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CALENERGY COMPANY, INC.
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Indenture
Dated as of September 20, 1996
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$225,000,000
9 1/2% Senior Notes due 2006
IBJ XXXXXXXX BANK & TRUST COMPANY
Trustee
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CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
--------------- ---------
ss.310(a)(1)............................................................. 609
(a)(2)............................................................. 609
(a)(3)................................................... Not Applicable
(a)(4)................................................... Not Applicable
(b)........................................................... 608, 610
ss.311(a)................................................................ 613
(b)................................................................ 613
(c)...................................................... Not Applicable
ss.312(a)........................................................... 701, 702
(b)................................................................ 702
(c)................................................................ 702
ss.313(a)................................................................ 703
(b)................................................................ 703
(c)................................................................ 703
(d)................................................................ 703
ss.314(a)................................................................ 704
(a)(4)........................................................ 101, 704
(b)...................................................... Not Applicable
(c)(1)............................................................. 102
(c)(2)............................................................ 102
(c)(3)................................................... Not Applicable
(d)...................................................... Not Applicable
(e)............................................................... 102
(f)...................................................... Not Applicable
ss.315(a)................................................................ 601
(b)............................................................... 602
(c)............................................................... 601
(d)............................................................... 601
(e)............................................................... 514
ss.316(a)................................................ 101("Outstanding")
(a)(1)(A)..................................................... 502, 512
(a)(1)(B)..................................................... 513
(a)(2)................................................... Not Applicable
(b)............................................................... 508
(c)............................................................... 104
ss.317(a)(1)............................................................ 503
(a)(2)............................................................ 504
(b)............................................................... 1003
ss.318(a)............................................................... 107
(b)...................................................... Not Applicable
(c)............................................................. 107
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Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.
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TABLE OF CONTENTS*
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PARTIES .................................................................................. 1
RECITALS OF THE COMPANY ................................................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application .................... 1
Section 101. Definitions ................................................................. 1
Section 102. Compliance Certificates and Opinions ........................................ 37
Section 103. Form of Documents Delivered to Trustee ...................................... 38
Section 104. Acts of Holders; Record Dates ............................................... 38
Section 105. Notices, Etc., to Trustee and Company ....................................... 41
Section 106. Notice to Holders; Waiver ................................................... 42
Section 107. Conflict with Trust Indenture Act ........................................... 42
Section 108. Effect of Headings and Table of Contents .................................... 43
Section 109. Successors and Assigns ...................................................... 43
Section 110. Separability Clause ......................................................... 43
Section 111. Benefits of Indenture ....................................................... 43
Section 112. Governing Law ............................................................... 43
Section 113. Legal Holidays .............................................................. 44
Section 114. No Recourse Against Others .................................................. 44
Section 115. Duplicate Originals ......................................................... 44
ARTICLE TWO
The Securities .............................................................. 45
Section 201. Global and Certificated Securities .......................................... 45
Section 202. Execution and Authentication ................................................ 47
Section 203. Registrar and Paying Agent .................................................. 48
Section 204. Paying Agent To Hold Money in Trust ......................................... 49
Section 205. Holder Lists ................................................................ 49
Section 206. Transfer and Exchange ....................................................... 49
Section 207. Mutilated, Destroyed, Lost and Stolen Securities ............................ 57
Section 208. Temporary Securities and Certificated Securities ............................ 58
Section 209. Payment of Interest; Interest Rights Preserved .............................. 60
Section 210. Persons Deemed Owners ....................................................... 61
Section 211. Cancellation ................................................................ 61
Section 212. Denominations ............................................................... 62
Section 213. Computation of Interest ..................................................... 62
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* Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
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PAGE
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Section 214. CUSIP Numbers ............................................................... 62
Section 215. Single Class ................................................................ 62
ARTICLE THREE
Form of Security ............................................................ 62
Section 301. Forms Generally ............................................................. 62
Section 302. Form of Initial Security .................................................... 62
Section 303. Form of Exchange and Private Exchange Security .............................. 73
ARTICLE FOUR
Satisfaction and Discharge .................................................. 82
Section 401. Satisfaction and Discharge of Indenture ..................................... 82
ARTICLE FIVE
Remedies .................................................................... 83
Section 501. Events of Default ........................................................... 83
Section 502. Acceleration of Maturity; Rescission and Annulment .......................... 86
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee ............ 87
Section 504. Trustee May File Proofs of Claim ............................................ 88
Section 505. Trustee May Enforce Claims Without Possession of Securities ................. 89
Section 506. Application of Money Collected .............................................. 89
Section 507. Limitation on Suits ......................................................... 90
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest .. 91
Section 509. Restoration of Rights and Remedies .......................................... 91
Section 510. Rights and Remedies Cumulative .............................................. 91
Section 511. Delay or Omission Not Waiver ................................................ 91
Section 512. Control by Holders .......................................................... 92
Section 513. Waiver of Past Defaults ..................................................... 92
Section 514. Undertaking for Costs ....................................................... 92
Section 515. Waiver of Stay or Extension Laws ............................................ 93
ARTICLE SIX
The Trustee ................................................................. 93
Section 601. Certain Duties and Responsibilities ......................................... 93
Section 602. Notice of Defaults; Notice of Acceleration .................................. 94
Section 603. Certain Rights of Trustee ................................................... 95
Section 604. Not Responsible for Recitals or Issuance of Securities ...................... 96
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Section 605. May Hold Securities ......................................................... 96
Section 606. Money Held in Trust ......................................................... 97
Section 607. Compensation and Reimbursement .............................................. 97
Section 608. Conflicting Interests ....................................................... 98
Section 609. Corporate Trustee Required; Eligibility ..................................... 98
Section 610. Resignation and Removal; Appointment of Successor ........................... 99
Section 611. Acceptance of Appointment by Successor ...................................... 100
Section 612. Merger, Conversion, Consolidation or Succession to Business ................. 101
Section 613. Preferential Collection of Claims Against Company ........................... 101
Section 614. Appointment of Authenticating Agent ......................................... 101
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company ........................... 103
Section 701. Company to Furnish Trustee Names and Addresses of Holders ................... 103
Section 702. Preservation of Information; Communications to Holders ...................... 104
Section 703. Reports by Trustee .......................................................... 104
Section 704. Reports by Company .......................................................... 105
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease ........................ 105
Section 801. Company May Consolidate, Etc. Only on Certain Terms ......................... 105
Section 802. Successor Substituted ....................................................... 107
ARTICLE NINE
Supplemental Indentures ..................................................... 107
Section 901. Supplemental Indentures Without Consent of Holders .......................... 107
Section 902. Supplemental Indentures with Consent of Holders ............................. 108
Section 903. Execution of Supplemental Indentures ........................................ 110
Section 904. Effect of Supplemental Indentures ........................................... 110
Section 905. Conformity with Trust Indenture Act ......................................... 110
Section 906. Reference in Securities to Supplemental Indentures .......................... 110
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PAGE
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ARTICLE TEN
Covenants ................................................................... 111
Section 1001. Payment of Principal, Premium and Interest .................................. 111
Section 1002. Maintenance of Office or Agency ............................................. 111
Section 1003. Money for Security Payments to be Held in Trust ............................. 112
Section 1004. Existence ................................................................... 113
Section 1005. Maintenance of Properties ................................................... 113
Section 1006. Payment of Taxes and Other Claims ........................................... 114
Section 1007. Maintenance of Insurance .................................................... 114
Section 1008. Limitation on Debt .......................................................... 115
Section 1009. Limitation on Subsidiary Debt ............................................... 116
Section 1010. Limitation on Restricted Payments ........................................... 117
Section 1011. Limitation on Transactions with Affiliates .................................. 119
Section 1012. Limitation on Liens ......................................................... 120
Section 1013. Purchase of Securities Upon a Change of Control ............................. 122
Section 1014. Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries 123
Section 1015. Limitation on Dispositions .................................................. 125
Section 1016. Limitation on Certain Sale-Leasebacks ....................................... 129
Section 1017. Provision of Financial Information .......................................... 130
Section 1018. Limitation on Sale of Subsidiary Preferred Stock............................. 131
Section 1019. Statement by Officers as to Default; Compliance Certificates ............... 132
Section 1020. Waiver of Certain Covenants ................................................. 132
Section 1021. Limitation on Business ...................................................... 133
ARTICLE ELEVEN
Redemption of Securities .................................................... 134
Section 1101. Right of Redemption ......................................................... 134
Section 1102. Applicability of Article .................................................... 135
Section 1103. Election to Redeem; Notice to Trustee ....................................... 135
Section 1104. Selection by Trustee of Securities to Be Redeemed ........................... 135
Section 1105. Notice of Redemption ........................................................ 135
Section 1106. Deposit of Redemption Price ................................................. 136
Section 1107. Securities Payable on Redemption Date ....................................... 136
Section 1108. Securities Redeemed in Part ................................................. 137
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ARTICLE TWELVE
Defeasance and Covenant Defeasance ............................................... 137
Section 1201. Company's Option to Effect Defeasance or Covenant Defeasance ..................... 137
Section 1202. Defeasance and Discharge ......................................................... 138
Section 1203. Covenant Defeasance .............................................................. 138
Section 1204. Conditions to Defeasance or Covenant Defeasance .................................. 139
Section 1205. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions ....................................................................... 142
Section 1206. Reinstatement .................................................................... 142
APPENDIX ................................................................................. X-0
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XXXXXXXXX, dated as of September 20, 1996, between CalEnergy Company,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 000
Xxxxx Xxxxxx-Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and IBJ Xxxxxxxx Bank & Trust
Company, a New York banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company and the Trustee each agree as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the
Company's 9 1/2% Senior Notes due 2006 (the "Initial Securities") and, if and
when issued pursuant to a registered exchange for Initial Securities, the
Company's 9 1/2% Senior Notes due 2006 (the "Exchange Securities") and if and
when issued pursuant to a private exchange for Initial Securities, the
Company's 9 1/2% Senior Notes due 2006 (the "Private Exchange Securities",
together with the Exchange Securities and the Initial Securities, the
"Securities"):
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (whether or not such is
indicated herein);
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as the case may
be, of this Indenture;
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(6) "or" is not exclusive;
(7) provisions apply to successive events and transactions; and
(8) each reference herein to a rule or form of the Commission shall
mean such rule or form and any rule or form successor thereto, in each
case as amended from time to time.
Whenever this Indenture requires that a particular ratio or amount be
calculated with respect to a specified period after giving effect to certain
transactions or events on a pro forma basis, such calculation shall be made as
if the transactions or events occurred on the first day of such period, unless
otherwise specified.
"Acquired Debt" means Debt Incurred by a Person prior to the time (i)
such Person becomes a Restricted Subsidiary of the Company or an Eligible Joint
Venture, (ii) such Person merges with or into a Restricted Subsidiary of the
Company or an Eligible Joint Venture, or (iii) a Restricted Subsidiary of the
Company or an Eligible Joint Venture merges with or into such Person (in a
transaction in which such Person becomes a Restricted Subsidiary of the Company
or an Eligible Joint Venture), provided that, after giving effect to such
transaction, any Non-Recourse Debt of such Person could have been Incurred
pursuant to clause (iii) of Section 1009(b), any Permitted Facilities Debt of
such Person could have been Incurred pursuant to clause (viii) of Section
1009(b) and would not otherwise violate any other provision of this
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Indenture, and all the other Debt of such Person could have been Incurred by
the Company at the time of such merger or acquisition pursuant to the provision
described in Section 1008(a), and provided further that such Debt was not
Incurred in connection with, or in contemplation of, such merger or such Person
becoming a Restricted Subsidiary of the Company or an Eligible Joint Venture.
"Acquisition Debt" means Debt of any Person existing at the time such
Person is merged into the Company or assumed in connection with the
acquisition of Property from any such Person (other than Property acquired in
the ordinary course of business), including Debt Incurred in connection with,
or in contemplation of, such Person being merged into the Company (but
excluding Debt of such Person that is extinguished, retired or repaid in
connection with such merger or acquisition).
"Adjusted Consolidated Net Income" means for any period, for any Person
(the "Referenced Person") the aggregate Net Income (or loss) of the Referenced
Person and its consolidated Subsidiaries for such period determined in
conformity with GAAP, provided that the following items shall be excluded in
computing Adjusted Consolidated Net Income (without duplication): (i) the Net
Income (or loss) of any other Person (other than a Subsidiary of the Referenced
Person) in which any third Person has an interest, except to the extent of the
amount of dividends or other distributions actually paid in cash to the
Referenced Person during such period, or after such period and on or before the
date of determination, by such Person in which the interest is held, which
dividends and distributions shall be included in such computation, (ii) solely
for the purposes of calculating the amount of Restricted Payments that may be
made pursuant to the provision described in clause (c) of Section 1010(a) (and
in such case, except to the extent includable pursuant to clause (i) above),
the Net Income (if positive) of any other Person accrued prior to the date it
becomes a Subsidiary of the Referenced Person or is merged into or consolidated
with the Referenced Person or any of its Subsidiaries or all or substantially
all the Property of such other Person are acquired by the Referenced Person or
any of its Subsidiaries, (iii) the Net Income (if positive) of any Subsidiary
of the Referenced Person, to the extent that the declaration or payment of
dividends or similar distributions by the Subsidiary to such Person or to any
other Subsidiary of such Net Income is not at the time permitted by operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to the Subsidiary,
(iv) any gains
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or losses (on an after-tax basis) attributable to Asset Sales (except, solely
for the purposes of calculating the amount of Restricted Payments that may be
made pursuant to the provision described in clause (c) of Section 1010(a), any
gains or losses of the Company and any of its Restricted Subsidiaries from
Asset Sales of Capital Stock of Unrestricted Subsidiaries), (v) the cumulative
effect of a change in accounting principles and (vi) any amounts paid or
accrued as dividends on Preferred Stock of any Subsidiary of the Referenced
Person that is not held by the Referenced Person or another Subsidiary thereof.
When the "Referenced Person" is the Company, the foregoing references to
"Subsidiaries" shall be deemed to refer to "Restricted Subsidiaries."
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with") when used with respect to any Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise. For the purpose of
Section 1011, the term "Affiliate" includes only Kiewit, any entity
beneficially owning 10% or more of the Voting Stock of the Company and their
respective Affiliates other than the Restricted Subsidiaries and the Eligible
Joint Ventures and the other equity investors in the Restricted Subsidiaries
and the Eligible Joint Ventures (solely on account of their investments in the
Restricted Subsidiaries and the Eligible Joint Ventures), and for such purpose
such term also includes the Unrestricted Subsidiaries.
"Asset Acquisition" means (i) an investment by the Company, any of its
Subsidiaries or any Joint Venture in any other Person pursuant to which such
Person shall become a direct or indirect Subsidiary of the Company or a Joint
Venture or shall be merged into or consolidated with the Company, any of its
Subsidiaries or any Joint Venture or (ii) an acquisition by the Company, any of
its Subsidiaries or any Joint Venture of the Property of any Person other than
the Company, any of its Subsidiaries or any Joint Venture that constitutes
substantially all of an operating unit or business of such Person.
"Asset Disposition" means any sale, transfer, conveyance, lease or
other disposition (including by way of merger, consolidation or sale-leaseback)
by the Company,
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any of its Restricted Subsidiaries or any Eligible Joint Venture to any Person
(other than to the Company, a Restricted Subsidiary of the Company or an
Eligible Joint Venture and other than in the ordinary course of business) of
any Property of the Company, any of its Restricted Subsidiaries or any Eligible
Joint Venture other than any shares of Capital Stock of the Unrestricted
Subsidiaries. Notwithstanding the foregoing to the contrary, the term "Asset
Disposition" shall include the sale, transfer, conveyance or other disposition
of any shares of Capital Stock of any Unrestricted Subsidiary to the extent
that the Company or any of its Restricted Subsidiaries or Eligible Joint
Ventures made an Investment in such Unrestricted Subsidiary pursuant to clause
(vii) of the definition of "Permitted Payment," and the Company shall, and
shall cause each of its Restricted Subsidiaries and Eligible Joint Ventures to,
apply pursuant to Section 1015 that portion of the Net Cash Proceeds from the
sale, transfer, conveyance or other disposition of such Unrestricted
Subsidiary that is equal to the portion of the total Investment in such
Unrestricted Subsidiary that is represented by the Investment that was made
pursuant to clause (vii) of the definition of "Permitted Payment." For purposes
of this definition, any disposition in connection with directors' qualifying
shares or investments by foreign nationals mandated by applicable law shall not
constitute an Asset Disposition. In addition, the term "Asset Disposition"
shall not include (i) any sale, transfer, conveyance, lease or other
disposition of the Capital Stock or Property of Restricted Subsidiaries or
Eligible Joint Ventures pursuant to the terms of any power sales agreements or
steam sales agreements to which such Restricted Subsidiaries or such Eligible
Joint Ventures are parties on the Issue Date of the Securities or pursuant to
the terms of any power sales agreements or steam sales agreements, or other
agreements or contracts that are related to the output or product of, or
services rendered by, a Permitted Facility as to which such Restricted
Subsidiary or such Eligible Joint Venture is the supplying party, to which such
Restricted Subsidiaries or such Eligible Joint Ventures become a party after
such date if the President or Chief Financial Officer of the Company
determines in good faith (evidenced by an Officers' Certificate) that such
provisions are customary (or, in the absence of any industry custom, reasonably
necessary) in order to effect such agreements and are reasonable in light of
comparable transactions in the applicable jurisdiction, (ii) any sale,
transfer, conveyance, lease or other disposition of Property governed by
Xxxxxxx 000, (xxx) any sale, transfer, conveyance, lease or other disposition
of any Cash Equivalents, (iv) any transaction or series of related
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transactions consisting of the sale, transfer, conveyance, lease or other
disposition of Capital Stock or Property with a fair market value aggregating
less than $5 million and (v) any Permitted Payment or any Restricted Payment
that is permitted to be made pursuant to Section 1010. The term "Asset
Disposition" also shall not include (i) the grant of or realization upon a Lien
permitted under Section 1012 or the exercise of remedies thereunder, (ii) a
sale-leaseback transaction involving substantially all the Property
constituting a Permitted Facility pursuant to which a Restricted Subsidiary of
the Company or an Eligible Joint Venture sells the Permitted Facility to a
Person in exchange for the assumption by that Person of the Debt financing the
Permitted Facility and the Restricted Subsidiary or the Eligible Joint Venture
leases the Permitted Facility from such Person, (iii) dispositions of Capital
Stock, contract rights, development rights and resource data made in connection
with the initial development of Permitted Facilities, or the formation or
capitalization of Restricted Subsidiaries or Eligible Joint Ventures in
respect of the initial development of Permitted Facilities, in respect of
which only an insubstantial portion of the prospective Construction Financing
that would be required to commence commercial operation has been funded or (iv)
transactions determined in good faith by the Chief Financial Officer, as
evidenced by an Officers' Certificate, made in order to enhance the
repatriation of the Net Cash Proceeds for a Foreign Asset Disposition or in
order to increase the after-tax proceeds thereof available for immediate
distribution to the Company. Any Asset Disposition that results from the bona
fide exercise by any governmental authority of its claimed or actual power of
eminent domain need not comply with the provisions of clauses (i) and (ii) of
Section 1015(a). Any Asset Disposition that results from a casualty loss need
not comply with the provisions of clause (i) of Section 1015(a).
"Asset Sale" means the sale or other disposition by the Company, any of
its Subsidiaries or any Joint Venture (other than to the Company, another
Subsidiary of the Company or another Joint Venture) of (i) all or substantially
all of the Capital Stock of any Subsidiary of the Company or any Joint Venture
or (ii) all or substantially all of the Property that constitutes an operating
unit or business of the Company, any of its Subsidiaries or any Joint Venture.
"Attributable Value" means, as to a Capitalized Lease Obligation under
which any Person is at the time liable and at any date as of which the amount
thereof is to be determined, the capitalized amount thereof that
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would appear on the face of a balance sheet of such Person in accordance with
GAAP.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 hereof to act on behalf of the Trustee to authenticate
Securities.
"Average Life" means, at any date of determination with respect to any
Debt security or Preferred Stock, the quotient obtained by dividing (i) the sum
of the product of (A) the number of years from such date of determination to
the dates of each successive scheduled principal or involuntary liquidation
value payment of such Debt security or Preferred Stock, respectively,
multiplied by (B) the amount of such principal or involuntary liquidation value
payment by (ii) the sum of all such principal or involuntary liquidation value
payments.
"Board of Directors" means either the Board of Directors of the Company or
any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors (unless the context specifically requires that such resolution be
adopted by a majority of the Disinterested Directors, in which case by a
majority of such directors) and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means a day that, in the city (or in any of the cities, if
more than one) where amounts are payable in respect of the Securities, is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in, or interests (however designated) in, the equity of
such Person that is outstanding or issued on or after the date of Indenture,
including, without limitation, all Common Stock and Preferred Stock and
partnership and joint venture interests in such Person.
"Capitalized Lease" means, as applied to any Person, any lease of any
Property of which the discounted present value of the rental obligations of
such Person as lessee, in conformity with GAAP, is required to be capitalized
on the balance sheet of such Person, and "Capitalized Lease
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Obligation" means the rental obligations, as aforesaid, under such lease.
"Cash Equivalent" means any of the following: (i) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof), (ii) time deposits
and certificates of deposit of any commercial bank organized in the United
States having capital and surplus in excess of $500,000,000 or any commercial
bank organized under the laws of any other country having total assets in
excess of $500,000,000 with a maturity date not more than two years from the
date of acquisition, (iii) repurchase obligations with a term of not more than
30 days for underlying securities of the types described in clauses (i) or (v)
that were entered into with any bank meeting the qualifications set forth in
clause (ii) or another financial institution of national reputation, (iv)
direct obligations issued by any state or other jurisdiction of the United
States of America or any other country or any political subdivision or public
instrumentality thereof maturing, or subject to tender at the option of the
holder thereof, within 90 days after the date of acquisition thereof and, at
the time of acquisition, having a rating of A from S&P or A-2 from Xxxxx'x (or,
if at any time neither S&P nor Xxxxx'x may be rating such obligations, then
from another nationally recognized rating service acceptable to the Trustee),
(v) commercial paper issued by (a) the parent corporation of any commercial
bank organized in the United States having capital and surplus in excess of
$500,000,000 or any commercial bank organized under the laws of any other
country having total assets in excess of $500,000,000, and (b) others having
one of the two highest ratings obtainable from either S&P or Xxxxx'x (or, if at
any time neither S&P nor Xxxxx'x may be rating such obligations, then from
another nationally recognized rating service acceptable to the Trustee) and in
each case maturing within one year after the date of acquisition, (vi)
overnight bank deposits and bankers' acceptances at any commercial bank
organized in the United States having capital and surplus in excess of
$500,000,000 or any commercial bank organized under the laws of any other
country having total assets in excess of $500,000,000, (vii) deposits available
for withdrawal on demand with any commercial bank organized in the United
States having capital and surplus in excess of $500,000,000 or any commercial
bank organized under the laws of any other country having total assets in
excess of $500,000,000, (viii) investments in money market funds substantially
all of whose assets comprise securities of
-8-
the types described in clauses (i) through (vi) and (ix), and (ix) auction rate
securities or money market preferred stock having one of the two highest
ratings obtainable from either S&P or Xxxxx'x (or, if at any time neither S&P
nor Xxxxx'x may be rating such obligations, then from another nationally
recognized rating service acceptable to the Trustee).
"Certificated" means any Security which is not a Global Security.
"Change of Control" means the occurrence of one or more of the following
events:
(i) for so long as at least $25 million principal amount of the
Company's 5% Convertible Subordinated Debentures due July 1, 2000 remain
outstanding and are not defeased, (x) a report is filed on Schedule 13D or
14D-1 (or any successor schedule, form or report) pursuant to the Exchange
Act, disclosing that any person (for the purposes of this provision only,
as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act or any successor provision to either of the foregoing)
has become the beneficial owner (as the term "beneficial owner" is
defined under Rule 13d-3 or any successor rule or regulation promulgated
under the Exchange Act) of 50% or more of the then outstanding shares of
the Voting Stock of the Company and (y) such beneficial ownership is
acquired by means of a tender offer in which cash is the sole
consideration paid and the purchase price for each share tendered is less
than the conversion price then in effect under the Company's 5%
Convertible Subordinated Debentures due July 1, 2000; provided that a
person shall not be deemed to be the beneficial owner of, or to own
beneficially, any securities tendered until such tendered securities are
accepted for purchase under the tender offer;
(ii) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than Kiewit, is or becomes the beneficial
owner (as defined in clause (i) above), directly or indirectly, of more
than 35% of the total voting power of the Voting Stock of the Company (for
the purposes of this clause (ii), any person shall be deemed to
beneficially own any Voting Stock of any corporation (the "specified
corporation") held by any other corporation (the "parent corporation"), if
such person "beneficially owns" (as so defined), directly or indirectly,
more than 35% of the voting power of
-9-
the Voting Stock of such parent corporation) and Kiewit "beneficially
owns" (as so defined), directly or indirectly, in the aggregate a lesser
percentage of the voting power of the Voting Stock of the Company and does
not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the board of directors of
the Company;
(iii) during any one-year period, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together
with any new directors elected by such Board of Directors or nominated for
election by the shareholders of the Company by a vote of at least a
majority of the directors of the Company then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors then in office, unless
a majority of such new directors were elected or appointed by Kiewit; or
(iv) the Company or its Restricted Subsidiaries sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all the
Property of the Company and the Restricted Subsidiaries taken as a whole;
provided that with respect to the foregoing subparagraphs (ii), (iii) and (iv),
a Change of Control shall not be deemed to have occurred unless and until a
Rating Decline has occurred as well.
"Common Stock" means with respect to any Person, Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture and thereafter "Company" shall mean
such successor Person.
"Company Refinancing Debt" means Debt issued in exchange for, or the
proceeds of which are used to refinance (including to purchase), outstanding
Securities or other Debt of the Company Incurred pursuant to clauses (i), (iv),
and (vii) of Section 1008(b) and Debt Incurred
-10-
pursuant to Section 1008(a) in an amount (or, if such new Debt provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, with an original issue price) not to
exceed the amount so exchanged or refinanced (plus accrued interest and all
fees, premiums (in excess of the accreted value) and expenses related to such
exchange or refinancing), for which purpose the amount so exchanged or
refinanced shall be deemed to equal the lesser of (x) the principal amount of
the Debt so exchanged or refinanced and (y) if the Debt being exchanged or
refinanced was issued with an original issue discount, the accreted value
thereof (as determined in accordance with GAAP) at the time of such exchange or
refinancing, provided that (A) such Debt shall be subordinated in right of
payment to the Securities at least to the same extent, if any, as the Debt so
exchanged or refinanced is subordinated to the Securities, (B) such Debt shall
be Non-Recourse if the Debt so exchanged or refinanced is Non-Recourse, (C)
the Average Life of the new Debt shall be equal to or greater than the Average
Life of the Debt to be exchanged or refinanced and (D) the final Stated
Maturity of the new Debt shall not be sooner than the earlier of the final
Stated Maturity of the Debt to be exchanged or refinanced or six months after
the final Stated Maturity of the Securities, provided that if such new Debt
refinances the Securities in part only, the final Stated Maturity of such new
Debt must be at least six months after the final Stated Maturity of the
Securities.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated EBITDA" of any Person for any period means the Adjusted
Consolidated Net Income of such Person, plus, only to the extent deducted in
computing Adjusted Consolidated Net Income and without duplication, (i) income
taxes, excluding income taxes (either positive or negative) attributable to
extraordinary and non-recurring gains or losses or Asset Sales, all determined
on a consolidated basis for such Person and its consolidated Subsidiaries in
accordance with GAAP, (ii) Consolidated Fixed Charges, (iii) depreciation and
amortization expense, all determined on a consolidated basis for such Person
and its consolidated Subsidiaries in accordance with GAAP and (iv) all other
non-cash items reducing Adjusted Consolidated Net Income for such period, all
determined on a consolidated basis for such Person and
-11-
its consolidated Subsidiaries in accordance with GAAP, and less all
non-cash items increasing Adjusted Consolidated Net Income during such period,
provided that depreciation and amortization expense of any Subsidiary of such
Person and any other non-cash item of any Subsidiary of such Person that
reduces Adjusted Consolidated Net Income shall be excluded (without
duplication) in computing Consolidated EBITDA, except to the extent that the
positive cash flow associated with such depreciation and amortization expense
and other non-cash items is actually distributed in cash to such Person during
such period, provided further that as applied to the Company, cash in respect
of depreciation and amortization and other non-cash items of Restricted
Subsidiaries and Eligible Joint Ventures may be deemed to have been distributed
or paid to the Company to the extent that such cash (I) is or was under the
exclusive dominion and control of such Restricted Subsidiary or such Eligible
Joint Venture and is free and clear of the Lien of any other Person, (II) is
immediately available for distribution and (III) could be or could have been
repatriated to the United States by means that are both lawful and commercially
reasonable, provided that the amount of the cash deemed by this sentence to
have been distributed or paid shall be reduced by the amount of tax that would
have been payable with respect to the repatriation thereof, provided further
that any cash that enables the recognition of depreciation and amortization and
other non-cash items pursuant to this sentence may not be used to enable the
recognition of depreciation and amortization and other non-cash items with
respect to any prior or subsequent period, regardless of whether such cash is
distributed to the Company, and provided further that the recognition of any
depreciation and amortization and other non-cash items as a result of this
sentence shall be determined in good faith by the Chief Financial Officer, as
evidenced by an Officers' Certificate that shall set forth in reasonable detail
the relevant facts and assumptions supporting such recognition. When the
"Person" referred to above is the Company, the foregoing references to
"Subsidiaries" shall be deemed to refer to "Restricted Subsidiaries."
"Consolidated Fixed Charges" of any Person means, for any period, the
aggregate of (i) Consolidated Interest Expense, (ii) the interest component of
Capitalized Leases, determined on a consolidated basis for such Person and its
consolidated Subsidiaries in accordance with GAAP, excluding any interest
component of Capitalized Leases in respect of that portion of a Capitalized
Lease Obligation of a Subsidiary that is Non-Recourse to such Person, and (iii)
cash and non-cash dividends due (whether or not declared) on the Preferred
Stock of any
-12-
Subsidiary of such Person held by any Person other than such Person and any
Redeemable Stock of such Person or any Subsidiary of such Person. When the
"Person" referred to above is the Company, the foregoing references to
"Subsidiaries" shall be deemed to refer to "Restricted Subsidiaries."
"Consolidated Interest Expense" of any Person means, for any period, the
aggregate interest expense in respect of Debt (including amortization of
original issue discount and non-cash interest payments or accruals) of such
Person and its consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP, including all commissions, discounts, other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing and net costs associated with Interest Rate Protection Agreements and
Currency Protection Agreements and any amounts paid during such period in
respect of such interest expense, commissions, discounts, other fees and
charges that have been capitalized, provided that Consolidated Interest Expense
of the Company shall not include any interest expense (including all
commissions, discounts, other fees and charges owed with respect to letters of
credit and bankers' acceptance financing and net costs associated with Interest
Rate Protection Agreements or Currency Protection Agreements) in respect of
that portion of any Debt that is Non-Recourse, and pr ovided further that
Consolidated Interest Expense of the Company in respect of a Guarantee by the
Company of Debt of another Person shall be equal to the commissions, discounts,
other fees and charges that would be due with respect to a hypothetical letter
of credit issued under a bank credit agreement that can be drawn by the
beneficiary thereof in the amount of the Debt so guaranteed if (i) the Company
is not actually making directly or indirectly interest payments on such Debt
and (ii) GAAP does not require the Company on an unconsolidated basis to record
such Debt as a liability of the Company. When the "Person" referred to above is
the Company, the foregoing references to "Subsidiaries" shall be deemed to
refer to "Restricted Subsidiaries."
"Construction Financing" means the debt and/or equity financing provided
(over and above the owners' equity investment) to permit the acquisition,
development, design, engineering, procurement, construction and equipping of a
Permitted Facility and to enable it to commence commercial operations, provided
that Construction Financing may remain outstanding after the commence ment of
commercial operations of a Permitted Facility, without any increase in the
amount of such financing, and
-13-
such Construction Financing shall not cease to be Construction Financing.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which address as of the date of this Indenture is located at Xxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency Protection Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement
or arrangement intended to protect such Person against fluctuations in currency
values to or under which such Person is a party or a beneficiary on the date of
this Indenture or becomes a party or a beneficiary thereafter.
"Debt" means, with respect to any Person, at any date of determination
(without duplication), (i) all indebtedness of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person in respect of
letters of credit, bankers' acceptances, surety, bid, operating and performance
bonds, performance guarantees or other similar instruments or obligations (or
reimbursement obligations with respect thereto) (except, in each case, to the
extent incurred in the ordinary course of business), (iv) all obligations of
such Person to pay the deferred purchase price of property or services, except
Trade Payables, (v) the Attributable Value of all obligations of such Person as
lessee under Capitalized Leases, (vi) all Debt of others secured by a Lien on
any Property of such Person, whether or not such Debt is assumed by such
Person, provided that, for purposes of determining the amount of any Debt of
the type described in this clause, if recourse with respect to such Debt is
limited to such Property, the amount of such Debt shall be limited to the
lesser of the fair market value of such Property or the amount of such Debt,
(vii) all Debt of others Guaranteed by such Person to the extent such Debt is
Guaranteed by such Person, (viii) all Redeemable Stock valued at the greater of
its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends and (ix) to the extent not otherwise included in this definition, all
net obligations of such Person under Currency Protection Agreements and
Interest Rate Protection Agreements.
For purposes of determining any particular amount of Debt that is or
would be outstanding, Guarantees of, or obligations with respect to letters of
credit or similar instruments supporting (to the extent the foregoing
-00-
xxxxxxxxxxx Xxxx), Xxxx other wise included in the determination of such
particular amount shall not be included. For purposes of determining compliance
with this Indenture, in the event that an item of Debt meets the criteria of
more than one of the types of Debt described in the above clauses, the Company,
in its sole discretion, shall classify such item of Debt and only be required
to include the amount and type of such Debt in one of such clauses.
"Default" means any event that is, or after notice or passage of time, or
both, would be, an Event of Default.
"Default Amount" means the principal amount plus accrued interest.
"Depositary" means the Person designated as Depositary by the Company
pursuant to Section 201(a) until a successor depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder. For purposes of this Indenture, unless otherwise specified pursuant
to Section 201(a), any such Depositary shall, at the time of its designation
and at all times during which it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
"Disinterested Director" means, with respect to any proposed transaction
between the Company, a Restricted Subsidiary of the Company or an Eligible
Joint Venture, as applicable, and an Affiliate thereof, a member of the Board
of Directors who would not be a party to, or have a financial interest in, such
transaction and is not an officer, director or employee of, and does not have
a financial interest in, such Affiliate. For purposes of this definition, no
person would be deemed not to be a Disinterested Director solely because such
person holds Capital Stock of the Company.
"Eligible Joint Venture" means a Joint Venture (other than a Subsidiary)
(i) that is or shall be formed with respect to the construction, development,
acquisition, servicing, ownership, operation or management of one or more
Permitted Facilities and (ii) in which the Company and Kiewit together,
directly or indirectly, own at least 50% of the Capital Stock therein (of
which the Company must own at least half (in any event not less than 25% of the
total outstanding Capital Stock)) and (iii) in respect of which the Company
alone or in combi-
-15-
nation with Kiewit, directly or indirectly, (a) controls, by voting power,
board or management committee membership, or through the provisions of any
applicable partnership, shareholder or other similar agreement or under an
operating, maintenance or management agreement or otherwise, the management and
operation of the Joint Venture or any Permitted Facilities of the Joint Venture
or (b) otherwise has significant influence over the management or operation of
the Joint Venture or any Permitted Facility of the Joint Venture in all
material respects (significant influence includes, without limitation, the
right to control or veto any material act or decision) in connection with such
management or operation. Any Joint Venture that is an Eligible Joint Venture
pursuant to this definition because of the ownership of Capital Stock therein
by Kiewit shall cease to be an Eligible Joint Venture if (x) Kiewit disposes of
any securities issued by the Company and, as a result of such disposition,
Kiewit becomes the beneficial owner (as such term is defined under Rule 13d-3
or any successor rule or regulation promulgated under the Exchange Act) of
less than 25% of the outstanding shares of Voting Stock of the Company or (y)
(I) as a result of any action other than a disposition of securities by Kiewit,
Kiewit becomes the beneficial owner of less than 25% of the outstanding shares
of Voting Stock of the Company and (II) thereafter Kiewit disposes of any
securities issued by the Company as a result of which the beneficial ownership
by Kiewit of the outstanding Voting Stock of the Company is further reduced,
provided that thereafter such Joint Venture may become an Eligible Joint
Venture if Kiewit becomes the beneficial owner of at least 25% of the
outstanding shares of Voting Stock of the Company and the other conditions set
forth in this definition are fulfilled.
"Exchange Act" refers to the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Offer Registration Statement" has the meaning given to that term
in the Registration Rights Agreement.
"Exchange Securities" means the 9 1/2% Senior Notes due 2006 to be issued
pursuant to this Indenture in connection with a Registered Exchange Offer
pursuant to the Registration Rights Agreement.
"Fixed Charge Ratio" means the ratio, on a pro forma basis, of (i) the
aggregate amount of Consolidated EBITDA of any Person for the Reference Period
immediately prior to the date of the transaction giving rise to the need to
-16-
calculate the Fixed Charge Ratio (the "Transaction Date") to (ii) the aggregate
Consolidated Fixed Charges of such Person during such Reference Period,
provided that for purposes of such computation, in calculating Consolidated
EBITDA and Consolidated Fixed Charges, (1) the Incurrence of the Debt giving
rise to the need to calculate the Fixed Charge Ratio and the application of the
proceeds therefrom (including the retirement or defeasance of Debt) shall be
assumed to have occurred on the first day of the Reference Period, (2) Asset
Sales and Asset Acquisitions that occur during the Reference Period or
subsequent to the Reference Period and prior to the Transaction Date (but
including any Asset Acquisition to be made with the Debt Incurred pursuant to
(1) above) and any related retirement of Debt pursuant to an Offer to Purchase
(in the amount of the Excess Proceeds with respect to which such Offer to
Purchase has been made or would be made on the Transaction Date if the
purchase of Securities pursuant to such Offer to Purchase has not occurred on
or before the Transaction Date) shall be assumed to have occurred on the first
day of the Reference Period, (3) the Incurrence of any Debt during the
Reference Period or subsequent to the Reference Period and prior to the
Transaction Date and the application of the proceeds therefrom (including the
retirement or defeasance of other Debt) shall be assumed to have occurred on
the first day of such Reference Period, (4) Consolidated Interest Expense
attributable to any Debt (whether existing or being Incurred) computed on a pro
forma basis and bearing a floating interest rate shall be computed as if the
rate in effect on the date of computation had been the applicable rate for the
entire period unless the obligor on such Debt is a party to an Interest Rate
Protection Agreement (that shall remain in effect for the twelve month period
after the Transaction Date) that has the effect of fixing the interest rate on
the date of computation, in which case such rate (whether higher or lower)
shall be used and (5) there shall be excluded from Consolidated Fixed Charges
any Consolidated Fixed Charges related to any amount of Debt that was
outstanding during or subsequent to the Reference Period but is not outstanding
on the Transaction Date, except for Consolidated Fixed Charges actually
incurred with respect to Debt borrowed (as adjusted pursuant to clause (4)) (x)
under a revolving credit or similar arrangement to the extent the commitment
thereunder remains in effect on the Transaction Date or (y) pursuant to the
provision described in clause (iii) of Section 1008(b). For the purpose of
making this computation, Asset Sales and Asset Acquisitions that have been made
by any Person that has become a Restricted Subsidiary of the Company or an
Eligible Joint Venture or been merged with or into the Company or any
-17-
Restricted Subsidiary of the Company or an Eligible Joint Venture during the
Reference Period, or subsequent to the Reference Period and prior to the
Transaction Date shall be calculated on a pro forma basis, as shall be all the
transactions contemplated by the calculations referred to in clauses (1)
through (5) above with respect to the Persons or businesses that were the
subject of such Asset Sales and Asset Acquisitions, assuming such Asset Sales
or Asset Acquisitions occurred on the first day of the Reference Period.
"Foreign Asset Disposition" means an Asset Disposition in respect of the
Capital Stock or Property of a Restricted Subsidiary of the Company or an
Eligible Joint Venture to the extent that the proceeds of such Asset
Disposition are received by a Person subject in respect of such proceeds to the
tax laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the U.S. as in
effect as of the date of this Indenture, applied on a basis consistent with the
principles, methods, procedures and practices employed in the preparation of
the Company's audited financial statements, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession.
"Global Security" means a Security evidencing all or a part of the
Securities, issued in the name of the nominee of the Depositary, or pursuant to
the Depositary's instruction, in accordance with Section 201(a) and bearing the
legend for such Securities prescribed in Section 206(d).
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt of any other Person and, without
limiting the generality of the foregoing, any Debt obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt of such other
Person (whether arising by virtue of partnership arrangements (other than
solely by reason of being a general partner of a partnership), or by agreement
to keep-well, to purchase assets, goods, securities or services, or to
take-or-pay, or to maintain financial statement condi-
-18-
tions or otherwise) or (ii) entered into for purposes of assuring in any other
manner the obligee of such Debt of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part), provided that
the term "Guarantee" shall not include endorsements for collection or deposit
in the ordinary course of business or the grant of a Lien in connection with
any Non-Recourse Debt. The term "Guarantee" used as a verb has a corresponding
meaning.
"Holder," "holder of Securities," "Securityholder" and other similar terms
are defined to mean the registered holder of any Security.
"Illiquidity Event" has the meaning given to that term in the Registration
Rights Agreement.
"Incur" means with respect to any Debt, to incur, create, issue, assume,
Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Debt, provided
that neither the accrual of interest (whether such interest is payable in cash
or kind) nor the accretion of original issue discount shall be considered an
Incurrence of Debt. The term "Incurrence" has a corresponding meaning.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including,
for all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture, respectively.
"Initial Purchaser" means CS First Boston Corporation.
"Initial Securities" means the 9 1/2% Senior Notes due 2006 issued under
this Indenture on the Issue Date.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Protection Agreement" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement,
interest rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement
-19-
or arrangement intended to protect such Person against fluctuations in interest
rates to or under which such Person or any of its Subsidiaries is a party or a
beneficiary on the date of this Indenture or becomes a party or a beneficiary
thereafter.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Initial Shelf Registration Statement" has the meaning given to that term
in the Registration Rights Agreement.
"Investment" in a Person means any investment in, loan or advance to,
Guarantee on behalf of, directly or indirectly, or other transfer of assets to
such Person (other than sales of products and services in the ordinary course
of business).
"Investment Grade" means with respect to the Securities, (i) in the case
of S&P, a rating of at least BBB-, (ii) in the case of Moody's, a rating of
at least Baa3, and (iii) in the case of a Rating Agency other than S&P or
Moody's, the equivalent rating, or in each case, any successor, replacement or
equivalent definition as promulgated by S&P, Moody's or other Rating Agency as
the case may be.
"Issue Date" means the date on which the Securities are first
authenticated and delivered under the Indenture.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form.
"Kiewit" means and includes Xxxxxx Energy Company and any other Subsidiary
of Xxxxx Xxxxxx Sons', Inc., Xxxxxx Construction Group Inc. or Kiewit
Diversified Group, Inc.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property, but shall not include any partnership, joint venture, shareholder,
voting trust or other similar governance agreement with respect to Capital
Stock in a Subsidiary or Joint Venture. For purposes of this Indenture, the
Company shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale
-20-
agreement, capital lease or other title retention agreement
relating to such Property.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Cash Proceeds" from an Asset Disposition means cash payments received
(including any cash payments received by way of a payment of principal pursuant
to a note or installment receivable or otherwise, but only as and when received
(including any cash received upon sale or disposition of any such note or
receivable), excluding any other consideration received in the form of
assumption by the acquiring Person of Debt or other obligations relating to the
Property disposed of in such Asset Disposition or received in any form other
than cash) therefrom, in each case, net of (i) all legal, title and recording
tax expenses, commissions and other fees and expenses of any kind (including
consent and waiver fees and any applicable premiums, earn-out or working
interest payments or payments in lieu or in termination thereof) incurred, (ii)
all federal, state, provincial, foreign and local taxes and other governmental
charges required to be accrued as a liability under GAAP (a) as a consequence
of such Asset Disposition, (b) as a result of the repayment of any Debt in any
jurisdiction other than the jurisdiction where the Property disposed of was
located or (c) as a result of any repatriation of any proceeds of such Asset
Disposition, (iii) a reasonable reserve for the after-tax cost of any
indemnification payments (fixed and contingent) attributable to seller's
indemnities to the purchaser undertaken by the Company, any of its Restricted
Subsidiaries or any Eligible Joint Venture in connection with such Asset
Disposition (but excluding any payments that by the terms of the indemnities
shall not, under any circumstances, be made during the term of the Securities),
(iv) all payments made on any Debt that is secured by such Property, in
accordance with the terms of any Lien upon or with respect to such Property, or
that must by its terms or by applicable law or in order to obtain a required
consent or waiver be repaid out of the proceeds from or in connection with such
Asset Disposition, and (v) all distributions and other payments made to holders
of Capital Stock of Restricted Subsidiaries or Eligible Joint Ventures (other
than the Company or its Restricted Subsidiaries) as a result of such Asset
Disposition.
"Net Income" of any Person for any period means the net income (loss)
of such Person for such period, determined in accordance with GAAP, except that
extraordinary and non-recurring gains and losses as determined in accordance
with GAAP shall be excluded.
-21-
"Net Worth" of any Person is defined to mean, as of any date, the
aggregate of capital, surplus and retained earnings (including any cumulative
currency translation adjustment) of such Person and its consolidated
Subsidiaries as would be shown on a consolidated balance sheet of such Person
and its consolidated Subsidiaries prepared as of such date in accordance with
GAAP. When the "Person" referred to above is the Company, the foregoing
references to "Subsidiaries" shall be deemed to refer to "Restricted
Subsidiaries."
"Non-Recourse", as applied to any Debt or any sale-leaseback, means any
project financing that is or was Incurred with respect to the development,
acquisition, design, engineering, procurement, construction, operation,
ownership, servicing or management of one or more Permitted Facilities in
respect of which the Company or one or more Restricted Subsidiaries or Eligible
Joint Ventures has a direct or indirect interest, provided that such financing
is without recourse to the Company, any Restricted Subsidiary or any Eligible
Joint Venture other than any Restricted Subsidiary or any Eligible Joint
Venture that does not own any Property other than one or more of such Permitted
Facilities or a direct or indirect interest therein, provided further that such
financing may be secured by a Lien on only (i) the Property that constitutes
such Permitted Facilities, (ii) the income from and proceeds of such Permitted
Facility, (iii) the Capital Stock of, and other Investments in, any Restricted
Subsidiary or Eligible Joint Venture that owns the Property that constitutes
any such Permitted Facility and (iv) the Capital Stock of, and other
Investments in, any Restricted Subsidiary or Eligible Joint Venture obligated
with respect to such financing and of any Subsidiary or Joint Venture (that is
a Restricted Subsidiary or an Eligible Joint Venture) of such Person that owns
a direct or indirect interest in any such Permitted Facility, and provided
further that an increase in the amount of Debt with respect to one or more
Permitted Facilities pursuant to the financing provided pursuant to the terms
of this definition (except for the first refinancing of Construction Financing)
may not be Incurred to fund or enable the funding of any dividend or other
distribution in respect of Capital Stock. The fact that a portion of financing
with respect to a Permitted Facility is not Non-Recourse shall not prevent
other portions of the financing with respect to such Permitted Facility from
constituting Non-Recourse Debt if the foregoing requirements of this definition
are fulfilled with respect to such other portions.
-22-
"Offer to Purchase" means, as appropriate, a Change of Control Offer
pursuant to Section 1013 or an Excess Proceeds Offer pursuant to Section 1015.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, the President or any Vice President and by the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Controller, the
Assistant Controller, the Secretary or any Assistant Secretary of the Company
and delivered to the Trustee. Each such certificate will comply with Section
314 of the Trust Indenture Act and include the statements provided for in this
Indenture if and to the extent required thereby.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Company or who may be other counsel
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of
the Trust Indenture Act and include the statements provided for in this
Indenture, if and to the extent required thereby.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities that have come due or that are to be called for
redemption, for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other
than the Company or a Restricted Subsidiary) in trust for the Holders of
such Securities; provided that if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture
or provision for giving such notice within 10 days of such date of
determination, satisfactory to the Trustee, has been made;
(iii) Securities that have been paid pursuant to Section 207 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide pur-
-23-
chaser in whose hands such Securities are valid obligations of the
Company; and
(iv) Securities as to which Defeasance has been effected pursuant to
Section 1202;
provided that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given, made or taken any request,
demand, authorization, direction, notice, consent, waiver or other action
hereunder as of any date, Securities owned by the Company or any other obligor
upon the Securities or any Affiliate or Restricted Subsidiary of the Company or
of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent,
waiver or other action, only Securities which the Trustee knows to be so owned
shall be so disregarded, Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Restricted Subsidiary of the Company or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Facility" means (i) an electric power or thermal energy
generation or cogeneration facility or related facilities (including residual
waste management and facilities that use thermal energy from a cogeneration
facility), and its or their related electric power transmission, fuel supply
and fuel transportation facilities, together with its or their related power
supply, thermal energy and fuel contracts and other facilities, services or
goods that are ancillary, incidental, necessary or reasonably related to the
marketing, development, construction, management, servicing, ownership or
operation of the foregoing, owned by a utility or otherwise, as well as other
contractual arrangements with customers, suppliers and contractors or (ii) any
infrastructure facilities related to (A) the treatment of water for municipal
and other uses, (B) the treatment and/or management of waste water, (C) the
treatment, management and/or remediation of waste, pollution and/or potential
pollutants and (D) any other process or environmental purpose.
-24-
"Permitted Facilities Debt" means any Debt that is or was Incurred with
respect to the direct or indirect development, acquisition, design,
engineering, procurement, construction, operation, ownership, servicing or
management of one or more Permitted Facilities (x) currently in development by
the Company (directly or indirectly) or which are hereafter acquired or
developed by the Company (directly or indirectly) and (y) in which the Company
or one or more Restricted Subsidiaries or Eligible Joint Ventures has a direct
or indirect interest.
"Permitted Funding Company Loans" means (a) Debt of a Restricted
Subsidiary, all the Capital Stock of which is owned, directly or indirectly by
the Company and that (x) does not own any direct or indirect interest in a
Permitted Facility and (y) is not directly or indirectly obligated on any Debt
owed to any Person other than the Company, a Restricted Subsidiary or an
Eligible Joint Venture (a "Funding Company"), owed to a Restricted Subsidiary
or an Eligible Joint Venture that is not directly or indirectly obligated on
any Debt owed to any Person other than the Company, a Restricted Subsidiary or
an Eligible Joint Venture (a "Holding Company"), provided that such Debt (i)
does not require that interest be paid in cash at any time sooner than six
months after the final Stated Maturity of the Securities, (ii) does not require
any payment of principal at any time sooner than six months after the final
Stated Maturity of the Securities, (iii) is subordinated in right of payment to
all other Debt of such Restricted Subsidiary other than Debt Incurred pursuant
to clause (vii) of Section 1009(b), all of which shall be pari passu and (iv)
is evidenced by a subordinated note in the form attached to the Indenture as
Exhibit A and that shall not contain or be governed by any contractual
provisions other than those set forth in Exhibit A, and (b) Debt of a Holding
Company to a Funding Company.
"Permitted Investment" means any Investment that is made directly or
indirectly by the Company and its Restricted Subsidiaries in (i) a Restricted
Subsidiary or Eligible Joint Venture (excluding for the purpose of this clause
(i) any Construction Financing) that, directly or indirectly, is or shall be
engaged in the construction, development, acquisition, operation, servicing,
ownership or management of a Permitted Facility or in any other Person as a
result of which such other Person becomes such a Restricted Subsidiary or an
Eligible Joint Venture, provided that at the time that any of the foregoing
Investments is proposed to be made, no Event of Default or event that, after
giving notice or lapse of time or both, would become an Event of Default, shall
have oc-
-25-
curred and be continuing, (ii) Construction Financing provided by the Company
(A) to any of its Restricted Subsidiaries (other than an Eligible Joint
Venture) up to 100% of the Construction Financing required by such Restricted
Subsidiary and (B) to any Eligible Joint Venture a portion of the Construction
Financing required by such Eligible Joint Venture that does not exceed the
ratio of the Capital Stock in such Eligible Joint Venture that is owned
directly or indirectly by the Company to the total amount of the Capital Stock
in such Eligible Joint Venture that is owned directly and indirectly by the
Company and Kiewit together (provided that the Company may provide such
Construction Financing to such Eligible Joint Venture only if Kiewit provides
the balance of such Construction Financing or otherwise causes it to be
provided), if, in either case, (x) the aggregate proceeds of all the
Construction Financing provided is not more than 85% of the sum of the
aggregate proceeds of such Construction Financing and the aggregate owners'
equity investment in such Restricted Subsidiary or such Eligible Joint Venture,
as the case may be, (y) the Company receives a pledge or assignment of all the
Capital Stock of such Restricted Subsidiary or such Eligible Joint Venture, as
the case may be, that is owned by non-governmental Person (other than the
Company, its Subsidiaries or the Eligible Joint Ventures) that is permitted to
be pledged for such purpose under applicable law and (z) neither the Company
nor Kiewit reduces its beneficial ownership in such Restricted Subsidiary or
such Eligible Joint Venture, as the case may be, prior to the repayment in full
of the Company's portion of the Construction Financing, (iii) any Cash
Equivalents, (iv) prepaid expenses, negotiable instruments held for collection
and lease, utility and workers' compensation, performance and other similar
deposits in the ordinary course of business consistent with past practice, (v)
loans and advances to employees made in the ordinary course of business and
consistent with past practice, (vi) Debt incurred pursuant to Currency
Protection Agreements and Interest Rate Protection Agreements as otherwise
permitted by this Indenture, (vii) bonds, notes, debentures or other debt
securities and instruments received as a result of Asset Dispositions to the
extent permitted by Sections 1015 and 1021, (viii) any Lien permitted under
Section 1012 and (ix) bank deposits and other Investments (to the extent they
do not constitute Cash Equivalents) required by lenders in connection with any
Non-Recourse Debt, provided that the President or the Chief Financial Officer
of the Company determines in good faith, as evidenced by an Officers'
Certificate, that such bank deposits or Investments are required to effect such
financings and are not materially more restrictive, taken as a whole, than
-26-
comparable requirements, if any, in comparable financings in the applicable
jurisdiction or (x) any Person to the extent made with Capital Stock (other
than Redeemable Stock) of the Company (whether by way of purchase, merger,
consolidation or otherwise) to the extent permitted under Section 1021.
"Permitted Joint Venture" means a Joint Venture (i) that is or shall be
formed with respect to the construction, development, acquisition, servicing,
ownership, operation or management of one or more Permitted Facilities and (ii)
in which (A) the Company or (B) the Company and Kiewit together, directly or
indirectly, own at least 70% of the Capital Stock therein (of which the Company
must own at least half (in any event not less than 35% of the total outstanding
Capital Stock)), provided that if applicable non-U.S. law restricts the amount
of Capital Stock that the Company may own, the Company must own at least 70% of
the amount of Capital Stock that it may own pursuant to such law, which in any
event must be not less than 35% of the total outstanding Capital Stock therein
and (iii) in respect of which the Company alone or in combination with Kiewit,
directly or indirectly, (a) controls, by voting power, board or management
committee membership, or through the provisions of any applicable partnership,
shareholder or other similar agreement or under an operating, maintenance or
management agreement or otherwise, the management and operation of the Joint
Venture or any Permitted Facilities of the Joint Venture or (b) otherwise has
significant influence over the management or operation of the Joint Venture
or any Permitted Facility of the Joint Venture in all material respects
(significant influence includes, without limitation, the right to control or
veto any material act or decision) in connection with such management or
operation. Any Joint Venture that is a Permitted Joint Venture pursuant to this
definition because of the ownership of Capital Stock therein by Kiewit shall
cease to be a Permitted Joint Venture if (x) Kiewit disposes of any securities
issued by the Company and, as a result of such disposition, Kiewit becomes the
beneficial owner (as such term is defined under Rule 13d-3 or any successor rule
or regulation promulgated under the Exchange Act) of less than 25% of the
outstanding shares of Voting Stock of the Company or (y) (I) as a result of any
action other than a disposition of securities by Kiewit, Kiewit becomes the
beneficial owner of less than 25% of the outstanding shares of Voting Stock of
the Company and (II) thereafter Kiewit disposes of any securities issued by the
Company as a result of which the beneficial ownership by Kiewit of the
outstanding Voting Stock of the Company is further reduced, provided that
thereafter such Joint Venture may
-27-
become a Permitted Joint Venture if Kiewit becomes the beneficial owner of at
least 25% of the outstanding shares of the Voting Stock of the Company and the
other conditions set forth in this definition are fulfilled.
"Permitted Payments" means, with respect to the Company, any of its
Restricted Subsidiaries or any Eligible Joint Venture, (i) any dividend on
shares of Capital Stock of the Company payable (or to the extent paid) solely
in Capital Stock (other than Redeemable Stock) or in options, warrants or other
rights to purchase Capital Stock (other than Redeemable Stock) of the Company
and any distribution of Capital Stock (other than Redeemable Capital Stock) of
the Company in respect of the exercise of any right to convert or exchange any
instrument (whether Debt or equity and including Redeemable Capital Stock) into
Capital Stock (other than Redeemable Capital Stock) of the Company, (ii) the
purchase or other acquisition or retirement for value of any shares of the
Company's Capital Stock, or any option, warrant or other right to purchase
shares of the Company's Capital Stock with additional shares of, or out of the
proceeds of a substantially contemporaneous issuance of, Capital Stock other
than Redeemable Stock, (iii) any defeasance, redemption, purchase or other
acquisition for value of any Debt that by its terms ranks subordinate in right
of payment to the Securities with the proceeds from the issuance of (x) Debt
that is subordinate to the Securities at least to the extent and in the manner
as the Debt to be defeased, redeemed, purchased or otherwise acquired is
subordinate in right of payment to the Securities, provided that such
subordinated Debt provides for no mandatory payments of principal by way of
sinking fund, mandatory redemption or otherwise (including defeasance) by the
Company (including, without limitation, at the option of the holder thereof
other than an option given to a holder pursuant to a "change of control" or an
"asset disposition" covenant that is no more favorable to the holders of such
Debt than comparable covenants for the Debt being defeased, redeemed, purchased
or acquired or, if none, Sections 1013 and 1015 and such Debt is not in an
amount (net of any original issue discount) greater than, any Stated Maturity
of the Debt being replaced and the proceeds of such subordinated Debt are
utilized for such purpose within 45 days of issuance or (y) Capital Stock
(other than Redeemable Stock), (iv) Restricted Payments in an amount not to
exceed $75 million in the aggregate provided that no payment may be made
pursuant to this clause (iv) if an Event of Default, or an event that, after
giving notice or lapse of time or both, would become an Event of Default, has
occurred and is continuing, (v) any payment or Investment required by
applicable
-28-
law in order to conduct business operations in the ordinary course, (vi) a
Permitted Investment and (vii) Investments in Unrestricted Subsidiaries and
other Persons that are not Restricted Subsidiaries or Eligible Joint Ventures
in an amount not to exceed $100 million in the aggregate, provided that no
payment or Investment may be made pursuant to this clause (vii) if an Event of
Default, or an event that, after giving notice or lapse of time or both, would
become an Event of Default, has occurred and is continuing. Notwithstanding the
foregoing, the amount of Investments that may be made pursuant to clauses (iv)
and (vii), as the case may be, may be increased by the net reduction in
Investments of the type made previously pursuant to clauses (iv) and (vii), as
the case may be, that result from payments of interest on Debt, dividends, or
repayment of loans or advances, the proceeds of the sale or disposition of the
Investment or other return of the amount of the original Investment to the
Company, the Restricted Subsidiary or the Eligible Joint Venture that made the
original Investment from the Person in which such Investment was made or any
distribution or payment of such Investment to the extent that such distribution
or payment constituted either a Restricted Payment or a Permitted Payment,
provided that (x) the aggregate amount of such payments shall not exceed the
amount of the original Investment by the Company, such Restricted Subsidiary
or Eligible Joint Venture that reduced the amount available pursuant to clause
(iv) or clause (vii), as the case may be, for making Restricted Payments and
(y) such payments may be added pursuant to this proviso only to the extent such
payments are not included in the calculation of Adjusted Consolidated Net
Income.
"Permitted Working Capital Facilities" means one or more loan or credit
agreements providing for the extension of credit to the Company for the
Company's working capital purposes, which credit agreements shall be ranked
pari passu with or subordinate to the Securities in right of payment and may be
secured or unsecured.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 207 in exchange for or in lieu of a
mutilated, destroyed, lost
-29-
or stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) or preferred or preference stock of such Person that is
outstanding or issued on or after the Issue Date of the Securities.
"Private Exchange" means the offer by the Company, pursuant to the
Registration Rights Agreement, to the Initial Purchaser to issue and deliver to
the Initial Purchaser, in exchange for the Initial Securities held by the
Initial Purchaser as part of its initial distribution, a like aggregate
principal amount of Private Exchange Securities.
"Private Exchange Securities" means the 9 1/2% Senior Notes due 2006 to be
issued pursuant to this Indenture in connection with a Private Exchange
effected pursuant to the Registration Rights Agreement.
"Property" of any Person means all types of real, personal, tangible or
mixed property owned by such Person whether or not included in the most recent
consolidated balance sheet of such Person under GAAP.
"Purchase Date" means, as appropriate, the Change of Control Purchase Date
under Section 1013 or the Excess Proceeds Purchase Date under Section 1015.
"Purchase Money Debt" means Debt representing, or Incurred to finance, the
cost of acquiring any Property, provided that (i) any Lien securing such Debt
does not extend to or cover any other Property other than the Property being
acquired and (ii) such Debt is incurred, and any Lien with respect thereto is
granted, within 18 months of the acquisition of such Property.
"Rating Agencies" means (i) S&P and (ii) Xxxxx'x or (iii) if S&P or
Xxxxx'x or both do not make a rating of the Securities publicly available, a
nationally recognized securities rating agency or agencies, as the case may be,
selected by the Company, which shall be substituted for S&P, Xxxxx'x or both,
as the case may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories), (ii)
with respect to Xxxxx'x, any of the following categories: Xx, X, Xxx,
-00-
Xx, X and D (or equivalent successor categories) and (iii) the equivalent of
any such category of S&P or Xxxxx'x used by another Rating Agency. In
determining whether the rating of the Securities has decreased by one or more
gradations, gradations within Rating Categories (+ and - for S&P, 1, 2 and 3
for Xxxxx'x or the equivalent gradations for another Rating Agency) shall be
taken into account (e.g., with respect to S&P, a decline in a rating from BB+
to BB, as well as from BB- to B+, shall constitute a decrease of one
gradation).
"Rating Decline" means the occurrence of the following on, or within 90
days after, the earlier of (i) the occurrence of a Change of Control and (ii)
the date of public notice of the occurrence of a Change of Control or of the
public notice of the intention of the Company to effect a Change of Control
(the "Rating Date") which period shall be extended so long as the rating of the
Securities is under publicly announced consideration for possible downgrading
by any of the Rating Agencies): (a) in the event that the Securities are rated
by either Rating Agency on the Rating Date as Investment Grade, the rating of
the Securities by both such Rating Agencies shall be reduced below Investment
Grade, or (b) in the event the Securities are rated below Investment Grade by
both such Rating Agencies on the Rating Date, the rating of the Securities by
either Rating Agency shall be decreased by one or more gradations (including
gradations within Rating Categories as well as between Rating Categories).
"Redeemable Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Securities, (ii) redeemable at the option of the
holder of such class or series of Capital Stock at any time prior to the Stated
Maturity of the Securities or (iii) convertible into or exchangeable for
Capital Stock referred to in clause (i) or (ii) above or Debt having a
scheduled maturity prior to the Stated Maturity of the Securities, provided
that any Capital Stock that would not constitute Redeemable Stock but for
provisions thereof giving holders thereof the right to require the Company to
purchase or redeem such Capital Stock upon the occurrence of an "asset sale" or
a "change of control" occurring prior to the Stated Maturity of the Securities
shall not constitute Redeemable Stock if the "asset sale" or "change of
control" provision applicable to such Capital Stock is no more favorable to the
holders of such Capital Stock than the provisions contained in Section 1013 and
1015 and such Capital Stock specifically provides that the Company shall not
purchase or redeem any
-31-
such Capital Stock pursuant to such covenants prior to the Company's purchase
of Securities required to be repurchased by the Company under Sections 1013 and
1015.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed for redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Period" means the four most recently completed fiscal quarters
for which financial information is available preceding the date of a
transaction giving rise to the need to make a financial calculation.
"Registered Exchange Offer" means an offer by the Company, pursuant to the
Registration Rights Agreement, to certain Holders of Initial Securities, to
issue and deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Rights Agreement" means the Exchange and Registration Rights
Agreement dated as of September 20, 1996 between the Company and the Initial
Purchaser.
"Regular Record Date", for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means 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 corporate, the president, any vice president,
the secretary, any assistant secretary, any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Payment" means (i) any dividend or other distribution on any
shares of the Company's Capital Stock, provided that a dividend or other
distribution consisting of the Capital Stock of an Unrestricted Subsidiary
shall not constitute a Restricted Payment except to the extent of the portion
thereof that is equal to the
-32-
portion of the total Investment in such Unrestricted Subsidiary that is
represented by the Investment that was made pursuant to clause (vii) of the
definition of "Permitted Payment," (ii) any payment on account of the purchase,
redemption, retirement or acquisition for value of the Company's Capital Stock,
(iii) any defeasance, redemption, purchase or other acquisition or retirement
for value prior to the scheduled maturity of any Debt ranked subordinate in
right of payment to the Securities other than repayment of Debt of the Company
to a Restricted Subsidiary or an Eligible Joint Venture, (iv) any Investment
made in a Person (other than the Company or any Restricted Subsidiary or any
Eligible Joint Venture) and (v) designating a Restricted Subsidiary as an
Unrestricted Subsidiary (the Restricted Payment made upon such a designation to
be determined as the fair market value of the Capital Stock of such Restricted
Subsidiary owned directly or indirectly by the Company at the time of the
designation). Notwithstanding the foregoing, "Restricted Payment" shall not
include any Permitted Payment, except that any payment made pursuant to clauses
(iv) and (v) of the definition of "Permitted Payment" shall be counted in the
calculation set forth in clause (c) of Section 1010(a).
"Restricted Subsidiary" means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"S&P" means Standard & Poor's Corporation.
"Securities" means, collectively, the Initial Securities, the Exchange
Securities and the Private Exchange Securities.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Senior Debt" means the principal of and interest on all Debt of the
Company whether created, Incurred or assumed before, on or after the Issue Date
of the Securities (other than the Securities), provided that Senior Debt shall
not include (i) Debt that, when Incurred and without respect to any election
under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, was without recourse to
the Company, (ii) Debt of the Company to any Affiliate and (iii) any Debt of
the Company that, by the terms of the instrument creating or evidencing the
same, is specifically designated as being junior in right of payment to the
Securities or any other Debt of the Company.
-33-
"Shelf Registration Statement" means a registration statement filed by the
Company, in connection with the offer and sale of Initial Securities or Private
Exchange Securities pursuant to the Registration Rights Agreement.
"Significant Subsidiary" means a Restricted Subsidiary that is a
"significant subsidiary" as defined in Rule 1-02(v) of Regulation S-X under the
Securities Act and the Exchange Act.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 209.
"Stated Maturity" means, with respect to any debt security or any
installment of interest thereon, the date specified in such debt security as
the fixed date on which any principal of such debt security or any such
installment of interest is due and payable.
"Subsidiary" means, with respect to any Person including, without
limitation, the Company and its Subsidiaries, (i) any corporation or other
entity of which such Person owns, directly or indirectly, a majority of the
Capital Stock or other ownership interests and has ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions, and (ii) with respect to the Company and, as appropriate, its
Subsidiaries, any Permitted Joint Venture, including, without limitation, Coso
Land Company Joint Venture, Coso Finance Partners, Coso Energy Developers and
Coso Power Developers, provided that in respect of any Subsidiary that is not a
Permitted Joint Venture, the Company must exercise control over such Subsidiary
and its Property to the same extent as a Permitted Joint Venture.
"Subsidiary Refinancing Debt" means Debt issued in exchange for, or the
proceeds of which are used to refinance (including to purchase), outstanding
Debt of a Restricted Subsidiary or an Eligible Joint Venture, including,
without limitation, Construction Financing, in an amount (or, if such new Debt
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, with an original issue
price) not to exceed the amount so exchanged or refinanced (plus accrued
interest or dividends and all fees, premiums (in excess of accreted value) and
expenses related to such exchange or refinancing), for which purpose the amount
so exchanged or refinanced shall not exceed, in the case of Debt, to the lesser
of (x) the principal amount of the Debt so exchanged or refinanced and (y) if
the Debt being exchanged or refinanced was
-34-
issued with an original issue discount, the accreted value thereof (as
determined in accordance with GAAP) at the time of such exchange or
refinancing, and, in the case of an equity investment made in lieu or as part
of Construction Financing Debt, in an amount not to exceed the capital and
surplus shown on the balance sheet of such Restricted Subsidiary or Eligible
Joint Venture, provided that (A) such Debt shall be Non-Recourse, if the Debt
so exchanged or refinanced is Non-Recourse and (B) the Average Life of the new
Debt shall be equal to or greater than the Average Life of the Debt to be
exchanged or refinanced, provided further that upon the first refinancing of
any Construction Financing of a Restricted Subsidiary or an Eligible Joint
Venture, (i) the amount of the Subsidiary Refinancing Debt issued in exchange
for or to refinance such Construction Financing shall not be limited by this
provision and (ii) the Subsidiary Refinancing Debt issued in exchange for or
to refinance such Construction Financing shall not be subject to the
provisions of the foregoing clause (B) of this provision.
"Trade Payables" means, with respect to any Person, any accounts payable
or any other indebtedness or monetary obligation to trade creditors Incurred,
created, assumed or Guaranteed by such Person or any of its Subsidiaries or
Joint Ventures arising in the ordinary course of business.
"Transfer Restricted Securities" means IAI Securities and the Securities
that bear or are required to bear the legend set forth in Section 206(d).
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was executed; provided that in the event
the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" shall mean, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means any Subsidiary of the Company that becomes
an Unrestricted Subsidiary in accordance with the requirements set forth in the
next sentence. The Company may designate any Restricted Subsidiary as an
Unrestricted Subsidiary if (a) such designation is in compliance with Section
1010(a) and (b)
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after giving effect to such designation, such Subsidiary does not own, directly
or indirectly, a majority of the Capital Stock or the Voting Stock of any other
Restricted Subsidiary unless such other Restricted Subsidiary is designated as
an Unrestricted Subsidiary at the same time. Any such designation shall be
effected by filing with the Trustee an Officers' Certificate certifying that
such designation complies with the requirements of the immediately preceding
sentence. No Debt or other obligation of an Unrestricted Subsidiary may be with
recourse to the Company, any of its Restricted Subsidiaries, any Eligible Joint
Venture or any of their respective Property except to the extent otherwise
permitted by the provisions of this Indenture. An Unrestricted Subsidiary may
be designated as a Restricted Subsidiary if (i) all the Debt of such
Unrestricted Subsidiary could be Incurred under Section 1009, or (ii) any
portion of such Debt could not be incurred thereunder, if the Company could
borrow all such remaining Debt pursuant to Section 1008(a).
"U.S. Government Obligations" means securities that are (i) direct
obligations of the U.S. for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the U.S., the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the U.S.,
that, in either case are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligations or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depositary
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depositary receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means, 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.
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(b)Other definitions:
Defined Term Defined in Section
------------ ------------------
Act 104
Change of Control Offer 1013(b)
Change of Control Purchase Date 1013(b)
Covenant Defeasance 1203
Defaulted Interest 210
Defeasance 1202
Default Amount 502
Excess Proceeds 1015(a)
Excess Proceeds Offer 1015(a)
Excess Proceeds Purchase Date 1015(e)
Event of Default 501
IAI 201
IAI Securities 201(c)
Ineligible Investments 1021
Notice of Default 501(5)
Paying Agent 203
Purchase Agreement 201
Record Expiration Date 104
Security Registrar 203
Surviving Entity 801
10% Limit 1021
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act
and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
If several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
If any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more
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instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, if it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 104.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. If such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security register kept
by the Security Registrar.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities, provided that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to,
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the giving or making of any notice, declaration, request or direction referred
to in the next paragraph. If any record date is set pursuant to this paragraph,
the Holders of Outstanding Securities on such record date, and no other
Holders, shall be entitled to take the relevant actions whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable Record
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date; and provided further that for the purpose of
determining whether Holders of the requisite principal amount of such
Securities have taken such action, no Security shall be deemed to have been
Outstanding on such record date unless it is also Outstanding on the date such
action is to become effective. Nothing in this paragraph shall prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
cancelled and of no effect), nor shall anything in this paragraph be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its
own expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Record Expiration Date to be given to the Trustee in
writing and to each Holder of Securities in the manner set forth in Section
106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Xxxxxxx 000, (xxx) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Record Expiration Date by Holders of the requisite principal amount of
Outstanding Securities on such record date; and provided further that for the
purpose of determining whether Holders of the requisite principal amount of
such Securities have taken such action, no Security shall be deemed to have
been Outstanding on such record date unless it is also Out-
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standing on the date such action is to become effective. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action (whereupon the record date previously set shall
automatically and without any action by any Person be cancelled and of no
effect), nor shall anything in this paragraph be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the matter(s) to be submitted
for potential action by Holders and the applicable Record Expiration Date to be
given to the Company in writing and to each Holder of Securities in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section 104, the
party hereto that sets such record date may designate any day as the "Record
Expiration Date" and from time to time may change the Record Expiration Date to
any earlier or later day, provided that no such change shall be effective
unless notice of the proposed new Record Expiration Date is given to the other
party hereto in writing, and to each Holder of Securities in the manner set
forth in Section 106, on or before the existing Record Expiration Date. If a
Record Expiration Date is not designated with respect to any record date set
pursuant to this Section 104, the party hereto that set such record date shall
be deemed to have initially designated the 180th day after such record date as
the Record Expiration Date with respect thereto, subject to its right to change
the Record Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Record Expiration Date shall be later than the 180th day after
the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard
to all or any part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
and mailed, first-class postage prepaid, to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture, Attention: General Counsel, or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 106. Notice to Holders; Waiver.
When this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. Neither the failure to mail
or give such notice as otherwise provided herein, nor any defect in any notice
so mailed or given to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. When this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be part of and
govern this
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Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein, the Cross-Reference Table and the
Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person other than the parties hereto and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture. This Indenture may not be used to
interpret another indenture, loan agreement or debt agreement of the Company or
any of its Subsidiaries. No such other indenture or loan or debt agreement may
be utilized to interpret this Indenture.
Section 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW, BUT OTHERWISE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
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XXXXXXX XX XXXXXXXXX IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER OF THE SECURITIES TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
Section 113. Legal Holidays.
If any Interest Payment Date, Redemption Date, Purchase Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date but may be made
on the next succeeding Business Day with the same force and effect (including
with respect to the accrual of interest) as if made on the Interest Payment
Date, Redemption Date or Purchase Date, or at the Stated Maturity.
Section 114. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
Section 115. Duplicate Originals.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
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ARTICLE TWO
The Securities
Section 201. Global and Certificated Securities.
The Initial Securities and the Trustee's certificate of authentication
shall be substantially in the form set out in Section 302. The Exchange
Securities, the Private Exchange Securities and the Trustee's certificate of
authentication with respect thereto shall be substantially in the form set out
in Section 303. The Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company) or as required by Section
206(d). Each Security shall be dated the date of its authentication.
The Initial Securities are being offered and sold by the Company pursuant
to a Purchase Agreement, dated September 18, 1996, between the Company and the
Initial Purchaser (the "Purchase Agreement").
(a) Global Securities. Initial Securities offered and sold to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) (a
"QIB") in reliance on Rule 144A under the Securities Act ("Rule 144A") as
provided in the Purchase Agreement, shall be issued initially in the form of
one or more permanent global securities in definitive, fully registered form
without interest coupons with the global security legend and restricted
security legend set forth in Section 206(d) hereto (each, a "Global Security"),
which shall be deposited on behalf of the purchasers of the Initial Securities
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary (or with such other custodian as the Depositary may direct),
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Security may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee as hereinafter provided.
The Depositary Trust Company shall act as initial Depositary. If at any
time the Depositary for the Securities represented by one or more Global
Securities notifies the Company that it is unwilling or unable
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to continue as Depositary of the Securities or if at any time the Depositary
shall no longer be eligible as provided in the second sentence of the
definition of "Depositary" and a successor Depositary is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, the Company shall promptly execute, and the Trustee shall
promptly authenticate and deliver, Securities in Certificated form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security or Securities then
outstanding in exchange for such Global Security or Securities, and this
Section 201(a) and Section 201(b) shall no longer be applicable to the
Securities. In addition, the Company may at any time and in its sole discretion
determine that the Securities shall no longer be represented by Global
Securities. In such event the Company shall promptly execute, and the Trustee,
upon receipt of a Company Order evidencing such determination by the Company,
shall promptly authenticate and deliver, Securities in Certificated form
without coupons, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities then
outstanding in exchange for such Global Security or Securities and this Section
201(a) and Section 201(b) shall no longer be applicable to the Securities. Upon
the exchange of the Global Securities for such Securities in Certificated form
without coupons, in authorized denominations, such Global Securities shall be
cancelled by the Trustee. Such Securities in Certificated form issued in
exchange for the Global Securities pursuant to this Section 201(a) and Section
201(b) shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such Securities are so
registered.
Notwithstanding any other provision hereof to the contrary,
so long as the outstanding Securities are represented by one or more Global
Securities, the Company shall pay or cause to be paid the principal of, and
interest on, such Global Securities to the Depositary or its nominee by wire
transfer of immediately available funds on the date such payments are due in
accordance with the operational arrangements of the Depositary, as such
arrangements are amended from time to time.
(b) Book-Entry Provisions. This Section 201(b) shall apply only to the
Global Security or Securities deposited with or on behalf of the Depositary.
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The Company shall execute and the Trustee shall, in accordance with this
Section 201(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary and (b) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to the Global Security or
Securities held on their behalf by the Depositary or by the Trustee as the
custodian of the Depositary or under such Global Security, and the Depositary
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 or Securities for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices of such Depositary governing the
exercise of the rights of a holder of a beneficial interest in the Global
Security or Securities.
(c) Certificated Securities. Except as provided in this Section or
Sections 206 or 208, owners of beneficial interests in the Global Security or
Securities will not be entitled to receive physical delivery of Certificated
Securities. Purchasers of Initial Securities who are institutional "accredited
investors" as described in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act (each an "IAI") and who are not QIBs will receive certificated Initial
Securities which (subject to the other provisions of Section 206) will bear the
restricted securities legend set forth in Section 206(d) hereto (such
securities as held by an IAI are herein referred to as "IAI Securities");
provided, however, that upon transfer of such certificated Initial Securities
to a QIB such certificated Initial Securities will, unless the Global
Securities have previously been exchanged, be exchanged for an interest in a
Global Security pursuant to the provisions of Section 206.
Section 202. Execution and Authentication.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal
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reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
Section 203. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Security
Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agent"). The Security Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may have one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Security Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the Trust Indenture Act. The agreement
shall implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of any such agent.
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If the Company fails to maintain a Security Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 607. The Company or any of its U.S. wholly owned
Subsidiaries may act as Paying Agent, Security Registrar, co-registrar or
transfer agent.
The Company initially appoints the Trustee as Security Registrar and
Paying Agent in connection with the Securities.
Section 204. Paying Agent To Hold Money in Trust.
At least one Business Day prior to each due date of the principal and
interest on any Security, the Company shall deposit with the Paying Agent a sum
sufficient to pay such principal and interest when so becoming due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by the Paying Agent for the payment of principal of or
interest on the Securities and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or one of its U.S. wholly
owned Subsidiaries acts as Paying Agent, it shall segregate the money held by
it as Paying Agent and hold it as a separate trust fund. The Company at any
time may require a Paying Agent (other than the Trustee) to pay all money held
by it to the Trustee and to account for any funds disbursed by the Paying
Agent. Upon complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
Section 205. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Security Registrar, the Company shall
furnish to the Trustee, in writing at least five Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders.
Section 206. Transfer and Exchange.
(a) Transfer and Exchange of IAI Securities. When IAI Securities are
presented to the Security Registrar or a co-registrar with a request:
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(x) to register the transfer of such IAI Securities; or
(y) to exchange such IAI Securities for an equal principal amount of
IAI Securities of other authorized denominations,
the Security Registrar or co-registrar shall register the transfer or make the
exchange as requested if the requirements set forth in this Indenture for such
transaction are met; provided, however, that the IAI Securities surrendered for
transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Security
Registrar or co-registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(ii) are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act, pursuant to Section
206(b) or pursuant to clause (A), (B) or (C) below, and are accompanied by
the following additional information and documents, as applicable:
(A) if such IAI Securities are being delivered to the Security
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
the form set forth on the reverse of the Security); or
(B) if such IAI Securities are being transferred to the Company,
a certification to that effect (in the form set forth on the reverse
of the Security); or
(C) if such IAI Securities are being transferred (w) pursuant to
an exemption from registration in accordance with Rule 144 under the
Securities Act or (x) in reliance on another exemption from the
registration requirements of the Securities Act: (i) a certification
to that effect (in the form set forth on the reverse of the
Security), and (ii) if the Company so requests, other evidence
reasonably satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in Section 206(d)(i).
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(b) Restrictions on Transfer of an IAI Security for a Beneficial Interest
in a Global Security. An IAI Security may not be exchanged for a beneficial
interest in a Global Security except upon satisfaction of the requirements set
forth below. Upon receipt by the Trustee of an IAI Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Trustee, together with:
(i) certification (in the form set forth on the reverse of the
Security), that such IAI Security is being transferred to a QIB in
accordance with Rule 144A under the Securities Act; and
(ii) written instructions (which may be in the form of electronic
instructions) directing the Trustee to make, or to cause to be made, an
adjustment on its books and records with respect to the Global Security or
Securities to reflect an increase in the aggregate principal amount of the
Securities represented by the Global Security or Securities,
then the Trustee shall cancel or cause to be cancelled such IAI Security in
accordance with the standing instructions and procedures existing between the
Depositary and the Security Registrar, the aggregate principal amount of
Securities represented by the Global Security or Securities to be increased
accordingly. If no Global Security is then outstanding, the Company shall issue
and the Trustee shall authenticate, upon written order of the Company in the
form of an Officers' Certificate, a new Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities. (i) The transfer and
exchange of the Global Security or Securities or beneficial interests therein
shall be effected through the Depositary, in accordance with this Indenture
(including applicable restrictions on transfer set forth herein, if any) and
the procedures of the Depositary therefor, if applicable.
(ii) Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in Section 208), the Global Security may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
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(iii) In the event that a Global Security is exchanged for
Certificated Securities pursuant to Section 208, prior to the consummation
of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities
may be exchanged only in accordance with such procedures as are consistent
with the provisions of this Section 206 (including the certification
requirements set forth on the reverse of the Initial Securities intended
to ensure that such transfers comply with Rule 144A) and such other
procedures as may from time to time be adopted by the Company.
(d) Legend.
(i) Except as permitted by this Section 206, each Security
certificate evidencing a Global Security and each Security certificate
evidencing an IAI Security (and all Securities issued in exchange or
substitution for a Global Security or IAI Security) shall bear a legend in
substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) TO THE
COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON THE
TRANSFEROR 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, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRANSFER AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRANSFER AGENT, AND THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO ABOVE.
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Each IAI Security will also bear the following additional legend:*
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT AND THE COMPANY SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT AND THE COMPANY MAY REASONABLY REQUIRE
TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS."
Each Global Security will also bear the following legend:**
"This Security is issued in global form and registered in the name
of the Depositary or a nominee thereof. Unless and until it is exchanged
in whole or in part for Securities in definitive form in accordance with
the terms hereof and of the Indenture referred to on the reverse hereof,
this Security may not be transferred except as a whole by the Depositary
to a nominee of the Depositary, or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any certificate issued
is registered in the name of the Depositary or its nominee and any payment
is made to the Depositary or its nominee, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof has an interest herein."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Certificated Security, the Security Registrar shall permit the Holder
--------
* Include if a IAI Security to be held by an institutional "accredited
investor" (as defined in Rule 501(a), (1), (2), (3) or (7) under the
Securities Act).
* This legend should only be added if the Security is issued
in global form.
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thereof to exchange such Transfer Restricted Security for a
Certificated Security that does not bear the legend set
forth above and rescind any restriction on the transfer
of such Transfer Restricted Security;
(B) in the case of any Transfer
Restricted Security that is represented by a Global Security,
the Security Registrar shall permit the Holder thereof to
request the issuance of a certificated Security that does not
bear the legend set forth above and rescind any restriction
on the transfer of such Transfer Restricted Security, if the
sale or exchange was made in reliance on Rule 144 and the
Holder certifies to that effect in writing to the Security
Registrar (such certification to be in the form set forth on
the reverse of the Security).
(iii) After a transfer of any Initial Securities or Private Exchange
Securities during the period of the effectiveness of a Shelf Registration
Statement with respect to such Initial Securities or Private Exchange
Securities, as the case may be, all requirements pertaining to legends on
such Initial Security or such Private Exchange Security will cease to
apply, the requirements requiring that any such Initial Security or such
Private Exchange Security issued to certain Holders be issued in global
form will cease to apply, and a certificated Initial Security or Private
Exchange Security without legends will be available to the transferee of
the Holder of such Initial Securities or Private Exchange Securities or
upon receipt of directions to transfer such Holder's interest in a Global
Security, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Exchange Securities in exchange for their
Initial Securities, all requirements pertaining to such Initial Securities
that Initial Securities issued to certain Holders be issued in global form
will cease to apply, certificated Initial Securities with the restricted
securities legend set forth in Section 206(d) hereto will be available to
Holders of such Initial Securities that do not exchange their Initial
Securities, and Exchange Securities in certificated form will be available
to Holders that do exchange such Initial Securities in such Registered
Exchange Offer.
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(v) Upon the consummation of a Private Exchange with respect to the
Initial Securities pursuant to which Holders of such Initial Securities
are offered Private Exchange Securities in exchange for their Initial
Securities, all requirements pertaining to such Initial Securities that
Initial Securities issued to certain holders be issued in global form will
still apply, and Private Exchange Securities in global form with the
Restricted Securities Legend set forth in Section 206(d) hereto will be
available to Holders that exchange such Initial Securities in such Private
Exchange.
(e) Cancellation or Adjustment of Global Securities. At such time as all
beneficial interests in the Global Securities have either been exchanged for
certificated Securities, redeemed, repurchased or cancelled, such Global
Securities shall be returned to the Trustee for cancellation or retained and
cancelled by the Trustee. At any time prior to such cancellation, if any
beneficial interests in the Global Securities are exchanged for certificated
Securities, redeemed, repurchased or cancelled, the principal amount of
Securities represented by such Global Securities shall be reduced and an
adjustment shall be made by the Trustee or the custodian to reflect such
reduction on the books and records of the custodian for such Global Securities
with respect to such Global Securities.
(f) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate within a reasonable time
Certificated Securities, IAI Securities and Global Securities at the
Security Registrar's or co-registrar's written request accompanied by an
equal principal amount of Securities to be cancelled and, if the Security
Registrar is not the Trustee, the Security Registrar shall provide to the
Trustee an opinion of counsel acceptable to the Trustee and the Company to
the effect that the Security Registrar has received all of the instruments
and documents required by this Section 206 for such transfer or exchange.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
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(iii) Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent, the Security
Registrar or any co-registrar may deem and treat the person in whose name
a Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and interest on such Security
and for all other purposes whatsoever, whether or not such Security is
overdue, and none of the Company, the Trustee, the Paying Agent, the
Security Registrar or any co-registrar shall be affected by notice to the
contrary.
(iv) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(g) IAI Purchasers. Each purchaser of Securities that is an IAI must
execute and deliver a purchaser's letter for the benefit of the Initial
Purchaser and the Company, substantially in the form of the Appendix hereto,
whereby such IAI (a) agrees to the restrictions on transfer set forth in this
Indenture, (b) confirms that it is (i) acquiring Securities having a minimum
purchase price of not less than $500,000 for any separate account for which it
is acting; (ii) acquiring such Securities for certain qualified accounts, as
specified therein over which it exercises sole investment discretion; and (iii)
not acquiring the Securities with a view to distribution thereof or with any
present intention of offering or selling any of the Securities except in
accordance with Rule 144A under the Securities Act, and (c) acknowledges that
the registrar and transfer agent for the Securities will not be required to
accept for registration of transfer any Securities acquired by it, except upon
presentation of evidence satisfactory to the Company and the transfer agent
that the restrictions on transfer set forth above have been complied with, and
that any such Securities will be in Certificated form bearing the restricted
Securities and IAI Securities legends set forth in Section 206(d).
(h) No Obligation of the Trustee.
(i) The Trustee (whether in its capacity as trustee, Security
Registrar or Paying Agent) shall have no responsibility or obligation to
any beneficial owner of any Global Security, a member of, or a participant
in the Depositary or other Person with
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respect to the accuracy of the records of the Depositary or its nominee or
of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments to
be made to Holders under the Securities shall be given or made only to or
upon the order of the registered Holders (which shall be the Depositary or
its nominee in the case of a Global Security). The rights of beneficial
owners in the Global Securities shall be exercised only through the
Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee (whether in its capacity as trustee, Security
Registrar or Paying Agent) may rely and shall be fully protected in
relying upon information furnished by the Depositary with respect to its
members, participants and any beneficial owners.
(ii) The Trustee (whether in its capacity as trustee, Security
Registrar or Paying Agent) shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law, regulations or
exchange rules with respect to any transfer of any interest in any
Security (including any transfers between or among Depositary
participants, members or beneficial owners in the Global Securities, or
transfers of registered or beneficial ownership interests in Global
Securities to any IAI or in IAI Securities from any IAI) other than to
require delivery of such certificates and other documentation or evidence
as are expressly required by, and to do so if and when expressly required
by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Section 207. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 207 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section 207 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 208. Temporary Securities and Certificated Securities.
(a) Until Certificated Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Certificated Securities but
may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Certificated Securities and deliver them in exchange
for temporary Securities.
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(b) The Global Security or Securities deposited with the
Depositary or with the Trustee as custodian for the Depositary pursuant to
Section 201 shall be transferred to the beneficial owners thereof in the form
of certificated Securities in an aggregate principal amount equal to the
principal amount of such Global Security, in exchange for such Global
Securities, only if such transfer complies with Section 206 and (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time such Depositary ceases to
be a "clearing agency" registered under the Exchange Act and a successor
depositary is not appointed by the Company within 90 days of such notice, (ii)
a Default has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Securities under this Indenture.
(c) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section shall be surrendered by the Depositary to the
Trustee located in the Borough of Manhattan, The City of New York, to be so
transferred, in whole or from time to time in part, without charge, and the
Trustee shall authenticate and deliver, upon such transfer of each portion of
such Global Securities, an equal aggregate principal amount of Initial
Securities of authorized denominations. Any portion of the Global Securities
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any Initial Security
delivered in exchange for an interest in a Global Security shall, except as
otherwise provided by Section 206(d), bear the restricted securities legend set
forth in Section 206(d) hereto.
(d) Subject to the provisions of Section 208(c), the registered Holder of
the Global Security may grant proxies and otherwise authorize any Person,
including agent members, participants and Persons that may hold interests
through agent members, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
(e) In the event of the occurrence of any of the events specified in
Section 208(b), the Company will promptly make available to the Trustee a
reasonable supply of Certificated Securities in fully registered form without
interest coupons.
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Section 209. Payment of Interest; Interest Rights Preserved.
Interest on any Security that is payable and is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security that is payable but is not punctually paid or
duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest that shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given to each
Holder in the manner specified in Section 106 not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so given, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered at the close of
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business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 210. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 209) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 211. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any Offer to Purchase pursuant to
Section 1013 or 1015 shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 211,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order; provided
that the Trustee shall not be required to destroy cancelled Securities.
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Section 212. Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 principal amount and any integral multiple
thereof, provided that the IAI Securities shall be issued in minimum
denominations of $500,000 and integral multiples of $1,000 above that amount.
Section 213. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 214. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices
of redemption or repurchase as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
repurchase shall not be affected by any defect in or omission of such numbers.
Section 215. Single Class.
The Company and the Trustee agree that for the purposes of this Indenture,
the Initial Securities, the Exchange Securities and the Private Exchange
Securities shall be deemed to be a single class of securities.
ARTICLE THREE
Form of Security
Section 301. Forms Generally.
The Securities and the Trustee's certificate of authentication shall be in
substantially the forms set forth in (i) Section 302, with respect to Initial
Securities; and (ii) Section 303 with respect to Exchange Securities and
Private Exchange Securities.
Section 301. Form of Initial Security.
(A) [FORM OF FACE OF INITIAL SECURITY]
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CALENERGY COMPANY, INC.
9 1/2% Senior Notes due 2006
No. _________ $_________________
CUSIP No. 000000XX0
CalEnergy Company, Inc., a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of ___________________ Dollars on September 15,
2006, and to pay interest thereon from September 20, 1996 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on March 15 and September 15 in each year, commencing March
15, 1997 at the rate of 9 1/2% per annum, until the principal hereof is paid or
duly provided for, provided that any principal and premium, if any, and any
such installment of interest, that is overdue shall bear interest at the rate
of 10 1/2% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid
or duly provided for, provided further that if an Illiquidity Event (as defined
in the Registration Rights Agreement) occurs, additional interest (in addition
to the interest otherwise payable with respect to this Security) shall accrue
with respect to this Security until but not including the date on which such
Illiquidity Event shall cease to exist (and provided no other Illiquidity Event
with respect to any Securities shall then be continuing), at the rate of one
half of one percent (0.50%) per annum, which additional interest shall be
payable by the Company to the Holders of all Securities at the times, in the
manner and subject to the same terms and conditions set forth in the Indenture,
as nearly as may be, as though the interest rate provided in this Security had
been increased by one half of one percent (0.50%) per annum. Notwithstanding
that the Illiquidity Event may cease to exist, in the event that an Exchange
Offer Registration Statement or an Initial Shelf Registration Statement has not
become effective by September 20, 1998, the interest rate on this Security
otherwise payable as provided in the Indenture shall permanently remain
increased by such one half of one percent (0.50%) per annum.
Any such additional interest accrued on this Security but unpaid on the
date on which such interest ceases to accrue (the "Cure Date") shall be due and
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payable on the first Interest Payment Date following the next Regular Record
Date following such Cure Date (or the Regular Record Date occurring on such
Cure Date, if such Cure Date is a Regular Record Date) to the holders of record
of this Security on such record date. Subject to the foregoing, the interest
payable, and punctually paid or duly provided for, on any Interest Payment
Date shall, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the March 1 or September 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities not less than 10 days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on this
Security shall be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, or at such
additional offices or agencies as the Company from time to time may designate
for such purpose, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts,
provided that payment of the principal of (and premium, if any, on) this
Security shall be made only upon presentation and surrender hereof at any such
office or agency and, at the option of the Company, payment of interest may be
made by check mailed to the address of the Person entitled there to as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security 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 the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be
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entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CALENERGY COMPANY, INC.
By:
--------------------------
Title:
Attest:
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Title:
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Form of Trustee's Certificate of Authentication.
Dated:
This is one of the Securities referred to in the within-mentioned
Indenture.
IBJ XXXXXXXX BANK & TRUST COMPANY,
As Trustee
By
----------------------------------------
Authorized Signatory
(B) Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 9 1/2% Senior Notes due 2006 (herein called the
"Securities"), limited in aggregate principal amount of $225,000,000, issued
and to be issued under an Indenture, dated as of September 20, 1996 (herein
called the "Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and IBJ Xxxxxxxx Bank & Trust Company, as
Trustee (herein called the "Trustee" which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the
-65-
terms upon which the Securities are, and are to be, authenticated and
delivered.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, at any time on or after September 15, 2001 and
prior to maturity, as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the principal
amount), if redeemed during the 12-month period commencing on or after
September 15 of the years indicated,
Redemption
Year Price
2001......................104.750%
2002......................103.167%
2003......................101.583%
2004 and thereafter.......100.000%
together in the case of any such redemption with accrued interest, if any, to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date shall be payable to the Holders of such
Securities, or one or more predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
The Securities do not have the benefit of any sinking fund obligations.
Upon the occurrence of a Change of Control, the Company shall be required
to make an Offer to Purchase all or a specified portion of the Securities at a
Purchase Price in cash equal to 101 percent of the principal amount thereof on
any Purchase Date plus accrued and unpaid interest, if any, to such Purchase
Date, as specified in the Indenture. If the Company, any Restricted Subsidiary
or any Eligible Joint Venture consummates an Asset Disposition, under certain
circumstances, the Company shall be required to make an Offer to Purchase up to
all or a specified portion of the Securities at a Purchase Price in cash equal
to 100 percent of the principal amount thereof on any Purchase Date plus
accrued and unpaid interest, if any, to such Purchase Date, in an amount equal
to any Net Cash Proceeds from such an Asset Disposition that are not used to
reinvest in the business of the Company and/or repay in a permanent reduction
of Debt of the Company or Debt of its Restricted Subsidiaries or Eligible Joint
Ventures. Holders of Securities shall receive notice of any such Offer to
Purchase from
-66-
the Company prior to the related Purchase Date and may elect to
have such Securities purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing on the reverse side of the Security.
In the event of redemption, or purchase pursuant to an Offer to Purchase,
of this Security in part only, a new Security or Securities for the portion
hereof not redeemed or purchased shall be issued in the name of the Holder
hereof upon surrender of this Security to the Trustee for cancellation thereof.
The Indenture contains provisions for defeasance at any time of the entire
Debt of this Security or certain restrictive covenants and Events of Default
with respect to this Security, including, without limitation, covenants
relating to Offers to Purchase, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the Default Amount of the Securities, in the manner
and with the effect provided in the Indenture. The Default Amount in respect of
this Security as of any particular date shall equal 100% of the principal
amount of this Security plus accrued and unpaid interest, if any, to such date.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. In addition, without
the consent of any Holder of a Security, the Indenture and the Securities may
be amended and supplemented to cure any ambiguity or inconsistency, make other
changes that shall not adversely affect the rights of the Holders or certain
other matters specified in the Indenture. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not nota-
-67-
ion of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver, or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25 percent in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not
have received from the Holders of a majority in principal amount of Securities
at the time Outstanding a direction inconsistent with such request and shall
have failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to
certain suits described in the Indenture, including any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates
expressed herein (or, in the case of redemption, on or after the Redemption
Date or, in the case of any purchase of this Security required to be made
pursuant to an Offer to Purchase, on or after the Purchase Date).
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place, manner and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York (which initially shall be the corporate trust office of the Trustee), duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, shall be issued to the designated transferee or transferees.
-68-
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof, provided that IAI
Securities shall be issued in minimum denominations of $500,000, and integral
multiples of $1,000 above that amount. As provided in the Indenture and subject
to certain limitations therein set forth, Securities are exchangeable for a
like aggregate principal amount of Securities of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
A director, officer, employee, stockholder or incorporator of the Company
shall not have any liability for any obligations of the Company under this
Security or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Holder by accepting this Security
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of this Security.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed under the State of New York, without regard to principles of
conflicts of law.
-69-
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Your Signature:___________________________
(sign exactly as name appears on the
other side of this Security)
Signature Guarantee:___________________________________________________________
(Signature must be guaranteed by a financial
institution that is a member of the
Securities Transfer Agent Medallion Program
("STAMP"), the Stock Exchange Medallion
Program ("SEMP"), the New York Stock
Exchange, Inc. Medallion Signature Program
("MSP") or such other signature guarantee
program as may be determined by the Security
Registrar in addition to, or in substitution
for, STAMP, SEMP or MSP, all in accordance
with the Securities Exchange Act of 1934, as
amended.)
-70-
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER RESTRICTED SECURITIES
This certificate relates to $_______ principal amount of Securities held in
(check applicable space) ____ global form or ____ certificated form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Security Registrar by written order or electronically
by DWAC to deliver in exchange for its beneficial interest in a Global
Security held by the Depositary a Security or Securities in
certificated, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such
Global Security (or the portion thereof indicated above); or
[ ] has requested the Security Registrar by the Assignment or other written
order to exchange or register the transfer of the aforementioned
principal amount of the attached Security.
The undersigned confirms that the transfer of this Security does not require
registration under the Securities Act of 1933, as amended, because, such
Security is being:
CHECK ONE BOX BELOW:
(1) [ ] acquired for the undersigned's own account, without transfer
(in satisfaction of Section 206(a)(ii)(A) or 206(d)(ii)(A) of
the Indenture); or
(2) [ ] transferred to the Company; or
(3) [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
(4) [ ] transferred pursuant to and in compliance with Rule 144 under
the Securities Act of 1933, as amended; or
(5) [ ] transferred pursuant to an effective registration statement
under the Securities Act of 1933, as amended; or
(6) [ ] transferred pursuant to another available exemption from the
registration require-
-71-
ments of the Securities Act of 1933, as amended, and set forth
below.
Unless one of the boxes is checked, the Security Registrar will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however, that if box
(4) or (6) is checked, the Company may require other evidence reasonably
satisfactory to it as to the compliance with the restrictions set forth in the
legend on the face of this Security.
Dated:
-------------------------------
Signature of
Transferor
Signature Guarantee:
----------------------------------------------------------
(Signature must be guaranteed by an "eligible guarantor
institution," that is, a bank, stockbroker, saving and
loan association or credit union meeting the requirements
of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
-72-
Section 303. Form of Exchange Security and Private Exchange Security.
(A)
[OF FACE OF EXCHANGE SECURITY AND PRIVATE EXCHANGE SECURITY]
CALENERGY COMPANY, INC.
9 1/2% Senior Notes due 2006
No. _________ $__________
CUSIP No.__________
CalEnergy Company, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to _________________, or
registered assigns, the principal sum of __________________ Dollars on
September 15, 2006, and to pay interest thereon from their date of issue and
thereafter from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on March 15 and September 15 in
each year, at the rate of 9 1/2% per annum, until the principal hereof is paid
or duly provided for, provided that any principal and premium, if any, and any
such installment of interest, that is overdue shall bear interest at the rate
of 10 1/2% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid
or duly provided for, and such interest shall be payable on demand. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date shall, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for shall forth with cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment
of such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less
-73-
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on
this Security shall be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, or at such
additional offices or agencies as the Company from time to time may designate
for such purpose, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts, provided that payment of the principal of (and premium, if any, on)
this Security shall be made only upon presentation and surrender hereof at any
such office or agency and, at the option of the Company, payment of interest
may be made by check mailed to the address of the Person entitled there to as
such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security
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
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CALENERGY COMPANY, INC.
By:
---------------------------
Title:
Attest:
---------------------------
Title:
---------------------------
-74-
--------------------------------------------------------
Form of Trustee's Certificate of Authentication.
Dated:
This is one of the Securities referred to in the within-mentioned
Indenture.
IBJ XXXXXXXX BANK & TRUST COMPANY,
As Trustee
By
---------------------------------------
Authorized Signatory
(B) Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 9 1/2% Senior Notes due 2006 (herein called the
"Securities"), limited in aggregate principal amount of $225,000,000, issued
and to be issued under an Indenture, dated as of September 20, 1996 (herein
called the "Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and IBJ Xxxxxxxx Bank & Trust Company,
as Trustee (herein called the "Trustee" which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail, at any time on or after September 15, 2001
and prior to maturity, as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of the principal
amount), if redeemed during the 12-month period commencing on or after
September 15 of the years indicated,
-75-
Redemption
Year Price
---- ----------
2001...................................................... 104.750%
2002...................................................... 103.167%
2003...................................................... 101.583%
2004 and thereafter....................................... 100.000%
together in the case of any such redemption with accrued interest, if any, to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date shall be payable to the Holders of such
Securities, or one or more predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
The Securities do not have the benefit of any sinking fund
obligations.
Upon the occurrence of a Change of Control, the Company shall be
required to make an Offer to Purchase all or a specified portion of the
Securities at a Purchase Price in cash equal to 101 percent of the principal
amount thereof on any Purchase Date plus accrued and unpaid interest, if any,
to such Purchase Date. If the Company, any Restricted Subsidiary or any
Eligible Joint Venture consummates an Asset Disposition, under certain
circumstances, the Company shall be required to make an Offer to Purchase up to
all or a specified portion of the Securities at a Purchase Price in cash equal
to 100 percent of the principal amount thereof on any Purchase Date, plus
accrued and unpaid interest, if any, to such Purchase Date, in an amount equal
to any Net Cash Proceeds from such an Asset Disposition that are not used to
reinvest in the business of the Company and/or repay in a permanent reduction of
Debt of the Company or Debt of its Restricted Subsidiaries or Eligible Joint
Ventures. Holders of Securities shall receive notice of any such Offer to
Purchase from the Company prior to the related Purchase Date and may elect to
have such Securities purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing on the reverse side of the Security.
In the event of redemption, or purchase pursuant to an Offer to
Purchase, of this Security in part only, a new Security or Securities for the
portion hereof not redeemed or purchased shall be issued in the name of the
Holder hereof upon surrender of this Security to the Trustee for cancellation
thereof.
-76-
The Indenture contains provisions for defeasance at any time of the
entire Debt of this Security or certain restrictive covenants and Events of
Default with respect to this Security, including, without limitation,
covenants relating to Offers to Purchase, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the Default Amount of the Securities, in the manner
and with the effect provided in the Indenture. The Default Amount in respect
of this Security as of any particular date shall equal 100% of the principal
amount of this Security plus accrued and unpaid interest, if any, to such
date.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. In addition, without the consent of any Holder of a Security,
the Indenture and the Securities may be amended and supplemented to cure any
ambiguity or inconsistency, make other changes that shall not adversely affect
the rights of the Holders or certain other matters specified in the Indenture.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver, or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities, the Holders of not less than 25 percent in principal amount
of the Securities at the time Outstanding
-77-
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities at the time Outstanding a
direction inconsistent with such request and shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to certain suits described in the
Indenture, including any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein (or, in the case
of redemption, on or after the Redemption Date or, in the case of any purchase
of this Security required to be made pursuant to an Offer to Purchase, on or
after the Purchase Date).
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place, manner and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York (which initially shall be the corporate trust office of
the Trustee), duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, shall be issued to the designated transferee
or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Securities
are exchangeable for a like aggregate principal amount of Securities of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may
-78-
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
A director, officer, employee, stockholder or incorporator of the
Company shall not have any liability for any obligations of the Company under
this Security or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting this
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of this Security.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts
made and performed under the State of New York, without regard to principles
of conflicts of law.
-79-
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Your Signature:
----------------------- ----------------------------
(sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent
Medallion Program ("STAMP"), the Stock Exchange Medallion
Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other
signature guarantee program as may be determined by the
Security Registrar in addition to, or in substitution for,
STAMP, SEMP or MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
-80-
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER RESTRICTED SECURITIES
This certificate relates to $_______ principal amount of Securities held in
(check applicable space) ____ global form or ____ certificated form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Security Registrar by written order or electronically
by DWAC to deliver in exchange for its beneficial interest in a Global
Security held by the Depositary a Security or Securities in
certificated, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such
Global Security (or the portion thereof indicated above); or
[ ] has requested the Security Registrar by the Assignment or other written
order to exchange or register the transfer of the aforementioned
principal amount of the attached Security.
The undersigned confirms that the transfer of this Security does not require
registration under the Securities Act of 1933, as amended, because, such
Security is being:
CHECK ONE BOX BELOW:
(1) [ ] acquired for the undersigned's own account, without transfer (in
satisfaction of Section 206(a)(ii)(A) or 206(d)(ii)(A) of the
Indenture); or
(2) [ ] transferred to the Company; or
(3) [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
(4) [ ] transferred pursuant to and in compliance with Rule 144 under
the Securities Act of 1933, as amended; or
(5) [ ] transferred pursuant to an effective registration statement
under the Securities Act of 1933, as amended; or
(6) [ ] transferred pursuant to another available exemption from the
registration require-
-81-
ments of the Securities Act of 1933, as amended, and set forth
below.
Unless one of the boxes is checked, the Security Registrar will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however, that if box
(4) or (6) is checked, the Company may require other evidence reasonably
satisfactory to it as to the compliance with the restrictions set forth in the
legend on the face of this Security.
Dated:
-------------------------------
Signature of
Transferor
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by an "eligible guarantor
institution," that is, a bank, stockbroker, saving and
loan association or credit union meeting the requirements
of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect and the Trustee,
on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) no Securities remain Outstanding;
-82-
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, (i) the obligations of the Company to the Trustee under
Section 607, the obligations of the Company to any Authenticating Agent under
Section 614 and (ii) if the Company shall have effected a Defeasance pursuant
to Article Twelve, the provisions hereof specified in Section 1202 shall also
survive.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", whenever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of the principal of (or premium, if
any, on) any Security at its maturity (whether at final Stated Maturity or
upon repurchase, acceleration, optional redemption or otherwise); or
(2) default in the payment of any interest upon any Security
when it becomes due and payable, and continuance of such default for a period
of 30 days; or
(3) default in the purchase of Securities, on the applicable
Purchase Date, required to be purchased by the Company pursuant to an Offer to
Purchase under Section 1013 or Section 1015 as to which an offer has been
mailed to Holders or the failure to make such offer as required hereunder; or
(4) default in the performance, or breach, of any covenant,
agreement or warranty of the Company in this Indenture and the Securities
(other than a covenant,
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agreement or warranty a default in whose performance or whose breach is
elsewhere in this Section 501 specifically dealt with), and continuance of
such default or breach for a period of 30 days after there has been given to
the Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25 percent in principal amount at final Stated Maturity of the
Outstanding Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) a default or defaults under any bond, debenture, note or
other evidence of Debt by the Company or any Significant Subsidiary (or under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Debt by the Company or any
Significant Subsidiary) (other than Non-Recourse Debt of Significant
Subsidiaries) if either (x) such default results from failure to pay principal
of such Debt in excess of $25 million when due after any applicable grace
period or (y) as a result of such default, the maturity of such Debt has been
accelerated prior to its scheduled maturity and such default has not been
cured within the applicable grace period, and such acceleration has not been
rescinded, and the principal amount of such Debt, together with the principal
amount of any other Debt of the Company and its Significant Subsidiaries (not
including Non-Recourse Debt of the Significant Subsidiaries) that is in
default as to principal, or the maturity of which has been accelerated,
aggregates $25 million or more; or
(6) the entry by a court of one or more judgments or orders
against the Company or any Significant Subsidiary for the payment of money
that in aggregate exceeds $25 million (excluding the amount thereof covered by
insurance or by a bond written by a Person other than an Affiliate of the
Company), which judgments or orders have not been vacated, discharged or
satisfied or stayed pending appeal within 60 days from the entry thereof,
provided that such a judgment or order shall not be an Event of Default if
such judgment or order does not require any payment by the Company or any
Significant Subsidiary, except to the extent that such judgment is only
against Property that secures Non-Recourse Debt that is otherwise permitted
under this Indenture, and the Company could, at the expiration of the
applicable 60 day period, after giving effect to such judgement or order and
the consequences thereof, Incur at least $1 of Debt under the provisions
described in Section 1008(a); or
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(7) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal, state,
or foreign bankruptcy, insolvency, or other similar law or (B) a decree or
order adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, State or foreign bankruptcy,
insolvency, or similar law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
any Significant Subsidiary or of any substantial part of the Property or
assets of the Company or any Significant Subsidiary, or ordering the winding
up or liquidation of the affairs of the Company or any Significant Subsidiary,
and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive days; or
(8) (A) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable federal, state,
or foreign bankruptcy, insolvency or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or (B) the consent by
the Company or any Significant Subsidiary to the entry of a decree or order
for relief in respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal, state, or foreign
bankruptcy, insolvency, or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or any
Significant Subsidiary, or (C) the filing by the Company or any Significant
Subsidiary of a petition or answer or consent seeking reorganization or relief
under the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal, state or foreign bankruptcy, insolvency or other
similar law, or (D) the consent by the Company or any Significant Subsidiary
to the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Signifi-
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cant Subsidiary or of any substantial part of the Property or assets of the
Company or any Significant Subsidiary, or the making by the Company or any
Significant Subsidiary of an assignment for the benefit of creditors, or (E)
the admission by the Company or any Significant Subsidiary in writing of its
inability to pay its debts generally as they become due, or (F) the taking of
corporate action by the Company or any Significant Subsidiary in furtherance
of any such action.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(7) or (8)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25 percent in principal amount at
Stated Maturity of the Outstanding Securities may declare the Default Amount
of all the Securities to be due and payable immediately by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration such Default Amount shall become immediately due and payable. If
an Event of Default specified in Section 501(7) or (8) occurs, the Default
Amount of the Securities then Outstanding shall ipso facto become immediately
due and payable without any declaration or other Act on the part of the
Trustee or any Holder.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article Five provided, the Holders of a
majority in principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities (without duplication
of any amount thereof paid or deposited pursuant to clause (B) or (C) below),
(B) the Default Amount of (and premium, if any, on) any
Securities that have become due otherwise than by such declaration of
acceleration (including any Securities required to have been purchased on any
Purchase Date pursuant to an Offer to Purchase made by the Company) and, to
the extent that payment of such interest is lawful, interest thereon at the
rate provided by the Securities (without duplication of any amount thereof
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paid or deposited pursuant to clause (A) above or clause (C) below),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Securities (without
duplication of any amount thereof paid or deposited pursuant to clause (A) or
(B) above), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the final Stated Maturity thereof or,
with respect to any Security required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the Purchase Date thereof,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities' principal, premium, if any, and interest, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal, premium, if any, and overdue interest, at the rate provided by the
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the Property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its Property or assets or its creditors,
the Trustee (irrespective of whether the principal, (premium, if any) or
interest of the Securities then shall be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee has
made any demand on the Company for the payment of overdue principal, (premium,
if any) or interest shall be entitled and empowered, by intervention in such
proceeding or otherwise, to file such proofs of claim and other papers or
documents and to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee (including any
claim for reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
607. To the extent that
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payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any amounts due the Trustee under Section
607 hereof out of the estate in any such proceeding shall be denied for any
reason, payment of the same shall be secured by a Lien and shall be paid out
of any and all distributions, dividends, money, securities and other
properties that the Holders of the Securities may be entitled to receive in
such proceedings whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
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SECOND: To the payment of the amounts then due and unpaid on the
Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities in respect of principal (and
premium, if any) and interest; and
THIRD: To whosoever may be lawfully entitled thereto, the
remainder, if any.
Section 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25 percent in principal amount
of the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
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Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive full payment of the principal, of (and premium, if any) and (subject
to Section 209) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption on the Redemption
Date or in the case of an Offer to Purchase made by the Company and accepted
as to such Security, on the Purchase Date) in accordance with the terms of
this Indenture and the Securities and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
Section 509.Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 207, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder or otherwise shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or
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remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article Five or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security that is required to have been
purchased pursuant to an Offer to Purchase that has been made by the Company),
or
(2) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it
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as Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 601.
(b) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions that by any provision hereof are
specifically re-
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quired to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture but need not confirm the accuracy of any
calculations contained therein.
(c) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(d) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection (d) shall not be construed to limit the
effect of subsections (b) or (c) of this Section 601;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 602. Notice of Defaults; Notice of Acceleration.
Within 90 days after the occurrence of any Default or Event of
Default, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, notice of such Default or Event of
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Default known to the Trustee, unless such Default or Event of Default shall
have been cured or waived; provided that, except in the case of a default in
any payment of the principal of (or premium, if any) or interest on any
Security and any payment required in connection with a Change of Control or an
Asset Disposition, the Trustee shall be protected in with holding such notice
if and so long as the board of directors, the executive committee or the trust
committee corporate or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Holders; and provided further that in the case of any Default or Event of
Default of the character specified in Section 501(5), no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, order, demand or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by
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this Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled (subject to reasonable confidentiality arrangements as may
be proposed by the Company) to examine the books, records and premises of the
Company, personally or by agent or attorneys;
(g) 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 and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
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Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee in its individual capacity and each
of its officers, directors, agents and counsel for, and to hold it harmless
against, any loss, damage, claim, liability or expense incurred without
negligence or bad faith on such Person's part, arising out of or in connection
with the acceptance or administration of this Indenture or the performance of
any of its powers and duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder and complying
with any process served upon the Trustee or any such other Person hereunder.
The Trustee shall have a Lien prior to the Securities with respect to
all Property and funds held or collected by the Trustee hereunder for any
amount owing to it pursuant to this Section 607, except with respect
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to funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(7) or Section 501(8), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The Company's obligations under this Section 607 and any Lien arising
hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article Twelve, any
rejection or termination of the Indenture under any Federal or state
bankruptcy, insolvency or other similar law or any other termination of this
Indenture.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New York and shall be
subject to supervision or examination by Federal or State authority. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section 609 and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 609, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article Six.
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Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article Six shall become effective
until the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
in accordance with the applicable requirements of Section 611 shall not have
been delivered to the Trustee within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 611, become the
successor Trustee and supersede the successor Trustee appointed by the
Company. If no successor Trustee shall have been so appointed by the Company
or the Holders and accepted appointment in accordance with the applicable
requirements of Section 611, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give written notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of any amounts then due under Section 607, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, subject, nevertheless, to its Lien, if any, provided for in Section
607. Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and
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confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible
under this Article Six, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may from time to time appoint an Authenticating Agent or
Agents that shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption or partial purchase or pursuant
to Section 207, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such
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reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section
614, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section 614,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section 614.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent. In case
any Securities shall have been authenticated, but not delivered, by the
Authenticating Agent then in office, any successor by merger, conversion or
consolidation to such authenticating Authenticating Agent may adopt such
authentication and deliver the Securities so authenticated with the same
effect as if such successor Authenticating Agent had itself authenticated such
Securities.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof 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 such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trust-
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ee may appoint a successor Authenticating Agent that shall be acceptable to
the Company and shall give notice of such appointment in the manner provided
in Section 106, to all Holders as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 614.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section 614, the
Securities may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: IBJ XXXXXXXX BANK & TRUST
COMPANY
as Trustee
By
---------------------------
as Authenticating Agent
By
---------------------------
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company shall furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record Date, and
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(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to the names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the May
15 following the Issue Date, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company shall notify the Trustee in writing when the Securities are listed on
any stock exchange.
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Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc. Only on Certain Terms.
The Company shall not, in any transaction or series of transactions,
consolidate with or merge into any other Person, or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the
Property and assets of the Company to any other Person, unless:
(i) either (a) the Company shall be the continuing corporation or (b)
the corporation (if other than the Company) formed by such consolidation or
into which the Company is merged, or the Person that acquires, by sale,
assignment, conveyance, transfer, lease or disposition, all or substantially
all of the Property and assets of the Company (such corporation or Person, the
"Surviving Entity"), shall be a corporation organized and validly existing
under the laws of the United States of America, any political subdivision
thereof or any state thereof or the District of Columbia, and shall expressly
assume, by a supplemental indenture, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities and the
performance of the Company's covenants and obligations under this Indenture;
(ii) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including, without
limitation, any Debt Incurred or anticipated to be Incurred in connection with
or in respect of such transaction or series of transactions), no Default or
Event of Default shall have occurred and be continuing or would result
therefrom;
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(iii) immediately after giving effect to any such transaction or
series of transactions on a pro forma basis (including, without limitation,
any Debt Incurred or anticipated to be Incurred in connection with or in
respect of such transaction or series of transactions) as if such transaction
or series of transactions had occurred on the first day of the determination
period, the Company (or the Surviving Entity if the Company is not continuing)
would be permitted to Incur $1.00 of additional Debt pursuant to Section
1008(a); and
(iv) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any Debt
Incurred or anticipated to be Incurred in connection with or in respect of
such transaction or series of transactions) (without giving effect to the fees
and expenses incurred in respect of such transaction), the Company (or the
Surviving Entity if the Company is not continuing) shall have a Net Worth
equal to or greater than the Net Worth of the Company immediately prior to
such transaction.
In connection with any consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition contemplated by the
foregoing provisions of this Section 801, the Company shall deliver, or cause
to be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, conveyance, assignment,
transfer, lease or other disposition and the indenture supplemental hereto in
respect thereof (to the extent required under clause (i) of this Section 801)
comply with the requirements of this Indenture. Each such Officers'
Certificate shall set forth the ability to Incur Debt in accordance with
clause (iii) of Section 801.
None of the Company, any of its Restricted Subsidiaries or any
Eligible Joint Ventures may merge with or into, or be consolidated with, an
Unrestricted Subsidiary of the Company, except to the extent that such
Unrestricted Subsidiary has been designated a Restricted Subsidiary as
provided in this Indenture in advance of or in connection with such merger.
For all purposes of this Indenture and the Securities (including this
Section 801 and Sections 1008, 1009 and 1012), Subsidiaries of any Surviving
Entity shall, upon such transaction or series of transactions, become
Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to
this Indenture and all Debt, and all
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Liens on Property or assets, of the Surviving Entity and its Subsidiaries
that was not Debt, or were not Liens on Property or assets, of the Company and
its Subsidiaries immediately prior to such transaction or series of
transactions shall be deemed to have been Incurred upon such transaction or
series of transactions.
Section 802. Successor Substituted.
Upon any transaction or series of transactions that are of the type
described in, and are effected in accordance with, Section 801, the Surviving
Entity shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
Surviving Entity had been named as the Company herein; and when a Surviving
Person duly assumes all of the obligations and covenants of the Company
pursuant to this Indenture and the Securities, except in the case of a lease,
the predecessor Person shall be relieved of all such obligations.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, may, and subject to Section 903, the Trustee, at any time
and from time to time, shall, enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company;
or
(3) to add additional Events of Default; or
(4) to provide for uncertificated Securities in addition to or in
place of the certificated Securities; or
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(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is not Outstanding any Security created prior to the execution of such
supplemental indenture that is entitled to the benefit of such provision; or
(6) to evidence and provide for the acceptance of appointment under
this Indenture by a successor Trustee; or
(7) to secure the Securities pursuant to the requirements of Section
1012 or otherwise; or
(8) to cure any ambiguity, to correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture (8), provided that such actions pursuant to this clause
shall not adversely affect the interests of the Holders; or
(9) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, may, and (subject to Section 903) the Trustee shall, enter
into an indenture or indentures supplemental hereto, in form satisfactory to
the Trustee, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying
in any manner the rights of the Holders under this Indenture; provided that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of or any installment
of interest on, any Security, or reduce the principal amount thereof at or the
rate of interest thereon or any premium payable thereon, reduce any amount
payable on redemption or purchase thereof, or reduce the Default Amount that
would be due and payable on acceleration of the Stated Maturity thereof
pursuant to Section 502, or change the place of payment where, or the coin or
currency in which, any Security or any pre-
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mium or interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof,
or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify the obligations of the Company to make Offers to Purchase
from the Excess Proceeds of Asset Dispositions or upon a Change of Control or
to modify the definitions related thereto, or
(4) subordinate a right of payment, or otherwise subordinate, the
Securities to any other indebtedness, or
(5) modify any of the provisions of this Section 902, Section 513 or
Section 1020, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
After a supplemental indenture under this Section becomes effective,
the Company shall mail to the Holders affected thereby a notice briefly
describing the supplemental indenture. Any failure of the Company to mail such
notice, or any default therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
In connection with any supplemental indenture or waiver under this
Article Nine, the Company may, but shall not be obligated to, offer to any
Holder who consents to such supplemental indenture, or to all Holders,
consideration for such Holder's consent to such supplemental indenture.
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Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby, unless it makes a change described
in any of clauses (1) through (6) of Section 902, in which case, the
supplemental indenture shall bind only each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same Debt as the consenting Holder's Security;
provided that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal and premium of and interest on a
Security, on or after the respective dates set for such amounts to become due
and payable, or to bring suit for the enforcement of any such payment on or
after such respective dates.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities so modified as to conform, in the opinion
of the Trustee and the
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Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities. Any failure to make the appropriate notation on a new
Security shall not affect the validity of such Security.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company shall duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms
of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. In the event any such notice
or demands are so made or served on the Trustee, the Trustee shall promptly
forward copies thereof to the Company.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The
City of New York, for such purposes. The Company shall give prompt written
notice to the
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Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The Company hereby initially
designates the Corporate Trust Office of the Trustee as such office of the
Company.
Section 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
shall, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and shall promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it shall,
prior to each due date of the principal of (and premium, if any) or interest
on any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company shall promptly notify the Trustee of its action or
failure so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 1003,
that such Paying Agent shall (i) comply with the provisions of the Trust
Indenture Act applicable to it as Paying Agent, (ii) give the Trustee notice
of any default by the Company (or other obligor upon the Securities) in the
making of any payment of principal of (and premium, if any) or interest in
respect of the Securities and (iii) during the continuance of any default by
the Company (or any other obligor upon the Securities) in the making of any
payment in respect of the Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent as
such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such
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sums to be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease; provided that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, or mail to
such Holder, or both, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date
of such publication, any unclaimed balance of such money then remaining shall
be repaid to the Company.
Section 1004. Existence.
Subject to Article Eight, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and material franchises;
provided that the Company shall not be required to preserve any such right or
franchise if the Board of Directors in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof does not materially adversely affect the
Holders.
Section 1005. Maintenance of Properties.
The Company shall cause all material properties used or useful in the
conduct of its business or the business of any Restricted Subsidiary and any
Eligible Joint Venture to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and shall cause to
be made all necessary repairs, renewals, replacements, betterments and
improve-
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ments thereof, all as in the judgment of the Company may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided that nothing in this Section
1005 shall prevent the Company from discontinuing the operation or maintenance
of any of such material or properties or, subject to the provisions of Section
1015, disposing of any of them if such discontinuance or disposal is, as
determined by the Company in good faith, desirable in the conduct of its
business or the business of any Restricted Subsidiary and does not materially
adversely affect the Holders, provided that the Restricted Subsidiaries and
the Eligible Joint Ventures of the Company shall not be required to comply
with the forgoing provisions of this Section 1005 if they are prevented or
restricted in doing so by the terms of any loan or financing agreement, any
charter document, partnership or joint venture agreement or any other
agreement or instrument, all of which are expressly acknowledged to take
precedence over the terms hereof.
Section 1006. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Restricted Subsidiaries or upon the income, profits or property of the Company
or any of its Restricted Subsidiaries, and (2) all lawful claims for labor,
materials and supplies that, if unpaid, might by law become a Lien upon the
property of the Company or any of its Restricted Subsidiaries; provided that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which disputed amounts adequate reserves have been accrued
to the extent required by GAAP.
Section 1007. Maintenance of Insurance.
The Company shall, and shall cause its Restricted Subsidiaries and
the Eligible Joint Ventures to, keep at all times all of their Properties that
are of an insurable nature insured against loss or damage with insurers
believed by the Company to be responsible to the extent that Property of
similar character is usually so insured by Persons similarly situated and
owning like Properties in accordance with good business practice. The Company
shall, and shall cause its Restricted Subsidiaries and the Eligible Joint
Ventures to, use the proceeds from any
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such insurance policy to repair, replace or otherwise restore all material
Properties to which such proceeds relate, provided that the Company shall not
be required to repair, replace or otherwise restore any such material Property
if the Company in good faith determines that such inaction is desirable in the
conduct of the business of the Company or any Restricted Subsidiary and does
not materially adversely affect the Holders, and provided further that the
Company (only in respect of agreements governing its Non-Recourse Debt), the
Restricted Subsidiaries and the Eligible Joint Ventures of the Company shall
not be required to apply insurance proceeds to repair, replace or restore any
material Property if they are prevented or restricted in doing so by the terms
of any loan or financing agreement, any charter document, partnership or joint
venture agreement or any other agreement or instrument, all of which are
expressly acknowledged to take precedence over the terms hereof.
The Company may, and may permit its Restricted Subsidiaries and
Eligible Joint Ventures to, adopt such other plan or method of protection, in
lieu of or supplemental to insurance with insurers, whether by the
establishment of an insurance fund or reserve to be held and applied to make
good losses from casualties, or otherwise, conforming to the system of
self-insurance maintained by Persons similarly situated and owning like
Properties and which does not materially adversely affect the Holders, as may
be determined by the Company in good faith.
Section 1008. Limitation on Debt.
(a) The Company shall not Incur any Debt, including Acquisition Debt,
unless, after giving effect to the Incurrence of such Debt and the receipt and
application of the proceeds therefrom, the Fixed Charge Ratio of the Company
would be equal to or greater than 2.0 to 1.
(b) Notwithstanding the provisions of Section 1008(a), the Company
may Incur each and all of the following: (i) Company Refinancing
Debt, (ii) Debt of the Company to any of its Restricted Subsidiaries or any
Eligible Joint Venture that is expressly subordinated in right of payment to
the Securities, provided that any transfer of such Debt by a Restricted
Subsidiary or an Eligible Joint Venture (other than to another Restricted
Subsidiary or another Eligible Joint Venture), or any transfer of the Company's
ownership interest, or a portion thereof, in such Restricted Subsidiary or such
Eligible Joint Venture or the interest, or a portion thereof, of Kiewit in a
Permitted Joint Venture or an
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Eligible Joint Venture (which transfer has the effect of causing such
Restricted Subsidiary or such Eligible Joint Venture to cease to be a
Restricted Subsidiary or an Eligible Joint Venture, as the case may be), shall
be deemed to be an Incurrence of Debt that is subject to the provisions of
this Section 1008 other than this clause (ii), (iii) Debt in an aggregate
principal amount not to exceed $100 million outstanding at any one time may be
issued under or in respect of Permitted Working Capital Facilities, (iv)
Non-Recourse Debt Incurred in respect of one or more Permitted Facilities in
which the Company has a direct or indirect interest, (v) Debt in respect of
Currency Protection Agreements or Interest Rate Protection Agreements, (vi)
Purchase Money Debt, provided that the amount of such Debt (net of any
original issue discount) does not exceed 90% of the fair market value of the
Property acquired, (vii) the Securities and other Debt outstanding as of the
Issue Date of the Securities (other than Debt to the extent that it is
extinguished, retired, defeased or repaid in connection with the original
issuance of the Securities), including Debt that is Incurred in respect of
interest or discount on such Debt (or Redeemable Stock issued as dividends in
respect of Redeemable Stock) pursuant to the terms of the agreement or
instrument that governs such Debt (or such Redeemable Stock) as in effect on
the Issue Date of the Securities and (viii) Debt in an aggregate principal
amount not to exceed $75 million outstanding at any one time.
Section 1009. Limitation on Subsidiary Debt.
(a) The Company shall not permit any of its Restricted Subsidiaries
or any Eligible Joint Venture, to Incur any Debt.
(b) Notwithstanding the provisions of Section 1009(a), each and all
of the following Debt may be Incurred by a Restricted Subsidiary or an
Eligible Joint Venture: (i) Debt outstanding as of the Issue Date of the
Securities, (ii) Debt owed by a Restricted Subsidiary or an Eligible Joint
Venture to the Company or another Restricted Subsidiary of the Company or
another Eligible Joint Venture that either directly or indirectly owns all or
a portion of the Company's interest in, or directly or indirectly is owned by,
such Restricted Subsidiary or such Eligible Joint Venture, as the case may be,
and that does not own any Permitted Facility or a direct or indirect interest
therein, other than the Permitted Facility or any other Permitted Facility
that is located on the same localized geothermal reservoir or a direct or
indirect interest therein owned by such Restricted Subsidiary or Eligible
Joint Venture, (iii) Non-Recourse Debt In-
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curred in respect of one or more Permitted Facilities, provided that such
Restricted Subsidiary or such Eligible Joint Venture has a direct or indirect
interest (which may include Construction Financing provided by the Company to
the extent permitted under Section 1010 as a "Permitted Investment") in one or
more of such Permitted Facilities in respect of which one or more Restricted
Subsidiaries or Eligible Joint Ventures shall have a direct or indirect
interest, (iv) Subsidiary Refinancing Debt, (v) Acquired Debt, (vi) Debt in
respect of Currency Protection Agreements or Interest Rate Protection
Agreements, (vii) Permitted Funding Company Loans and (viii) Permitted
Facilities Debt, provided that at the time of Incurrence thereof and after
giving effect to the application of the proceeds thereof, the aggregate
principal amount of Permitted Facilities Debt shall not exceed 15% of total
consolidated Debt of the Company computed in accordance with GAAP.
Section 1010. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries or any Eligible Joint Venture to, directly or indirectly, make
any Restricted Payment unless at the time of such Restricted Payment and after
giving effect thereto (a) no Event of Default and no event that, after the
giving of notice or lapse of time or both, would become an Event of Default,
has occurred and is continuing, (b) the Company could Incur at least $1 of
Debt under Section 1008(a) and (c) the aggregate amount of all Restricted
Payments made by the Company, its Restricted Subsidiaries and the Eligible
Joint Ventures (the amount so made, if other than in cash, to be determined in
good faith by the Chief Financial Officer, as evidenced by an Officers'
Certificate, or, if more than $30 million, by the Board of Directors, as
evidenced by a Board resolution) after March 24, 1994, is less than the sum
(without duplication) of (i) 50% of the Adjusted Consolidated Net Income of
the Company for the period (taken as one accounting period) beginning on the
first day of the first fiscal quarter that begins after March 24, 1994 and
ending on the last day of the fiscal quarter immediately prior to the date of
such calculation, provided that if throughout any fiscal quarter within such
period the Ratings Categories applicable to the Securities are rated
Investment Grade by S&P and Xxxxx'x (or if both do not make a rating of the
Securities publicly available, an equivalent Rating Category is made publicly
available by another Rating Agency), then 100% (instead of 50%) of the
Adjusted Consolidated Net Income (if more than zero) with respect to such
fiscal quarter shall be included pursuant to this clause (i),
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and provided further that if Adjusted Consolidated Net Income for such period
is less than zero, then minus 100% of the amount of such net loss, plus (ii)
100% of the aggregate net cash proceeds received by the Company from and after
March 24, 1994 from (A) the issuance and sale (other than to a Restricted
Subsidiary or an Eligible Joint Venture) of its Capital Stock (excluding
Redeemable Stock, but including Capital Stock other than Redeemable Stock
issued upon conversion of, or in exchange for Redeemable Stock or securities
other than its Capital Stock), (B) the issuance and sale or the exercise of
warrants, options and rights to purchase its Capital Stock (other than
Redeemable Stock) and (C) the issuance and sale of convertible Debt upon the
conversion of such convertible Debt into Capital Stock (other than Redeemable
Stock), but excluding the net proceeds from the issuance, sale, exchange,
conversion or other disposition of its Capital Stock (I) that is convertible
(whether at the option of the Company or the holder thereof or upon the
happening of any event) into (x) any security other than its Capital Stock or
(y) its Redeemable Stock or (II) that is Capital Stock referred to in clauses
(ii) and (iii) of the definition of "Permitted Payment", plus (iii) the net
reduction in Investments of the types specified in clauses (iv) and (v) of the
definition of "Restricted Payment" that result from payments of interest on
Debt, dividends, or repayment of loans or advances, the proceeds of the sale
or disposition of the Investment or other return of the amount of the original
Investment to the Company, the Restricted Subsidiary or the Eligible Joint
Venture that made the original Investment from the Person in which such
Investment was made, provided that (x) the aggregate amount of such payments
shall not exceed the amount of the original Investment by the Company or such
Restricted Subsidiary that reduced the amount available pursuant to this
clause (c) for making Restricted Payments and (y) such payments may be added
pursuant to this clause (iii) only to the extent such payments are not
included in the calculation of Adjusted Consolidated Net Income, provided
further that if Investments of the types specified in clauses (iv) and (v) of
the Definition of "Restricted Payment" have been made in any Person and such
Person thereafter becomes a Restricted Subsidiary or an Eligible Joint
Venture, then the aggregate amount of such Investment (to the extent that they
have reduced the amount available pursuant to this clause (c) for making
Restricted Payments), net of the amounts previously added pursuant to this
clause (iii), may be added to the amount available for making Restricted
Payments, plus (iv) an amount equal to the principal amount of Debt of the
Company extinguished in connection with the conversion into Common Stock of
the
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Company of the Company's 5% Convertible Subordinated Debentures due 2000 and
its 9.5% Convertible Subordinated Debenture due 2003. The foregoing clause (c)
shall not prevent the payment of any dividend within 60 days after the date
of its declaration if such dividend could have been made on the date of its
declaration without violation of the provisions of this Section 1010(a).
(b) None of the Company, any of its Restricted Subsidiaries or any
Eligible Joint Venture shall be deemed to have made an Investment at the time
that a Person that is a Restricted Subsidiary of the Company or an Eligible
Joint Venture ceases to be a Restricted Subsidiary or an Eligible Joint
Venture (other than as a result of a Restricted Subsidiary being designated as
an Unrestricted Subsidiary), although any subsequent Investment made by the
Company, its Restricted Subsidiaries and Eligible Joint Ventures in such
Person shall be Investments that shall be subject to the foregoing paragraph
unless and until such time as such Person becomes a Restricted Subsidiary or
an Eligible Joint Venture. Notwithstanding the foregoing, (i) the designation
of a Restricted Subsidiary as an Unrestricted Subsidiary, in the manner
provided in the definition of "Unrestricted Subsidiary," shall be an
Investment that shall be subject to the foregoing paragraph and (ii) the
transfer of the Company's interest (or portion thereof) in an entity that has
been deemed to be an Eligible Joint Venture directly or indirectly to an
Unrestricted Subsidiary shall be an Investment (to the extent of the interest
transferred) that shall be subject to the foregoing paragraph.
Section 1011. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries or any Eligible Joint Venture to, directly or indirectly, conduct
any business or enter into or permit to exist any transaction or series of
related transactions (including, but not limited to, the purchase, sale or
exchange of Property, the making of any Investment, the giving of any
Guarantee or the rendering of any service) with any Affiliate of the Company,
such Restricted Subsidiary or such Eligible Joint Venture, as the case may be,
unless (i) such business, transaction or series of related transactions is in
the best interest of the Company, such Restricted Subsidiary or such Eligible
Joint Venture, (ii) such business, transaction or series of related
transactions is on terms no less favorable to the Company, such Restricted
Subsidiary or such Eligible Joint Venture than those that could be obtained in
a comparable arm's length transaction with a Person that is
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not such an Affiliate and (iii) with respect to such business, transaction or
series of related transactions that has a fair market value or involves
aggregate payments equal to, or in excess of, $10 million, such business,
transaction or series of transactions is approved by a majority of the Board
of Directors (including a majority of the Disinterested Directors), which
approval is set forth in a Board Resolution delivered to the Trustee
certifying that, in good faith, the Board of Directors believes that such
business, transaction or series of transactions complies with clauses (i) and
(ii) above.
Section 1012. Limitation on Liens.
The Company may not Incur any Debt that is secured, directly or
indirectly, with, and the Company shall not, and shall not permit any of its
Restricted Subsidiaries or any Eligible Joint Venture to, xxxxx x Xxxx on the
Property of the Company, its Restricted Subsidiaries or any Eligible Joint
Venture now owned or hereafter acquired unless contemporaneous therewith or
prior thereto the Securities are equally and ratably secured except for (i)
any such Debt secured by Liens existing on the Property of any entity at the
time such Property is acquired by the Company, any of its Restricted
Subsidiaries or any Eligible Joint Venture, whether by merger, consolidation,
purchase of such Property or otherwise, provided that such Liens (x) are not
created, incurred or assumed in contemplation of such Property being acquired
by the Company, any of its Restricted Subsidiaries or any Eligible Joint
Venture and (y) do not extend to any other Property of the Company, any of its
Restricted Subsidiaries or any Eligible Joint Venture, (ii) any other Debt
that is required by the terms thereof to be equally and ratably secured as a
result of the Incurrence of Debt that is permitted to be secured pursuant to
another clause of this Section 1012, (iii) Liens that are granted in good
faith to secure Debt (A) contemplated by clause (iv) of Section 1008(b) or (B)
contemplated by clauses (ii), (iii), (vi) and (viii) of Section 1009(b),
provided that, in the case of Debt owed to a Person other than the Company or
a Restricted Subsidiary, the President or Chief Financial Officer of the
Company determines in good faith, as evidenced by an Officers' Certificate,
that such Liens are required in order to effect such financing and are not
materially more restrictive, taken as a whole, than Liens, taken as a whole,
customarily accepted (or in the absence of industry custom, reasonably
acceptable) in comparable financings or comparable transactions in the
applicable jurisdiction, (iv) Liens existing on the Issue Date of the
Securities, (v) Liens incurred to
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secure Debt incurred by the Company as permitted by clause (vi) of Section
1008(b), provided that such Liens may not cover any Property other than that
being purchased and improvements and additions thereto, (vi) Liens on any
Property of the Company securing Permitted Working Capital Facilities,
Guarantees thereof and any Interest Rate Protection Agreements or Currency
Protection Agreements, provided that such Liens may not extend to the Capital
Stock owned by the Company in any Restricted Subsidiary of the Company or any
Eligible Joint Venture, (vii) Liens in respect of extensions, renewals,
refundings or refinancings of any Debt secured by the Liens referred to in the
foregoing clauses, provided that the Liens in connection with such renewal,
extension, refunding or refinancing shall be limited to all or part of the
specific property that was subject to the original Lien, (viii) Liens incurred
to secure obligations in respect of letters of credit, bankers' acceptances,
surety, bid, operating and performance bonds, performance guarantees or other
similar instruments or obligations (or reimbursement obligations with respect
thereto) (in each case, to the extent incurred in the ordinary course of
business), (ix) any Lien arising by reason of (A) any judgment, decree or
order of any court, so long as such Lien is being contested in good faith and
is appropriately bonded, and any appropriate legal proceedings that may have
been duly initiated for the review of such judgment, decree or order have not
been finally terminated or the period within which such proceedings may be
initiated has not expired, (B) taxes, duties, assessments, imposts or other
governmental charges that are not yet delinquent or are being contested in
good faith, (C) security for payment of worker's compensation or other
insurance, (D) security for the performance of tenders, contracts (other than
contracts for the payment of money) or leases, (E) deposits to secure public
or statutory obligations, or to secure permitted contracts for the purchase or
sale of any currency entered into in the ordinary course of business, (F) the
operation of law in favor of carriers, warehousemen, landlords, mechanics,
materialmen, laborers, employees or suppliers, incurred in the ordinary course
of business for sums that are not yet delinquent or are being contested in
good faith by negotiations or by appropriate proceedings that suspend the
collection thereof, (G) easements, rights-of-way, zoning and similar covenants
and restrictions and other similar encumbrances or title defects that do not
in the aggregate materially interfere with the ordinary conduct of the
business of the Company, any of its Re-
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stricted Subsidiaries or any Eligible Joint Venture or (H) leases and
subleases of real property that do not interfere with the ordinary conduct of
the business of the Company, any of its Restricted Subsidiaries or any
Eligible Joint Venture and that are made on customary and usual terms
applicable to similar properties, or (x) Liens, in addition to the foregoing,
that secure obligations not in excess of $5 million in the aggregate.
Section 1013. Purchase of Securities Upon a Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of the
Securities shall have the right to require that the Company repurchase such
Holder's Securities at a purchase price in cash equal to 101% of the principal
thereof on the date of purchase plus accrued interest, if any, to the date of
purchase.
(b) Within 30 days following a Change of Control, the Company shall
mail a notice to each Holder, with a copy to the Trustee, stating (1) that a
Change of Control has occurred and that such Holder has the right to require
the Company to purchase such Holder's Securities at the purchase price
described in Section 1013(a) (the "Change of Control Offer"), (2) the
circumstances and relevant facts regarding such Change of Control (including
information with respect to pro forma historical income, cash flow and
capitalization after giving effect to such Change of Control), (3) the
purchase date (which shall be not earlier than 30 days nor later than 60 days
from the date such notice is mailed) (the "Change of Control Purchase Date"),
(4) that interest on any such Security shall continue to accrue, (5) any
Security properly tendered pursuant to the Change of Control Offer shall cease
to accrue interest after the Change of Control Purchase Date (assuming
sufficient moneys for the purchase thereof are deposited with the Trustee),
(6) that Holders electing to have a Security purchased pursuant to a Change
of Control Offer shall be required to surrender the Security, with the form
entitled "Option of Holder To Elect Purchase" on the reverse of the Security
completed, to the paying agent at the address specified in the notice prior
to the close of business on the fifth Business Day prior to the Change of
Control Purchase Date, (7) that a Holder shall be entitled to withdraw such
Holder's election if the Paying Agent receives, not later than the close of
business on the third Business Day (or such shorter periods as may be required
by applicable law) preceding the Change of Control Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Securities the Holder delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Securities
purchased and (8) that
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Holders that elect to have their Securities purchased only in part shall be
issued new Securities having a principal amount equal to the portion of the
Securities that were surrendered but not tendered and purchased.
On the Change of Control Purchase Date, the Company shall (i) accept
for payment all Securities or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Trustee money sufficient to pay the
purchase price of all Securities or portions thereof so tendered for purchase
and (iii) deliver or cause to be delivered to the Trustee the Securities
properly tendered together with an Officers' Certificate identifying the
Securities or portions thereof tendered to the Company for purchase. The
Trustee shall promptly mail, to the Holders of the Securities properly
tendered and purchased, payment in an amount equal to the purchase price, and
promptly authenticate and mail to each Holder a new Security having a
principal amount equal to any portion of such Holder's Securities that were
surrendered but not tendered and purchased. The Company shall publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Purchase Date.
If the Company is prohibited by applicable law from making the Change
of Control Offer or purchasing Securities thereunder, the Company need not
make a Change of Control Offer pursuant to this Section 1013 for so long as
such prohibition is in effect.
The Company shall comply with all applicable tender offer rules,
including, without limitation, Rule 14e-1 under the Exchange Act, in
connection with a Change of Control Offer.
Section 1014. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries or any Eligible Joint Venture to, create or cause to become, or
as a result of the acquisition of any Person or Property, or upon any Person
becoming a Restricted Subsidiary or an Eligible Joint Venture, remain subject
to, any consensual encumbrance or consensual restriction of any kind on the
ability of any Restricted Subsidiary or any Eligible Joint Venture to (a) pay
dividends or make any other distributions permitted by applicable law on any
Capital Stock of such Restricted Subsidiary or such Eligible Joint Venture
owned by the Company, any other Restricted Subsidiary or any other Eligible
Joint Venture, (b) make payments in re-
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spect of any Debt owed to the Company, any other Restricted Subsidiary of the
Company or any Eligible Joint Venture, (c) make loans or advances to the
Company or to any other Restricted Subsidiary of the Company or any other
Eligible Joint Venture that is directly or indirectly owned by such Restricted
Subsidiary or such Eligible Joint Venture or (d) transfer any of its Property
to the Company or to any other Restricted Subsidiary or any other Eligible
Joint Venture that directly or indirectly owns or is owned by such Restricted
Subsidiary or such Eligible Joint Venture, other than those encumbrances and
restrictions created or existing (i) on the Issue Date of the Securities, (ii)
pursuant to this Indenture, (iii) in connection with the Incurrence of any
Debt permitted under the provisions described in clause (iii) of Section
1009(b), provided that, in the case of Debt owed to Persons other than the
Company, its Restricted Subsidiaries and any Eligible Joint Venture, the
President or the Chief Financial Officer of the Company determines in good
faith, as evidenced by an Officers' Certificate, that such encumbrances or
restrictions are required to effect such financing and are not materially more
restrictive, taken as a whole, on the ability of the applicable Restricted
Subsidiary or the applicable Eligible Joint Venture to make the payments,
distributions, loans, advances or transfers referred to in clauses (a) through
(d) of this Section 1014 than encumbrances and restrictions, taken as a whole,
customarily accepted (or, in the absence of any industry custom, reasonably
acceptable) in comparable financings or comparable transactions in the
applicable jurisdiction, (iv) in connection with the execution and delivery of
an electric power or thermal energy purchase contract, or other contract
related to the output or product of, or services rendered by one or more
Permitted Facilities to which such Restricted Subsidiary or such Eligible
Joint Venture is a supplying party or other contracts with customers,
suppliers and contractors to which such Restricted Subsidiary or such Eligible
Joint Venture is a party and where such Restricted Subsidiary or such Eligible
Joint Venture is engaged, directly or indirectly, in the development, design,
engineering, procurement, construction, acquisition, ownership, management or
operation of one or more of such Permitted Facilities, provided that the
President or the Chief Financial Officer of the Company determines in good
faith, as evidenced by an Officers' Certificate, that such encumbrances or
restrictions are required to effect such contracts and are not materially more
restrictive, taken as a whole, on the ability of the applicable Restricted
Subsidiary or the applicable Eligible Joint Venture to make the payments,
distributions, loans, advances or transfers referred to in clauses (a)
through
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(d) of this Section 1014 than encumbrances and restrictions, taken as
a whole, customarily accepted (or, in the absence of any industry custom,
reasonably acceptable) in comparable financings or comparable transactions in
the applicable jurisdiction, (v) in connection with any Acquired Debt,
provided that such encumbrance or restriction was not incurred in
contemplation of such Person becoming a Restricted Subsidiary or an Eligible
Joint Venture and provided further that such encumbrance or restriction does
not extend to any other Property of such Person at the time it became a
Restricted Subsidiary or an Eligible Joint Venture, (vi) in connection with
the Incurrence of any Debt permitted under clause (iv) of Section 1009(b),
provided that, in the case of Debt owed to Persons other than the Company and
its Restricted Subsidiaries, the President or the Chief Financial Officer of
the Company determines in good faith, as evidenced by an Officers'
Certificate, that such encumbrances or restrictions taken as a whole are not
materially more restrictive than the encumbrances and restrictions applicable
to the Debt and/or equity being exchanged or refinanced, (vii) customary
non-assignment provisions in leases or other contracts entered into in the
ordinary course of business of the Company, any Restricted Subsidiary or any
Eligible Joint Venture, (viii) any restrictions imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all
of the Capital Stock or Property of any Restricted Subsidiary or Joint Venture
that apply pending the closing of such sale or disposition, (ix) in
connection with Liens on the Property of such Restricted Subsidiary or such
Eligible Joint Venture that are permitted by Section 1012 but only with
respect to transfers referred to in clause (d) of this Section 1014, (x) in
connection with the Incurrence of any Debt permitted under clause (ii) of
Section 1009(b) or (xi) in connection with the Incurrence of any Permitted
Facilities Debt permitted under clause (viii) of Section 1009(b), provided
that any such encumbrance or restriction relates only to those Restricted
Subsidiaries or Eligible Joint Ventures having a direct or indirect interest
in the Permitted Facilities in respect of which such Permitted Facilities Debt
was Incurred.
Section 1015. Limitation on Dispositions.
(a) Subject to the provisions of Article Eight, the Company shall not
make and shall not permit any of its Restricted Subsidiaries or any Eligible
Joint Venture to make, any Asset Disposition unless (i) the Company, the
Restricted Subsidiary or the Eligible Joint Venture, as the case may be,
receives consideration at
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the time of each such Asset Disposition at least equal to the fair market
value of the Property or securities sold or otherwise disposed of (to be
determined in good faith by the Chief Financial Officer, as evidenced by an
Officers' Certificate, or, if more than $30 million, by the Board of
Directors, as evidenced by a Board resolution), (ii) at least 85% of such
consideration is received in cash or Cash Equivalents or, if less than 85%,
the remainder of such consideration consists of Property related to the
business of the Company as described in the first sentence of Section 1021,
and (iii) unless otherwise required under the terms of Senior Debt, at the
Company's election, the Net Cash Proceeds are either (A) invested in the
business of the Company, any of its Restricted Subsidiaries or any Eligible
Joint Venture or (B) applied to the payment of any Debt of the Company or of
any of its Restricted Subsidiaries or any Eligible Joint Venture (or as
otherwise required under the terms of such Debt), provided that, no such
payment of Debt (x) under Permitted Working Capital Facilities or any other
revolving credit agreement shall count for this purpose unless the related
loan commitment, standby facility or the like shall be permanently reduced by
an amount equal to the principal amount so repaid and (y) owed to the Company,
a Restricted Subsidiary thereof or an Eligible Joint Venture shall count for
this purpose, provided further that such investment or such payment, as the
case may be, must be made within 365 days from the later of the date of such
Asset Disposition or the receipt by the Company, such Restricted Subsidiary or
such Eligible Joint Venture of the Net Cash Proceeds related thereto. Any Net
Cash Proceeds from Asset Dispositions that are not applied as provided in
clause (A) or (B) of the preceding sentence shall constitute "Excess
Proceeds." Excess Proceeds shall be applied, as described below, to make
an offer (an "Excess Proceeds Offer") to purchase Securities at a purchase price
equal to 100% of the principal thereof, plus accrued interest, if any, to the
date of purchase.
(b) Notwithstanding the provisions of Section 1015(a), the Company,
its Restricted Subsidiaries and the Eligible Joint Ventures may exchange with
other Persons (i) Property that constitutes a Restricted Subsidiary or an
Eligible Joint Venture for Property that constitutes a Restricted Subsidiary
or an Eligible Joint Venture, (ii) Property that constitutes a Restricted
Subsidiary or an Eligible Joint Venture for Property that does not constitute
a Restricted Subsidiary or an Eligible Joint Venture, (iii) Property that
does not constitute a Restricted Subsidiary or an Eligible Joint Venture for
Property that does not constitute a Restricted Subsidiary or an Eligible Joint
Venture and (iv) Property that does not constitute a Restricted Subsidiary or
an
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Eligible Joint Venture for Property that constitutes a Restricted Subsidiary
or an Eligible Joint Venture, provided that in each case the fair market value
of the Property received is at least equal to the fair market value of the
Property exchanged as determined in good faith by the Chief Financial Officer,
as evidenced by an Officers' Certificate, or, if more than $25 million, by the
Board of Directors, as evidenced by a Board resolution, provided that the
Investment in the Property received in the exchanges described in clauses (ii)
and (iii) of the prior sentence shall be subject to Section 1010.
Notwithstanding anything in the foregoing to the contrary, the Company may
not, and shall not permit any of its Restricted Subsidiaries or any Eligible
Joint Venture to, make an Asset Disposition of any of their interest in, or
Property of, any of the three geothermal facilities located together at the
Naval Weapons Center at China Lake, California, sometimes referred to as the
"Coso Project," other than for consideration consisting solely of cash.
(c) To the extent that any or all of the Net Cash Proceeds of any
Foreign Asset Disposition are prohibited from (or delayed in) being
repatriated to the United States by applicable local law, the portion of such
Net Cash Proceeds so affected shall not be required to be applied at the time
provided above but may be retained by any Restricted Subsidiary or any
Eligible Joint Venture so long, but only so long, as the applicable local law
does not permit (or delays) repatriation to the United States. If such Net
Cash Proceeds are transferred by the Restricted Subsidiary or Eligible Joint
Venture that conducted the Foreign Asset Dispo-
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sition to another Restricted Subsidiary or Eligible Joint Venture, the
Restricted Subsidiary or Eligible Joint Venture receiving such Net Cash
Proceeds must not be directly or indirectly obligated on any Debt owed to any
Person other than the Company. The Company shall take or cause such
Restricted Subsidiary or such Eligible Joint Venture to take all actions
required by the applicable local law to permit such repatriation promptly.
Once repatriation of any of such Net Cash Proceeds is permitted under the
applicable local law, repatriation shall be effected immediately and the
repatriated Net Cash Proceeds shall be applied in the manner set forth in this
Section 1015(c) as if such Asset Disposition had occurred on the date of such
repatriation. In addition, if the Chief Financial Officer determines, in good
faith, as evidenced by an Officers' Certificate, that repatriation of any or
all of the Net Cash Proceeds of any Foreign Asset Disposition would have a
material adverse tax consequence to the Company, the Net Cash Proceeds so
affected may be retained outside of the United States by the applicable
Restricted Subsidiary or the applicable Eligible Joint Venture for so long as
such material adverse tax consequence would continue. Notwithstanding the
foregoing provisions of this paragraph to the contrary, if applicable local
law prohibits (or delays) the repatriation of Net Cash Proceeds of a Foreign
Asset Disposition but such local law does not prohibit the application of such
Net Cash Proceeds pursuant to the first sentence of this Section 1015(a), the
Company may apply such Net Cash Proceeds pursuant to such provision.
(d) If the Securities tendered pursuant to an Excess Proceeds Offer
have an aggregate purchase price that is less than the Excess Proceeds
available for the purchase of the Securities, the Company may use the
remaining Excess Proceeds for general corporate purposes without regard to the
provisions of this Section 1015(d). The Company shall not be required to make
an Excess Proceeds Offer pursuant to this Section 1015 if the Excess Proceeds
available therefor are less than $10 million, provided that the lesser amounts
of such Excess Proceeds shall be carried forward and cumulated for each 36
consecutive month period for purposes of determining whether an Excess
Proceeds Offer is re quired with respect to any Excess Proceeds of any
subsequent Asset Dispositions. Any such lesser amounts so carried forward and
cumulated need not be segregated or reserved and may be used for general
corporate purposes, provided that such use shall not reduce the amount of
cumulated Excess Proceeds or relieve the Company of its obligation hereunder
to make an Excess Proceeds Offer with respect thereto.
(e) The Company shall make an Excess Proceeds Offer by mailing to
each Holder, with a copy to the Trustee, within 30 days after the receipt of
Excess Proceeds that cause the cumulated Excess Proceeds to exceed $10
million, a written notice that shall specify the purchase date, which shall
not be less than 30 days nor more than 60 days after the date of such notice
(the "Excess Proceeds Purchase Date"), that shall contain certain information
concerning the business of the Company that the Company believes in good faith
shall enable the Holders to make an informed decision and that shall contain
information concerning the procedures applicable to the Excess Proceeds Offer
(including, without limitation, the right of withdrawal) and the effect of
such offer on the Securities tendered. Holders that elect to have their
Securities purchased shall be required to surrender such Securities at least
one Business Day prior
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to the Excess Proceeds Purchase Date. If at the expiration of the Excess
Proceeds Offer period the aggregate purchase price of the Securities properly
tendered by Holders pursuant to the Excess Proceeds Offer exceeds the amount
of such Excess Proceeds, the Securities or portions of Securities to be
accepted for purchase shall be selected by the Trustee in such manner as the
Trustee deems to be fair and appropriate in the circumstances.
On the Excess Proceeds Purchase Date, the Company shall (i) accept
for payment on a pro rata basis Securities or portions thereof tendered
pursuant to the Excess Proceeds Offer, (ii) deposit with the Paying Agent
money in immediately available funds sufficient to pay the aggregate purchase
price of all the Securities or portions thereof so accepted and (iii) deliver
to the Trustee Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof tendered to the Company. The Paying
Agent shall promptly mail to the Holders of each Security so accepted payment
in an amount equal to the aggregate purchase price, and the Trustee shall
promptly authenticate and mail to the Holders of each Security so accepted
payment in an amount equal to the purchase price thereof, and the Trustee
shall promptly authenticate and mail to such Holders new Securities equal in
principal amount to any portion of the Security surrendered that was not
purchased. The Company shall make a public announcement of the results of the
Excess Proceeds Offer as soon as practicable after the Excess Proceeds
Purchase Date. For the purposes of this Section 1015, the Trustee shall act as
the Paying Agent.
If the Company is prohibited by applicable law from making the Excess
Proceeds Offer or purchasing Securities thereunder, the Company need not make
an Excess Proceeds Offer pursuant to this Section 1015 for so long as such
prohibition is in effect.
The Company shall comply with all applicable tender offer rules,
including, without limitation, Rule 14e-1 under the Exchange Act, in
connection with an Excess Proceeds Offer.
Section 1016. Limitation on Certain Sale-Leasebacks.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries or any Eligible Joint Venture to, Incur or otherwise become
obligated with respect to any sale-leaseback (other than a sale-leaseback with
respect to a Permitted Facility that is Non-Recourse) unless, (i) (a) if
effected by the Company, the Company
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would be permitted to Incur such obligation under Section 1008 or, (b) if
effected by a Restricted Subsidiary or an Eligible Joint Venture, such
Restricted Subsidiary or such Eligible Joint Venture would be permitted to
Incur such obliga tion under Section 1009(b), assuming for the purpose of this
Section 1016 and Section 1008 and 1009 that (x) the obligation created by such
sale-leaseback is a Capitalized Lease and (y) the Capitalized Lease Obligation
with respect thereto is the Attributable Value thereof, (ii) the Company, such
Restricted Subsidiary or such Eligible Joint Venture is permitted to xxxxx x
Xxxx with respect to the property that is the subject of such sale-leaseback
under Section 1012 of this Indenture, (iii) the proceeds of such
sale-leaseback are at least equal to the fair market value of the property
sold (determined in good faith as evidenced by an Officers' Certificate
delivered to the Trustee in respect of a transaction involving less than $25
million, or, if equal to or in excess of $25 million, by the Board of
Directors, as evidenced by a Board Resolution) and (iv) the Net Cash Proceeds
of the sale-leaseback are applied pursuant to Section 1015.
Section 1017. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act, or any successor provision thereto, the Company shall file
with the Commission the annual reports, quarterly reports and other documents
that the Company would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if the
Company were subject thereto, such documents to be filed with the Commission
on or prior to the respective dates by which the Company would have been
required to file them. The Company shall also in any event (a) within 15 days
of each such date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) file with the Trustee copies of the annual reports, quarterly reports and
other documents (without exhibits) which the Company would have been required
to file with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act or any successor provisions thereto if the Company were subject thereto
and (b) if filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request, supply copies
of such documents (without exhibits) to any prospective Holder.
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Section 1018. Limitation on Sale of Subsidiary Preferred Stock.
The Company shall not permit any of its Restricted Subsidiaries or
any Eligible Joint Venture to create, assume or other wise cause or suffer to
exist any Preferred Stock except: (i) Preferred Stock outstanding on the date
of this Indenture, including Preferred Stock issued as dividends in respect of
such Preferred Stock pursuant to the terms of the agreement or instrument
that governs such Preferred Stock as in effect on the Issue Date of the
Securities, (ii) Preferred Stock held by the Company, a Restricted Subsidiary
of the Company or an Eligible Joint Venture, (iii) Preferred Stock issued by
a Person prior to the time (a) such Person becomes a Restricted Subsidiary or
an Eligible Joint Venture, (b) such Person merges with or into another
Restricted Subsidiary or another Eligible Joint Venture or (c) a Restricted
Subsidiary or an Eligible Joint Venture merges with or into such Person (in a
transaction in which such Person becomes a Restricted Subsidiary or an
Eligible Joint Venture), provided that such Preferred Stock was not issued in
anticipation of such Person becoming a Restricted Subsidiary or an Eligible
Joint Venture or of such merger and (iv) Preferred Stock issued or agreed to
be issued by a Restricted Subsidiary or an Eligible Joint Venture in
connection with the financing of the construction, design, engineering,
procurement, equipping, developing, operation, ownership, management,
servicing or acquisition of one or more Permitted Facilities in which the
Company or one or more Restricted Subsidiaries or Eligible Joint Ventures has
a direct or indirect interest or the retirement of Debt or Preferred Stock
secured by any such Permitted Facility or in order to enhance the repatriation
of equity, advances or income or the increase of after-tax funds available for
distribution to the owners of such Permitted Facility, (v) Preferred Stock
issued or agreed to be issued by a Restricted Subsidiary or an Eligible Joint
Venture in satisfaction of legal requirements applicable to a Permitted
Facility or to maintain the ordinary course of conduct of such Restricted
Subsidiary's or such Eligible Joint Venture's business in the applicable
jurisdiction and (vi) Preferred Stock that is exchanged for, or the proceeds
of which are used to refinance, any Preferred Stock permitted to be
outstanding pursuant to clauses (i) through (v) hereof (or any extension,
renewal or refinancing thereof), having a liquidation preference not to exceed
the liquidation preference of the Preferred Stock so ex changed or refinanced
and having a redemption period no shorter than the redemption period of the
Preferred Stock so exchanged or refinanced.
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Section 1019. Statement by Officers as to Default; Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company, its Restricted Subsidiaries and the Eligible
Joint Ventures (signed by a signatory prescribed under the Trust Indenture
Act) during the preceding fiscal year has been made under the supervision of
the signing officers with a view to deter mining whether the Company has kept,
observed, performed and ful filled its obligations under this Indenture and
whether the Restricted Subsidiaries and the Eligible Joint Ventures are in
compliance with all covenants of this Indenture applicable to them and
further stating, as to each such officer signing such certificate, that to
the best of his knowledge each has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions, and conditions
hereof (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he may have knowledge and what
action each is taking or proposes to take with respect thereto).
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any officer becoming aware
of (i) any Default or Event of Default or (ii) any event of default under any
other mortgage, indenture or instrument referred to in Section 501(6), an
Officers' Certificate specifying such Default, Event of Default or other event
of default and what action the Company is taking or proposes to take with
respect thereto.
Section 1020. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801, provided pursuant to Section
901(2) and set forth in Sections 1004 to 1012, inclusive, Section 1014 and
Sections 1016 through 1018, inclusive, and Section 1021 if before the time for
such compliance the Holders of at least a majority in principal amount at
Stated Maturity of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condi tion except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties
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of the Trustee in respect of any such covenant or condition shall remain in
full force and effect.
Section 1021. Limitation on Business.
The Company shall, and shall cause its Restricted Subsidiaries and
the Eligible Joint Ventures to, engage only in (i) the ownership, design,
engineering, procurement, construction, development, acquisition, operation,
servicing, management or disposition of Permitted Facilities, (ii) the
ownership, creation, development, acquisition, servicing, management or
disposition of Restricted Subsidiaries and Joint Ventures that own, construct,
develop, design, engineer, procure, acquire, operate, service, manage or
dispose of Permitted Facilities, (iii) obtaining, arranging or providing
financing incident to any of the foregoing and (iv) other related activities
incident to any of the foregoing. The Company shall not, and shall not permit
any of its Restricted Subsidiaries or any Eligible Joint Venture to, make any
Investment or otherwise acquire any Property that is not directly related to
the business of the Company as described in the preceding sentence
(collectively, the "Ineligible Investments") other than as a part of an
Investment or an acquisition of Property that is predominantly and directly
related to the business of the Company as described above, and if the
aggregate fair market value of such Ineligible Investments in the aggregate
exceeds 20% (the "Percentage Limit") of the total assets of the Company and
its consolidated Restricted Subsidiaries (as determined in accordance with
GAAP) as determined in good faith by the Chief Financial Officer, as evidenced
by an Officers' Certificate, the Company, its Restricted Subsidiaries and the
Eligible Joint Ventures must cease acquiring any additional Ineligible
Investments and, within 18 months of the acquisition that caused the
Ineligible Assets to exceed the Percentage Limit, must return to compliance
with the Percentage Limit by disposing of Ineligible Assets or otherwise,
provided that such 18-month period may be extended up to an additional six
months if, despite the Company's active efforts during such 18-month period to
dispose of such Ineligible Investments or to otherwise come into compliance
with such Percentage Limit, the Company is unable to do so because of
regulatory restrictions or delays or adverse market conditions.
Section 1022. Notice to the Trustee of Certain Events.
The Company shall promptly notify the Trustee, in writing, of the
following events and any changes thereto:
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(a) The commencement of any period of effectiveness of any Shelf
Registration Statement with respect to any Initial Securities or any Private
Exchange Securities;
(b) The end or suspension of any period of effectiveness of any Shelf
Registration Statement with respect to any Initial Securities or any Private
Exchange Securities;
(c) The commencement of any Registered Exchange Offer with respect to
any Initial Securities;
(d) The commencement of any Private Exchange with respect to any
Initial Securities;
(e) The occurrence of any Illiquidity Event with respect to any
Security and a description of the nature thereof;
(f) The Cure Date relating to any Illiquidity Event with respect to
any Security and a description of the nature of such cure; and
(g) The receipt by the Company of any IAI purchase letter described
in Section 206(g) of this Indenture and the identification of those Securities
which may be transferred to such IAI.
The Trustee may assume that no event described above shall have
commenced or occurred unless and until it shall have received written notice
that such an event has commenced or occurred, as the case may be. After
receipt of written notice that any such event has commenced or occurred, the
Trustee may assume that such event shall be continuing unless and until it
shall have received written notice that such event has ended, been suspended,
been consummated or been cured as the case may be.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, in the
amounts, at any time on or after September 15, 2001, at the Redemption Prices
specified in the form of Security hereinbefore set forth (together with any
applicable accrued and unpaid interest to the
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Redemption Date) and subject to the conditions specified in the form of
Security hereinbefore set forth.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as permitted
by this Indenture and the provisions of the Securities, shall be made in
accordance with such provisions and this Article Eleven.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company pursuant to Section 1101 of less
than all the Securities, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities to be redeemed.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the outstanding Securities are to be redeemed, the
Securities or portions of Securities to be redeemed or accepted shall be
selected by the Trustee pro rata or otherwise in such manner as the Trustee
deems to be fair and appropriate in the circumstances, provided that the
Trustee shall redeem Securities only in denominations of $1,000 principal
amount and integral multiples thereof.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture and or the Securities, unless the
context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Securities that has been or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given as provided in Section 106 not
less than 30 nor more than 60 days prior
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to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed, including CUSIP
Numbers,
(4) that on the Redemption Date the Redemption Price shall
become due and payable upon each such security to be redeemed and that, unless
the Company shall default in the payment of the Redemption Price and any
applicable accrued interest, and
(5) the name of the Paying Agent or Agents and the place or
places where such Securities are to be surrendered for payment of the
Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be
irrevocable.
Section 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any applicable accrued and
unpaid interest on, all the Securities that are to be redeemed on that date.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and any
applicable accrued and unpaid interest) such Securities shall not bear
interest. Upon sur-
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render of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with any applicable accrued and unpaid interest to the Redemption Date;
provided that install ments of interest whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 210.
If any Security called for redemption in accordance with the election
of the Company made pursuant to Section 1101 shall not be so paid upon
surrender thereof for redemption, the unpaid Redemption Price thereof shall,
until paid, bear interest from the Redemption Date at the rate or manner
provided by the Security.
Section 1108. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal amount of the Security
so surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
Section 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section
1202 or Section 1203 applied to the Outstanding Securities (as a whole and
not in part) upon compliance with the condi tions set forth below in this
Article Twelve. Any such election shall be evidenced by a Board Resolution.
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Section 1202. Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section 1202
applied to the Outstanding Securities (as a whole and not in part), the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section 1202 on and after the
123rd day after the conditions set forth in Section 1204 are satisfied (herein
after called "Defeasance") (or immediately if an Opinion of Counsel is
delivered to the effect described in clause (C)(y) of paragraph (2) of Section
1204). For this purpose, such Defea sance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are con cerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section
1204 and as more fully set forth in such Section, pay ments in respect of the
principal of and any premium and interest on such Securities when payments are
due, (2) the Company's obligations with respect to such Securities under
Sections 206, 207, 208, 1002, 1003 and 1004 (only with respect to the
corporate existence and rights of the Company), (3) the rights, powers,
trusts, duties and immunities of the Trustee under this Indenture, (4)
Article Eleven and (5) this Article Twelve. Subject to compliance with this
Article Twelve, the Company may exercise its option to have this Section 1202
applied to the Outstanding Securities (as a whole and not in part)
notwithstanding the prior exercise of its option to have Section 1203 applied
to such Securities.
Section 1203. Covenant Defeasance.
Upon the Company's exercise of its option to have this Section
applied to the Outstanding Securities (as a whole and not in part), (i) the
Company, its Restricted Subsidiaries and its Eligible Joint Ventures shall be
released from its obligations under Section 801(iii), Sections 1005 through
1018, inclusive, Section 1021, and any covenant provided pursuant to
Section 901(2) and (ii) the occurrence of any event specified in Section
501(1) (solely with respect to Offers to Purchase), Section 501(3), Section
501(4) (with respect to any of Section 801(iii) and Sections 1005 through
1018, inclusive, Section 1021, and any such covenants provided pursuant to
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Section 901(2)), Section 501(5) or Section 501(6) shall be deemed not to be or
result in an Event of Default, in each case with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 1204 are satisfied (hereinafter called "Covenant Defeasance"). For
this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Sections 501(1) and
501(4)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section
to any other provision herein or in any other document; but the remainder of
this Indenture and such Securities shall be unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations that through the scheduled payment
of principal and interest in respect thereof in accordance with their terms
shall provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of, premium if any and
any installment of accrued interest on such Securities on the respective
Stated Maturities thereof or, if the Company makes ar rangements satisfactory
to the Trustee for the redemption of the Securities prior to their Stated
Maturity, on any earlier Redemption Date, in accordance with the terms of
this Indenture and such Securities.
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(2) In the event of an election to have Section 1202 apply to
the Outstanding Securities, the Company shall have delivered to the Trustee
(A) either (X) an Opinion of Counsel to the effect that Holders shall not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and shall be subject to federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred
and the Company had paid or redeemed such Securities on the applicable dates,
which Opinion of Counsel must be based upon a ruling of the Internal Revenue
Service to the same effect or a change in applicable federal income tax law or
related Treasury regulations after the date of the Indenture or (y) a ruling
directed to the Trustee or the Company received from the Internal Revenue
Service to the same effect as the aforementioned Opinion of Counsel, (B) an
Opinion of Counsel to the effect that the creation of the defeasance trust
does not violate the Investment Company Act of 1940 and (C) an Opinion of
Counsel to the effect that either (x) after the passage of 123 days following
the deposit, the trust fund shall not be subject to the effect of Section 547
or 548 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law or (y) based upon existing precedents, if the manner were
properly briefed, a court should hold that the deposit of moneys and/or U.S.
Government Obligations as provided in Section 1204(1) would not constitute a
preference voidable under Section 547 or 548 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law.
(3) In the event of an election to have Section 1203 apply to
the Outstanding Securities, the Company shall have delivered to the Trustee
(i) an Opinion of Counsel to the effect that the Holders of such Outstanding
Securities shall not recognize income, gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to be effected
with respect to such Securities and shall be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance were not to occur and the Company had
paid or redeemed such Securities on the applicable dates, (ii) an Opinion of
Counsel to the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and (iii) an Opinion of Counsel to
the effect that either (x) after the passage of 123 days following the
deposit, the trust fund shall not be subject to the effect of Section 547 or
548 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law or (y) based upon existing precedents,
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if the manner were properly briefed, a court should hold that the deposit of
moneys and/or U.S. Government Obligations as provided in Section 1204(1) would
not constitute a preference voidable under Section 547 or 548 of the U.S.
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law.
(4) Immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default or event that after the giving of
notice or lapse of time or both would become an Event of Default, with respect
to the Outstanding Securities shall have occurred and be continuing at the
time of such deposit or (unless an Opinion of Counsel is delivered to the
effect de scribed in Section 1204(2)(C)(y) or 1204(3)(iii)(y)) during the
period ending on the 123rd day after the date of such deposit.
(5) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be registered under such Act or exempt from registration
thereunder.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(9) If the Securities are listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Securities shall not be delisted as a result of
such deposit, defeasance and discharge.
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Section 1205. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section 1205 and Section 1206, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1204 or
otherwise in respect of the Outstanding Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any such Paying
Agent (other than the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is
for the account of the Holders of Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 that, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then
be required to be deposited to effect the Defeasance or Covenant Defeasance,
as the case may be, with respect to the Outstanding Securities.
Section 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Twelve with respect to any Securities by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1202 or 1203 shall be re-
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vived and reinstated as though no deposit had occurred pursuant to this
Article Twelve with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to
Section 1205 with respect to such Securities in accordance with this Article
Twelve; provided that if the Company makes any payment of principal of or any
premium or interest on any such Security following such rein statement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.
----------------
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CALENERGY COMPANY, INC.
By: /s/ Xxxx X. Xxxxxx
Attest: /s/ Xxxxxx X. XxXxxxxx --------------------------------
--------------------------- Name: Xxxx X. Xxxxxx
Title:
IBJ XXXXXXXX BANK & TRUST
COMPANY
By: /s/ Xxxxx Xxxxxxxxx
Attest: /s/ Xxxxx X. Xxxxxxxx --------------------------------
--------------------------- Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice President
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STATE OF NEBRASKA )
ss.:
COUNTY OF XXXXXXX )
On the 19th day of September, 1996, before me personally came Xxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President of CalEnergy Company, Inc., one of the corporations
described in and that executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporations, and that he signed his name thereto by like authority.
/s/ Xxxxxxxx Xxxxxxxxx
-------------------------
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 20th day of September, 1996, before me personally came Xxxxx
Xxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that she
is Assistant Vice President of IBJ Xxxxxxxx Bank & Trust Company, one of the
corporations described in and that executed the foregoing instrument; that she
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that she signed her name thereto by like
authority.
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------
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APPENDIX
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PURCHASER'S LETTER
------------------
APPENDIX A
FORM OF LETTER TO BE DELIVERED BY INSTITUTIONAL ACCREDITED INVESTORS
CALENERGY COMPANY, INC.
000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
Dear Sirs:
We are delivering this letter in connection with an offering of
$225,000,000 aggregate principal amount of 9 1/2% Senior Notes due 2006 (the
"Notes") by CalEnergy Company, Inc., a Delaware corporation (the "Company"),
as described in the Confidential Offering Circular (the "Offering Circular")
relating to the offering.
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the
"Securities Act"), or an entity in which all of the equity owners are
accredited investors within the meaning of Rule 501(a)(1), (2) or (3)
under the Securities Act (an "Institutional Accredited Investor");
(ii)(A) any purchase of the Notes by us will be for our own account
or for the account of one or more other Institutional Accredited Investors
or a fiduciary for the account of one or more trusts, each of which is an
"accredited investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment
discretion or (B) we are a "bank," within the meaning of Section 3(a)(2)
of the Securities Act, or a "savings and loan association" or other
institution described in Section 3(a)(5)(A) of the Securities Act, that is
acquiring the Notes as a fiduciary for the account of one or more
institutions for which we exercise sole investment discretion;
(iii) in the event that we purchase any of the Notes, we will acquire
Notes having a minimum purchase price of not less than $500,000 for our
own account or for any separate account described above for which we are
acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing the Notes;
(v) we are not acquiring the Notes with a view to distribution
thereof or with any present intention of offering or selling the Notes,
except in accordance with Rule 144A under the Securities Act or outside
the United States in accordance with Regulation S under the Securities
Act, as provided below; provided that the disposition of our property and
the property of any accounts for which we are acting as fiduciary shall
remain at all times within our control; and
(vi) we have received a copy of the Offering Circular relating to the
offering of the Notes and acknowledge that we have had access to financial
and such other information, and have been afforded the opportunity to ask
such questions of representatives of the Company and receive answers
thereto, as we deem necessary in connection with our decision to purchase
the Notes.
We understand that the Notes are being offered in a transaction not
involving any public offering within the United States within the meaning of
the Securities Act and that the Notes have not been and, except as described
in the Offering Circular, will not be registered under the Securities Act, and
we agree, on our own behalf and on behalf of each account for which we acquire
any Notes, that if in the future we decide to resell, pledge or otherwise
transfer any of the Notes, such Notes may be offered, resold, pledged or
otherwise transferred only (i) to the Company, (ii) pursuant to an effective
registration statement under
A-1
the Securities Act, (iii) inside the United States to a person who we
reasonably believe is a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in a transaction meeting the requirements of
Rule 144A or (iv) pursuant to another available exemption from the
registration requirements of the Securities Act, and (v) in each case in
accordance with any applicable securities laws of any State of the United
States or any other applicable jurisdiction. We understand that the registrar
and transfer agent for the Notes will not be required to accept for
registration of transfer any Notes acquired by us, except upon presentation of
evidence satisfactory to the Company and the transfer agent that the foregoing
restrictions on transfer have been complied with. We further understand that
any Notes acquired by us will be in the form of definitive physical
certificates and that such certificates will bear a legend reflecting the
substance of this paragraph.
We acknowledge that you, the Company and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree
to notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
Date:
----------------- -----------------------------------
(Name of Purchaser)
By:
-------------------------------
Name:
Title:
Address:
A-2
