right shall then be exercised
by Trustee by surrender of the Senior Notes to the Company at the time and in
the manner specified in the Senior Notes, together with such other documents as
may be required by, and by satisfying any other applicable terms of, the Senior
Notes.
ARTICLE IX
Concerning the Trustee
Section 1.42 Duties of Trustee; Notice of Defaults.
(1) The Trustee, prior to the occurrence of an Event of Default
and after the curing or waiver of all such Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, the Currency Swap and the Call Option.
During the period an Event of Default shall have occurred and be continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and shall use the same degree of care and skill in their exercise, as
a prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Any permissive right of the Trustee enumerated in
this Agreement shall not be construed as a duty. In the event of any payment
default by the Swap Counterparty under the Currency Swap, the Trustee shall
provide a notice to the Swap Counterparty of such default in the form of Exhibit
D, and the Currency Swap shall terminate on the third Business Day following
such notice unless such default is remedied before such date. In the event of
any payment default by the Callholder under the Call Option, the Trustee shall
provide a notice to the Callholder and the Company of such default in the form
of Exhibit E, and the Call Option shall immediately terminate.
(2) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them in good faith to determine
whether they conform on their face to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement,
the Trustee shall take action as it deems appropriate to have the instrument
corrected, and if the instrument is not
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corrected to the Trustee's satisfaction, the Trustee will provide notice thereof
to the Company and Certificateholders.
(3) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own misconduct; provided, however, that:
(1) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of the Required
Percentage relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement;
(2) except for actions expressly authorized by this
Agreement, the Trustee shall take no actions reasonably likely to
impair the interests of the Trust in any Trust Asset now existing or
hereafter acquired or to impair the value of any Trust Asset now
existing or hereafter acquired;
(3) except as expressly provided in this Agreement, the
Trustee shall have no power to vary the corpus of the Trust, including
by (A) accepting any substitute obligation or asset for a Trust Asset
initially assigned to the Trustee under Section 2.1, (B) adding any
other investment, obligation or security to the Trust or (C)
withdrawing from the Trust any Trust Assets; and
(4) in the event that the Paying Agent or the Certificate
Registrar shall fail to perform any obligation, duty or agreement in
the manner or on the day required to be performed by the Paying Agent
or Certificate Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated promptly upon its knowledge thereof to
perform such obligation, duty or agreement in the manner so required.
Section 1.43 Certain Matters Affecting the Trustee.
(1) Except as otherwise provided in Section 9.1:
(1) the Trustee may request and rely upon, and shall be
protected in acting or refraining from acting upon, any resolution,
Officer's
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Certificate, certificate of auditors or other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) the Trustee may consult with counsel of its selection and
any advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(3) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Certificateholders,
pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; provided, however, that nothing
contained herein shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Default (which has not been cured or waived),
to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(4) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(5) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, approval, bond or other paper or document believed by
it to be genuine, unless requested in writing to do so by Holders of
the Required Percentage; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the
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Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action; and
(6) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian.
(2) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other Proceeding relating thereto, and any such Proceeding instituted by the
Trustee shall be brought in its name for the benefit of all the Holders of such
Certificates, subject to the provisions of this Agreement.
Section 1.44 Trustee Not Liable for Recitals in Certificates or
Trust Assets. The Trustee assumes no responsibility for the correctness of the
recitals contained herein and in the Certificates or in any document issued in
connection with the sale of the Certificates (other than the Trustee's signature
and authentication on the Certificates). Except as set forth in Section 9.11,
the Trustee makes no representations or warranties as to the validity or
sufficiency of this Agreement or of the Certificates (other than the Trustee's
signature and authentication on the Certificates) or of any Trust Asset or
related document.
Section 1.45 Trustee May Own Certificates. The Trustee in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates and may transact business with the other parties hereto with the
same rights it would have if it were not Trustee.
Section 1.46 Trustee's Fees and Expenses; Indemnification.
(1) The Trustee shall be paid by the Company as compensation for
its services hereunder such fees as have been separately agreed upon from time
to time by the Company and the Trustee, and the Trustee shall be entitled to be
reimbursed by the Company for its reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Trustee may reasonably employ in
connection with the exercise and performance of its rights and its duties
hereunder and any investigation in connection therewith.
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(2) The Company shall indemnify and hold harmless the Trustee
against any loss, liability or expense incurred in connection with any action
relating to or arising out of this Agreement, the Certificates, the offer and
sale of the Certificates, the Call Option, the Currency Swap, the Early
Redemption Right, the Purchase Agreement or the acceptance of the trust created
hereby or the performance of the Trustee's duties hereunder, except to the
extent that such loss, liability or expense (i) is due to willful misfeasance,
bad faith or negligence of the Trustee or (ii) relates to the payment
obligations under the Certificates, the Currency Swap or the Call Option.
(3) The provisions of this Section 9.5 shall survive the
resignation or removal of the Trustee, and the termination of this Agreement and
the Trust.
Section 1.47 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation or an association which is not an
Affiliate of the Company (but may have normal banking relationships with the
Company and its Affiliates) organized and doing business under the laws of any
State or the United States, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or State authority. If such
corporation or association publishes reports of conditions at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 9.6 the combined capital and
surplus of such corporation or association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published. Such corporation or association must be rated in one of the four
highest rating categories by the Rating Agencies.
Section 1.48 Resignation or Removal of the Trustee.
(1) The Trustee may at any time resign and be discharged from any
trust hereby created by giving written notice thereof to the Company, the Rating
Agencies and all Certificateholders. Upon receiving notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to such
Certificateholders by the Company. If no such successor trustee shall have been
so appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee. (1)
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(2) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.6 and shall fail to resign after
written request therefor by the Company, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Company may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the Certificateholders, if any, by the Company.
(3) Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section 9.7 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 9.8.
Section 1.49 Successor Trustee.
(1) Any successor trustee appointed as provided in Section 9.7
shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee all Trust
Assets documents and statements held by it hereunder, and the Company and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations. No successor trustee shall accept appointment as provided in this
Section 9.8 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 9.6.
(2) Upon acceptance of appointment by a successor trustee as
provided in this Section 9.8, the Company shall transmit notice of the
succession of such trustee hereunder to all Holders of Certificates and to the
Rating Agencies in the manner provided in Section 11.6.
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Section 1.50 Merger or Consolidation of Trustee. Any corporation
or association into which the Trustee may be merged or converted or with which
it may be consolidated or any corporation or association resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation or association succeeding to the business of the Trustee, or any
corporation or association purchasing all, or substantially all, of the
corporate trust business of the Trustee shall be the successor of the Trustee
hereunder, provided such corporation or association shall be eligible under the
provisions of Section 9.6, without the execution or filing of any instrument or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 1.51 Appointment of Office or Agency. The Trustee shall
appoint an office or agency in The City of New York where the Certificates may
be surrendered for registration of transfer or exchange, and presented for the
Final Distribution with respect thereto, and where notices and demands to or
upon the Trustee in respect of the Certificates and this Agreement may be
served. The Trustee initially appoints its Corporate Trust Office for such
purpose.
Section 1.52 Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(1) the Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
association;
(2) neither the execution, the delivery or performance by the
Trustee of this Agreement, nor the consummation by it of the
transactions contemplated hereby nor compliance by it with any of the
terms or provisions hereof will violate its charter documents or
by-laws;
(3) the Trustee has full power, authority and right to
execute, deliver and perform its duties and obligations as set forth
herein, has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement and has satisfied all
of the eligibility requirements set forth in Section 9.6;
(4) this Agreement has been duly executed and delivered by
the Trustee and constitutes the legal, valid and binding obligation of
the Trustee, enforceable in accordance with its terms, except as
enforcement may
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be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(5) the execution, delivery and performance by the Trustee of
this Agreement shall not require the authorization, consent or approval
of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or
agency regulating the banking and corporate trust activities of the
Trustee.
Section 1.53 Limitation of Powers and Duties.
(1) The Trustee shall administer the Trust and the Trust Assets
solely as specified herein.
(2) The Trust is constituted solely for the purpose of acquiring
and holding the Trust Assets. The Trustee is not authorized to acquire any other
investments or engage in any activities not authorized herein and, in
particular, the Trustee is not authorized (i) to sell, assign, transfer,
exchange, pledge, set-off or otherwise dispose of any of the Senior Notes, once
acquired, or interests therein, including to Certificateholders (except pursuant
to the Call Option, the Early Redemption Right and Section 4.2) or (ii) to do
anything that would alter the status of the Trust as a grantor trust for federal
income tax purposes.
(3) The Trustee, as a holder of the Senior Notes, has the right
to vote and give consents and waivers in respect of the Senior Notes and enforce
such other rights of a holder of the Senior Notes, except as otherwise limited
by this Agreement. In the event that the Trustee receives a request from the
Company with respect to the Senior Notes, for the Trustee's consent to any
amendment, modification or waiver of the Senior Notes, or any document
thereunder, or relating thereto, or receives any other solicitation for any
action with respect to the Senior Notes, the Trustee shall within five Business
Days mail a notice of such proposed amendment, modification, waiver or
solicitation to each Certificateholder as of the date of such request. The
Trustee shall request instructions from the Certificateholders as to what action
to take in response to such request. Except as otherwise provided herein, the
Trustee shall consent or vote, or refrain from consenting or voting, in the same
proportion (based on the Certificate Principal Balances) as the Certificates of
the Trust were actually voted or not voted by the Holders thereof as of the date
deter-
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mined by the Trustee prior to the date such vote or consent is required;
provided, however, that, notwithstanding anything to the contrary in this
Agreement, the Trustee shall at no time vote in favor of or consent to any
matter (i) unless such vote or consent would not, based on an Opinion of
Counsel, alter the status of the Trust as a grantor trust for federal income tax
purposes, (ii) which would alter the amount of any payment on the Senior Notes,
other than in connection with a Trust Termination Event, or (iii) which would
result in the exchange or substitution of any Senior Notes pursuant to a plan
for the refunding or refinancing of such Senior Notes, except during the
continuation of an Event of Default, or which would otherwise result in a sale
or exchange of Certificates for federal income tax purposes and, in each case,
other than in connection with a Trust Termination Event. The Trustee shall have
no liability for any failure to act resulting from the Certificateholders' late
return of, or failure to return, directions requested by the Trustee from the
Certificateholders.
(4) Notwithstanding any provision of this Agreement to the
contrary, for purposes of any security or indemnity against the costs, expenses
and liabilities the Trustee may incur by reason of any action undertaken at the
direction of the Certificateholders, which the Trustee may require from the
Certificateholders prior to taking any such action, an unsecured indemnity
agreement of a Certificateholder or any of its Affiliates, if acceptable to the
Trustee, shall be deemed sufficient to satisfy such security or indemnity
requirement.
ARTICLE X
Termination
Section 1.54 Termination.
(1) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Holder presenting and surrendering its Certificates the amounts
distributable to such Holder in accordance with Sections 4.1 and 4.2 in respect
of the Certificates so presented and surrendered. Any funds not distributed on
the Final Distribution Date shall be set aside and held in trust for the benefit
of Certificateholders not presenting and surrendering their Certificates in the
aforesaid manner, and shall be disposed of in accordance with Section 4.2(d).
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(2) The Trust and the respective obligations and responsibilities
under this Agreement of the Trustee and the Company and, except as otherwise
provided herein, the Trust shall terminate upon the completion of the Final
Distribution; provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof.
ARTICLE XI
Miscellaneous Provisions
Section 1.55 Amendment.
(1) This Agreement may be amended or modified from time to time
by the Company and the Trustee without notice to or the consent of any of the
Certificateholders for any of the following purposes: (i) to cure any ambiguity
or to correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein or in the Currency Swap or in the
Call Option; (ii) to add any security interest for the benefit of any
Certificateholders; (iii) to add to the covenants, restrictions or obligations
of the Company or the Trustee for the benefit of the Certificateholders; (iv) to
add, change or eliminate any other provisions with respect to matters or
questions arising under this Agreement, so long as (x) any such amendment
described in clauses (i) through (iv) above will not, as evidenced by an Opinion
of Counsel, affect the status of the Trust as a "grantor trust" or result in a
sale or exchange of any Certificate for federal income tax purposes and (y) the
Rating Agency Condition has been satisfied; (v) to comply with any requirements
imposed by the Code; or (vi) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Certificates or
to add or change any of the provisions of this Agreement as shall be necessary
to provide for or facilitate the administration of the trust hereunder.
(2) Without limiting the generality of the foregoing, this
Agreement may also be modified or amended from time to time by the Company and
the Trustee with the consent of the Holders of Certificates representing the
Required Percentage--Amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no
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such modification or amendment shall, without the consent of each affected
Certificateholder, (i) reduce in any manner the amount of payments received on
the Trust Assets or otherwise adversely affect in any material respect the
interests of the Certificateholder or (ii) reduce the percentage of aggregate
Voting Rights required to modify or amend this Agreement; and provided, further,
that the Company shall furnish to the Trustee an Opinion of Counsel stating
that, in the opinion of such counsel, any such modification or amendment would
not alter the status of the Trust as a "grantor trust" or result in a sale or
exchange of any Certificates for federal income tax purposes.
(3) In addition to and notwithstanding anything to the contrary
in this Agreement, the Trustee shall not enter into any modification or
amendment of this Agreement that would (i) adversely affect in any material
respect the interests of the Callholder in the Senior Notes without the consent
of the Callholder or (ii) alter the date on which the Call Option is exercisable
or the amount payable as a result of the exercise of the Call Option without the
consent of the Callholder; provided, however, that the Trustee shall not enter
into any modification or amendment of this Agreement unless such modification or
amendment would not, based on an Opinion of Counsel, alter the status of the
Trust as a "grantor trust" or result in a sale or exchange of any Certificates
for federal income tax purposes.
(4) Promptly after the execution of any such amendment or
modification, the Trustee shall furnish a copy of such amendment or modification
without charge to each Certificateholder, and the Company shall furnish a copy
of such amendment or modification to the Rating Agencies. It shall not be
necessary to obtain the consent of Certificateholders under this Section 11.1 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Section 1.56 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
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Section 1.57 Limitation on Rights of Certificateholders.
(1) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(2) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(3) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any
Certificate, unless such Holder previously shall have given to the Trustee a
written notice of breach and of the continuance thereof and unless also the
Holders of Certificates evidencing not less than the Required
Percentage--Remedies shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 15 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding. It is understood and agreed that the Trustee shall
not be obligated to make any investigation of matters arising under this
Agreement, the Call Option or the Currency Swap or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order or
direction of any Certificateholders unless such Certificateholders have offered
to the Trustee the reasonable indemnity referred to above. It is further
understood and agreed, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of the Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement,
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except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.3, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 1.58 Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the State of New York applicable to
agreements made and to be performed entirely therein without reference to such
State's principles of conflicts of law to the extent that the application of the
laws of another jurisdiction would be required thereby, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
Section 1.59 Notices.
(1) All directions, demands and notices hereunder and under the
Agreement shall be in writing and shall be deemed to have been duly given when
received if personally delivered or mailed by first class mail, postage prepaid,
or by express delivery service or by certified mail, return receipt requested,
or delivered by facsimile followed by delivery by mail, or delivered in any
other manner specified herein, (i) in the case of the Company, to 0000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; Attention: General Counsel; and (ii) in the
case of the Trustee, to 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Xxxx X. Xxxxxx, facsimile number: 000-000-0000, or such other address
as may hereafter be furnished to the Company in writing by the Trustee.
(2) For purposes of delivering notices to the Rating Agencies
under Section 11.7 or otherwise, such notices shall be mailed or delivered as
provided in Section 11.7 to: Standard & Poor's, 00 Xxxxxxxx (00xx Xxxxx), Xxx
Xxxx, Xxx Xxxx 00000; and Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; or such other address as the Rating Agencies may designate
in writing to the parties hereto.
(3) Notwithstanding any provision of this Agreement to the
contrary, the Trustee shall deliver all notices or reports required to be
delivered to or by the Trustee or the Company to the Certificateholders without
charge to such Certificateholders.
(4) Any notice required to be provided to a Holder shall be given
by first class mail, postage prepaid, at the last address of such Holder as
shown
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in the Certificate Register. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given when
mailed, whether or not the Certificateholder receives such notice.
Section 1.60 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the extent permitted, and if not so
permitted, shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 1.61 Notice to Rating Agencies. The Trustee shall use its
best efforts promptly to provide notice to the Rating Agencies with respect to
each of the following of which it has actual knowledge:
(1) any modification or amendment to this Agreement;
(2) the resignation or termination of the Trustee;
(3) the final payment to Holders of the Certificates; and
(4) any change in the location of a Certificate Account.
In addition, the Trustee shall promptly furnish to each of the Rating Agencies
copies of each report to Certificateholders described in Section 4.3 or
otherwise. Any such notice pursuant to this Section 11.7 shall be in writing and
shall be deemed to have been duly given if personally delivered or mailed by
first class mail, postage prepaid, or by express delivery service to each of the
Rating Agencies at the address specified in Section 11.5.
Section 1.62 Non-petition Covenant. Notwithstanding any prior
termination of this Agreement, each of the Trustee, any Authenticating Agent,
any Paying Agent and the Company agrees that it shall not, until the date which
is one year and one day after the Final Distribution Date, acquiesce, petition
or otherwise invoke or cause the Trust to invoke the process of the United
States of America, any State or other political subdivision thereof or any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to
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government for the purpose of commencing or sustaining a case by or against the
Trust under a federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust or all or any part of the property or assets
of the Trust or ordering the winding up or liquidation of the affairs of the
Trust.
Section 1.63 Article and Section References. All article and
section references used in this Agreement, unless otherwise provided, are to
articles and sections in this Agreement.
Section 1.64 Compliance Certificates and Opinions, etc.
(1) Upon any application or request by the Company to the Trustee
to take any action under any provision of this Agreement, the Company shall
furnish to the Trustee: (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Agreement relating to the proposed
action have been complied with, and (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Agreement, no additional certificate or opinion need be furnished. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(1) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the judgement of each such
signatory, such signatory has made such examination or investigation as
is necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
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IN WITNESS WHEREOF, the Company and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
NRG ENERGY, INC.
By:/s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:/s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
71
EXHIBIT A
NUMBER $__________
R-______ CUSIP NO.___________
THE CERTIFICATES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER THIS CERTIFICATE, PRIOR TO THE DATE WHICH
IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE
ON WHICH NRG ENERGY PASS-THROUGH TRUST 2000-1 (THE "TRUST") OR ANY AFFILIATE OF
THE TRUST WAS THE OWNER OF THIS CERTIFICATE (OR ANY PREDECESSOR OF THE
CERTIFICATE) OR THE EXPIRATION OF SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY
RULE 144(k), OR ANY SUCCESSOR PROVISION THEREOF, UNDER THE SECURITIES ACT (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE TRUST, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE CERTIFICATES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION
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S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OF THE UNITED STATES, SUBJECT TO THE RIGHT OF THE TRUST, THE
COMPANY AND THE TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT
TO CLAUSE (D) OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE AS TO COMPLIANCE WITH
CERTAIN CONDITIONS TO TRANSFER IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE OR SUCH EARLIER TIME AS DETERMINED BY THE
TRUST IN ACCORDANCE WITH APPLICABLE LAW.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN
THE TRUST, ITS INCOME AND ITS ASSETS AND DOES NOT EVIDENCE AN OBLIGATION OF, OR
AN INTEREST IN, AND IS NOT GUARANTEED BY THE COMPANY OR THE TRUSTEE OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE TRUST ASSETS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE
TRUST 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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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.
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NRG ENERGY PASS-THROUGH TRUST 2000-1
REMARKETABLE OR REDEEMABLE SECURITIES ("ROARS")
DUE MARCH 15, 2005
evidencing a fractional undivided beneficial ownership interest in the Trust, as
defined below, the property of which consists principally of pound sterling
160,000,000 principal amount of Reset Senior Notes Due March 15, 2020 (the
"Senior Notes") of NRG Energy, Inc, a company incorporated under the laws of the
State of Delaware (the "Company"). The Senior Notes have been purchased by the
Trust with the proceeds of the sale of the Certificates and the Call Option
(each as defined herein).
THIS CERTIFIES THAT is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in NRG Energy
Pass-Through Trust 2000-1 (including its income and assets) formed by the
Company, which Trust has issued Certificates having a Certificate Principal
Balance of $250,000,000, as such amount may be adjusted on the records of the
Holder and the Trustee. Under the Trust Agreement, there will be distributed on
the 15th day of each March and September, or if such day is not a Business Day,
the next succeeding Business Day, commencing September 15, 2000 through and
including the Settlement Date (each a "Distribution Date"), to the extent of
Available Funds (as defined herein), an amount equal to the Dollar Distribution
which will be equal to the amount then payable by Bank of America, N.A. (the
"Swap Counterparty") to the Trustee under the Currency Swap Agreement, dated
March 15, 2000, between the Trustee and the Swap Counterparty (the "Currency
Swap"), and any other amounts remaining in the Certificate Account on such
Distribution Date; provided, however, that, on each Distribution Date occurring
on or after a Swap Termination Event (other than as a result of a Conversion
Event, an Optional Tax Redemption or a Change of Control Repurchase), the
Trustee shall distribute to Holders, to the extent of Available Funds, if any, a
semi-annual Pounds Sterling payment calculated at an annual interest rate as
described in the Indenture on the basis of a 365 or 366-day, as applicable, year
and the actual number of days elapsed due on the principal amount of the Senior
Notes. On the Final Distribution Date, there will be distributed, to the extent
of Available Funds, all distributions received from or in respect of the Trust
Assets.
The Trust was created pursuant to a Trust Agreement dated as
of March 20, 2000 (the "Trust Agreement"), between the Company and The Bank of
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New York, a New York banking corporation, not in its individual capacity but
solely as trustee (the "Trustee"). This Certificate does not purport to
summarize the Trust Agreement, and reference is hereby made to the Trust
Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Trustee with respect hereto. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement,
to which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. A copy of the Trust
Agreement may be obtained from the Trustee by written request sent to the
Corporate Trust Office or from the Company by written request sent to the
Company. Capitalized terms used but not defined herein have the meanings
assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as "8.70% Remarketable or Redeemable Securities ("ROARS") Due March
15, 2005" (herein called the "Certificates"). Concurrently with the issuance of
the Certificates, the Trustee will issue an option (the "Call Option") that
represents the right to purchase the Senior Notes in whole but not in part on
March 15, 2005 at the call price specified in the Call Option. If the holder of
the Call Option does not give irrevocable prior written notice of its intent to
exercise the Call Option or fails to fulfill its payment obligations thereunder
in accordance with the terms of the Call Option, the Trustee shall exercise the
Early Redemption Right (as defined in the Trust Agreement), and the Company
shall be obligated to redeem the Senior Notes at a price equal to the unpaid
principal amount thereof on March 15, 2005. The property of the Trust consists
of the Senior Notes, the aggregate amount deposited in the Certificate Accounts
since the last Distribution Date or, in the case of the first Distribution Date,
since the date of the initial issuance of the Certificates, and (a) for so long
as the Senior Notes are denominated in Pounds Sterling and no Swap Termination
Event has occurred, any Dollar Swap Payment or other Dollar amount paid by the
Swap Counterparty to the Trustee under the Currency Swap, (b) if a Swap
Termination Event (other than as a result of a Conversion Event, an Optional Tax
Redemption or a Change of Control Repurchase) has occurred, the semi-annual
interest payments on the Senior Notes and Pounds Sterling payments on or in
respect of the principal of the Senior Notes made by the Company thereunder and
received by the Trustee in respect of the Senior Notes or, if applicable, any
Swap Termination Payment (subject to Section 6.13 of the Trust Agreement) or
Unpaid Amounts, (c) if a Conversion Event has occurred, the semi-annual Dollar
interest payments on the Senior Notes and Dollar payments on or in respect of
the principal of the Senior Notes made by the Company thereunder and received by
the Trustee in respect of the
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Senior Notes or, if applicable, any Unpaid Amounts, (d) all Option Proceeds and
(e) all Liquidation Proceeds (the "Available Funds").
Subject to the terms and conditions of the Trust Agreement and
the Call Option (including the availability of funds for distributions) and
until the obligations created by the Trust Agreement shall have terminated in
accordance therewith, distributions will be made on each Distribution Date to
the Person in whose name this Certificate is registered on the applicable Record
Date, in an amount equal to such Certificateholder's fractional undivided
interest in the amount required to be distributed to the Holders of the
Certificates on such Distribution Date. If any payment by the Swap Counterparty
with respect to the Currency Swap or a payment due on any March 15 or September
15 with respect to the Senior Notes is not made to the Trustee by the designated
times specified in the Trust Agreement on the date such payment is due, or if
such payment is not made on the due date, the Trustee will upon receipt of such
funds make such distribution on the next Business Day (and no additional amounts
of interest shall accrue on the Certificates or be owed to Certificateholders as
a result of any such delay).
Distributions made on this Certificate will be made as
provided in the Trust Agreement by the Trustee by wire transfer in immediately
available funds, without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the Final Distribution on this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency maintained for that purpose by the Trustee in the Borough of
Manhattan, The City of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAW.
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IN WITNESS WHEREOF, the Trust has caused this Certificate to
be duly executed as of the date set forth below.
NRG ENERGY PASS-THROUGH TRUST
2000-1, by The Bank of New York, not
in its individual capacity but
solely as Trustee
------------------------------------
Authorized Officer
Dated: March 20, 2000
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates described in the Trust
Agreement referred to herein.
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
---------------------------------
Authorized Signatory
or
as Authenticating Agent for the Trustee
By:
---------------------------------
Authorized Signatory
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(REVERSE OF TRUST CERTIFICATE)
The Certificates are limited in right of distribution to
certain payments and collections as provided in the Trust Agreement, all as more
specifically set forth herein and in the Trust Agreement. The registered Holder
hereof, by its acceptance hereof, agrees that it will look solely to payments
under the Senior Notes, the Call Option and the Currency Swap for distributions
hereunder.
Subject to the next paragraph and to certain exceptions
provided in the Trust Agreement, the Trust Agreement permits the amendment
thereof and the modification of the rights and obligations of the Company and
the Trustee and the rights of the Certificateholders under the Trust Agreement
at any time by the Company and the Trustee with the consent of the Holders of
Certificates evidencing not less than 66 _% of the aggregate Voting Rights of
Outstanding Certificates, subject to certain provisions set forth in the Trust
Agreement. Any such consent by the Holder of this Certificate (or any
predecessor Certificate) shall be conclusive and binding on such Holder and upon
all future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in an exchange hereof or in lieu hereof, whether or not
notation of such consent is made upon this Certificate. The Trust Agreement also
permits the modification or amendment thereof, in certain limited circumstances,
without the consent of the Holders of any of the Certificates.
The Certificates are issuable in fully registered form only in
minimum original principal amounts of $100,000 and integral multiples of $1,000
in excess thereof. As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same principal amount, class, original issue date and
maturity, in authorized denominations as requested by the Holder surrendering
the same.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registerable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Trustee in the Borough of Manhattan, The City of New York, duly endorsed
or accompanied by an assignment in the form below and by such other documents as
required by the Trust Agreement, and thereupon one or more new Certificates of
the same class in authorized denominations evidencing the same principal amount
will be issued to the designated transferee or transferees. The Certificate
Registrar appointed under the Trust Agreement is The Bank of New York.
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No service charge will be made for any registration of
transfer or exchange, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Company and the Trustee and any agent thereof may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Company, the Trustee, nor any such agent shall be
affected by any notice to the contrary.
The Trust and the obligations of the Company and the Trustee
created by the Trust Agreement with respect to the Certificates shall terminate
upon the distribution by the Trustee on the Final Distribution Date (i) of all
Option Proceeds following an exercise of the Call Option by the Callholder or an
exercise of the Early Redemption Right (and upon receipt by the Trust from the
Swap Counterparty of Dollars in an amount equal to the Certificate Principal
Amount in exchange for the proceeds of such exercise), as the case may be, or
(ii) of all Liquidation Proceeds received by the Trustee following a Trust
Termination Event, as the case may be, or (iii) of all Dollar Distributions or
Pounds Sterling distributions, as the case may be, received by the Trustee, not
previously distributed pursuant to Section 4.1 of the Trust Agreement, or (iv)
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof, whichever of clauses (i),
(ii), (iii) or (iv) above shall be the first to occur.
A-8
79
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
TAXPAYER IDENTIFICATION OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in the premises.
Dated:
*
Signature Guaranteed;
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Trust Agreement and the Securities Exchange
Act of 1934, as amended.
A-9
80
FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Certificate purchased by the Company
pursuant to Section 3.4 of the Trust Agreement, check the Box: [insert box].
If you wish to have a portion of this Certificate purchased by
the Company pursuant to Section 3.4 of the Trust Agreement, state the amount (in
original principal amount):
$
--------------
Date: Your Signature:
(Sign exactly as your name appears on the
other side of this Certificate)
Signature Guarantee:
--------------------------------------
81
EXHIBIT B
[Form of Confirmation for Call Option]
B-1
82
EXHIBIT C
[Form of Confirmation for Currency Swap]
C-1
83
EXHIBIT D
Notice of Payment Default by the Swap Counterparty under the Currency Swap
[Date]
To: Bank of America, N.A.
[address]
Pursuant to Section 9.1(a) of the Trust Agreement dated as of
March 20, 2000 (the "Trust Agreement") among NRG Energy, Inc. and The Bank of
New York, as trustee (the "Trustee"), with respect to the 8.70% Remarketable or
Redeemable Securities ("ROARS") Due March 15, 2005, the Trustee hereby gives
notice of a payment default on the date hereof by you, as Swap Counterparty
under the Currency Swap (as defined in the Trust Agreement).
The Currency Swap shall terminate on the third Business Day
following such default, unless remedied prior thereto.
THE BANK OF NEW YORK,
as Trustee under the Trust
Agreement
By:
-------------------------------
Title:
cc: NRG Energy, Inc.
D-1
84
EXHIBIT E
Notice of Payment Default by the Callholder Under the Call Option
[Date]
To: Bank of America, N.A.
[address]
Pursuant to Section 9.1(a) of the Trust Agreement dated as of
March 20, 2000 (the "Trust Agreement") between NRG Energy, Inc. and The Bank of
New York, as trustee (the "Trustee"), with respect to the 8.70% Remarketable or
Redeemable Securities ("ROARS") Due March 15, 2005, the Trustee hereby gives
notice of a payment default on the date hereof by you as callholder under the
Call Option (as defined in the Trust Agreement).
The Call Option terminated on the date of such default.
THE BANK OF NEW YORK,
as Trustee under the Trust
Agreeement
By:
----------------------------
Title:
cc: NRG Energy, Inc.
E-1
