Exhibit 4.4
EXECUTION COPY
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POWER CONTRACT FINANCING, L.L.C.,
Issuer,
and
WILMINGTON TRUST COMPANY,
Trustee, Accounts Agent, Paying Agent and Registrar
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INDENTURE
Dated as of June 13, 2003
5.200% Senior Secured Notes due 2006
6.256% Senior Secured Notes due 2010
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.................................................................... 1
SECTION 102. Compliance Certificates and Opinions........................................... 2
SECTION 103. Form of Documents Delivered to Trustee......................................... 3
SECTION 104. Acts of Holders................................................................ 4
SECTION 105. Notices, Etc. to Trustee and Issuer............................................ 5
SECTION 106. Notice to Holders: Waiver...................................................... 5
SECTION 107. Effect of Headings and Table of Contents....................................... 6
SECTION 108. Successors and Assigns......................................................... 6
SECTION 109. Severability Clause............................................................ 6
SECTION 110. Benefits of Indenture.......................................................... 6
SECTION 111. Conflict with Trust Indenture Act.............................................. 6
SECTION 112. Governing Law; Consent to Jurisdiction and Service of Process.................. 6
SECTION 113. Legal Holidays................................................................. 8
SECTION 114. Incorporators, Shareholders, Members, Officers and Directors of Issuer
Exempt from Individual Liability............................................... 8
SECTION 115. Execution in Counterparts...................................................... 8
ARTICLE TWO
FORM OF NOTES
SECTION 201. Form of Note................................................................... 8
SECTION 202. Restrictive Legends............................................................ 10
ARTICLE THREE
THE NOTES
SECTION 301. Amount ........................................................................ 13
SECTION 302. Denominations.................................................................. 14
SECTION 303. Execution, Authentication, Delivery and Dating................................. 14
SECTION 304. Temporary Notes................................................................ 16
SECTION 305. Registration, Registration of Transfer and Exchange............................ 16
SECTION 306. Book Entry Provisions for Global Notes......................................... 17
SECTION 307. Special Transfer Provisions.................................................... 19
SECTION 308. Mutilated, Destroyed, Lost and Stolen Notes.................................... 22
SECTION 309. Payment on Notes; Rights Preserved............................................. 23
SECTION 310. Persons Deemed Owners.......................................................... 24
SECTION 311. Cancellation................................................................... 24
SECTION 312. Computation of Interest........................................................ 25
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SECTION 313. CUSIP and CINS Numbers......................................................... 25
SECTION 314. Parity of Notes................................................................ 25
ARTICLE FOUR
APPLICATION OF PROCEEDS FROM SALE OF NOTES
SECTION 401. Application of Proceeds from Sale of Notes..................................... 25
ARTICLE FIVE
ACCOUNTS
SECTION 501. Establishment of Accounts...................................................... 25
SECTION 502. Collections Account............................................................ 26
SECTION 503. Working Capital Account........................................................ 28
SECTION 504. Reserve Account................................................................ 29
SECTION 505. Reserve Investments Account.................................................... 29
SECTION 506. Damages and Indemnity Account.................................................. 29
SECTION 507. Statements; Investment of Funds................................................ 31
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Indenture........................................ 32
SECTION 602. Application of Trust Money..................................................... 33
ARTICLE
SEVEN EVENTS OF DEFAULT AND REMEDIES
SECTION 701. Events of Default.............................................................. 33
SECTION 702. Acceleration of Maturity: Rescission and Annulment............................. 35
SECTION 703. Remedies upon an Event of Default.............................................. 37
SECTION 704. Certain Sales of Collateral.................................................... 37
SECTION 705. No Marshaling.................................................................. 38
SECTION 706. Trustee May Recover Unpaid Indebtedness After Sale of Collateral............... 38
SECTION 707. Recovery of Judgment Does Not Affect Rights.................................... 38
SECTION 708. Collection of Indebtedness and Suits for Enforcement by Trustee................ 38
SECTION 709. Trustee May File Proofs of Claim............................................... 39
SECTION 710. Trustee May Enforce Claims Without Possession of Notes......................... 40
SECTION 711. Application of Money Collected................................................. 40
SECTION 712. Limitation on Suits............................................................ 41
SECTION 713. Unconditional Right of Holders to Receive Principal, Make-Whole
Premium and Interest........................................................... 41
SECTION 714. Restoration of Rights and Remedies............................................. 41
SECTION 715. Rights and Remedies Cumulative................................................. 42
SECTION 716. Delay or Omission Not Waiver................................................... 42
SECTION 717. Control by Holders............................................................. 42
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SECTION 718. Waiver of Past Defaults........................................................ 42
SECTION 719. Waiver of Force Majeure and Stay or Extension Laws............................. 43
SECTION 720. Trustee to Give Notice of Default, but May Withhold in Certain Circumstances... 43
SECTION 721. Undertaking for Costs.......................................................... 43
ARTICLE
EIGHT THE TRUSTEE
SECTION 801. Duties and Responsibilities of the Trustee; During Default; Prior to Default... 44
SECTION 802. Certain Rights of Trustee...................................................... 45
SECTION 803. Trustee Not Responsible for Recitals or Issuance of Notes...................... 46
SECTION 804. May Hold Notes................................................................. 47
SECTION 805. Money Held In Trust............................................................ 47
SECTION 806. Compensation and Indemnification of Trustee, Accounts Agent,
Paying Agent and Registrar and Its Prior Claim................................. 47
SECTION 807. Right of Trustee to Rely on Officer's Certificate, Etc......................... 48
SECTION 808. Corporate Trustee Required; Eligibility........................................ 48
SECTION 809. Qualification of Trustee; Conflicting Interests................................ 49
SECTION 810. Resignation and Removal; Appointment of Successor Trustee...................... 49
SECTION 811. Acceptance of Appointment by Successor......................................... 51
SECTION 812. Merger Conversion, Consolidation or Succession to Business..................... 51
SECTION 813. Preferential Collection of Claims Against Issuer............................... 52
SECTION 814. No Liability for Clean-up of Hazardous Materials............................... 52
SECTION 815. Accounts Agent Registrar and Paving Agent...................................... 52
SECTION 816. Filing Fees.................................................................... 52
SECTION 817. Fee Agreement.................................................................. 53
ARTICLE NINE
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 901. Holder Lists................................................................... 53
SECTION 902. Disclosure of Names and Addresses of Holders................................... 53
SECTION 903. Reports by Trustee............................................................. 53
SECTION 904. Reports by Issuer.............................................................. 53
ARTICLE TEN
SUPPLEMENTS AND AMENDMENTS TO INDENTURE AND SECURITY DOCUMENTS
SECTION 1001. Without Vote of Holders........................................................ 54
SECTION 1002. With Consent of Holders........................................................ 55
SECTION 1003. Execution of Supplemental Indentures........................................... 56
SECTION 1004. Effect of Supplemental Indentures.............................................. 56
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SECTION 1005. Conformity with Trust Indenture Act............................................ 56
SECTION 1006. Reference in Notes to Supplemental Indentures.................................. 56
SECTION 1007. Notice of Supplemental Indentures.............................................. 57
ARTICLE ELEVEN
AFFIRMATIVE COVENANTS
SECTION 1101. Payment of Principal and Interest.............................................. 57
SECTION 1102. Maintenance of Office or Agency................................................ 57
SECTION 1103. Maintenance of Existence, Properties........................................... 57
SECTION 1104. Payments of Taxes and Other Claims............................................. 58
SECTION 1105. Material Agreements............................................................ 58
SECTION 1106. Notice of Certain Events....................................................... 58
SECTION 1107. Compliance with Laws and Other Agreements...................................... 59
SECTION 1108. Maintenance of Books and Records............................................... 59
SECTION 1109. Approvals...................................................................... 59
SECTION 1110. Rule 144A Information for the Holders.......................................... 60
SECTION 1111. Recording...................................................................... 60
SECTION 1112. Further Assurances............................................................. 60
SECTION 1113. Collateral..................................................................... 61
SECTION 1114. Performance of Obligations..................................................... 61
SECTION 1115. Return of Monies Held by Trustee............................................... 61
SECTION 1116. Schedule and Delivery of Energy Under the CDWR Power Sales Agreement........... 61
ARTICLE TWELVE
NEGATIVE COVENANTS
SECTION 1201. Liens ......................................................................... 61
SECTION 1202. Indebtedness................................................................... 62
SECTION 1203. Guaranties..................................................................... 62
SECTION 1204. Transactions with Affiliates................................................... 62
SECTION 1205. Investments, Loans and Advances................................................ 62
SECTION 1206. Material Agreements; Additional Contracts...................................... 62
SECTION 1207. Fundamental Change............................................................. 62
SECTION 1208. Restricted Payments............................................................ 63
ARTICLE THIRTEEN
REDEMPTION OF NOTES
SECTION 1301. Applicability of Article....................................................... 63
SECTION 1302. Election to Redeem; Notice to Trustee.......................................... 63
SECTION 1303. Selection by Trustee of Notes to Be Redeemed................................... 63
SECTION 1304. Notice of Redemption........................................................... 64
SECTION 1305. Deposit of Redemption Price.................................................... 64
SECTION 1306. Notes Payable on Redemption Date............................................... 65
SECTION 1307. Notes Redeemed in Part......................................................... 65
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Issuer's Option to Effect Defeasance or Covenant Defeasance.................... 65
SECTION 1402. Defeasance and Discharge....................................................... 65
SECTION 1403. Covenant Defeasance............................................................ 66
SECTION 1404. Conditions to Defeasance or Covenant Defeasance................................ 66
SECTION 1405. Deposited Money to Be Held in Trust; Other Miscellaneous Provisions............ 68
SECTION 1406. Reinstatement.................................................................. 68
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF NOTES
SECTION 1501. Purposes for Which Holders' Meetings May Be Called............................. 68
SECTION 1502. Call of Meetings by Trustee.................................................... 69
SECTION 1503. Issuer and Holders May Call Meeting............................................ 69
SECTION 1504. Persons Entitled to Vote at Meeting............................................ 69
SECTION 1505. Determination of Voting Rights: Conduct and Adjournment of Meeting............. 69
SECTION 1506. Counting Votes and Recording Action of Meeting................................. 70
ARTICLE SIXTEEN
COVENANTS OF HOLDERS OF NOTES
SECTION 1601. Treatment of Notes as Indebtedness for Tax Purposes............................ 71
EXHIBIT A Definitions
EXHIBIT B1 Form of Face of Note Power Contract Financing, L.L.C.
5.200% Senior Secured Note Due 2006
EXHIBIT B2 Form of Face of Note Power Contract Financing, L.L.C.
6.256% Senior Secured Note Due 2010.
EXHIBIT C Form of Certificate to Be Delivered upon Termination of
Distribution Compliance Period on or after July 23, 2003
EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
EXHIBIT E Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S
EXHIBIT F Form of Issuer Order and Officer's Certificate of Power
Contract Financing, L.L.C.
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POWER CONTRACT FINANCING, L.L.C.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF JUNE 13, 2003
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310 (a)(1) ................................................ 808
(a)(2) ................................................ 808
(b) ................................................ 808, 809, 810
Section 311 (a) ................................................ 813
(b) ................................................ 813
Section 312 (a) ................................................ 901
(b) ................................................ 902
(c) ................................................ 902
Section 313 (a) ................................................ 903
(b) ................................................ 903
(c) ................................................ 720, 903
(d) ................................................ 903
Section 314 (a) ................................................ 904, 1106
(b) ................................................ 1111
(c)(1) ................................................ 102
(c)(2) ................................................ 102
(d) ................................................ 1111
(e) ................................................ 102
Section 315 (a) ................................................ 801
(b) ................................................ 720
(c) ................................................ 801
(d) ................................................ 801
(e) ................................................ 721
Section 316 (a) (last sentence)................................. 101 ("Outstanding")
(a)(1)(A) ................................................ 717
(a)(1)(B) ................................................ 718
(b) ................................................ 713
(c) ................................................ 104
Section 317 (a)(1) ................................................ 708, 709
(a)(2) ................................................ 709
(b) ................................................ 1115
Section 318 (a) ................................................ 111
(c) ................................................ 111
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Note: This reconciliation and tie shall not, for any purpose, be deemed
part of the Indenture
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This INDENTURE, dated as of June 13, 2003 (this "Indenture"), is
made by and between POWER CONTRACT FINANCING, L.L.C., a limited liability
company organized and existing under the laws of the State of Delaware, having
its principal executive offices at 50 West San Fernando Street, Suite 670, San
Jose, California 95113 (the "Issuer"), and WILMINGTON TRUST COMPANY, a Delaware
banking corporation (the "Trustee").
RECITALS
WHEREAS, the Issuer has duly authorized the execution and delivery
of this Indenture to provide for the creation and issuance on the Closing Date,
of 5.200% Senior Secured Notes due February 1, 2006 initially to be issued in
the aggregate principal amount of $339,929,000 (the "Notes due 2006") and 6.256%
Senior Secured Notes due February 1, 2010 initially to be issued in the
aggregate principal amount of $462,317,000 (the "Notes due 2010");
WHEREAS, all necessary actions to ensure that this Indenture is a
valid indenture and agreement according to its terms have been taken;
WHEREAS, as security for the payment and performance by the Issuer
of its obligations under this Indenture and the Notes (as defined below), the
Issuer has agreed to assign and pledge the Collateral (as defined below) as
collateral to the Trustee for the benefit of the Trustee and the Holders (as
defined below); and
WHEREAS, the Trustee has agreed to act as trustee, accounts agent,
paying agent and registrar under this Indenture on the following terms and
conditions.
NOW, THEREFORE, for and in consideration of the premises herein
contained and the purchase of the Notes by the Holders, it is mutually
covenanted and agreed, for the benefit of the parties hereto and the equal and
proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein shall have the respective meanings
assigned to them in Exhibit A;
(b) the terms defined in Exhibit A include the plural as well as the
singular;
(c) 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;
(d) 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;
(e) except as otherwise expressly provided herein, (i) all
accounting terms used herein shall be interpreted, (ii) all financial statements
and all certificates and reports as to financial matters required to be
delivered to the Trustee hereunder shall be prepared and (iii) all calculations
made for the purposes of determining compliance with this Indenture shall
(except as otherwise expressly provided herein) be made in accordance with, or
by application of, GAAP applied on a basis consistent with that used in the
preparation of the latest corresponding financial statements furnished hereunder
to the Trustee;
(f) all references in this Indenture to "Articles," "Sections,"
"Exhibits" and other subdivisions of this Indenture are to the designated
articles, sections and other subdivisions of, and the exhibits to, this
Indenture;
(g) unless otherwise expressly specified or the context otherwise
requires, all references in this Indenture or any Exhibit to any agreement,
contract or document (including this Indenture) shall include reference to all
exhibits to such agreement, contract or document;
(h) unless otherwise expressly specified or the context otherwise
requires, any agreement, contract or document defined or referred to herein
shall mean such agreement, contract or document as in effect as of the date
hereof, as the same may thereafter be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof and hereof;
(i) unless otherwise expressly specified or the context otherwise
requires, pronouns having a masculine or feminine gender shall be deemed to
include the other;
(j) any reference to any Person shall include its permitted
successors and assigns in accordance with the terms of this Indenture and the
other Financing Documents and, in the case of any Governmental Agency, any
Person succeeding to its functions and capacities; and
(k) the term "including" denotes an example and not a limitation.
SECTION 102. Compliance Certificates and Opinions. (a) Upon any
application or request by the Issuer to the Trustee to take any action under any
provision of this Indenture, the Issuer shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any application or request as to which the furnishing of such
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documents is specifically required by any provision of this Indenture, no
additional certificate or opinion need be furnished.
(b) Every Officer's Certificate or Opinion of Counsel with respect
to compliance with a covenant or condition provided for in this Indenture shall
include: (i) a statement that each individual signing such Officer's Certificate
or Opinion of Counsel has read such covenant or condition and the definitions
herein relating thereto; (ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions contained
in such Officer's Certificate or Opinion of Counsel are based; (iii) 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; (iv) a
statement as to whether, in the opinion of each such individual, such covenant
or condition has been complied with; and (v) a statement that, in the opinion of
each such individual, such Officer's Certificate or Opinion of Counsel complies
with the provisions of this Section 102 and that the Trustee may rely on such
Officer's Certificate or Opinion of Counsel.
(c) Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or Opinion of Counsel or representations by counsel (which shall also be
addressed to the Trustee and the Holders), unless such officer knows that the
certificate or Opinion of Counsel or representations with respect to the matters
upon which his certificate, statement or Opinion of Counsel will be based are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters or information which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
(d) Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of an Accountant in the employ of the Issuer
(which shall be additionally addressed to the Trustee and the Holders), unless
such officer or counsel, as the case may be, knows that the certificate or
opinion with respect to the accounting matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
(e) Any certificate or opinion of any Independent Accountant filed
with the Trustee shall contain a statement that such Accountant is Independent.
SECTION 103. Form of Documents Delivered to Trustee. (a) In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to
3
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.
(b) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders may be embodied in and
evidenced by (i) one or more instruments of substantially similar tenor signed
by the Holders in person or by their respective agents or proxies duly appointed
in writing, (ii) the record of Holders voting in favor thereof, either in person
or by their respective agents or proxies duly appointed in writing, at any
meeting of Holders duly called and held in accordance with the provisions of
Article Fifteen, or (iii) a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is expressly required hereby, to the Issuer. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Note, shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the Issuer,
if made in the manner provided in this Section 104. The record of any meeting of
Holders shall be proved in the manner provided in Section 1506.
(b) The affidavit of a witness of such execution sworn to before a
notary public or other officer authorized by law to take acknowledgments of
deeds or administer oaths, or by a certificate of such notary or other officer,
certifying that the individual signing such instrument or writing acknowledged
to him the execution thereof shall be conclusive evidence of the fact and date
of execution by any Person of any such instrument or writing. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of 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.
(c) Entries in the Security Register shall be conclusive evidence of
the principal amount and serial numbers of Notes held by any Person, and the
date of holding the same, and the Trustee shall not be affected by notice to the
contrary.
(d) If the Issuer shall solicit from the Holders of either Series of
the Notes any request, demand, authorization, direction, notice, consent, waiver
or other Act, the Issuer may, at its option, by or pursuant to a Management
Committee's Consent, fix in advance a record date for the determination of such
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Issuer shall
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have no obligation to do so. Notwithstanding Trust Indenture Act Section 316(c),
such record date shall be the record date specified in or pursuant to such
Management Committee's Consent, which shall be a date not earlier than the date
thirty (30) days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is completed
unless otherwise specified herein. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date;
provided, that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven (11) months
after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note 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 Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 105. Notices, Etc. to Trustee and Issuer. Any request,
demand, authorization, direction, notice, consent, waiver or other Act of
Holders or other documents provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Issuer shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office; or
(b) the Issuer 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 Issuer addressed to it
at the address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the Trustee
by the Issuer.
SECTION 106. Notice to Holders: Waiver. (a) Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or delivered by overnight courier or facsimile, to
each Holder, at its address or facsimile number (as applicable) 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. Where
this Indenture provides for notice in any manner, such notice and the manner of
its giving 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
5
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 any case where notice to
Holders is given by mail or fax (as applicable), neither the failure to mail or
fax such notice, nor any defect in any notice so mailed or faxed (as the case
may be), to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders, and any notice that is mailed or faxed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder actually receives notice.
(b) In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail or deliver notice of any event to Holders when such notice is required
to be given pursuant to any provision of this Indenture, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice for every purpose hereunder.
SECTION 107. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the meaning or construction of any of the provisions
hereof.
SECTION 108. Successors and Assigns. All covenants, stipulations,
promises and agreements in this Indenture by or on behalf of each of the Trustee
and the Issuer shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
SECTION 109. Severability Clause. In case any provision in this
Indenture or in any Note shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto, any Accounts Agent, any Paying Agent, any Registrar, and their
successors and permitted assigns hereunder, and the Holders of Notes, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with the duties imposed by the Trust
Indenture Act Sections 310 to 318, inclusive, or conflicts with any provision of
the Trust Indenture Act that is required under the Trust Indenture Act to be a
part of and govern this Indenture, such duties or provision of the Trust
Indenture Act 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 by its terms, such provision shall be deemed to apply to this Indenture
as so modified or to be excluded, as the case may be.
SECTION 112. Governing Law; Consent to Jurisdiction and Service of
Process. (a) This Indenture and the Notes shall be governed by, and construed in
6
accordance with, the law of the State of New York without giving effect to the
principles thereof relating to conflicts of law except Section 5-1401 of the New
York General Obligations Law.
(b) The Issuer consents to the non-exclusive jurisdiction of any
court of the State of New York or any United States federal court sitting in the
Borough of Manhattan, New York City, New York, United States, and any appellate
court from any thereof, and waives any immunity from the jurisdiction of such
courts over any suit, action, or proceeding that may be brought in connection
with this Indenture, the Financing Documents or the Notes. The Issuer
irrevocably waives, to the fullest extent permitted by law, any objection to any
suit, action, or proceeding that may be brought in connection with this
Indenture, the Financing Documents or the Notes in such courts whether on the
grounds of venue, residence or domicile or on the ground that any such suit,
action or proceeding has been brought in an inconvenient forum. The Issuer
agrees that final judgment in any such suit, action or proceeding brought in
such court shall be conclusive and binding upon the Issuer and may be enforced
in any court to the jurisdiction of which the Issuer is subject by a suit upon
such judgment.
The Issuer agrees that service of all writs, process and summonses in any suit,
action or proceeding brought in connection with this Indenture, the Financing
Documents or the Notes against the Issuer, or with respect to its property and
assets, in any court of the State of New York or any United States federal court
sitting in the Borough of Manhattan, New York City may be made upon National
Corporate Research, Ltd. ("NCR") at 225 W. 34th Street, Suite 910, New York, NY
10122, whom the Issuer appoints as its authorized agent for service of process.
The Issuer represents and warrants that NCR has agreed to act as the Issuer's
agent for service of process. The Issuer agrees that such appointment shall be
irrevocable so long as any of the Notes remain outstanding or until the
irrevocable appointment by the Issuer of a successor in New York City as its
authorized agent for such purpose and the acceptance (on terms reasonably
satisfactory to the Trustee) of such appointment by such successor. The Issuer
further agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment in
full force and effect as aforesaid. If NCR shall cease to act as the Issuer's
agent for service of process, the Issuer shall appoint without delay another
such agent and provide prompt written notice to the Trustee of such appointment.
With respect to any such action in any court of the State of New York or any
United States federal court in the Borough of Manhattan, City of New York,
service of process upon NCR, as the authorized agent of the Issuer for service
of process, and written notice of such service to the Issuer, shall be deemed in
every respect effective service of process upon the Issuer. Without prejudice to
the foregoing, the Issuer hereby irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Issuer at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished in
writing to the Trustee by the Issuer.
(c) Nothing in this Section 112 shall affect the right of any party
to serve legal process in any other manner permitted by law or affect the right
of any party
7
to bring any action or proceeding against any other party or its property in the
courts of other jurisdictions.
SECTION 113. Legal Holidays. If any Payment Date, Redemption Date or
Stated Maturity of any Note or of any installment of principal thereof or
payment of interest thereon, or any date on which any defaulted interest is
proposed to be paid, shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Note) payment
of interest or principal (or Make-Whole Premium, if any) need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Payment Date or Redemption Date, or at the Stated Maturity, or on the
date on which the defaulted interest is proposed to be paid; provided, that no
interest shall accrue on the amount then due for the period from and after such
Payment Date, Redemption Date, Stated Maturity or the date on which the
defaulted interest is proposed to be paid, as the case may be, to the date of
such payment.
SECTION 114. Incorporators, Shareholders, Members, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture or any
Security Document, or because of any indebtedness evidenced thereby, shall be
had against any incorporator, as such, or against any past, present or future
stockholder, member, manager, officer or director, as such, of the Issuer or the
Issuer's Members, or of any successor, either directly or through the Issuer or
the Issuer's Members, as the case may be, or any successor, under any rule of
law, statute, or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Notes by
the Holders and as part of the consideration for the issuance of the Notes.
Nothing contained in this Section 114 shall, however, limit the liability of any
Person for any fraud, gross negligence or willful misconduct on their part.
SECTION 115. Execution in Counterparts. This instrument may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
ARTICLE TWO
FORM OF NOTES
SECTION 201. Form of Note. (a) The Notes due 2006 and the
accompanying Trustee's certificate of authentication shall be substantially in
the form annexed hereto as Exhibit B1. The Notes due 2010 and the accompanying
Trustee's certificate of authentication shall be substantially in the form
annexed hereto as Exhibit B2. The Notes may have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have letters, notations or other marks of identification
and such notations, legends or endorsements required by law, the rules of any
stock exchange, agreements to which the Issuer is subject or usage. Any portion
of the text of any Note may be set forth on the reverse thereof, with an
8
appropriate reference thereto on the face of the Note. The Issuer shall approve
the form of the Notes and any notation, legend or endorsement on the Notes. Each
Note shall be dated the date of its authentication.
(b) The definitive Notes shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner permitted by
the rules under any applicable securities laws, all as determined by the
officers of the Issuer executing such Notes, as evidenced by their execution of
such Notes.
(c) The terms and provisions contained in the form of the Notes
annexed hereto as Exhibit B1 or B2, as applicable shall constitute, and are
hereby expressly made, a part of this Indenture; provided, that to the extent
any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling. To
the extent applicable, the Issuer and the Trustee, by their execution and
delivery of this Indenture, and the Holders and beneficial owners of the Notes
by their acceptance of the Notes expressly agree to such terms and provisions
and to be bound thereby.
(d) Notes offered and sold to QIBs in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Notes in registered
form, substantially in the form set forth in Exhibit B1 or B2, as applicable
(each, a "Rule 144A Global Note"), deposited with the Trustee as custodian for
DTC and registered in the name of a nominee of DTC, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of each Rule 144A Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC or its nominee, as hereinafter provided.
(e) Notes offered and sold in offshore transactions in reliance on
Regulation S shall be initially issued in the form of one or more temporary
global Notes in registered form, substantially in the form set forth in Exhibit
B1 or B2, as applicable (each, a "Temporary Regulation S Global Note"),
deposited with the Trustee as custodian for DTC and registered in the name of a
nominee of DTC for the accounts of Euroclear Bank, S.A./N.V., as operator of
Euroclear and Clearstream Luxembourg, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided. Each Temporary Regulation
S Global Note will be exchangeable for one or more permanent global Notes (each,
a "Permanent Regulation S Global Note"; and together with the Temporary
Regulation S Global Notes, the "Regulation S Global Notes") after the fortieth
(40th) day following the Closing Date, upon certification (substantially in the
form of Exhibit C) that the beneficial interests in such global Note are owned
by either Non-U.S. Persons or U.S. Persons who purchased such interests pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. The aggregate principal amount of each
Regulation S Global Note may from time to time be increased or decreased by
adjustments made in the records of the Trustee, as custodian for DTC or its
nominee, as herein provided.
(f) Notes offered and sold to institutional "accredited investors"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) who are
not QIBs
9
(excluding Non-U.S. Persons) shall initially be issued in the form of permanent
certificated Notes in registered form in substantially the form of Exhibit B1 or
B2, as applicable ("U.S. Physical Notes"). Notes issued pursuant to Section 306
in exchange for or upon transfer of interests in a Rule 144A Global Note or a
Regulation S Global Note shall be in the form of U.S. Physical Notes and
permanent certificated Notes in registered form substantially in the form set
forth in Exhibit B1 or B2, as applicable (the "Regulation S Physical Note"),
respectively.
(g) The U.S. Physical Notes and the Regulation S Physical Notes are
sometimes collectively herein referred to as the "Physical Notes." The
Regulation S Global Notes and the Rule 144A Global Notes are sometimes
collectively referred to as the "Global Notes."
SECTION 202. Restrictive Legends. (a) (i) Each Rule 144A Global Note
and each U.S. Physical Note shall bear the legend set forth below (the "Private
Placement Legend") on the face thereof, except as otherwise provided in Section
307(e), and (ii), and each Regulation S Global Note and each Regulation S
Physical Note shall bear the legend set forth below on the face thereof until at
least July 23, 2003, and receipt by the Issuer and the Trustee of a certificate
substantially in the form of Exhibit C:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER
OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES THAT ANY
OFFER, SALE OR OTHER TRANSFER OF SUCH SECURITY, PRIOR TO THE DATE
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER
WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) (THE
"RESALE RESTRICTION TERMINATION
10
DATE"), SHALL ONLY BE MADE: (A) TO THE ISSUER OR ANY SUBSIDIARY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER," AS DEFINED
IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO, OR FOR OFFER OR
RESALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS, OR (F) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT,
PRIOR TO ANY SUCH OFFER, RESALE OR TRANSFER (i) PURSUANT TO CLAUSE
(D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
PURSUANT TO CLAUSE (E) OR (F) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE, TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM
AND FURTHER SUBJECT, IN EACH OF THE FOREGOING CASES, EXCEPT (D), TO
COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (ii) IN EACH
OF THE FOREGOING CASES, TO REQUIRE THAT A
11
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
(b) Each Global Note shall also bear the following legend on the
face thereof
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF THE
INDENTURE. THE HOLDER OF THIS GLOBAL NOTE REPRESENTS THAT (i) IT IS
NOT AN EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") (AN "ERISA PLAN") OR OTHER PLAN, AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE THE ASSETS OF ANY SUCH ERISA PLAN OR OTHER
PLAN OR A GOVERNMENTAL PLAN THAT IS SUBSTANTIALLY SIMILAR TO THE
PROVISIONS OF SECTION 406 OF
12
ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR (ii) THE PURCHASE AND HOLDING BY IT OF THIS
NOTE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406
OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A
GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR FEDERAL, STATE OR LOCAL
LAW) FOR WHICH AN EXEMPTION IS NOT AVAILABLE.
ARTICLE THREE
THE NOTES
SECTION 301. Amount. (a) The Notes due 2006 and the Notes due 2010
to be issued under this indenture are hereby created. The maximum aggregate
principal amount of Notes due 2006 that may be authenticated and delivered under
this Indenture on the Closing Date is $339,929,000 and the maximum aggregate
principal amount of Notes due 2010 that may be authenticated and delivered under
this Indenture on the Closing Date is $462,317,000.
(b) The Notes due 2006 shall be known and designated as the "5.200%
Senior Secured Notes due 2006" of the Issuer and the Notes due 2010 shall be
known and designated as the "6.256% Senior Secured Notes due 2010" of the
Issuer. The Stated Maturity of the Notes due 2006 shall be February 1, 2006 and
the Stated Maturity of the Notes due 2010 shall be February 1, 2010. Interest on
the Notes due 2006 will accrue at the rate of 5.200% per annum and interest on
the Notes due 2010 will accrue at the rate of 6.256% per annum, in each case
from the Closing Date, or from the most recent Interest Payment Date on which
interest has been paid or duly provided for, payable each applicable Interest
Payment Date, until the full principal thereof is paid or duly provided for.
(c) Principal payments on the Notes due 2006 will be made on the
Principal Payment Dates in an amount equal to the amount, if any, set forth
opposite the applicable Principal Payment Date on the amortization schedule set
out below. The aggregate principal amount of the Notes due 2006 payable on each
Principal Payment Date is:
Principal Payment Date Principal Payable Amount
---------------------- ------------------------
February 1, 2004 $ 43,150,835
August 1, 2004 $ 70,728,895
February 1, 2005 $ 74,102,631
August 1, 2005 $ 73,994,448
February 1, 2006 $ 77,952,191
13
(d) Principal payments on the Notes due 2010 will be made on the
Principal Payment Dates in an amount equal to the amount, if any, set forth
opposite the applicable Principal Payment Date on the amortization schedule set
out below. The aggregate principal amount of the Notes due 2010 payable on each
Principal Payment Date is:
Principal Payment Date Principal Payable Amount
---------------------- ------------------------
February 1, 2004 $ 0
August 1, 2004 $ 0
February 1, 2005 $ 0
August 1, 2005 $ 0
February 1, 2006 $ 0
August 1, 2006 $ 77,945,061
February 1, 2007 $ 82,418,034
August 1, 2007 $ 45,757,654
February 1, 2008 $ 48,607,171
August 1, 2008 $ 49,017,109
February 1, 2009 $ 51,660,859
August 1, 2009 $ 52,056,612
February 1, 2010 $ 54,854,500
(e) The principal of, Make-Whole Premium, if any, and interest on,
the Notes shall be payable to, and the Notes shall be exchangeable and
transferable by, at the office or agency of the Issuer in the Borough of
Manhattan, the City of New York, maintained for such purposes (which initially
shall be the Corporate Trust Office of the Trustee), the Person in whose name
such Note is registered at the close of business on the Regular Record Date
applicable to each Principal Payment Date or otherwise in accordance with
Section 309.
(f) The Notes shall be redeemable as provided in Article Thirteen.
(g) This Indenture shall, to the extent applicable, incorporate and
be governed by the provisions of the Trust Indenture Act that are required to be
part of and to govern indentures qualified under the Trust Indenture Act.
SECTION 302. Denominations. The Notes shall be issuable only in
registered form without coupons and initially only in minimum denominations of
$100,000 and integral multiples of $1,000 in excess thereof; provided, that
initial purchases of the Notes by purchasers who are institutional "accredited
investors" who are not QIBs shall be in minimum amounts of $250,000; and
provided, further that after initial issuance, Notes may be issued upon exchange
or transfer in such amounts as may be necessary to evidence the entire unpaid
principal amount of any Note surrendered or exchanged.
SECTION 303. Execution, Authentication, Delivery and Dating. (a) The
Notes shall be executed on behalf of the Issuer by its President or a Vice
14
President and attested by a Vice President, its Secretary or an Assistant
Secretary. The signature of any of these officers on the Notes may be manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Notes.
(b) Notes bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer
to the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Notes, directing the Trustee to authenticate
the Notes; and the Trustee, in accordance with such Issuer Order, shall
authenticate and deliver such Notes as in this Indenture provided and not
otherwise. Each such Issuer Order shall specify the Series and amount of Notes
to be authenticated, the date on which the Notes are to be authenticated,
whether the Notes are to be Initial Notes or Unrestricted Notes and whether the
Notes are to be issued as Physical Notes or Global Notes or such other
information as the Trustee may reasonably request. The Trustee shall receive, as
part of any such Issuer Order, an Officer's Certificate certifying that all
conditions precedent to the issuance of Notes contained herein have been fully
complied with. Any Issuer Order and Officer's Certificate delivered by the
Issuer to the Trustee pursuant to this Section 303(c) shall be substantially in
the form annexed hereto as Exhibit F. The Trustee may also request an Opinion of
Counsel of the Issuer in connection with such authentication of Notes. Upon
receipt of any such Issuer Order, the Trustee shall, in accordance with such
Issuer Order, authenticate Notes due 2006 for original issue in the aggregate
principal amount not to exceed $339,929,000 and Notes due 2010 for original
issue in the aggregate principal amount not to exceed $462,317,000. The
aggregate principal amount of Notes due 2006 outstanding at any time may not
exceed $339,929,000 and the aggregate principal amount of Notes due 2010
outstanding at any time may not exceed $462,317,000.
(d) Each Note shall be dated the date of its authentication.
(e) The Trustee may appoint an authenticating agent or agents
reasonably acceptable to the Issuer to authenticate Notes. Unless limited by
terms of such appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so. Any authenticating agent has the same rights as
an agent to deal with the Issuer or an Affiliate of the Issuer.
(f) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for in Exhibit
B1 or B2, as applicable duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such
15
Note has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
(g) In case the Issuer shall have executed an indenture supplemental
hereto with the Trustee pursuant to Section 1001(a), any of the Notes
authenticated or delivered prior to the assumption of the Issuer's obligations
by any successor Person, may, from time to time, at the request of the successor
Person, be exchanged for other Notes executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance and of like tenor as the Notes surrendered for such
exchange and of like principal amount, and the Trustee, upon Issuer Request of
the successor Person, shall authenticate and deliver Notes as specified in such
request for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 303 in exchange or substitution for or upon registration of
transfer of any Notes, such successor Person, at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the time
Outstanding for Notes authenticated and delivered in such new name.
SECTION 304. Temporary Notes. (a) Pending the preparation of
definitive Notes, the Issuer may execute, and upon an Issuer Order, the Trustee
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
(b) If temporary Notes are issued, the Issuer will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency of the Issuer
designated for such purpose pursuant to Section 1102, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Issuer shall execute, and the Trustee, upon receipt of an Issuer Order, shall
authenticate and deliver, in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept at the Corporate Trust Office of the
Registrar a register which, subject to such reasonable regulations as the Issuer
may prescribe, shall provide for the registration of Notes and for the
registration of transfers and exchanges of Notes, and the Trustee is hereby
appointed "Registrar" for the purposes of registering Notes and transfers and
exchanges of Notes as herein provided. This register shall be sometimes referred
to herein as the "Security Register," and shall be in written form or any other
form capable of being converted into written form within a
16
reasonable time. At all reasonable times, the Security Register shall be open to
inspection by the Trustee.
(b) The Notes shall be transferable only upon the surrender of a
Note to the Issuer for registration of transfer. Subject to the provisions of
Section 307, upon surrender for registration of transfer of any Note at the
office or agency of the Issuer designated pursuant to Section 1102, the Issuer
shall execute, and the Trustee, upon receipt of an Issuer Order, shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denomination or
denominations of a like aggregate principal amount.
(c) At the option of the Holder thereof, Notes may be exchanged for
other Notes to be registered in the name of such Holder, of authorized
denominations and of like tenor, maturity and aggregate principal amount, upon
surrender of the Notes to be exchanged at any office or agency maintained for
such purpose. Whenever any Notes are so surrendered for exchange, the Issuer
shall execute, and the Trustee, upon receipt of an Issuer Order, shall
authenticate and make available for delivery, the Notes which the Holder making
the exchange is entitled to receive.
(d) All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
(e) Every Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Issuer or the Registrar) be duly
endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Registrar, duly executed by the Holder
thereof or his or her attorney duly authorized in writing.
(f) No service charge shall be made for any registration of transfer
or exchange or redemption of Notes; provided, that the Issuer may require
payment in certain circumstances of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to Section 304,
1006 or 1307 not involving any transfer.
(g) The Issuer shall not be required (i) to issue, register the
transfer of or exchange any Notes during a period beginning at the opening of
business 15 days before the selection of Notes to be redeemed under Section 1303
and ending at the close of business on the day of such mailing of the relevant
notice of redemption or (ii) to register the transfer of or exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
SECTION 306. Book Entry Provisions for Global Notes. (a) Each Global
Note initially shall (i) be registered in the name of Cede & Co., as nominee of
DTC (such nominee being referred to herein as the "Global Note Holder"), (ii) be
17
deposited with, or on behalf of, DTC or with the Trustee, as custodian for DTC
and (iii) bear legends as set forth in Section 202.
(b) Members of, or participants in, DTC (collectively, the
"Participants" or the "DTC Participants") shall have no rights under this
Indenture with respect to any Global Note held on their behalf by DTC, or the
Trustee as its custodian, or under any Global Note, and DTC may be treated by
the Issuer, the Trustee and any agent of the Issuer or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent
of the Issuer or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by DTC or shall impair, as between DTC
and its Participants, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(c) Transfers of any Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to DTC, its successors or their
respective nominees. Interests of beneficial owners in a Global Note may be
transferred in accordance with the applicable rules and procedures of DTC and
the provisions of Section 307. In addition, U.S. Physical Notes or Regulation S
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the Rule 144A Global Notes or Regulation S Global
Notes, respectively, if (i) the Issuer notifies the Trustee in writing that DTC
is unwilling or unable to continue as depository for the Global Notes or DTC
ceases to be a "Clearing Agency" registered under the Exchange Act and a
successor depository is not appointed by the Issuer within ninety (90) days or
(ii) the Issuer, at its option, notifies the Trustee in writing that it elects
to have the Physical Notes so issued.
(d) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(e) In connection with the transfer of an entire Rule 144A Global
Note or Regulation S Global Note to beneficial owners pursuant to paragraph (c)
of this Section 306, the Rule 144A Global Note or Regulation S Global Note, as
the case may be, shall be deemed to be surrendered to the Trustee for
cancellation, and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order, shall authenticate and deliver, to each beneficial owner
identified by DTC in exchange for its beneficial interest in the Rule 144A
Global Note or Regulation S Global Note, as the case may be, an equal aggregate
principal amount of Physical Notes of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest in
the Rule 144A Global Note pursuant to subsection (c) of this Section 306 shall,
unless such exchange is made on or after the Resale Restriction Termination Date
for such Note, bear the Private Placement Legend.
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(g) The registered Global Note Holder may grant proxies and
otherwise authorize any person, including DTC's Participants and persons that
may hold interests through DTC's Participants, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
(h) Any beneficial owner of interests in a Global Note may receive
Physical Notes (which shall bear the Private Placement Legend if required by
Section 202) in accordance with the procedures of DTC. In connection with the
execution, authentication and delivery of such Physical Notes in exchange for
beneficial interests in a Global Note pursuant to this paragraph (h) or
paragraph (c) above, the Registrar shall reflect on its books and records the
date and a decrease in the principal amount of the applicable Global Note in an
amount equal to the principal amount of the beneficial interest in such Global
Note to be transferred, and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order, shall authenticate and deliver, one or more Physical
Notes of like tenor and having an equal aggregate principal amount.
SECTION 307. Special Transfer Provisions. Unless and until a Note is
sold under an effective Registration Statement, the following provisions shall
apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Note to any institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Note,
whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is on or after the Resale Restriction Termination Date
or (y) the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit D.
(ii) If the proposed transferor is a DTC Participant holding a
beneficial interest in the Rule 144A Global Note, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) above
and (y) instructions given in accordance with DTC's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the Rule 144A Global
Note in an amount equal to the principal amount of the beneficial interest
in the Rule 144A Global Note to be transferred, and the Issuer shall
execute, and the Trustee, upon receipt of an Issuer Order, shall
authenticate and deliver, one or more Physical Notes of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Physical Note or
an interest in the Rule 144A Global Note to a QIB (excluding Non-U.S. Persons):
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(i) If the Note to be transferred consists of (x) a U.S.
Physical Note, the Registrar shall register the transfer and the Issuer
shall execute, and the Trustee shall authenticate and deliver, one or more
U.S. Physical Notes if such transfer is being made by a proposed
transferor who has checked the box provided for on the form of Note
stating, or has otherwise advised the Issuer and the Registrar in writing,
that the sale has been made in compliance with the provisions of Rule 144A
to a transferee who has signed the certification provided for on the form
of Note stating, or has otherwise advised the Issuer and the Registrar in
writing, that it is purchasing the Note for its own account or an account
with respect to which it exercises sole investment discretion and that it,
or the Person on whose behalf it is acting with respect to any such
account, is a QIB within the meaning of Rule 144A, is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Issuer as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided
by Rule 144A or (y) an interest in a Rule 144A Global Note, the transfer
of such interest may be effected only through the book-entry system
maintained by DTC.
(ii) If the proposed transferee is a DTC Participant, and the
Notes to be transferred consist of U.S. Physical Notes, upon receipt by
the Registrar of instructions given in accordance with DTC's and the
Registrar's procedures therefor, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the Rule
144A Global Note in an amount equal to the principal amount of the U.S.
Physical Notes to be transferred, and the Trustee shall cancel the U.S.
Physical Notes so transferred.
(c) Transfers of Interests in the Regulation S Global Note or
Regulation S Physical Notes to U.S. Persons. The following provisions shall
apply with respect to any transfer of interests in the Regulation S Global Note
or Regulation S Physical Notes to U.S. Persons:
(i) prior to the removal of the Private Placement Legend for
the Regulation S Global Notes or the Regulation S Physical Notes pursuant
to Section 202, the Registrar shall refuse to register such transfer; and
(ii) after such removal pursuant to Section 202, the Registrar
shall register the transfer of any such Note without requiring any
additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Note to a Non-U.S.
Person:
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(i) Prior to July 23, 2003, the Registrar shall register any
proposed transfer of a Note to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit E from the proposed
transferor and the Issuer shall execute, and the Trustee shall, upon
receipt of an Issuer Order, authenticate and deliver, one or more
Temporary Regulation S Global Notes of like tenor and amount.
(ii) On and after July 23, 2003, the Registrar shall register
any proposed transfer to any Non-U.S. Person (x) if the Note to be
transferred is a Regulation S Physical Note, (y) if the Note to be
transferred is a U.S. Physical Note or an interest in the Rule 144A Global
Note, upon receipt of a certificate substantially in the form of Exhibit E
from the proposed transferor and, (z) in the case of either clause (x) or
(y), the Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order, shall authenticate and deliver, one or more Physical Notes of like
tenor and amount.
(iii) If the proposed transferor is a DTC Participant holding
a beneficial interest in the Rule 144A Global Note, upon receipt by the
Registrar of (x) the document, if any, required by paragraph (i) and (y)
instructions in accordance with DTC's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the Rule 144A Global Note in an
amount equal to the principal amount of the beneficial interest in the
Rule 144A Global Note to be transferred and the Issuer shall execute, and
the Trustee, upon receipt of an Issuer Order, shall authenticate and
deliver, one or more Regulation S Global Notes or Physical Notes of like
tenor and amount.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend unless the
Issuer has reasonable cause to believe that a Note is a Restricted Security and
delivers to the Trustee an Issuer Order, in which case the Trustee shall
authenticate and deliver a new Note bearing a Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless either (i) the circumstances contemplated by paragraph (a)(i)(x) of this
Section 307 exist or (ii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Issuer and the Registrar to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture and such Note.
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(g) Retention of Records. The Registrar shall retain until such time
as no Notes remain Outstanding copies of all letters, notices and other written
communications received pursuant to Section 306 or this Section 307. The Issuer
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Registrar.
(h) No Duty to Monitor. Neither the Trustee nor the Registrar shall
have an obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Note 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 308. Mutilated, Destroyed, Lost and Stolen Notes. (a) If any
mutilated Note is surrendered to the Trustee or the Registrar, the Issuer shall
execute, and the Trustee, upon receipt of an Issuer Order and such security or
indemnity as may be required by the Trustee, Registrar and the Issuer to save
each of them and any agent of theirs harmless, shall authenticate and deliver,
in exchange therefor a new Note of like tenor and principal amount and bearing a
number not contemporaneously Outstanding, or, in case any such mutilated Note
has become or is about to become due and payable, the Issuer in its discretion
may, instead of issuing a new Note, pay such Note.
(b) If there shall be delivered to the Issuer and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note 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
Issuer or the Trustee that such Note has been acquired by a bona fide purchaser,
the Issuer shall execute, and the Trustee, upon receipt of an Issuer Order,
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Note, a new Note of like tenor and principal amount and bearing a number not
contemporaneously Outstanding, or, in case any such destroyed, lost or stolen
Note has become or is about to become due and payable, the Issuer in its
discretion may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section 308, the
Issuer 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.
(d) Every new Note issued pursuant to this Section 308 in lieu of
any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note 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 Notes, duly issued hereunder.
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(e) The provisions of this Section 308 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 Notes.
SECTION 309. Payment on Notes; Rights Preserved. (a) Principal of,
Make-Whole Premium, if any, and interest on any Note which is payable, and is
punctually paid or duly provided for, on any Payment Date shall be paid in
accordance with Section 502(b) hereof to the Person in whose name such Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date applicable to such Payment Date at the office or agency of
the Issuer in the Borough of Manhattan, the City of New York, maintained for
such purposes (which initially shall be the Corporate Trust Office) pursuant to
Section 1102 or, at the option of the Issuer, interest may be paid by check
mailed to the address of the Person entitled thereto pursuant to Section 310 as
such address appears in the Security Register; provided, that (i) all payments
with respect to the Global Notes and Physical Notes the Holders of which have
given wire transfer instructions to the Trustee by the Regular Record Date shall
be required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof; (ii) the payment of the final
installment of principal of, or interest on, each Note shall only be made upon
presentation and surrender of such Note at the Corporate Trust Office or such
other place as may be designated pursuant to this Indenture; and (iii) upon
written request from any Holder of Outstanding Notes in the aggregate principal
amount of $1,000,000, payments of interest on, or principal (other than the
final payment of principal) of, such Notes shall be made by wire transfer to
such Holder.
(b) Any principal of, Make-Whole Premium, if any, or interest on any
Note which is payable, but is not punctually paid or duly provided for, on the
relevant Payment Date shall forthwith cease to be payable to the Holder on the
Regular Record Date by virtue of having been such Holder, and such defaulted
principal or interest and (to the extent lawful) interest on such defaulted
principal or interest at the applicable rate borne by such Note plus additional
interest at the rate of one percent (1%) per annum (such defaulted interest and
interest thereon herein collectively called "Defaulted Payments") shall be paid
by the Issuer as provided in clause (c) below.
(c) The Issuer shall make payment of any Defaulted Payment to the
Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Payment, which shall be fixed in the following manner. The Issuer
shall notify the Trustee in writing of the amount of the Defaulted Payment
proposed to be paid on each Note and the date of the proposed payment and, at
the same time, the Issuer shall deposit in the Collections Account an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Payment 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 Payment as provided in this clause (c). Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Payment, which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10
23
days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Issuer of such Special Record Date and, in the
name and at the expense of the Issuer, shall cause notice of the proposed
payment of such Defaulted Payment and the Special Record Date therefor to be
given in the manner provided for in Section 106 not less than ten (10) days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Payment and the Special Record Date therefor having been so given,
such Defaulted Payment shall be paid by the Trustee to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the
close of business on such Special Record Date.
(d) Subject to the foregoing provisions of this Section 309, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 310. Persons Deemed Owners. (a) Prior to the due presentment
of a Note for registration of transfer, the Issuer, the Trustee and any agent of
the Issuer or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of, Make-Whole Premium, if any, and (subject to Section 309) interest
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Trustee or any agent of the Issuer or the
Trustee shall be affected by notice to the contrary.
(b) None of the Issuer, the Trustee and any agent of the Issuer or
the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Note in global form or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
SECTION 311. Cancellation. All Notes surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by the Trustee. The Issuer at any time may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever and any Notes previously authenticated
hereunder which the Issuer has not issued and sold, and all Notes so delivered
shall be promptly canceled by the Trustee. If the Issuer shall so acquire any of
the Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section 311, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures and certification of their disposal delivered to the
Issuer unless by Issuer Order the Issuer shall direct that canceled Notes be
returned to it; provided, that such Issuer Order is timely and the Notes have
not
24
been previously disposed of by the Trustee; and provided further, that the
Trustee shall not be required to destroy such canceled Notes.
SECTION 312. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 313. CUSIP and CINS Numbers. The Issuer in issuing the Notes
may use "CUSIP" and "CINS" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" or "CINS" numbers in notices of redemption or exchange
as a convenience to Holders; provided, that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption or exchange, that
reliance may be placed only on the other identification numbers printed on the
Notes and that any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 314. Parity of Notes. All Notes issued and Outstanding
hereunder, regardless of the time or times of their issuance, rank on a parity
with each other Note and each Note shall be secured equally and ratably by this
Indenture and the Security Documents with each other Note, without preference,
priority or distinction of any one thereof over any other by reason of
difference in time of issuance or otherwise, and each Note shall be entitled to
the same benefits and security in this Indenture and the Security Documents as
each other Note.
ARTICLE FOUR
APPLICATION OF PROCEEDS FROM SALE OF NOTES
SECTION 401. Application of Proceeds from Sale of Notes. The Issuer
covenants to use the net proceeds from the issuance and sale of the Notes (a) to
pay approximately $326,000,000 to Calpine Energy Services, L.P. ("CES") in
partial payment for the purchase of the CDWR Power Sales Agreement and the
Morgan Stanley CDWR Guarantee, (b) to pay approximately $361,400,000 to CES in
partial payment for the purchase of the MSCG power purchase agreement and the
Morgan Stanley MSCG Guarantee, (c) to fund the reserve account in an amount
equal to $94,441,188, (d) to pay approximately $20,300,000 for all costs, fees
and expenses incurred in connection with this offering, including fees to Morgan
Stanley & Co. Incorporated for structuring the offering of the Notes and acting
as initial purchaser of the Notes in this offering and (e) to transfer any
remaining amounts to the Working Capital Account.
ARTICLE FIVE
ACCOUNTS
SECTION 501. Establishment of Accounts. (a) Wilmington Trust
Company, a Delaware banking corporation, is hereby appointed as the "Accounts
Agent" and, in such capacity, will act, in accordance with Article 8 of the UCC,
as the "securities intermediary" with respect to any "securities accounts" and
as a "bank" with respect to any "deposit accounts" (as each such term is defined
in the UCC) in which a security interest may be granted under the UCC pursuant
hereto and pursuant to the Assignment
25
and Security Agreement (together with its successors and permitted assigns in
each such capacity, the "Accounts Agent"). Pursuant hereto and to the Assignment
and Security Agreement, the Accounts Agent shall establish and maintain the
following non-interest bearing accounts (collectively, the "Accounts") in the
name of the Trustee for its own benefit and the equal and ratable benefit of the
Holders as provided in this Indenture: (i) the Collections Account; (ii) the
Working Capital Account; (iii) the Reserve Account; (iv) the Reserve Investments
Account; and (v) the Damages and Indemnity Account (each as defined below). The
Accounts Agent will invest funds in each such Account in accordance with Section
507 and act with respect to all "financial assets" (as such term is defined in
Article 8 of the UCC) credited to the Accounts as a "securities intermediary"
(as such term is defined in Article 8 of the UCC). The Accounts Agent shall hold
and safeguard the Accounts during the term of this Indenture and the Assignment
and Security Agreement and shall treat the "security entitlements" (as such term
is defined in Article 8 of the UCC) in the Accounts as security entitlements
pledged by the Issuer to the Trustee for its own benefit and the equal and
ratable benefit of the Holders to be held in accordance with the provisions of
this Indenture and the Assignment and Security Agreement. Neither the Issuer nor
any Affiliate of the Issuer shall have any rights against the Accounts Agent
hereunder (other than rights which may arise as a result of the Accounts Agent's
gross negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment), as a third-party beneficiary
or otherwise, including, any right to direct the Accounts Agent to distribute or
allocate any funds in the Accounts (except as expressly provided herein or as
provided in the Assignment and Security Agreement). The Accounts Agent shall
comply with Part 5 of Article 8 of the UCC.
(b) All monies and Permitted Investments credited to the Accounts
from time to time shall constitute part of the Collateral and shall be
collateral security for the payment and performance by the Issuer of all its
obligations under the Financing Documents and, subject to the terms of this
Indenture, shall at all times be subject to the sole dominion and control of the
Trustee for the purposes and on the terms set forth in this Indenture and the
other Financing Documents. Until payment and performance of all the obligations
of the Issuer under the Financing Documents in accordance with the provisions
hereof, the Issuer shall have no right to the funds credited to the Accounts,
except as provided in this Article Five. If a Notice of an Actionable Event
shall have been given and be outstanding, the Trustee shall apply all or any of
the monies in the Accounts in accordance with the express terms of the Indenture
and in the order of priority set forth in Section 711.
SECTION 502. Collections Account. (a) On or prior to the Closing
Date, the Accounts Agent shall establish and maintain a segregated trust account
no. 61186-1, in the name of the Trustee in its trust capacity and entitled
"Collections Account" (the "Collections Account"). Thereafter, without
limitation of any other amounts required under this Indenture to be deposited in
the Collections Account (including any profit or interest earned on the
investment of moneys held in any Account pursuant to Section 507), all
Collections and all Account Transfer Payments shall be deposited with the
Accounts Agent for the benefit of the Trustee in the Collections Account. The
Issuer shall instruct each Person from whom it receives or is entitled to
26
receive Collections to pay such Collections (identifying them as such in writing
to the Trustee) directly to the Trustee for deposit in the Collections Account,
and the Trustee shall be entitled to receive directly all Collections from the
Persons owing the same. In furtherance of the foregoing, the Consents have been
executed and delivered concurrently with the execution and delivery of this
Indenture. In the event that any Collections are remitted directly to, or are
otherwise received by, the Issuer, all such Collections shall be held by the
Issuer as the agent of and in trust for the Trustee, and the Issuer shall
promptly remit such Collections in the form received (with any necessary
endorsement) to the Trustee for deposit in the Collections Account.
(b) Unless a Notice of an Actionable Event shall have been given in
writing to the Trustee and be outstanding, in which case the provisions of
Section 711 shall be applicable, the Trustee shall apply amounts in the
Collections Account on the dates specified below and in the following order of
priority for payment to the appropriate Person, but in each case only to the
extent that all current and past due amounts ranking prior thereto have been
paid in full:
(i) FIRST, on the first day of August of each year, beginning
on August 1, 2004, to pay to the Trustee the amount of Trustee Fees due
and payable at such time in connection with the Notes;
(ii) SECOND, on or before the later of (A) the twenty first
day of each month, or (B) the eleventh day after receipt of an invoice
from Morgan Stanley Capital or, if such day is not a Business Day, then on
the next Business Day, to pay Morgan Stanley Capital for electric energy
sold or made available to Issuer by Morgan Stanley Capital under the MSCG
Power Purchase Agreement (as specified in an Officer's Certificate of the
Issuer delivered to the Trustee at least three Business Days prior to such
payment date);
(iii) THIRD, on the first day of each month, to pay to the
payee thereof all governmental fees and other expenses (including legal
fees and the expenses of the independent members of the Management
Committee, the Administrative Agent and the Trustee, but excluding the
annual fees of any of the foregoing) required to be paid by the Issuer to
third-parties in order for the Issuer to remain in compliance with its
obligations under this Indenture (as specified in an Officer's Certificate
of the Issuer delivered to the Trustee at least three Business Days prior
to the first day of each month);
(iv) FOURTH, on each Interest Payment Date, to pay, on a pro
rata basis to the Holders of each Series of the Notes, an amount equal to
all interest due and payable (including past due amounts, if any) at such
time on the Notes;
(v) FIFTH, on each Principal Payment Date, to pay, on a pro
rata basis to the Holders of each Series of the Notes, an amount equal
27
to the principal and Make-Whole Premium (if any, with respect to any Notes
called for optional redemption) due and payable (including past due
amounts, if any) at such time on such Notes (as specified in an Officer's
Certificate of the Issuer delivered to the Trustee at least three Business
Days prior to such payment date);
(vi) SIXTH, on each Payment Date, to transfer to the Reserve
Account an amount, if any, necessary to cause the amount on deposit in the
Reserve Account to be equal to the Reserve Required Balance (as specified
in an Officer's Certificate of the Issuer delivered to the Trustee at
least three Business Days prior to such payment date);
(vii) SEVENTH, on the first day of August of each year
(beginning on August 1, 2003), in arrears, to pay to Morgan Stanley
Capital's an amount equal to the annual fees payable to Morgan Stanley
Capital under the Scheduling Services Agreement (as specified in an
Officer's Certificate of the Issuer delivered to the Trustee at least
three Business Days prior to such payment date);
(viii) EIGHTH, on the first day of August of each year
(beginning on August 1, 2004), to pay (1) to the Administrative Agent an
amount equal to the annual fees payable to the Administrative Agent under
the Administrative Services Agreement; (2) the fees of the Issuer's
independent managers; (3) the fees of the rating agencies; and (4) the
premiums, fees or other charges for insurance (in each case, as specified
in an Officer's Certificate of the Issuer delivered to the Trustee at
least three Business Days prior to such payment date); and
(ix) NINTH, on each Payment Date, provided, that (as specified
in an Officer's Certificate of the Issuer delivered to the Trustee no
later than 10:00 a.m. (EDT) on such Payment Date) (A) no Event of Default
or Default has occurred and is continuing on such Payment Date and (B) the
Debt Service Coverage Ratio calculated as of such Payment Date equals or
exceeds 1.01 to 1.00, to deposit the remaining Distributable Collections
in the Working Capital Account.
SECTION 503. Working Capital Account. On or prior to the Closing
Date, the Accounts Agent shall establish and maintain a segregated trust account
no. 61186-5, in the name of the Trustee in its trust capacity and entitled
"Working Capital Account" (the "Working Capital Account"). The Working Capital
Account shall be funded with all amounts released from the Collections Account
in accordance with clause (ix) of Section 502(b). In addition, any amounts
remaining after application of the proceeds from sale of the Notes will be
transferred to the Working Capital Account. Subject to Section 3(d)(v) of the
Assignment and Security Agreement, any amounts held in the Working Capital
Account may be used by the Issuer pursuant to an Issuer Request to the Trustee
at least three Business Days prior to the requested fund transfer date, for
working capital or other purposes, including for distribution to its Members. So
long as
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no Event of Default has occurred and is continuing, the Trustee shall not issue
instructions or orders with respect to the Working Capital Account and any funds
held therein which are contrary to those issued by the Issuer pursuant to an
Issuer Request with respect to the Working Capital Account and any funds held
therein.
SECTION 504. Reserve Account. (a) On or prior to the Closing Date,
the Accounts Agent shall establish and maintain a segregated trust account no.
61186-2, in the name of the Trustee in its trust capacity and entitled "Reserve
Account" (the "Reserve Account"). The Reserve Account shall be funded (i) on the
Closing Date with the net proceeds from the issuance and sale of the Notes in an
amount equal to the Reserve Required Balance as of the Closing Date and (ii)
thereafter, by a transfer of funds, if funds are available for such purpose,
from the Collections Account to the Reserve Account in accordance with clause
(vi) of Section 502(b).
(b) In the event that on any Interest Payment Date or Principal
Payment Date, as applicable, the aggregate amount of funds on deposit in and
available to be withdrawn from the Collections Account shall be insufficient for
the payment of interest or principal then due and payable on the Notes (any such
deficiency, a "Reserve Deficiency"), the Trustee shall forthwith transfer to the
Collections Account from the Reserve Account an amount equal to such Reserve
Deficiency. If on any Payment Date the aggregate amount of funds on deposit in
and available to be withdrawn from the Reserve Account shall exceed the then
current Reserve Required Balance, any such excess funds shall be transferred on
the next Payment Date to the Collections Account for application in accordance
with the provisions of Section 502.
SECTION 505. Reserve Investments Account. On or prior to the Closing
Date, the Accounts Agent shall establish and maintain a segregated trust account
no. 61186-3, in the name of the Trustee in its trust capacity and entitled
"Reserve Investments Account" (the "Reserve Investments Account"). Thereafter,
all earnings on Permitted Investments made with funds on deposit in the Reserve
Account shall be deposited and retained in the Reserve Investments Account until
the Trustee shall have received from each of Moody's and Standard & Poor's a
written consent to the release of such amounts in the Reserve Investments
Account. Upon receipt by the Trustee of such consents from Moody's and Standard
& Poor's, the Trustee shall transfer all amounts held in the Reserve Investments
Account to the Collections Account, and following the date of such consents, all
earnings thereafter on Permitted Investments made with funds on deposit in the
Reserve Account shall be deposited in the Collections Account.
SECTION 506. Damages and Indemnity Account. (a) On or prior to the
Closing Date, the Accounts Agent shall establish and maintain a segregated trust
account no. 61186-4, in the name of the Trustee in its trust capacity and
entitled "Damages and Indemnity Account" (the "Damages and Indemnity Account").
The Damages and Indemnity Account shall be funded with all amounts paid by
Morgan Stanley Capital under the MSCG Power Purchase Agreement and all amounts
paid by Morgan Stanley under the Morgan Stanley MSCG Guarantee, in each case,
with respect to (i) all damages payable by Morgan Stanley Capital to the Issuer
pursuant to Article Four of the MSCG Power Purchase Agreement, (ii) any
Termination Payment payable by Morgan Stanley Capital to the Issuer pursuant to
Article Five of the MSCG Power Purchase Agreement and (iii) all indemnity
payments payable by
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Morgan Stanley Capital to the Issuer pursuant to Section 10.4 of the MSCG Power
Purchase Agreement. The Damages and Indemnity Account shall also be funded with
all amounts paid by CDWR under the CDWR Power Sales Agreement with respect to
(i) all damages payable by CDWR to the Issuer pursuant to Article Four of the
CDWR Power Sales Agreement, (ii) any Termination Payment payable by CDWR to the
Issuer pursuant to Article Five of the CDWR Power Sales Agreement and (iii) all
indemnity payments payable by CDWR to the Issuer pursuant to Section 10.4 of the
CDWR Power Sales Agreement.
(b) The Trustee shall, from time to time, as specified in an
Officer's Certificate of the Issuer, withdraw from the Damages and Indemnity
Account and pay to CDWR, when due (i) all damages payable by the Issuer to CDWR
pursuant to Article Four of the CDWR Power Sales Agreement and (ii) all
indemnity payments payable by the Issuer to CDWR pursuant to Section 10.4 of the
CDWR Power Sales Agreement. The Trustee shall, from time to time, as specified
in an Officer's Certificate of the Issuer, withdraw from the Damages and
Indemnity Account and pay to Morgan Stanley Capital, when due (i) all damages
payable by the Issuer to Morgan Stanley Capital pursuant to Article Four of the
MSCG Power Purchase Agreement and (ii) all indemnity payments payable by the
Issuer to Morgan Stanley Capital pursuant to Section 10.4 of the MSCG Power
Purchase Agreement
(c) In the event any Termination Payment is made into the Damages
and Indemnity Account, the Trustee shall apply amounts in the Damages and
Indemnity Account in the following order of priority for payment to the
appropriate Person:
(i) FIRST, if amounts payable under the Notes are accelerated
as a result of the occurrence and continuation of an Event of Default, to
pay, on a pro rata basis to the Holders, an amount equal to the entire
principal amount of the Notes as of the Early Termination Date and any
interest thereon accrued and unpaid as of the Early Termination Date and,
in the event such Termination Payment is made by Morgan Stanley Capital as
a result of its default under the MSCG Power Purchase Agreement and the
CDWR Power Sales Agreement terminates as a result of such default, a
Make-Whole Premium on the notes, calculated as if an optional redemption
pursuant to Section 1302 had occurred on the date such Termination Payment
is made; provided that the Issuer is obliged to pay such Make-Whole
Premium if, and only to the extent that an amount equal to such Make-Whole
Premium is paid to Issuer by Morgan Stanley or Morgan Stanley Capital in
connection with such Termination Payment.
(ii) SECOND, to pay the Termination Payment, if any, payable
by the Issuer to CDWR pursuant to Article Five of the CDWR Power Sales
Agreement; and
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(iii) THIRD, to pay the Termination Payment, if any, payable
by the Issuer to Morgan Stanley Capital pursuant to Article Five of the
MSCG Power Purchase Agreement.
SECTION 507. Statements; Investment of Funds. On or before the fifth
(5th) Business Day of each calendar month the Trustee shall provide the Issuer
with a written statement of (a) the balances in each of the Accounts at the end
of the immediately preceding calendar month, (b) the amounts deposited into each
of the Accounts for the immediately preceding calendar month (and the sources of
such amounts) and (c) the application and payees of amounts withdrawn from each
of the Accounts for the immediately preceding calendar month. Funds on deposit
in the Accounts shall be invested by the Trustee, as specified in an Issuer
Order, in Permitted Investments. The Issuer shall deliver to the Trustee on the
date hereof an Issuer Order specifying its initial investment instructions which
shall remain in effect until changed by a subsequent Issuer Order given not less
than five (5) Business Days before the effective date of such change. All such
Permitted Investments shall be maintained in the name of the Trustee and pledged
to the Trustee to be held by it as part of the Collateral hereunder, and the
Trustee shall be authorized to endorse any of such Permitted Investments in a
manner satisfactory to it, on behalf of the Issuer. The Trustee and, as
applicable, the Accounts Agent may rely and shall be fully protected, as
provided in Section 807, in their reliance on an Issuer Order that complies with
the provisions of this Section 507, and shall be indemnified as provided in
Section 806. All earnings on Permitted Investments shall be credited to the
Collections Account upon receipt thereof by the Trustee, provided, that all
earnings on Permitted Investments made with funds on deposit in the Reserve
Account shall be deposited in the Reserve Investments Account in accordance with
Section 505, all earnings on Permitted Investments made with funds on deposit in
the Reserve Investments Account shall be retained in the Reserve Investments
Account in accordance with Section 505 and all such amounts held in the Reserve
Investments Account shall be released in accordance with Section 505. All losses
shall be charged to the applicable Account. Whenever the Trustee or the Accounts
Agent is required or permitted to make any payment or transfer under this
Indenture, the Trustee or the Accounts Agent, as the case may be, shall have the
right, and is hereby irrevocably authorized, to sell or otherwise liquidate any
Permitted Investments to the extent necessary to make such payment or transfer
and shall have no liability for and shall be fully protected from and against
any losses incurred in connection with such sale or liquidation. The Trustee or
the Accounts Agent shall have no obligation to invest and reinvest any cash held
in the Accounts in the absence of timely and specific written investment
direction from the Issuer. Other than by reason of each of their own negligent
failure to act or each of their own willful misconduct, in no event shall the
Trustee or the Accounts Agent, as the case may be, be liable for the selection
of investments or for investment losses incurred thereon. Other than by reason
of each of their own negligent failure to act or each of their own willful
misconduct, the Trustee or the Accounts Agent, as the case may be, shall have no
liability in respect of losses incurred as a result of the liquidation of any
investment prior to its stated maturity or the failure of the Issuer to provide
timely written investment direction.
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ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Indenture. (a) This
Indenture shall, upon receipt by the Trustee of an Issuer Request, cease to be
of further effect with respect to the Notes of either Series (except as to any
surviving rights of registration of transfer or exchange of Notes of such Series
herein expressly provided for and except as otherwise specifically provided in
this Indenture) and the Trustee, at the expense of the Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when:
(i) either:
(A) all Notes of such Series theretofore
authenticated and delivered (other than (1) Notes of such
Series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 308 and (2)
Notes of such Series for whose payment money has theretofore
been deposited in trust with the Trustee or any Paying Agent
or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer, as provided in Section 1402) have been
delivered to the Trustee for cancellation; or
(B) all Notes of such Series not theretofore
delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Stated Maturity within one year, or
(3) if redeemable at the option of the
Issuer, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Issuer,
and the Issuer, in the case of (i)(B)(1), (2) or (3) above, has
irrevocably deposited .or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Notes of such Series not theretofore
delivered to the Trustee for cancellation, for principal, Make-Whole
Premium, if any, and interest to the date of such deposit (in the case of
Notes of such Series which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
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(ii) the Issuer has paid or caused to be paid all other sums
then payable hereunder by the Issuer with respect to such Series of the
Notes; and
(iii) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to such Series of the Notes have been
complied with.
(b) Notwithstanding the satisfaction and discharge of this Indenture
pursuant to this Article Six, the obligations of the Issuer to the Trustee or
any agent of the Trustee appointed in accordance with the provisions hereof and
the Paying Agent under Section 806 and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (i) of this Section 601, the
obligations of the Trustee under Section 801 shall survive.
SECTION 602. Application of Trust Money. All money deposited with
the Trustee pursuant to Section 601 shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, Make-Whole Premium, if any, and interest for
whose payment such money has been deposited with the Trustee; provided, that
such money need not be segregated from other funds except to the extent required
in this Indenture or by law.
ARTICLE SEVEN
EVENTS OF DEFAULT AND REMEDIES
SECTION 701. Events of Default. "Event of Default," wherever used
herein, means the occurrence of any one of the following events with respect to
any Series of the Notes (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
(including, but not limited to, force majeure and any other impossibility of
performance) or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(a) the Issuer shall default in the payment of any principal or
Make-Whole Premium, if any, with respect to any Notes of such Series called for
optional redemption, on any Notes of such Series when the same shall become due
and payable, whether by scheduled maturity or acceleration, or otherwise, and
such default shall continue for a period of at least five (5) days; or
(b) the Issuer shall default in the payment of interest required to
be paid with respect to, any of the Notes of such Series in each case when the
same shall become due and payable, and such default shall continue for a period
of at least fifteen (15) days; or
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(c) the Issuer shall fail to observe or perform any term, covenant
or obligation of any Material Agreement or Financing Document (including,
without limitation, the furnishing of notices) and such failure (i) could
reasonably be expected to result in a Material Adverse Effect and (ii) shall
continue for a period of at least thirty (30) days after the date notice thereof
shall have been given to the Issuer by the Trustee or by the Majority Holders of
such Series of the Notes; or
(d) CDWR shall fail to observe or perform any term, covenant or
obligation of the CDWR Power Sales Agreement or the CDWR Consent and such
failure (i) could reasonably be expected to result in a Material Adverse Effect
and (ii) shall continue for a period of at least thirty (30) days after the date
notice thereof shall have been given to the Issuer by the Trustee or by the
Majority Holders of such Series of the Notes; or
(e) Morgan Stanley shall fail to observe or perform any term,
covenant or obligation of the Morgan Stanley MSCG Guarantee or the Morgan
Stanley Consent and such failure (i) could reasonably be expected to result in a
Material Adverse Effect and (ii) shall continue for a period of at least thirty
(30) days after the date notice thereof shall have been given to the Issuer by
the Trustee or by the Majority Holders of such Series of the Notes; or
(f) any Material Agreement or Financing Document (other than the
CDWR Power Sales Agreement and the Morgan Stanley MSCG Guarantee) shall cease at
any time to be valid, enforceable and binding and in full force and effect and
such invalidity or unenforceability could reasonably be expected to result in a
Material Adverse Effect; or
(g) (i) any Lien granted to the Trustee hereunder or under any
Financing Document on any material portion of the Collateral shall cease to be
valid and effective, shall cease to be perfected or otherwise fails to be a
first priority security interest, or (ii) any creditor of the Issuer (other than
the Trustee or the Holders) shall assert any right or interest with respect to
the Collateral and such assertion of rights or interests could reasonably be
expected to result in a Material Adverse Effect, or (iii) the Issuer's right to
receive payments with respect to the Collateral (other than pursuant to any Lien
granted by the Indenture or any Financing Document) shall otherwise be
terminated or impaired and such termination or impairment of the right to
receive payments could reasonably be expected to result in a Material Adverse
Effect; or
(h) the Issuer shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee, liquidator or
other similar Person of itself or of all or a substantial part of its property,
(ii) admit in writing its inability, or be generally unable, to pay its debts as
such debts become due, (iii) make a general assignment for the benefit of its
creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code, (v)
file a petition or any other document seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up, composition or
readjustment of debts or other similar laws or (vi) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition or
34
other pleading filed against the Issuer in an involuntary case under the Federal
Bankruptcy Code or any other similar law; or
(i) a proceeding or case shall be commenced without the application
or consent of the Issuer in any court of competent jurisdiction seeking (i) its
liquidation, reorganization, dissolution, winding-up, the composition or
readjustment of debts or any other similar relief, (ii) the appointment of a
trustee, receiver, custodian, liquidator or other similar Person of the Issuer
under any law relating to bankruptcy, insolvency, reorganization, winding-up,
composition or adjustment of debts or other similar laws, and such proceeding or
case shall continue undismissed, or any order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed and in
effect for a period of sixty (60) or more consecutive days, or any order for
relief or other similar order against the Issuer shall be entered in an
involuntary case under the Federal Bankruptcy Code or any other similar law; or
(j) it becomes unlawful for the Issuer to perform any of its
obligations under this Indenture, any Security Document, or any Note of such
Series, or any of its obligations hereunder or thereunder ceases to be valid,
binding and enforceable, unless such event or occurrence could not reasonably be
expected to result in a Material Adverse Effect; or
(k) the CDWR Power Sales Agreement or the Morgan Stanley MSCG
Guarantee shall for any reason be terminated or abrogated at any time (prior to
its scheduled expiration) or ceases at any time to be valid, enforceable and
binding and in full force and effect; or
(l) a judgment or judgments for the payment of money in excess of
$30 million in the aggregate, which is or are not adequately covered by
insurance or a payment or performance bond, shall be entered against the Issuer
and such judgment or judgments shall not have been vacated, discharged, stayed
or bonded pending appeal within sixty (60) days from the entry thereof.
SECTION 702. Acceleration of Maturity: Rescission and Annulment. (a)
If an Event of Default (other than a Bankruptcy Event of Default) occurs and is
continuing, then and in every such case the Trustee, upon the direction of the
Holders of no less than twenty-five percent (25%) of the Outstanding Notes so
affected (for an Event of Default specified in clauses (a) and (b) of Section
701) or the Majority Holders of either Series of the Notes (for any Event of
Default other than those specified in clauses (a) and (b) of Section 701), shall
declare the principal amount of all the Notes to be due and payable immediately,
by a notice in writing to the Issuer (and to the Trustee, if given by the
Holders), and upon any such declaration such principal amount, any accrued and
unpaid interest, any Make-Whole Premium previously due and owing by the Issuer
in connection with an optional redemption pursuant to Section 1302, and all
other amounts payable under the Notes shall become immediately due and payable.
(b) If a Bankruptcy Event of Default occurs, the principal amount
of, any accrued interest on, any Make-Whole Premium previously due and owing by
the
35
Issuer in connection with an optional redemption pursuant to Section 1302, and
all other amounts payable under the Notes then Outstanding shall become
immediately due and payable.
(c) In addition, if one or more of the Events of Default (other than
a Bankruptcy Event of Default) shall have occurred and be continuing, the
Trustee may accelerate the maturity of the Notes as provided in clause (a) of
this Section 702 notwithstanding the absence of direction from the Holders if in
the judgment of the Trustee such action is necessary to protect the interests of
the Holders.
(d) At any time after the principal of the Notes shall have become
due and payable upon a declared acceleration as provided in this Section 702,
and before any judgment or decree for the payment of the money so due, or any
portion thereof, shall be entered, the Majority Holders of either Series of the
Notes, by written notice to the Issuer and the Trustee, may rescind and annul
such declaration and its consequences if all Events of Default giving rise to
such acceleration have been cured or waived.
(e) At any time after a declaration of acceleration under this
Indenture, but before a judgment or decree for payment of the principal amount
of the Notes (or the applicable Series of the Notes so affected, as the case may
be) then due has been obtained by the Trustee, the Issuer by written notice to a
Responsible Officer of the Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all the Notes;
(B) all unpaid principal of and Make-Whole Premium, if
any, on any Outstanding Notes that have become due otherwise than by
such declaration of acceleration and interest thereon at the
respective interest rates borne by the Notes;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue principal at the
rate borne by the Notes; and
(D) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and
(ii) all Defaults and Events of Default, other than the
nonpayment of amounts of principal of, Make-Whole Premium, if any, or
interest on the Notes that have become due solely by such declaration of
acceleration have been cured or waived as provided in Section 718.
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No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 703. Remedies upon an Event of Default. If any Event of
Default shall have occurred and be continuing and acceleration shall have
occurred pursuant to Section 702, the Trustee may, subject in each case to the
provisions of Section 807, exercise any or all of the rights and remedies
granted to it in any Security Document. Without limiting the generality of the
foregoing, the Issuer expressly agrees that in any such event the Trustee,
without demand of performance or any other demand, advertisement or notice of
any kind (except the notice specified below of the time and place of public or
private sale) to or upon the Issuer or any other Person (all and each of which
demands, advertisements and/or notices are hereby expressly waived to the extent
permitted by applicable law), may, and at the written instruction of the
Majority Holders of either Series of the Notes shall, subject to the provisions
of the Consents and to the provisions of any law or regulation having the force
of law: (a) collect, receive and appropriate any or all of the Collateral and
exercise any right, remedy, power or privilege of the Issuer under any Material
Agreement; (b) set off against all amounts due and payable hereunder with funds
held in the Accounts; (c) proceed by suit at law or in equity to seek specific
performance of any obligation of the Issuer; (d) take possession of the
Collateral forthwith or any time thereafter, in which case the Issuer shall
marshal and deliver the Collateral to the Trustee or its designee at such time
or times and such place or places as the Trustee may reasonably specify; (e)
subject to the provisions of Section 704, forthwith sell, lease, assign, give an
option or options to purchase or otherwise dispose of and deliver all or any
part of the Collateral (or contract to do so) at one or more public or private
sales, at any exchange, broker's board or at any of the Trustee's offices or
elsewhere at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk; (f) institute legal
proceedings for the appointment of a receiver with respect to any or all of the
Collateral or with respect to the Issuer; or (g) proceed by suit at law or in
equity to foreclose upon, or appoint a receiver with respect to, the Collateral
or exercise any other right or remedy (including specific performance of the
Issuer's obligations under the Financing Documents) available under applicable
law. The Trustee may sell any or all of the Collateral as provided above at any
private or public sale, it being hereby agreed that twenty (20) Business Days'
notice by the Trustee to the Issuer shall be deemed to be reasonable notice of
any such sale. The Issuer hereby waives, to the extent permitted by applicable
law, any claims against the Trustee arising by reason of the fact that the price
at which Collateral may have been sold at any such private sale was less than
the price which might have been obtained at a public sale.
SECTION 704. Certain Sales of Collateral. In connection with the
exercise of any remedies under Section 703(e) the Trustee will not sell the
Collateral or any portion thereof without the written consent of all of the
Holders of the Notes Outstanding unless the proceeds of such sale will be
sufficient to satisfy all of the outstanding principal amount, accrued and
unpaid interest, Make-Whole Premium, if any, and all other amounts due and
payable under the Notes.
37
SECTION 705. No Marshaling. To the extent that it lawfully may, the
Issuer hereby agrees that it will not at any time plead, claim or take the
benefit of any appraisement, valuation, stay, extension, moratorium or
redemption law now or hereafter in force and any requirement of marshaling in
the event of foreclosure of the security interests hereby created, the effect of
which might be to prevent or delay the enforcement of any Security Document or
the absolute sale of the whole or any part of the Collateral or the possession
thereof by the Trustee or any purchaser at any sale by the Trustee. The Issuer,
for itself and all who may claim under the Issuer, as far as the Issuer may
lawfully do so, hereby waives and releases the benefit of all such laws. Except
as otherwise expressly provided in this Indenture, to the extent permitted by
applicable law, the Issuer hereby waives presentment, demand, protest or any
notice of any kind in connection with, and not expressly set forth in, any
Security Document or herein.
SECTION 706. Trustee May Recover Unpaid Indebtedness After Sale of
Collateral. Subject to Section 114, in the case of a sale of the Collateral and
of the application of the proceeds of such sale to the payment of the
indebtedness secured by this Indenture and the Security Documents, the Trustee
in its own name, and as trustee of an express trust, shall be entitled and
empowered, by any appropriate means, legal, equitable or otherwise to enforce
payment of, and to receive all amounts then remaining due and unpaid upon, all
or any of the Notes, for the equal and ratable benefit of the Holders thereof,
and upon any other portion of the indebtedness remaining unpaid, including the
Make-Whole Premium, if any, with interest at the rates specified in the
respective Notes on the overdue principal, Make-Whole Premium, if any, and (to
the extent that payment of such interest is legally enforceable) on the overdue
installments of interest.
SECTION 707. Recovery of Judgment Does Not Affect Rights. No
recovery of any such judgment or final decree by the Trustee and no levy of any
execution under any such judgment upon any of the Collateral, or upon any other
property, shall in any manner or to any extent affect any rights, powers or
remedies of the Trustee, or any liens, rights, powers or remedies of the
Holders, but all such liens, rights, powers or remedies shall continue
unimpaired as before.
SECTION 708. Collection of Indebtedness and Suits for Enforcement by
Trustee. (a) The Issuer covenants that if:
(i) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and such
default continues for a period of thirty (30) days, or
(ii) default is made in the payment of the principal of or
Make-Whole Premium, if any, on any Note when such becomes due and payable,
the Issuer will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Notes, the whole amount then due and
payable on such Notes for principal, Make-Whole Premium, if any, and
interest, and interest on any overdue
38
principal, Make-Whole Premium, if any, and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installment
of interest, at the applicable rate borne by the Notes, 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.
(b) If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, at the
direction of the Holders as set forth herein, 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
Issuer or any other obligor upon the Notes and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Issuer or any other obligor upon the Notes, wherever situated.
(c) If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Notes 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 709. Trustee May File Proofs of Claim. (a) In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Notes or the
Property of the Issuer or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the payment of
overdue principal, Make-Whole Premium, if any, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and Make-Whole Premium, if any) and interest owing and unpaid
in respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) 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
39
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 806.
(b) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
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 710. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes 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.
SECTION 711. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article Seven or the Security Documents 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 Make-Whole
Premium, if any) or interest, upon presentation of the Notes and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
(a) First, to the payment of all amounts due to the Trustee and each
predecessor Trustee, if any, under Section 806;
(b) Second, to the payment of the amounts then due and unpaid for
principal of, Make-Whole Premium (with respect to Notes called for optional
redemption), if any, and any interest on the Notes 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 then due and payable on such
Notes for principal, Make-Whole Premium, if any, and any interest, respectively;
(c) Third, to the payment of all amounts due and payable to CDWR
under the CDWR Power Sales Agreement, to Morgan Stanley Capital under the MSCG
Power Purchase Agreement and to the Administrative Agent under the
Administrative Services Agreement, as the case may be, as set forth in an
Officer's Certificate or as determined by a court of competent jurisdiction; and
(d) Fourth, to the Issuer or to whoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
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SECTION 712. Limitation on Suits. No Holder of any Note 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
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default, with respect to the Notes of such Series;
(b) the Majority Holders of the Outstanding Notes of such Series
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;
(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for sixty (60) days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Majority Holders of the
Outstanding Notes of such Series;
it being understood and intended that no one or more of such 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 of Notes, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all Holders.
SECTION 713. Unconditional Right of Holders to Receive Principal,
Make-Whole Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Fourteen), of the principal of, Make-Whole Premium, if any, on and
(subject to Section 309) interest on, such Note on the Stated Maturity expressed
in such Note (or, in the case of redemption, on the Redemption Date), including
any interest accrued during any grace period provided in Section 701, 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 714. 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
Issuer, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and
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thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 715. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in clause (e) of Section 308, 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 716. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article Seven 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 717. Control by Holders. (a) The Majority Holders of each
Series of the Notes shall have the right to direct in writing 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 such
Majority Holders have provided the Trustee with indemnity acceptable to the
Trustee against the costs, expenses (including reasonable attorneys' fees and
expenses) and liabilities to be incurred in following such direction and that
direction shall not be in conflict with any law and the provisions of this
Indenture and provided, further, that (subject to the provisions of Section 801)
the Trustee shall have the right to decline to follow any such direction if such
directions are unclear or inconsistent with any other directives given to the
Trustee or if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by a Responsible Officer of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions or
forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders so affected not joining in the giving of
said direction, it being understood that (subject to Section 801) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
(b) Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by such Majority Holders.
SECTION 718. Waiver of Past Defaults. (a) The Majority Holders of
the Outstanding Notes of either Series may on behalf of the Holders of all the
Notes of
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such Series waive any past default with respect to such Notes, except a default
in the payment of the principal of, Make-Whole Premium, if any, or any interest
on any Note or in respect of a covenant or provision hereof that cannot be
modified or amended without the unanimous affirmative vote of all Holders of
such Series.
(b) Upon any such waiver, any 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 and the Trustee, Issuer and the Holders of such
Series of the Notes, as the case may be, shall be restored respectively to their
former positions and rights hereunder; provided, that no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 719. Waiver of Force Majeure and Stay or Extension Laws. The
Issuer covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any force majeure, impossibility of performance and any
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
Issuer (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such force majeure, impossibility or law and
covenants that the Issuer will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted or such force majeure or
impossibility grounds have occurred.
SECTION 720. Trustee to Give Notice of Default, but May Withhold in
Certain Circumstances. Within forty-five (45) days after a Responsible Officer
assigned to the Corporate Trust Office of the Trustee obtains actual knowledge
of the occurrence of any Default hereunder, the Trustee shall transmit by mail
to all Holders as their names shall appear on the Security Register, in the
manner and to the extent provided in Trust Indenture Act Section 313(c), notice
of such Default hereunder, unless such Default shall have been cured or waived;
provided, that except in the case of a default in the payment of the principal
of, Make-Whole Premium, if any, or interest on any Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders.
SECTION 721. 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 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 (including reasonable attorneys' fees and expenses)
against any such party litigant, in the manner and to the extent provided in the
Trust Indenture Act; provided, that the provisions of this Section 721 shall not
apply to any suit instituted by the Trustee, or the Issuer to any suit
instituted by any Holder or group of Holders, holding in the aggregate more than
ten percent (10%) in principal amount of the Outstanding Notes of either Series,
or any suit instituted by any Holder for the enforcement of the payment of
43
the principal of, Make-Whole Premium, if any, or interest, if any, on any Note
on or after the respective due dates expressed in such Note (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. (a) The Trustee, prior to the occurrence of an Event
of Default and after the curing or waiving of all Events of Default that may
have occurred, shall undertake to perform such duties and only such duties as
are specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived) 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.
(b) 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:
(i) during the continuance of an Event of Default:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any statements, certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
provided, that in the case of any such statements, certificates or
opinions which by any provision hereof are specifically required 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 or investigate
the accuracy of mathematical calculations or other facts stated
therein);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be conclusively determined by a court of
competent jurisdiction that the Trustee was negligent in ascertaining the
pertinent facts; and
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(iii) 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 pursuant to Section 717 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.
(c) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or indemnity satisfactory to it
against such liability is not assured to it. Notwithstanding anything to the
contrary contained herein, in no event shall the Trustee be liable under this
Indenture or any of the other Financing Documents to which it is a party for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits).
SECTION 802. Certain Rights of Trustee. Subject to the provisions of
Section 801:
(a) the Trustee and, as applicable, the Accounts Agent, may
conclusively rely and shall be fully protected in acting or refraining from
acting in reliance upon any resolution, Officer's Certificate or any other
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, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate, Issuer
Request or Issuer Order (unless other evidence in respect thereof be herein
specifically prescribed), and any Management Committee's Consent may be
sufficiently evidenced to the Trustee by a copy thereof certified by the
secretary or a Member of the Issuer;
(c) the Trustee may consult with counsel of its selection and any
advice of counsel or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder or under any Security Document in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture or under any other Financing
Document at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred therein or thereby;
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(e) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, notice, security or other paper or document unless
requested in writing so to do by the Majority Holders of either Series of the
Notes; provided, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require indemnity satisfactory to it against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee, any
predecessor trustee or the Holders of any Outstanding Notes, shall be repaid by
the Issuer upon demand;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder or under any other Financing Document either
directly or by or through agents or attorneys not regularly in its employ 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;
(g) neither the Trustee nor the Accounts Agent shall be liable for
any action taken, suffered or omitted by either of them in good faith and
believed by the Trustee or the Accounts Agent, as the case may be, to be
authorized or within the discretion or rights or powers conferred upon the
Trustee or the Accounts Agent, as the case may be, by this Indenture;
(h) except during the continuance of an Event of Default, the
Trustee need perform only those duties as are specifically set forth in this
Indenture;
(i) the Trustee is hereby authorized and directed to enter into the
Security Documents;
(j) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture; and
(k) the rights, privileges, protections, immunities and benefits
given to the Trustee, including its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other Person employed to act hereunder and
under the Security Documents.
SECTION 803. Trustee Not Responsible for Recitals or Issuance of
Notes. Other than as specifically provided in the Trustee recitals of this
Indenture; the recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer, and the Trustee assumes no
46
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of any disclosure document or
offering materials or of the Notes. Neither the Trustee nor its agents appointed
in accordance with the provisions hereof shall be accountable for the use or
application by the Issuer of the Notes or the proceeds thereof.
SECTION 804. May Hold Notes. The Trustee, any Paying Agent, the
Registrar or any other agent of the Issuer or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject to
Trust Indenture Act Sections 310(b) and 311, may otherwise deal with the Issuer
with the same rights it would have if it were not the Trustee, any Paying Agent,
the Registrar or any other agent of the Issuer or such agent and, subject to
Sections 809 and 813, if operative, may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee, any Paying Agent, the Registrar
or any other agent of the Issuer.
SECTION 805. Money Held In Trust. All moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any agent of
the Issuer shall be under any liability for interest on any moneys received by
it hereunder except as otherwise agreed with the Issuer.
SECTION 806. Compensation and Indemnification of Trustee, Accounts
Agent, Paying Agent and Registrar and Its Prior Claim. (a) The Issuer covenants
and agrees to pay to the Trustee, the Accounts Agent and to each Paying Agent
and Registrar, and the Trustee, the Accounts Agent and each Paying Agent and
Registrar shall be entitled to, such compensation as set forth in any fee
agreement between the Issuer and the Trustee entered into in connection with the
execution and delivery of this Indenture by the parties hereto or in connection
with the issuance of the Notes (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee, the Accounts Agent
and each Paying Agent and Registrar and their respective predecessors upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expenses, disbursement or advance as may arise
from its negligence or bad faith. As security for such payment and for all of
the other obligations of the Issuer set forth in this Section 806 (and any fees
referred to in Section 816), the Trustee shall have a security interest and Lien
prior to the Notes upon all Collateral. The provisions of this Section 806 shall
survive the resignation or removal of the Trustee and the termination of the
other provisions of this Indenture.
(b) The Issuer also covenants to indemnify the Trustee, the Accounts
Agent and each Paying Agent and Registrar and their respective predecessors,
officers, directors, employees, representatives and agents for, and to hold it
harmless against, any
47
and all loss, liability, damage, claim or expense, including taxes (other than
taxes based on the income of the Trustee, the Accounts Agent and each Paying
Agent and Registrar and their respective predecessors, officers, directors,
employees, representatives and agents) incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance, administration
or enforcement of this Indenture and under the other Financing Documents or the
trusts hereunder and its duties hereunder and the other Financing Documents,
including any liability which the Trustee, the Accounts Agent or any Paying
Agent or Registrar may incur as a result of failure to withhold, pay or report
any tax, assessment or other governmental charge and the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Issuer under this Section 806(b) to compensate
and indemnify the Trustee, the Accounts Agent and each Paying Agent and
Registrar and their respective predecessors and to pay or reimburse the Trustee,
the Accounts Agent and each Paying Agent and Registrar and their respective
predecessors for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the termination,
satisfaction and discharge of this Indenture. References herein to the "Trustee"
shall be deemed to also refer to the Trustee acting in its capacity as Accounts
Agent, Paying Agent, Registrar or in any other capacity as contemplated herein
or in any Financing Document.
(c) Where the Trustee incurs expenses or renders services in
connection with a Bankruptcy Event of Default, such expenses (including
reasonable attorneys' fees and expenses) and the compensation for the services
are intended to constitute expenses of administration under applicable federal
or state bankruptcy, insolvency or other law.
SECTION 807. Right of Trustee to Rely on Officer's Certificate, Etc.
Subject to Sections 801 and 802, whenever in the administration of the trusts of
this Indenture the Trustee, or in the carrying out of its duties under Article
Five, the Accounts Agent, shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of bad faith on the part of the
Trustee or the Accounts Agent, as the case may be, be deemed to be conclusively
proved and established by an Officer's Certificate delivered to the Trustee or
the Accounts Agent, as the case may be, and such certificate, in the absence of
bad faith on the part of the Trustee or the Accounts Agent, as the case may be,
shall be full warranty to the Trustee or the Accounts Agent, as the case may be,
for any action taken, suffered or omitted by the Trustee or the Accounts Agent,
as the case may be, under the provisions of this Indenture upon the faith
thereof.
SECTION 808. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall be eligible to act as Trustee under
Trust Indenture Act Section 310(a)(1) and (2) and which shall have a combined
capital and surplus of at least one hundred fifty million Dollars
($150,000,000). If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section 808, the combined capital and surplus of such
corporation
48
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Trustee shall comply with the
provisions of the Trust Indenture Act Section 310(b). If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
808, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article Eight.
SECTION 809. Qualification of Trustee; Conflicting Interests. If the
Trustee has or shall acquire any conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall, within 90 days after ascertaining that
it has a conflicting interest and if the Event of Default to which such
conflicting interest relates has not been cured or duly waived before the end of
such 90 day period, either eliminate such conflicting 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 810. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee may at anytime resign by giving written notice of
resignation to the Issuer and by mailing written notice thereof by first-class
mail, postage prepaid, to all Holders at their last addresses as they shall
appear on the Security Register specifying the day upon which the resignation is
to take effect, and such resignation will take effect immediately upon the later
of the appointment of a successor trustee pursuant to this Article Eight and
such specified day. Upon receiving such notice of resignation, the Issuer, by a
Management Committee's Consent, shall promptly appoint a successor trustee
satisfying the requirements of Section 808 by written instrument in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed and have accepted appointment within thirty (30) days after
the mailing of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee,
or any Holder who has been a bona fide Holder of a Note or Notes for at least
six (6) months may, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 809 and Trust Indenture Act Section 310(b) after written request
therefor by the Issuer or by any Holder who has been a bona fide Holder
for at least six (6) months, except when the Trustee's duty to resign is
stayed in accordance with the provisions of Trust Indenture Act Section
310(b); or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 808 and shall fail to resign after written
request therefor by the Issuer or by any Holder who has been a bona fide
Holder for at least six (6) months; or
49
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator 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, the Issuer may, by Management Committee's Consent,
remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Members, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 811, unless the Trustee's duty to
resign is stayed as provided herein, any Holder who has been a bona fide Holder
for at least six (6) 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.
(c) 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
Issuer, by a Management Committee's Consent, shall promptly appoint a successor
trustee satisfying the requirements of Section 808. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor trustee shall be appointed by an Act of the Majority Holders of either
Series of the Notes delivered to the Issuer and the retiring Trustee, the
successor trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor trustee with respect to such Series of the
Notes and to that extent supersede the successor trustee appointed by the
Issuer. If no successor trustee shall have been so appointed by the Issuer or
the Holders and accepted appointment in the manner hereinafter provided within
60 days, any Holder who has been a bona fide Holder for at least six (6) months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor trustee.
(d) It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as an indenture
trustee in such jurisdiction.
(e) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee in the manner
provided for in Section 106. Each notice shall include the name of the successor
trustee and the address of its Corporate Trust Office.
(f) The Holders, by Act of the Majority Holders of either Series of
the Notes, may at any time remove the Trustee with respect to such Series of the
Notes and appoint a successor trustee with respect to such Series of the Notes
by delivering to the Trustee so removed, to the successor trustee so appointed
and to the Issuer the evidence provided for in Section 104 of the action in that
regard taken by the Majority Holders of such Series of the Notes.
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(g) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to any of the provisions of this Section 810 shall
become effective until the acceptance of appointment by the successor trustee as
provided in Section 811.
SECTION 811. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor trustee, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Issuer 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;
provided, that on the request of the Issuer or the successor trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon request of any such successor trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in clause (a) of this Section 811.
(c) 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 Eight.
(d) In no event shall the retiring Trustee be liable for the acts or
omissions of any successor trustee.
SECTION 812. 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
Eight, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes 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 Notes so authenticated with the same effect
as if such successor trustee had itself authenticated such Notes; and in case at
that time any of the Notes shall not have been authenticated, any successor
trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have;
provided, further, that the right to adopt the certificate of authentication of
any predecessor Trustee or to
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authenticate Notes in the name of any predecessor trustee shall apply only to
its successor or successors by merger, conversion or consolidation.
SECTION 813. Preferential Collection of Claims Against Issuer. If
and when the Trustee shall be or become a creditor of the Issuer (or any other
obligor under the Notes), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Issuer (or
any such other obligor), excluding any creditor relationships described in Trust
Indenture Act Section 311(b). A Trustee who has resigned or has been removed
shall be subject to Trust Indenture Act Section 311 (a) to the extent indicated
therein.
SECTION 814. No Liability for Clean-up of Hazardous Materials. (a)
In the event that the Trustee is required to acquire title to an asset for any
reason, or take any managerial action of any kind in regard thereto, in order to
carry out any fiduciary or trust obligation for the benefit of another, which in
the Trustee's sole discretion may cause the Trustee to be considered an "owner
or operator" under the provisions of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. Sections 9601, et seq., or
otherwise cause the Trustee to incur liability under CERCLA or any other
federal, state or local law, the Trustee reserves the right to, instead of
taking such action, either resign as Trustee or arrange for the transfer of the
title or control of the asset to a court appointed receiver.
(b) The Trustee shall not be liable to the Issuer or Holders or any
other person for any environmental claims or contribution actions under any
federal, state or local law, rule or regulation by reason of the Trustee's
actions and conduct as authorized, empowered and directed hereunder or relating
to the discharge, release or threatened release of hazardous materials into the
environment, except to the extent of the Trustee's negligence or willful
misconduct.
SECTION 815. Accounts Agent Registrar and Paving Agent. Insofar as
such provisions may be applicable, the Accounts Agent, the Registrar, the Paying
Agent and any other agent appointed in accordance with the provisions hereof
shall enjoy the same protections, immunities and indemnities as are provided for
in this Article Eight with respect to the Trustee.
SECTION 816. Filing Fees. The Issuer agrees to pay or to reimburse
the Trustee for any and all amounts in respect of all filing, recording and
registration fees which may be payable or determined to be payable in respect of
the execution, delivery, performance and enforcement of the Financing Documents
and agrees to save the Trustee harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omitting to pay such
fees. The obligations of the Issuer under this Section 816 shall survive the
resignation or removal of the Trustee and the termination of the other
provisions of this Indenture.
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SECTION 817. Fee Agreement. The Fee Agreement provides for the
compensation of the Trustee hereunder for its services as such, and the Trustee
will not look to the holders of the Notes for any payment for such services,
provided, that this Section 817 shall not alter the provisions of Section
502(b)(i) or the lien provided in Section 806(a).
ARTICLE NINE
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 901. 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 the Holders. If the Trustee is not the Registrar, the
Issuer shall furnish to the Trustee at least five (5) Business Days before each
Payment Date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Holders. The Trustee may conclusively rely upon
such list provided by the Issuer until otherwise notified by the Issuer or such
list is amended by the Issuer.
SECTION 902. Disclosure of Names and Addresses of Holders. Every
Holder of Notes, by receiving and holding the same, agrees with the Issuer and
the Trustee that none of the Issuer or the Trustee or any agent of either of
them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Trust Indenture
Act Section 312(b).
SECTION 903. Reports by Trustee. (a) Within sixty (60) days after
May 1 of each year commencing with the first May 1 after the first issuance of
Notes pursuant to this Indenture, the Trustee shall transmit to the Holders in
the manner and to the extent provided in Trust Indenture Act Section 313(c), a
brief report dated as of such May 1 if required by Trust Indenture Act Section
313(a).
(b) The Trustee shall transmit to the Holders, in the manner and to
the extent provided in Trust Indenture Act Section 313(c), a brief report, if
required, by Trust Indenture Act Section 313(b).
SECTION 904. Reports by Issuer. (a) The Issuer shall:
(i) file with the Trustee, within fifteen (15) days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act or, if the Issuer is not required to
file information, documents or reports pursuant to either of such
Sections, then
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it shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(ii) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) transmit to all Holders, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), within thirty (30) days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to paragraphs (i) and (ii) of clause (a) of this Section 904 as
may be required by rules and regulations prescribed from time to time by
the Commission.
(b) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
ARTICLE TEN
SUPPLEMENTS AND AMENDMENTS
TO INDENTURE AND SECURITY DOCUMENTS
SECTION 1001. Without Vote of Holders. Without the vote or approval
of any Holders of either Series of the Notes, the Issuer, when authorized by or
pursuant to a Management Committee's Consent, and the Trustee, at any time and
from time to time, may amend or supplement this Indenture, any Security
Documents or the Notes, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Issuer and
the assumption by any such successor of the covenants of the Issuer contained
herein and in the Notes; or
(b) to add to the covenants of the Issuer for the benefit of the
Holders or to surrender any right or power herein conferred upon the Issuer; or
(c) to add any additional Events of Default; or
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(d) to secure the Notes with additional collateral; or
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee and to add to or change any of the provisions
hereof as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee; or
(f) to cure any ambiguity, to correct or supplement any provision
hereof which may be inconsistent with any other provision in this Indenture
provided that such action shall not adversely affect the interests of the
Holders of such Series of the Notes in any material respect; or
(g) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of the Notes; provided, that any such action does not adversely affect
the interests of the Holders of such Series of the Notes in any material
respect.
SECTION 1002. With Consent of Holders. (a) The Issuer, when
authorized by or pursuant to a Management Committee's Consent, and the Trustee
may amend or supplement this Indenture or the Notes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or the Notes or of modifying in any manner the rights of the
Holders under this Indenture with the consent of the Majority Holders of the
Notes affected by such amendment or supplement (voting as a single class), by
Act of said Holders delivered to the Issuer and the Trustee; provided, that no
such amendment or supplement shall, without the consent of the Holder of each
Outstanding Note,
(i) change the Stated Maturity of the Principal of, or any
installment of interest on, any Note;
(ii) reduce the principal amount of any Note, or any
Make-Whole Premium payable upon the redemption of any Note, or reduce the
rate of interest on any Note, including discharge of repayment of
principal of or interest on any Note;
(iii) reduce the percentage in principal amount of Outstanding
Notes, the consent of the Holders of which is required for the adoption of
a resolution or the quorum required at any meeting of Holders at which a
resolution is adopted or the percentage in principal amount of Outstanding
Notes the Holders of which are entitled to request the calling of a
Holder's meeting;
(iv) change the percentage rules established for adopting
resolutions at meetings of Holders or regarding the quorum necessary to
constitute a meeting;
(v) modify any of the provisions of this Section 1002 and
Section 718, except to increase any percentage specified herein or
therein;
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(vi) change the place or coin or currency for payment of
principal of, Make-Whole Premium, if any, or interest on any Note;
(vii) impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof or any
Redemption Date or Payment Date therefor;
(viii) permit the creation of any Lien with respect to all or
any substantial portion of the Collateral, or release or terminate the
Lien of the Security Documents on all or any substantial portion of the
Collateral or deprive any Holder of the security afforded by the Lien of
the Security Documents, except to the extent expressly permitted by this
Indenture or any of the Security Documents;
(ix) modify the ranking or priority of the Notes; or
(x) waive a default in the payment of principal of, Make-Whole
Premium, if any, or interest on, the Notes.
(b) It shall not be necessary for any Act of Holders under this
Section 1002 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 1003. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any amended or supplemental
indenture permitted by this Article Ten or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
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 which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 1004. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article Ten, (a) this Indenture or the
applicable Security Document shall be modified in accordance therewith, (b) such
supplemental indenture, amendment, modification or waiver shall form a part of
this Indenture or the applicable Security Document (as the case may be) for all
purposes and (c) every Holder of Notes theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 1005. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article Ten shall conform to
the requirements of the Trust Indenture Act as then in effect.
SECTION 1006. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article Ten 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
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indenture. If the Issuer shall so determine, new Notes so modified as to
conform, in the opinion of the Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer, and, upon receipt of an
Issuer Order, authenticated and delivered by the Trustee, in exchange for
Outstanding Notes. Failure to make the appropriate notation or to issue a new
Note shall not affect the validity of such supplemental indenture, amendment,
modification or waiver.
SECTION 1007. Notice of Supplemental Indentures. Promptly after the
execution by the Issuer and the Trustee of any supplemental indenture,
amendment, modification or waiver pursuant to the provisions of Section 1002,
the Issuer shall give notice thereof to the Holders, in the manner provided for
in Section 106, setting forth in general terms the substance of such
supplemental indenture, amendment, modification or waiver.
ARTICLE ELEVEN
AFFIRMATIVE COVENANTS
SECTION 1101. Payment of Principal and Interest. The Issuer shall
duly and punctually pay the principal of, Make-Whole Premium, if any, and
interest on the Notes in accordance with the terms of the Notes and this
Indenture.
SECTION 1102. Maintenance of Office or Agency. (a) The Issuer will
maintain in the Borough of Manhattan, the City of New York, and in each Place of
Payment, an office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served.
(b) The Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer 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 Issuer hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
(c) The Issuer may also from time to time designate one or more
other offices or agencies where Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind any such designation;
provided, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in accordance with the
requirements set forth above for such purposes. The Issuer will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1103. Maintenance of Existence, Properties. (a) The Issuer
shall preserve and maintain its legal existence and form as a bankruptcy-remote
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special purpose entity separate from any other entity, and shall preserve and
maintain all registrations necessary therefor.
(b) The Issuer shall preserve and maintain all of its licenses,
rights, privileges and franchises necessary for the conduct of its business and
the performance of its obligations under the Material Agreements and the
Financing Documents, except to the extent failure to do so could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 1104. Payments of Taxes and Other Claims. The Issuer shall
pay and discharge or cause to be paid and discharged, before the same shall
become delinquent, all taxes, assessments and governmental charges levied or
imposed upon the Issuer, and all lawful claims or obligations which, if unpaid,
might by law become a Lien upon the Property of the Issuer; provided, that the
Issuer will not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claims whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which adequate funds have been set aside.
SECTION 1105. Material Agreements. The Issuer will enforce all of
its rights, powers and remedies under each of the Material Agreements, unless
the failure to enforce such rights, powers and remedies could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 1106. Notice of Certain Events. The Issuer shall furnish to
the Trustee:
(a) within 120 days after the end of each fiscal year of the Issuer
ending after the date hereof, an Officer's Certificate of a Responsible Officer
stating that (i) no Default has occurred and is continuing (or if any such
Default has occurred and is continuing, describing such Default in reasonable
detail and describing the steps being taken to remedy such Default) and (ii) the
Issuer is in compliance with all conditions and covenants under this Indenture,
the Notes and the other Financing Documents to which it is a party; and
(b) each of the following items promptly after the Issuer learns of
the occurrence or existence thereof:
(i) written notice of the occurrence of any event or condition
which constitutes a Default or an Event of Default, stating that such
event or condition has occurred and describing it and any action being or
proposed to be taken with respect thereto;
(ii) written notice of the Issuer's failure to observe or
perform any term, covenant or obligation of the LLC Agreement (unless such
failure could not reasonably be expected to result in a Material Adverse
Effect), stating that failure has occurred and describing it and any
action being or proposed to be taken with respect thereto;
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(iii) any actually proposed amendment, termination,
rescission, discharge (other than by performance) or waiver under or with
respect to any Financing Document or Material Agreement;
(iv) written notice of any Force Majeure Event under the CDWR
Power Sales Agreement;
(v) any written notice requiring the Issuer to make any
indemnity payments under any Material Agreement;
(vi) written notice of any material litigation filed against
the Issuer; and
(vii) written notice of any change which could be reasonably
expected to result in a Material Adverse Effect.
With respect to the information and documents required to be delivered to the
Trustee pursuant to clauses (a) and (b) of this Section 1106, the Issuer hereby
further covenants and agrees to deliver or cause to be delivered any such
documents and information (i) to each Holder who makes a request in writing to
the Issuer and (ii) to any owner of a beneficial interest in a Global Note who
makes a request in writing to the Issuer (which request may indicate that it is
a continuing request for such information until further notice from a Holder or
such owner of a beneficial interest in a Global Note to the contrary) for such
documents or information. Delivery of such reports, information and documents to
the Trustee is for information purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
(other than an expressly stated notice of Default or Event of Default) or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder.
SECTION 1107. Compliance with Laws and Other Agreements. The Issuer
shall comply with (a) all applicable laws, rules, regulations, orders and
directions of any Governmental Agency having jurisdiction over it or its
business and (b) all of its covenants and obligations contained in any agreement
to which the Issuer is a party, unless, in each case, the failure to so comply
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 1108. Maintenance of Books and Records. The Issuer shall at
all times maintain proper books, accounts and records in accordance with GAAP.
The Issuer shall permit the Trustee and its representatives, upon reasonable
notice and during normal business hours, to visit its premises and inspect all
books, accounts and records of the Issuer.
SECTION 1109. Approvals. The Issuer will maintain in full force and
effect and comply in all respects with the conditions and obligations under all
applicable Government Approvals which it has obtained or which may from time to
time become necessary in connection with any of (a) the execution, delivery and
performance
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in accordance with their respective terms of the Material Agreements or the
Financing Documents to which it is a party, and (b) the taking of any action
contemplated hereby or thereby, in each case except to the extent that failure
to do so could not reasonably be expected to result in a Material Adverse
Effect. Without limiting the generality of the foregoing, the Issuer will make
all required filings as a public utility under the FPA on or prior to the time
such filings are required to be made and shall take all actions, if required,
necessary to maintain its FERC market-based rate authority.
SECTION 1110. Rule 144A Information for the Holders. At any time
when the Issuer is not subject to Section 13 or 15(d) of the Securities Exchange
Act, upon the request of a Holder, the Issuer shall promptly furnish to such
Holder or to a prospective purchaser who is a qualified institutional buyer of
such Note designated by such Holder, as the case may be, information specified
in Rule 144A(d)(4) under the Securities Act ("Rule 144A Information") in order
to permit compliance by such Holder with Rule 144A in connection with the resale
of such Note by such Holder; provided, that the Issuer shall not be required to
furnish Rule 144A Information in connection with any request made on or after
the date which is two (2) years from the later of (a) the date such Note (or any
Predecessor Note) was acquired from the Issuer or (b) the date such Note (or any
Predecessor Note) was last acquired from an "affiliate" of the Issuer within the
meaning of Rule 144 under the Securities Act; provided, further, that the Issuer
shall not be required to furnish such information at any time to a prospective
purchaser located outside the United States who is not a "United States Person"
within the meaning of Regulation S under the Securities Act if such Note may
then be sold to such prospective purchaser in accordance with Rule 904 under the
Securities Act (or any successor provision thereto).
SECTION 1111. Recording. (a) The Issuer shall cause, at its own
expense, this Indenture and each of the Security Documents, and all amendments
or supplements thereto, to be registered, recorded and filed or re-recorded,
re-filed and renewed in such manner and in such place or places, if any, as may
be required by law in order fully to preserve and protect the security interests
created under the Security Documents and to effectuate and preserve the security
therein granted to the Trustee hereunder for the benefit of the Trustee and the
Holders.
(b) Without prejudice to the above, the Issuer will comply with all
applicable provisions of the Trust Indenture Act, including Trust Indenture Act
Sections 314(b) and (d).
SECTION 1112. Further Assurances. The Issuer shall, at its own cost
and expense, execute and deliver, and cause to be executed and delivered, to the
Trustee all such documents, instruments and agreements, and do all such other
acts and things as may be reasonably required to preserve the Liens in favor of
the Trustee with the required first-ranking priority and to enable the Trustee
to exercise and enforce its rights under this Indenture, the Security Documents
and the other documents, instruments and agreements required under this
Indenture and to carry out the intent of this Indenture and the other Financing
Documents.
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SECTION 1113. Collateral. The Issuer shall take all actions
necessary to maintain and preserve the perfection and priority of all Liens in
favor of the Trustee on the Collateral, and shall from time to time execute or
cause to be executed and filed any and all further instruments (including
financing statements required by the Uniform Commercial Code, continuation
statements and similar statements with respect to the Liens in favor of the
Trustee created by the Financing Documents) as are necessary to maintain and
preserve such Liens, or which the Trustee may reasonably request.
SECTION 1114. Performance of Obligations. The Issuer may contract
with other Persons to assist it in performing its duties under this Indenture
and the other Financing Documents, and any performance of such duties by a
Person identified to the Trustee in an Officer's Certificate of the Issuer shall
be deemed to be action taken by the Issuer. As of the Closing Date, the Issuer
has contracted with the Administrative Agent to assist the Issuer in performing
its duties under this Indenture and the other Financing Documents and any action
taken by the Administrative Agent on behalf of the Issuer to assist it in
performing its duties under this Indenture and the other Financing Documents
shall be deemed to be action taken by the Issuer.
SECTION 1115. Return of Monies Held by Trustee. (a) On any date on
which the principal of any Note becomes due in full, if the outstanding
principal of such Note, together with all interest accruing thereon to the due
date, and any other amounts payable by the Issuer to the Trustee or the Holders
under this Indenture or any other Financing Document, have been finally and
irrevocably paid to the Trustee for the benefit of the Holders, all interest on
such Notes shall cease to accrue on the date of such payment.
(b) Moneys so deposited with the Trustee or then held by the Issuer
in trust for the payment of the principal of, Make-Whole Premium, if any, or
interest on, any Note which remain unclaimed two (2) years after the date that
all amounts payable by the Issuer to the Trustee or to the Holders under this
Indenture or any other Financing Document has been finally and irrevocably paid
to the Trustee for the benefit of the Holders, shall, at the request of the
Issuer if at the time, to the knowledge of the Trustee, no Event of Default
shall have occurred and be continuing, be paid to the Issuer and the Holders
shall thereafter look solely to the Issuer for payment with respect to amounts
deposited with the Trustee and returned to the Issuer pursuant to this Section
1115(b).
SECTION 1116. Schedule and Delivery of Energy Under the CDWR Power
Sales Agreement. The Issuer shall schedule and deliver, or cause to be scheduled
and delivered, the full amount of energy required by the CDWR Power Sales
Agreement in accordance with the terms of the CDWR Power Sales Agreement.
ARTICLE TWELVE
NEGATIVE COVENANTS
SECTION 1201. Liens. The Issuer shall not create, incur, assume or
permit to exist any Lien upon any of the Collateral, other than the Liens
created by this
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Indenture and the Security Documents, unless the failure to so comply could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 1202. Indebtedness. The Issuer shall not create, assume,
incur or otherwise become or remain obligated in respect of, or permit to remain
outstanding, any Indebtedness, except for Indebtedness represented by the Notes.
SECTION 1203. Guaranties. The Issuer shall not at any time be or
become obligated, contingently or otherwise, with respect to any Guaranty.
SECTION 1204. Transactions with Affiliates. The Issuer shall not
effect any transaction with any of its Affiliates on a basis more favorable to
such Affiliate than would at the time be obtainable for a comparable transaction
on an arm's-length dealing with an unrelated third party, except for the
Material Agreements entered into on or before the Closing Date.
SECTION 1205. Investments, Loans and Advances. The Issuer shall not
purchase, hold or acquire any capital stock, evidences of Indebtedness or other
securities of, make or permit to exist any loans or advances to or make or
permit to exist any investment or other interest in, any other Person, except
Permitted Investments.
SECTION 1206. Material Agreements; Additional Contracts. (a) The
Issuer shall not assign any of its rights or obligations under any Material
Agreement nor will the Issuer amend in any respect or terminate or suffer any
such amendment or termination of, or grant any waiver of material and timely
performance with respect to, or agree to the assignment of the rights or
obligations of any party to, any Material Agreement; provided, that the Issuer
may make amendments to the Material Agreements which are of a routine,
ministerial or administrative nature to the extent that what is contemplated
under any such amendment is not otherwise expressly prohibited hereunder or
could reasonably be expected to result in a Material Adverse Effect; provided,
however, that any amendment or modification to any Material Agreement which
extends or modifies the time for payment due thereunder shall not be deemed to
be an amendment of a routine, ministerial or administrative nature; provided,
further, that nothing in this Section 1206(a) shall prevent the Issuer or the
Trustee from terminating the Administrative Services Agreement in connection
with a breach thereof by the Administrative Agent in accordance with the
Administrative Agent Consent.
(b) The Issuer shall not become a party to any contract, lease,
agreement or instrument other than the agreements expressly identified in the
definitions of Material Agreements and Financing Documents to the extent such
action could reasonably be expected to result in a Material Adverse Effect.
SECTION 1207. Fundamental Change. The Issuer shall not (a) sell,
lease, transfer or otherwise dispose of any of its right, title or interest in
or to the Collateral, unless the failure to so comply could not reasonably be
expected to result in a Material Adverse Effect, (b) conduct any business or own
any assets other than the business and assets conducted and owned by it as of
the Closing Date, (c) directly or
62
indirectly merge, amalgamate or consolidate with any other Person, liquidate,
wind up, terminate, reorganize or dissolve itself, or otherwise wind up, (d)
change its legal form or its state of formation or (e) establish any subsidiary.
SECTION 1208. Restricted Payments. Except as permitted in accordance
with the conditions set forth in Section 401 and clause (ix) of Section 502(b),
the Issuer shall not, directly or indirectly, (a) make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to its Members or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer, (b) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or security or (c) set aside or otherwise
segregate any amounts for any such purpose. The Issuer will not, directly or
indirectly, make payments to or distributions from the Collections Account
except in accordance with this Indenture and the Financing Documents.
ARTICLE THIRTEEN
REDEMPTION OF NOTES
SECTION 1301. Applicability of Article. Either Series of the Notes
shall be redeemable (in whole or in part) before their Stated Maturity in
accordance with the terms of such Notes and in accordance with this Article
Thirteen.
SECTION 1302. Election to Redeem; Notice to Trustee. The Issuer may,
at any time and from time to time, elect to redeem either Series of the Notes,
in whole or in part, such election to be evidenced by or pursuant to a
Management Committee's Consent. In case of any redemption at the election of the
Issuer pursuant to this Article 13, the Issuer shall, at least sixty (60) days
prior to the Redemption Date fixed by the Issuer (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Notes to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the Notes
to be redeemed pursuant to Section 1303.
SECTION 1303. Selection by Trustee of Notes to Be Redeemed. (a) If
less than all the Notes of such Series are to be redeemed pursuant to Section
1302, the particular Notes of such Series to be redeemed shall be selected not
more than sixty (60) days prior to the Redemption Date by the Trustee, from the
Outstanding Notes of such Series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions of the principal of Notes of such
Series; provided, that no such partial redemption shall reduce the portion of
the principal amount of a Note not redeemed to less than the minimum authorized
denomination for Notes established pursuant to Section 302.
(b) The Trustee shall promptly notify the Issuer in writing of the
Notes of such Series selected for redemption pursuant to Section 1302 and, in
the case of any Notes selected for partial redemption, the principal amount
thereof to be redeemed.
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(c) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part pursuant to Section
1302, to the portion of the principal amount of such Note which has been or is
to be redeemed.
SECTION 1304. Notice of Redemption. (a) Notice of redemption
pursuant to Section 1302 shall be given in the manner provided for in Section
106 not less than thirty (30) nor more than sixty (60) days prior to the
Redemption Date to each Holder of Notes of the applicable Series to be redeemed,
but failure to give such notice in the manner herein provided to the Holder of
any Note of the applicable Series designated for redemption in whole or in part,
or any defect in the notice of any such Holder, shall not affect the validity of
the proceedings for the redemption of any other Note or portion thereof.
(b) Any notice that is mailed to the Holders in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice.
(c) All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) if less than all the Outstanding Notes are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Notes to be redeemed,
(iv) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption Date payable as
provided in Section 1306) will become due and payable upon each Note, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date, and
(v) the Place of Payment where such Notes, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption
Price.
(d) Notice of redemption of Notes to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request made not
less than fifteen (15) days prior to the latest date such notice of redemption
may be given, by the Trustee in the name and at the expense of the Issuer.
SECTION 1305. Deposit of Redemption Price. Not later than one (1)
Business Day before any Redemption Date, the Issuer shall deposit with the
Trustee or with a Paying Agent an amount of money sufficient to pay the
Redemption Price of, and accrued interest on, all the Notes of the applicable
Series which are to be redeemed on that date.
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SECTION 1306. Notes Payable on Redemption Date. (a) Notice of
redemption having been given in accordance with Section 1304, the Notes of the
applicable Series to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price thereof (together with accrued interest, if any,
to the Redemption Date), and from and after such Redemption Date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Notes shall cease to bear interest. Upon surrender of any such
Note for redemption in accordance with said notice, such Note shall be paid by
the Issuer at the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, that installments of interest on Notes whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Notes, or one or more Predecessor Notes, registered as such at
the close of business on the relevant Regular Record Dates according to their
terms and the provisions of Section 310.
(b) If any Note of the applicable Series called for redemption shall
not be so paid upon surrender thereof for redemption, the principal (and
Make-Whole Premium, if any) shall, until paid, bear interest from the Redemption
Date at the rate of interest set forth in such Note.
SECTION 1307. Notes Redeemed in Part. Any Note of the applicable
Series which is to be redeemed only in part (pursuant to the provisions of this
Article Thirteen or of Article Fourteen) shall be surrendered at a Place of
Payment therefor (with, if the Issuer or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Issuer shall execute, and, upon
receipt of an Issuer Order, the Trustee shall authenticate and deliver to the
Holder of such Note of the applicable Series without service charge, a new Note
or Notes, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Note so surrendered.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Issuer's Option to Effect Defeasance or Covenant
Defeasance. The provisions of this Article Fourteen shall apply to the Notes of
either Series, and the Issuer may, at its option by a Management Committee's
Consent, effect defeasance of such Series of the Notes under Section 1402, or
covenant defeasance under Section 1403 in accordance with this Article Fourteen.
SECTION 1402. Defeasance and Discharge. Upon the Issuer's exercise
of the option provided in Section 1401 applicable to this Section 1402 the
Issuer shall be deemed to have been discharged from its obligations with respect
to the Outstanding Notes of such Series on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Notes of such Series, which
shall thereafter be deemed to be
65
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all of
its other obligations under such Notes and this Indenture insofar as such Notes
are concerned (and the Trustee, at the expense of the Issuer, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of such Outstanding Notes of such Series to receive, solely from the
trust fund described in Section 1404(a) and as more fully set forth in such
Section, payments in respect of the principal of, Make-Whole Premium, if any,
and interest on such Notes when such payments are due; (b) the Issuer's
obligations with respect to such Notes under Sections 305, 306, 307, 308, and
1102; (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (d) this Article Fourteen. Subject to compliance with this Article
Fourteen, the Issuer may exercise its option under this Section 1402
notwithstanding the prior exercise of its option under Section 1403.
SECTION 1403. Covenant Defeasance. Upon the Issuer's exercise of the
option provided in Section 1401 applicable to this Section 1403, (a) the Issuer
shall be released from its obligations under Sections 1104 through 1116,
inclusive, and Sections 1201 through 1208, inclusive and (b) the occurrence of
any event specified in Section 701(c) (with respect to any of Sections 1104
through 1116, inclusive, and Sections 1201 through 1208, inclusive) shall be
deemed not to be an Event of Default on or after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that the Issuer may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or clause, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or clause or by
reason of reference in any such Section or clause to any other provision herein
or in any other document and any such omission shall not be deemed to be an
Event of Default, but, the remainder of this Indenture and such Notes shall be
unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 1402 or
Section 1403 to the Outstanding Notes of either Series:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 808 who shall agree to comply with the provisions of this Article
Fourteen applicable to such trustee) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes of such Series, an
amount sufficient, in the opinion of an internationally 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 other qualifying trustee) to pay and discharge, (i) the
principal of and installment of interest on the Outstanding Notes of such Series
on the Stated Maturity (or Redemption Date, if applicable) of such principal,
Make-Whole Premium, if any, or installment of interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding Notes
of such Series on the day on which such
66
payments are due and payable in accordance with the terms of this Indenture and
of the Notes.
(b) In the case of an election under Section 1402, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of execution of this Indenture, there has been
a change in the applicable United States federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of Outstanding Notes of such Series will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had not occurred.
(c) In the case of an election under Section 1403, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Outstanding Notes of such Series will not recognize gain or loss for
United States federal income tax purposes as a result of such covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(d) The Issuer shall have delivered to the Trustee an Officer's
Certificate to the effect that the Notes of such Series, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(e) No Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
Bankruptcy Events of Default are concerned, at any time during the period ending
on the one hundred twenty-first (121") day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(f) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 809 and for
purposes of the Trust Indenture Act with respect to any securities of the
Issuer.
(g) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Issuer is a party or by
which it is bound.
(h) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402 or
the covenant defeasance under Section 1403 (as the case may be) have been
complied with, and that such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an "investment company," as
defined in the Investment Company Act of 1940, as amended, or such trust shall
be qualified under such act or exempt from regulation thereunder.
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SECTION 1405. Deposited Money to Be Held in Trust; Other
Miscellaneous Provisions. (a) All money (or other property as may be provided
hereunder) (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (collectively for purposes of this Section 1405 and Section
1406, the "Trustee") pursuant to Section 1404 in respect of Outstanding Notes of
such Series shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuer acting as its own
Paying Agent) as the Trustee may determine, to the Holders of the Notes of such
Series of all sums due and to become due thereon in respect of principal,
Make-Whole Premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.
(b) Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon Issuer Request any money (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of an
internationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, is in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article Fourteen.
SECTION 1406. Reinstatement. If the Trustee or any Paying Agent is
unable to apply any money in accordance with Section 1405 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 1402 or 1403, as the case may be, until such time
as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, that if the Issuer makes any payment of
principal of, Make-Whole Premium, if any, or interest on any Note following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Note to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF NOTES
SECTION 1501. Purposes for Which Holders' Meetings May Be Called. A
meeting of Holders may be called at any time and from time to time pursuant to
this Article Fifteen for any of the following purposes:
(a) to give any notice to the Issuer or to the Trustee, or to give
any directions to the Trustee, or to waive or to consent to the waiving of any
Default hereunder with respect to such Series of the Notes and its consequences,
or to take any other action authorized to be taken by Holders of either Series
of the Notes pursuant to Article Seven;
68
(b) to remove the Trustee as trustee with respect to such Series of
the Notes pursuant to Section 810;
(c) to consent to the execution of an indenture or indentures
supplemental hereto with respect to such Series of the Notes pursuant to Section
1002; or
(d) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the Notes of such
Series under any other provision of this Indenture or under applicable law.
SECTION 1502. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Holders of either Series of the Notes to be held at such
time and at such place in the Borough of Manhattan, the City of New York, for
any purpose specified in Section 1501 as the Trustee at the time shall
determine. Notice of every meeting of Holders, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meetings shall be given by the Trustee, in the manner provided in Section
106, not less than twenty (20) nor more than one hundred twenty (120) days prior
to the date fixed for the meeting, to the Holders.
SECTION 1503. Issuer and Holders May Call Meeting. In case the
Issuer, pursuant to a Management Committee's Consent, or the Holders of at least
ten percent (10%) in aggregate principal amount of the Notes of such Series then
outstanding, shall have requested the Trustee to call a meeting of Holders of
such Series, by written request setting forth in general terms the action
proposed to be taken at the meeting, and the Trustee shall not have made the
mailing of the notice of such meeting within twenty (20) days after receipt of
such request, then the Issuer or the Holders in the amount above specified may
determine the time and the place in the Borough of Manhattan, the City of New
York, for such meeting and may call such meeting to take any action authorized
in Section 1501 by giving notice thereof as provided in Section 1502.
SECTION 1504. Persons Entitled to Vote at Meeting. To be entitled to
vote at any meeting of Holders of such Series a person shall be (a) a Holder of
one or more Notes of such Series or (b) a person appointed by an instrument in
writing as proxy for a Holder of such Series of the Notes. The only persons who
shall be entitled to be present or to speak at any meeting of Holders of such
Series of the Notes shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Issuer and its counsel.
SECTION 1505. Determination of Voting Rights: Conduct and
Adjournment of Meeting. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Notes of either Series, in regard to
proof of the holding of Notes and of the appointment of proxies, and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit. Such regulations may provide that written instruments
69
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof. Except as otherwise
permitted or required by any such regulations, the holding of Notes of such
Series shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in said Section
104 or by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or firm satisfactory to the
Trustee.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by Holders as provided in Section 1503, in which case the Issuer
or the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote.
(c) At any meeting, each Holder of a Note or a proxy shall be
entitled to one vote for each $1,000 principal amount of Notes held or
represented by it. The chairman of the meeting shall have no right to vote other
than by virtue of Notes held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to Section 1502 or 1503 may be adjourned from time
to time to a place, date and time announced at such meeting, and the meeting may
be held as so adjourned without further notice.
(d) At any meeting duly called pursuant to this Article Fifteen, the
presence of persons holding or representing Notes of either Series in an
aggregate principal amount sufficient to take action upon the business for the
transaction of which such meeting was called shall be necessary to constitute a
quorum; provided, that if less than a quorum be present, the persons holding or
representing a majority of the Notes of such Series represented at the meeting
may adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present.
SECTION 1506. Counting Votes and Recording Action of Meeting. The
vote upon any resolution submitted to any meeting of Holders shall be by written
ballots on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the serial numbers and principal amounts of the
Notes held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1502. The record shall show the
serial numbers of the Notes voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one
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of the duplicates shall be delivered to the Issuer and the other to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE SIXTEEN
COVENANTS OF HOLDERS OF NOTES
SECTION 1601. Treatment of Notes as Indebtedness for Tax Purposes.
Each Holder of a Note by its acceptance of such note covenants and agrees to
treat such Note as indebtedness for United States federal income tax purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
POWER CONTRACT FINANCING,
L.L.C., as Issuer
By: /s/ Eric Pryor
----------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee, Accounts Agent,
Paying Agent and Registrar
By /s/ James J. McGinley
----------------------------------------
Name: James J. McGinley
Title: Authorized Signer
EXHIBIT A
DEFINITIONS
"Account Transfer Payment" means the amounts that are to be
transferred from the Reserve Account to the Collections Account pursuant to
Section 502(a) of this Indenture.
"Accountant" means a Person engaged in the practice of accounting
who (except when this Indenture provides that an Accountant must be Independent)
may be employed by or affiliated with the Issuer or an Affiliate of the Issuer.
"Accounts" has the meaning specified in Section 501 of this
Indenture.
"Accounts Agent" means the Person named as the "Accounts Agent" in
Section 501 (a) of this Indenture until a successor Accounts Agent shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Accounts Agent" shall mean such successor Accounts Agent.
"Act" when used with respect to any Holder, has the meaning
specified in Section 104 of this Indenture.
"Administrative Agent" means, initially, Lord Securities Corporation
pursuant to the original Administrative Services Agreement and, thereafter, any
other Person that has entered into an Administrative Services Agreement with the
Issuer.
"Administrative Agent Consent" means the Consent and Agreement,
dated as of the date of this Indenture, among the Administrative Agent, the
Issuer and the Trustee as it may from time to time be supplemented, amended or
restated pursuant to the applicable provisions thereof.
"Administrative Services Agreement" means the Administrative
Services Agreement, dated as of the date of this Indenture, between the
Administrative Agent and the Issuer as originally executed and as it may from
time to time be supplemented, amended or restated pursuant to the applicable
provisions thereof, and any replacement agreement substantially in the form of
the original Administrative Services Agreement between a replacement
Administrative Agent and the Issuer and entered into as contemplated by the
Administrative Agent Consent.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Assignment and Security Agreement" means the Assignment and
Security Agreement among the Issuer, the Trustee and the Accounts Agent, for the
A-1
benefit of the Trustee and the Holders, dated as of the date of this Indenture,
as originally executed and as it may from time to time be supplemented, amended
or restated pursuant to the applicable provisions thereof.
"Bankruptcy Event of Default" means the events described in clause
(h) or (i) of Section 701 of this Indenture.
"Business Day" means, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the same jurisdiction
as the Corporate Trust Office of the Trustee or of any relevant Place of Payment
or other relevant location are authorized or obligated by law or executive order
to close.
"Capacity" has the meaning ascribed thereto under the MSCG Power
Purchase Agreement.
"CDWR" means the State of California Department of Water Resources
or any successor to CDWR as the counterparty to a Replacement Agreement (as
defined in the CDWR Power Sales Agreement) or assignee of CDWR pursuant to the
CDWR Power Sales Agreement.
"CDWR Consent" means the Consent and Agreement, dated as of the date
of this Indenture, among CDWR and the Trustee, as it may from time to time be
supplemented, amended or restated pursuant to the applicable provisions thereof.
"CDWR Letter Agreement" means the Letter Agreement, dated as of June
5, 2003, among CES and CDWR, as it may from time to time be supplemented,
amended or restated pursuant to the applicable provisions thereof.
"CDWR Power Sales Agreement" means the EEI Master Power Purchase and
Sale Agreement, dated as of April 22, 2002, between CDWR and the Issuer, as
modified by the amended and restated cover sheet, dated as of April 22, 2002,
between CDWR and the Issuer and the amended and restated confirmation letter
related thereto referred to as "Calpine 1", dated as of April 22, 2002, between
CDWR and the Issuer, or any Replacement Agreement (as defined in the CDWR Power
Sales Agreement) pursuant to Section 10.5 of the CDWR Power Sales Agreement.
"Clearstream Luxembourg" means Clearstream Banking, societe anonyme.
"Closing Date" means June 13, 2003, being the date of issuance and
delivery of the Initial Notes.
"Collateral" has the meaning ascribed thereto in the Assignment and
Security Agreement.
"Collections" means all amounts payable to the Issuer from CDWR
pursuant to the CDWR Power Sales Agreement and all earnings on Permitted
Investments made with funds in any Account.
A-2
"Collections Account" has the meaning set forth in Section 502(a) of
this Indenture.
"Collections Period" means the period from January 1 through June 30
of each year (for August Payment Dates) and from July 1 through December 31 of
each year (for February Payment Dates), and the final Payment Date of February
1, 2006 with respect to the Notes due 2006 and February 1, 2010 with respect to
the Notes due 2010. (except with respect to the first payment date of February
1, 2004, for which the collections period is the period from the closing date of
the offering of these notes through December 31, 2003).
"Commission" means the U.S. Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act, or, if
at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Consent" means, individually, the Administrative Agent Consent, the
Scheduling Services Consent, the CDWR Consent, the Morgan Stanley Capital
Consent and the Morgan Stanley Consent; collectively, the "Consents."
"Corporate Trust Office" means the corporate trust office of the
Trustee, at which, at any particular time, its corporate trust business shall be
principally administered, which office on the date of execution of this
Indenture is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, except that with respect to presentation of Notes
for payment or for registration of transfer or exchange, such term shall mean
the office or agency of the Trustee at which, at any particular time, its
corporate agency business shall be conducted.
"Damages and Indemnity Account" shall have the meaning set forth in
Section 506(a) of this Indenture.
"Debt Service Coverage Ratio" means, as of each Payment Date, the
ratio of (a) Net Collections for the Collections Period preceding such Payment
Date divided by (b) Mandatory Debt Service payable on such Payment Date.
"Default" means any condition or event that, with the giving of
notice or lapse of time or both, would become an Event of Default.
"Defaulted Payments" has the meaning specified in Section 309(b) of
this Indenture.
"Distributable Collections" means, as of any Payment Date, the
amount of Collections then on deposit in the Collections Account after the
operation of priorities first through eighth of Section 502(b) and corresponding
to electric energy actually delivered, or that should have been delivered, to
CDWR during the Collections Period preceding the Payment Date.
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"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company, its nominees and
successors.
"DTC Participants" or "Participants" has the meaning set forth in
Section 306(b) of this Indenture.
"Early Termination Date" has the meaning ascribed thereto in the
MSCG Power Purchase Agreement.
"Energy" has the meaning ascribed thereto in the MSCG Power Purchase
Agreement.
"Euroclear" means the accounts of purchasers at the Euroclear
System.
"Event of Default" has the meaning specified in Section 701 of this
Indenture.
"Federal Bankruptcy Code" means Title 11 of the United States Code
or any other Federal Bankruptcy Code hereafter in effect.
"Fee Agreement" means the Schedule of Fees, dated as of June 13,
2003, between the Issuer and the Trustee.
"FERC" means the Federal Energy Regulatory Commission and any
successor thereto.
"Financing Document" means, individually, the Indenture, each
Security Document, each Note, the Fee Agreement and any and all purchase
agreements, filings and other instruments evidencing, securing or relating in
any way to the Collateral or any other Financing Document, as shall from time to
time be executed and delivered to the Trustee by or on behalf of the Issuer or
any other Person pursuant to or as contemplated by this Indenture; collectively,
the "Financing Documents."
"Force Majeure Event" shall mean an event of "Force Majeure" as
described in Section 1.23 of the CDWR Power Sales Agreement.
"FPA" means the Federal Power Act of 1920, as amended.
"GAAP" means, as of any date of determination, generally accepted
accounting principles then in effect in the United States of America, applied on
a consistent basis.
"Global Note" or "Global Notes" collectively or individually, as the
case may be, has the meaning set forth in Section 201(g) of this Indenture.
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"Global Note Holder" has the meaning set forth in Section 306(a) of
this Indenture.
"Governmental Agency" means any public legal entity or public agency
of the United States, whether created by federal, state or local government or
any other legal entity now existing or hereafter created, or now or hereafter
owned or controlled, directly or indirectly, by any public legal entity or
public agency of the United States.
"Government Approval" means any authorization, approval, consent,
waiver, exception, license, filing, registration, ruling, permit, tariff,
certification, exemption and other action or requirement by or with any
Governmental Agency. Without limiting the generality of the foregoing, with
respect to the Issuer, Governmental Approvals shall include the approval from
the FERC pursuant to Section 205 of the FPA for the rates to be charged by the
Issuer under the CDWR Power Sales Agreement.
"Guaranty" of or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness, or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, that the terms
Guarantee and Guaranty shall not include endorsements for collection or deposit,
in either case in the ordinary course of business.
"Holder" means the Person in whose name a Note is registered in the
Security Register.
"Indebtedness" means with respect to any Person, (a) any liability
of such Person (i) for borrowed money, or under any reimbursement obligation
relating to a letter of credit, or (ii) evidenced by a bond, note, debenture or
similar instrument (including a purchase money obligation) given in connection
with the acquisition of any businesses, properties or assets of any kind (other
than a trade payable or a current liability arising in the ordinary course of
business), or (iii) for the payment of money relating to any obligations under
any capital lease of real or personal property which has been recorded as a
capitalized lease obligation, (b) all redeemable stock issued by such Person
(the amount of Indebtedness represented by any involuntary liquidation
preference plus accrued and unpaid dividends), (c) any liability of others
described in the preceding clause (a) that the Person has guaranteed or that is
otherwise its legal liability; and (d) (without duplication) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a), (b) and (c) above. For
purposes of determining any particular amount of Indebtedness under this
definition, guarantees of (or obligations with respect to letters of credit
supporting)
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Indebtedness otherwise included in the determination of such amount shall not
also be included.
"Indenture" means this instrument as originally executed and 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.
"Independent," when used with respect to any specified Person, means
a Person who (a) is in fact independent of the Issuer and any other obligor upon
the Notes and of any Affiliate of the Issuer or of such other obligor, (b) does
not have any direct financial interest or any material indirect financial
interest in the Issuer or in any such other obligor or in any Affiliate of the
Issuer or of such other obligor and (c) is not connected with the Issuer or any
such other obligor or any Affiliate of the Issuer or of such other obligor as an
officer, member employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions. Whenever it is herein provided that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such Person shall be appointed by an Issuer Order and approved by the Trustee in
the exercise of reasonable care and such opinion or certificate shall state that
the signer has read this definition and that the signer is Independent within
the meaning hereof. "Independent Investment Banker" means Morgan Stanley & Co.
Incorporated, or its successor.
"Initial Notes" means collectively, the Initial Notes due 2006 and
the Initial Notes due 2010.
"Initial Notes due 2006" means the Notes due 2006 of the Issuer
issued on the Closing Date for so long as such securities constitute Restricted
Securities.
"Initial Notes due 2010" means the Notes due 2010 of the Issuer
issued on the Closing Date for so long as such securities constitute Restricted
Securities.
"Interest Payment Date" means the first (1st) calendar day of each
February and August commencing on and from February 1, 2004 (or if any such day
is not a Business Day, then the next succeeding Business Day).
"Issuer" means the Person named as the "Issuer" 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 "Issuer"
shall mean such successor Person.
"Issuer Request" or "Issuer Order" means a written request or order
signed in the name of the Issuer by its President or a Vice President or the
President or Vice President of the Administrative Agent acting on behalf of the
Issuer and delivered to the Trustee.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, assignment in trust, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority or other security agreement
(including, without limitation,
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any conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code of any state
of the United States or comparable law of any jurisdiction).
"LLC Agreement" means the limited liability company operating
agreement of the Issuer, dated as of June 13, 2003
"Majority Holders" means with respect to any Series of the Notes,
Holders of not less than fifty-one percent (51%) in aggregate principal amount
of the Outstanding Notes of such Series (voting as a single class).
"Make-Whole Premium" means, with respect to the Notes of either
Series, an amount calculated by the Issuer equal to the Discounted Present Value
calculated for any Note of such Series called for redemption less the unpaid
principal amount of that Note; provided, that the Make-Whole Premium shall not
be less than zero; provided, further, that a Make-Whole Premium shall not be due
for any reason, or result from any event, other than in connection with an
optional redemption of the Notes of such Series pursuant to Section 1302 of this
Indenture or in the event Morgan Stanley Capital makes a Termination Payment to
the Issuer that includes a Make-Whole Premium. For purposes of this definition,
the "Discounted Present Value" of any Note subject to redemption shall be equal
to the discounted present value of all principal and interest payments scheduled
to become due in respect of that Note after the date of this redemption,
calculated by an Independent Investment Banker using a discount rate equal to
the sum of (a) the yield to maturity on the United States treasury security
having an average life equal to the remaining average life of that Note and
trading in the secondary market at the price closest to par and (b) thirty seven
and one-half (37.5) basis points; provided, that, if there is no United States
treasury security having an average life equal to the remaining average life of
that Note, this discount rate shall be calculated using a yield to maturity
interpolated or extrapolated on a straight-line basis (rounding to the nearest
month, if necessary) from the yields to maturity for two United States treasury
securities having average lives most closely corresponding to the remaining
average life of that Note and trading in the secondary market at the price
closest to par.
"Management Committee" means the management committee of the Issuer.
"Management Committee's Consent" means a copy of a consent certified
by a Responsible Officer of the Issuer to have been duly adopted by the
Management Committee and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Mandatory Debt Service" means all scheduled interest and principal
payments on the Notes due on any Payment Date.
"Material Adverse Effect" means, with respect to either Series of
the Notes, an event, occurrence or condition which has or could reasonably be
expected to
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have a material adverse effect on (a) the business, operations, property,
condition (financial or otherwise) of the Issuer, (b) the rights or remedies of
the Trustee in respect of such Series of the Notes or Holders of such Series of
the Notes under the Financing Documents, (c) the ability of any of the Issuer,
Morgan Stanley, Morgan Stanley Capital or CDWR to perform its obligations under
the Financing Documents or the Material Agreements to which it is a party or (d)
the validity, enforceability or priority of the Liens on the Collateral.
"Material Agreement" means, individually, the CDWR Power Sales
Agreement, the MSCG Power Purchase Agreement, the PPA Purchase Agreement; the
Administrative Services Agreement, the Scheduling Services Agreement, the Morgan
Stanley MSCG Guarantee, the Morgan Stanley CDWR Guarantee the Administrative
Agent Consent, the Scheduling Services Consent, the Morgan Stanley Consent, the
Morgan Stanley Capital Consent, the CDWR Consent, the CDWR Letter Agreement and
the LLC Agreement; collectively, the "Material Agreements."
"Maturity," when used with respect to any Note, means the date on
which the principal of such Note or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Member" means any member of the Issuer; collectively, the "Members"
of the Issuer.
"Moody's" means Moody's Investors Service, Inc.
"Morgan Stanley" means Morgan Stanley, a Delaware corporation, or
its successors or assigns under the Morgan Stanley MSCG Guarantee.
"Morgan Stanley Capital" means Morgan Stanley Capital Group Inc., a
Delaware corporation, or any Replacement Supplier (as defined in the MSCG Power
Purchase Agreement) or other successor to or assignee of Morgan Stanley Capital
pursuant to the MSCG Power Purchase Agreement.
"Morgan Stanley Capital Consent" means the Consent and Agreement,
dated as of the date of this Indenture, among Morgan Stanley Capital, the Issuer
and the Trustee as it may from time to time be supplemented, amended or restated
pursuant to the applicable provisions thereof.
"Morgan Stanley Capital Payments" for any month, means the amount
payable to Morgan Stanley Capital by the Issuer pursuant to the MSCG Power
Purchase Agreement for Energy and Capacity provided to the Issuer by Morgan
Stanley Capital in such month.
"Morgan Stanley Consent" means the Consent and Agreement, dated as
of the date of this Indenture, among Morgan Stanley, the Issuer and the Trustee
as it may from time to time be supplemented, amended or restated pursuant to the
applicable provisions thereof.
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"Morgan Stanley CDWR Guarantee" means the Guarantee Agreement, dated
as of May 1, 2002, between Calpine Corporation and CDWR, which was assumed by
Morgan Stanley pursuant to the Assignment and Assumption Agreement, dated as of
June 13, 2003, between Morgan Stanley and Calpine, and pursuant to which Morgan
Stanley provides a guarantee in favor of CDWR with respect to the Issuer's
payment obligations under the CDWR Power Sales Agreement, as it may from time to
time be supplemented, amended or restated pursuant to the applicable provisions
thereof.
"Morgan Stanley MSCG Guarantee" means the Guarantee, dated as of
June 13, 2003, by Morgan Stanley in favor of the Issuer with respect to Morgan
Stanley Capital's payment obligations under the MSCG Power Purchase Agreement,
as it may from time to time be supplemented, amended or restated pursuant to the
applicable provisions thereof.
"MSCG Power Purchase Agreement" means the EEI Master Power Purchase
and Sale Agreement, dated as of June 13, 2003, between Morgan Stanley Capital
and the Issuer, as modified by a cover sheet, dated as of June 13, 2003, between
Morgan Stanley Capital and the Issuer and the confirmation letter related
thereto, dated as of June 13, 2003, between Morgan Stanley Capital and the
Issuer, as it may from time to time be replaced, supplemented, amended or
restated pursuant to the applicable provisions thereof.
"Net Collections" means, for any Collections Period, the difference,
if positive, between (a) all Collections corresponding to energy actually
delivered, or that should have been delivered, to CDWR during the Collections
Period minus (b) the sum of all amounts paid during the Collections Period
pursuant to clauses (i), (ii), (vi), (vii) (viii) of Section 502(b).
"Non-U.S. Person" means a Person that is not a "U.S. Person" as
defined in Regulation S and certified to the Trustee and the Registrar by such
Person.
"Notes" means, collectively, the Initial Notes and the Unrestricted
Notes, as amended or supplemented from time to time in accordance with the terms
of this Indenture, that are authenticated and delivered pursuant to this
Indenture; individually, a "Note;" it being understood that "Notes" may, but
does not necessarily include Notes of more than one Series.
"Notes due 2006" has the meaning specified in the first recital.
"Notes due 2010" has the meaning specified in the first recital.
"Notice of an Actionable Event" means (a) a certificate of any
Holder that an Event of Default has occurred or (b) whether or not any
certificate or notice thereof shall have been delivered to the Trustee, a
Bankruptcy Event of Default. A Notice of an Actionable Event has been "given"
(i) in the case of a Bankruptcy Event of Default, when such Bankruptcy Event of
Default occurs or (ii) in the case of any other Notice of an Actionable Event,
when the certificate referred to in clause (a) of the immediately preceding
sentence has actually been received by a Responsible Officer of the Trustee. A
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Notice of an Actionable Event has been "rescinded" when, after a Notice of an
Actionable Event (other than in connection with a Bankruptcy Event of Default)
has been given, the Majority Holders have subsequently delivered to a
Responsible Officer of the Trustee a certificate stating that such Event of
Default has been waived or cured or when, after a Bankruptcy Event of Default,
such Bankruptcy Event of Default is no longer continuing and a Responsible
Officer of the Trustee has received a certificate to this effect from the
Majority Holders or the Issuer, provided, that a Notice of an Actionable Event
may not be rescinded without the consent of the Holders of all of the Notes
unless all amounts of interest on the Notes and all payments on account of the
principal of and Make-Whole Premium (if any) on the Notes, other than amounts of
principal of and Make-Whole Premium, if any, on any Outstanding Notes that have
become due solely by reason of a declared acceleration as provided in Section
702 or interest thereon (with interest on such principal, Make-Whole Premium (if
any) and, to the extent permitted by law, on overdue payments of interest, at
the rates specified herein and the Notes with respect to overdue payments), and
an additional amount sufficient to reimburse the Holders for the reasonable
costs and expenses incurred in connection with the giving and rescinding of any
such Notice of an Actionable Event shall have been paid prior to the entry of
any judgment in respect of such amounts. A Notice of an Actionable Event is
"outstanding" at all times after such Notice of an Actionable Event has been
given until such time, if any, as such Notice of an Actionable Event has been
rescinded.
"Officer's Certificate" means a certificate signed by the president
or any Vice President of the Issuer or any of the foregoing officers of the
Administrative Agent acting on behalf of the Issuer, as the case may be, and by
the principal accounting officer or the principal financial officer or the
secretary of the Issuer or any of the foregoing officers of the Administrative
Agent acting on behalf of the Issuer, as the case may be, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or the Administrative Agent, acting on behalf of the
Issuer, including an employee of the Issuer or the Administrative Agent, acting
on behalf of the Issuer, and who shall be acceptable to the Trustee.
"Outstanding," when used with respect to Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(a) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Issuer) in trust or set aside and segregated in trust by the Issuer
(if the Issuer shall act as its own Paying Agent) for the Holders of
such Notes; provided, that if such Notes are to be redeemed, notice
of such redemption has been duly given
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pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(c) Notes, except to the extent provided in Sections 1402 and
1403 of this Indenture, with respect to which the Issuer has
effected defeasance and/or covenant defeasance as provided in
Article Fourteen; and
(d) Notes which have been paid pursuant to Section 309 of this
Indenture or in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, other
than any such Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Notes
are held by a bona fide purchaser in whose hands such Notes are
valid obligations of the Issuer;
provided, that for purposes of Section 303 of this Indenture and for purposes of
determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting of Holders for
quorum purposes, and for the purpose of making the calculations required by
Trust Indenture Act Section 313, Notes owned by the Issuer or any other obligor
upon the Notes or any Affiliate of the Issuer 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 making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes 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 Notes and that the
pledgee is not the Issuer or any other obligor upon the Notes or any Affiliate
of the Issuer or such other obligor.
"Paying Agent" means the Trustee or any other Person (including the
Issuer acting as Paying Agent) authorized by the Issuer to pay the principal of
or interest on any Notes on behalf of the Issuer.
"Payment Date" means an Interest Payment Date and/or a Principal
Payment Date.
"Permanent Regulation S Global Note" has the meaning set forth in
Section 201(e) of this Indenture.
"Permitted Investments" means the following investments maturing, in
each case, not less than one (1) Business Day before the Payment Date next
following the date such investment is made; provided, however, that in the case
of any investment pursuant to clause (b) of this definition which is made with
the Trustee, such investment may mature on such Payment Date:
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(a) any direct obligations of, or obligations fully and
unconditionally guaranteed by, the United States of America, or any
agency or instrumentality of the United States of America, the
obligations of which are fully and unconditionally backed by the
full faith and credit of the United States of America;
(b) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any
depository institution or trust company incorporated under the laws
of the United States of America or any state thereof and subject to
supervision and examination by federal and/or state authorities, or
incorporated under the laws of any other jurisdiction, so long as at
the time of such investment or contractual commitment providing for
such investment the unsecured commercial paper or other unsecured
short-term debt obligations of such depository institution or trust
company have at least the Required Credit Rating from Moody's and
Standard & Poor's;
(c) repurchase obligations with respect to any security
described in clauses (a) or (b) above, in each case entered into
with either (i) a depository institution or trust company (acting as
principal) which in respect of its short-term unsecured debt has
credit ratings of at least the Required Credit Rating from Moody's
and Standard & Poor's or (ii) a money market fiend maintained by a
broker which in respect of its short-term unsecured debt has at
least the Required Credit Rating from Moody's and Standard & Poor's;
(d) unsecured debt securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of
the United States of America or any state thereof which have at the
time of such investment at least the Required Credit Rating from
Moody's and Standard & Poor's;
(e) unsecured commercial paper which has at the time of such
investment a rating of at least the Required Credit Rating from
Moody's and Standard & Poor's; and
(f) investments in money market funds or money market mutual
funds which have at the time of such investment at least the
Required Credit Rating from Moody's and Standard & Poor's (including
such funds for which the Trustee or any of its Affiliates is
investment manager or advisor and for which the Trustee or any of
its Affiliates may receive a fee).
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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"Physical Note" or "Physical Notes" collectively or individually, as
the case may be, has the meaning set forth in Section 201(g) of this Indenture.
"Place of Payment" means, when used with respect to the Notes, the
place or places where the principal of, Make-Whole Premium, if any, and interest
on the Notes are payable as specified as contemplated by Sections 301(e) and
1102 of this Indenture.
"PPA Purchase Agreement" means the Purchase Agreement and Assignment
Agreement, dated as of June 13, 2003, among CES and the Issuer, as it may from
time to time be supplemented, amended or restated pursuant to the applicable
provisions thereof.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note and, for the purposes of this definition, any Note authenticated
and delivered under Section 308 of this Indenture in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Principal Payment Date of the Notes" means the first (1st) calendar
day of each February and August commencing on and from February 1, 2004 (or if
such day is not a Business Day, then the next succeeding Business Day).
"Private Placement Legend" has the meaning set forth in Section
202(a) of this Indenture.
"Property" means any asset, revenue or any other property, whether
tangible or intangible, real or personal, including, without limitation, any
right to receive income.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Rating Agencies" means Moody's and Standard & Poor's to the extent
that, at the relevant time of determination, each such Rating Agency has an
active rating in effect on the Notes or, if fewer than all such Rating Agencies
have a current rating in effect on the Notes, each such Rating Agency that has
an active rating in effect on the Notes; provided, that if none of such Rating
Agencies has a current rating in effect on the Notes at any relevant time of
determination, at least two (2) other internationally recognized rating
institutions selected in good faith by the Management Committee.
"Redemption Date" when used with respect to any Note to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price" when used with respect to any Note to be
redeemed, means the price at which such Note is to be redeemed pursuant to this
Indenture.
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"Registrar" means the Trustee, until a successor Registrar shall
have become such pursuant to the applicable provisions of this Indenture, and,
thereafter, "Registrar" shall mean such successor Registrar.
"Registration Statement" means a registration statement with respect
to the Notes meeting the requirements of the Securities Act.
"Regular Record Date," with respect to any Payment Date, means the
date which is fifteen (15) Business Days immediately preceding such Payment
Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" has the meaning set forth in Section
201(e) of this Indenture.
"Regulation S Physical Note" has the meaning set forth in Section
201(f) of this Indenture.
"Required Credit Rating" means A-1 (or its equivalent) or higher
from Standard & Poor's and P-1 (or its equivalent) or higher from Moody's, as
the case may be.
"Resale Restriction Termination Date" means the date that is two
years after the later of the original issue date and the last date on which the
Issuer or any Affiliate of the Issuer was the owner of a Note (or any
Predecessor Note).
"Reserve Account" has the meaning specified in Section 504(a) of
this Indenture.
"Reserve Deficiency" has the meaning specified in Section 504(b) of
this Indenture.
"Reserve Investments Account" has the meaning specified in Section
505 of this Indenture.
"Reserve Required Balance" means an amount equal to the greatest
scheduled payment of principal and interest due on the Notes on any Payment
Date.
"Responsible Officer" means, with respect to any person other than
the Trustee or the Issuer, a duly elected or appointed authorized and acting
officer, agent or representative of such Person. "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, the president,
any Vice President, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers, and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge
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of and familiarity with the particular subject. "Responsible Officer" when used
with respect to the Issuer means, unless the context otherwise requires, the
managing member, president, chief executive officer, chief financial officer,
vice president, principal accounting officer or treasurer of the Issuer or any
of the foregoing officers of the Administrative Agent acting on behalf of the
Issuer or other executive officer of the Issuer or the Administrative Agent
acting on behalf of the Issuer who in the normal performance of his or her
operational duties would have knowledge of the subject matter relating to any
certificate, report or notice to be delivered or given under this Indenture or
knowledge of any Default or Event of Default thereunder.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to
whether any Note constitutes a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Note" has the meaning set forth in Section 201 (d)
of this Indenture.
"Rule 144A Information" has the meaning set forth in Section 1110 of
this Indenture.
"Scheduling Services Agreement" means the Scheduling Services
Agreement, dated as of the date of this Indenture, between the Morgan Stanley
Capital and the Issuer as originally executed and as it may from time to time be
supplemented, amended or restated pursuant to the applicable provisions thereof,
and any replacement agreement substantially in the form of the original
Scheduling Services Agreement between a replacement scheduling coordinator and
the Issuer and entered into as contemplated by the Morgan Stanley Capital
Consent.
"Scheduling Services Consent" means the Consent and Agreement, dated
as of the date of this Indenture, among the Morgan Stanley Capital, the Issuer
and the Trustee as it may from time to time be supplemented, amended or restated
pursuant to the applicable provisions thereof with respect to the Scheduling
Services Agreement.
"Securities Act" means the Securities Act of 1933, as from time to
time amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as from time to time amended.
"Security Document" means, individually, the Assignment and Security
Agreement, the Consents and all UCC financing statements required by this
Indenture in connection with the Collateral; collectively, the "Security
Documents."
"Security Register" has the meaning specified in Section 305(a) of
this Indenture.
A-15
"Series" means either the Notes due 2010 or the Notes due 2006, but
not both, as the context requires.
"Special Record Date" for the payment of any defaulted principal or
interest on the Notes means a date fixed by the Trustee pursuant to Section
309(c) of this Indenture.
"Standard & Poor's" means Standards & Poor's Rating Services.
"Stated Maturity" when used with respect to any Note or any
installment of principal thereof or interest thereon, means the date specified
in such Note as the fixed date on which the principal of such Note or such
installment of principal or interest is due and payable.
"Temporary Regulation S Global Note" has the meaning set forth in
Section 201 (e) of this Indenture.
"Termination Payment" (a) when used with respect to the MSCG Power
Purchase Agreement has the meaning ascribed thereto in the MSCG Power Purchase
Agreement and (b) when used with respect to the CDWR Power Sales Agreement has
the meaning ascribed thereto in the CDWR Power Sales Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force on the date this Indenture was executed, except as provided in Section
1005 of this Indenture.
"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 or include each Person who is then a Trustee hereunder.
"Trustee Fees" means the amount of fees, expenses (including
reasonable attorneys fees and expenses) and indemnities due to the Trustee, the
Accounts Agent, each Paying Agent and the Registrar under this Indenture, the
Fee Agreement and the other Financing Documents.
"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code
as in effect from time to time in the State of New York and any other
jurisdiction the laws of which control the creation or perfection of security
interests under the Security Documents.
"United States" or "U.S." means the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"Unrestricted Notes" means one or more Notes that do not and are not
required to bear the restrictive legends set forth in Section 202.
A-16
"U.S. Person" has the meaning ascribed to such term in Regulation S
and certified to the Trustee and the Registrar by such Person.
"U.S. Physical Note" has the meaning set forth in Section 201(f) of
this Indenture.
"Vice President" when used with respect to the Issuer 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."
"Working Capital Account" has the meaning specified in Section 503
of this Indenture.
A-17
EXHIBIT B1
FORM OF FACE OF NOTE
POWER CONTRACT FINANCING, L.L.C.
5.200% SENIOR SECURED NOTE DUE 2006
CUSIP [__________]
No. [__________] $[________]
POWER CONTRACT FINANCING, L.L.C., a Delaware limited liability
company (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, promises to pay to [_________], or
its registered assigns, the outstanding principal sum of [WRITTEN AMOUNT]
($[amount]), on or prior to February 1, 2006, or such earlier date as this Note
due 2006 may be redeemed (the "Maturity Date"), such payment to be made in
semi-annual installments on February 1 and August 1 in each year commencing on
February 1, 2004, and ending on the Maturity Date set forth above (or if any
such day is not a Business Day, then the next succeeding Business Day), each
such installment to be in the amount set forth opposite the applicable Payment
Date on Annex A attached hereto (provided, that the portion of the principal
amount remaining unpaid on the Maturity Date, together with all interest accrued
and unpaid thereon, shall in any and all cases be due and payable on the
Maturity Date), and to pay interest thereon from the Closing Date or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on February 1 and August 1 in each year commencing
on February 1, 2004 in each year (or, if any such day is not a Business Day,
then the next succeeding Business Day), at a rate of 5.200% per annum, until the
principal hereof is paid or made available for payment, plus additional interest
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of 1.0% per annum on any overdue principal and Make-Whole Premium
and on any overdue installment of interest. The principal and interest so
payable, and punctually paid or duly provided for, on any Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note due
2006 (or one or more Predecessor Notes) is registered at the close of business
on the Regular Record Date next preceding such Payment Date. Any such principal
or interest not so punctually paid or duly provided for (collectively,
"Defaulted Payments") will forthwith cease to be payable to the Holder on such
Regular Record Date and shall be paid to the Person in whose name this Note due
2006 (or one or more Predecessor Notes) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Payment to be fixed
by the Issuer, notice whereof shall be given by the Trustee to Holders of Notes
due 2006 not less than 10 days prior to such Special Record Date.
Reference is hereby made to the further provisions of this Note due
2006 set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Terms used but not otherwise defined in this Note due 2006 shall
have the meanings as defined in the Indenture. The provisions of this Note due
2006 do not
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purport to be complete and are subject to, and qualified in their entirety by
reference to, the provisions of the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below by manual signature, this Note due 2006 shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note due 2006 to be
duly executed manually or by facsimile by its duly authorized officers.
Dated: ________________
POWER CONTRACT FINANCING, L.L.C.
By_________________________________
Name:
Title: [President/Vice President]
Attest:
By______________________________________
Name:
Title: [Secretary/Assistant Secretary]
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CERTIFICATE OF AUTHENTICATION
Dated:______________
This is one of the 5.200% Senior Secured Notes due 2006 of the
Issuer described in the within-mentioned Indenture.
Wilmington Trust Company,
as Trustee
By_______________________________
Authorized Signatory
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FORM OF REVERSE SIDE OF NOTE
POWER CONTRACT FINANCING, L.L.C.
5.200% SENIOR SECURED NOTE DUE 2006
1. Principal and Interest.
The Issuer will pay the principal of this Note due 2006 on or prior
to February 1, 2006, in the manner set forth on the face of this Note due 2006.
The Issuer promises to pay accrued and unpaid interest on the
principal amount of this Note due 2006 on each Interest Payment Date, as set
forth below, at the rate per annum shown above.
Principal of and interest on this Note will be payable semi-annually
(to the Holders of record of the Notes (or any predecessor Notes) at the close
of business on the Regular Record Date immediately preceding the Principal
Payment Date) on each Principal Payment Date and on each Interest Payment Date
commencing February 1, 2004.
Interest on this Note due 2006 will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the
Closing Date; provided, that if there is no existing default in the payment of
interest and if this Note due 2006 is authenticated between a Regular Record
Date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such Interest Payment Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The principal of, Make-Whole Premium, if any, and interest on the
Notes due 2006 shall be payable and the Notes due 2006 shall be exchangeable and
transferable at the office or agency of the Issuer in the Borough of Manhattan,
the City of New York, maintained for such purposes (which initially shall be the
Corporate Trust Office of the Trustee) or, at the option of the Issuer, interest
may be paid by check mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register; provided, that (a) all
payments with respect to the Global Notes and the Physical Notes the Holders of
which have given wire transfer instructions to the Trustee by the Regular Record
Date shall be required to be made by wire transfer of immediately available
funds to the accounts specified by the Holders thereof; (b) the payment of the
final installment of principal of, or interest on, each Note due 2006 shall only
be made upon presentation and surrender of such Note due 2006 at the Corporate
Trust Office, or such other place as may be designated pursuant to the
Indenture; and (c) pursuant to the Indenture, upon written request from any
Holder of Outstanding Notes due 2006 in the aggregate principal amount of
$1,000,000 payments of interest on, or principal (other than the final payment
of principal) of, such Notes due 2006 shall be made by wire transfer to such
Holder. The Notes due 2006 will not be entitled to the benefit of any sinking
fund.
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3. Registrar.
The Trustee will act as the Registrar.
4. Indenture; Limitations.
The Issuer issued the Notes due 2006 under an Indenture dated as of
June 13, 2003 (the "Indenture"), between the Issuer and Wilmington Trust
Company, as trustee (the "Trustee"). The terms of the Notes due 2006 include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes due 2006 are subject to all such terms and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note due 2006 and the terms
of the Indenture, the terms of the Indenture shall control.
The Notes due 2006 are general obligations of the Issuer. The
aggregate principal amount of Notes due 2006 issued on the Closing Date is
$339,929,000.
5. Optional Redemption.
The Notes due 2006 may be redeemed at the option of the Issuer, in
whole or in part, at any time and from time to time at a Redemption Price equal
to 100% of the Outstanding principal amount, plus accrued and unpaid interest to
but excluding the Redemption Date, plus a Make-Whole Premium, if any.
Notice of a redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of a Note due 2006 to be
redeemed at such Holder's last address as it appears in the Security Register.
On and after the Redemption Date, interest ceases to accrue on Notes due 2006 or
portions of Notes due 2006 called for redemption, unless the Issuer defaults in
the payment of the Redemption Price described above.
6. Denominations; Transfer; Exchange.
The Notes due 2006 are issued only in registered form without
coupons and initially only in minimum denominations of $100,000 and any integral
multiple of $1,000 above that amount; provided, that initial purchases of the
Notes due 2006 by purchasers who are institutional "accredited investors" who
are not Qualified Institutional Buyers shall be in minimum amounts of $250,000;
and provided, further that, after initial issuance, Notes due 2006 may be issued
upon exchange or transfer in such amounts as may be necessary to evidence the
entire unpaid principal amount of any Note due 2006 surrendered or exchanged. A
Holder may register the transfer or exchange of Notes due 2006 in accordance
with the Indenture. The Issuer may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Issuer need not register
the transfer or exchange of any Notes due 2006 selected for redemption (except
the unredeemed portion of any Note due 2006 being redeemed in part). Also, it
need not
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register the transfer or exchange of any Notes due 2006 for a period of 15 days
before a selection of Notes due 2006 to be redeemed is made.
7. Persons Deemed Owners.
A Holder may be treated as the owner of a Note due 2006 for all
purposes.
8. Treatment of Notes as Indebtedness for Tax Purposes.
Each Holder of a Note due 2006 by its acceptance of such Note due
2006 covenants and agrees to treat such Note as indebtedness for United States
federal income tax purposes.
9. Unclaimed Money.
If money for the payment of principal, Make-Whole Premium, if any,
or interest remains unclaimed for two years after the date that all amounts
payable by the Issuer to the Trustee or the Holders under any Financing Document
have been finally and irrevocably paid to the Trustee for the benefit of the
Holders, the Trustee will pay the money back to the Issuer at its request. After
that, the Holders entitled to the money must look solely to the Issuer for
payment and all liability of the Trustee will cease with respect to money
deposited with the Trustee or held in trust by the Issuer and returned to the
Issuer as unclaimed money.
10. Discharge Prior to Redemption or Maturity.
If the Issuer irrevocably deposits, or causes to be deposited, with
the Trustee money sufficient to pay the then outstanding principal of,
Make-Whole Premium, if any, and accrued and unpaid interest on the Notes due
2006 to redemption or maturity, the Issuer will be discharged from the Indenture
and the Notes due 2006, except in certain circumstances for certain sections
thereof.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes due 2006
may be amended or supplemented with the consent of the Majority Holders of any
Outstanding Notes due 2006, and any existing default or compliance with any
provision may be waived with the consent of the Majority Holders (other than for
a default in the payment of the principal of, Make-Whole Premium, if any, or
interest on any Note due 2006 or in respect of a covenant or provision of the
Indenture that cannot be modified or amended without the unanimous affirmative
vote of all Holders) of the principal amount of the Notes due 2006 then
outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes due 2006 to, among other
things, cure any ambiguity, defect or inconsistency; provided, that such cure
shall not materially adversely affect the interests of the Holders.
12. Restrictive Covenants.
B1-6
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness of
the Issuer; (ii) restricted payments; (iii) transactions with Affiliates; (iv)
fundamental change; and (v) compliance with Material Agreements.
13. Successor Persons.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes due 2006 and the Indenture, the predecessor
person will be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default (other than a Bankruptcy Event of Default)
occurs and is continuing, then and in every such case the Trustee, upon the
direction of Holders of no less than 25% of the Outstanding Notes due 2006 (for
an Event of Default with respect to a default in payment of principal,
Make-Whole Premium, if any, or interest) or either the Majority Holders of the
Outstanding Notes due 2006 (for any other Event of Default), shall declare the
principal amount of all the Notes due 2006 to be due and payable immediately, by
a notice in writing to the Issuer, and, upon any such declaration, such
principal amount, any accrued and unpaid interest and all other amounts payable
under the Notes due 2006 shall become immediately due and payable.
If a Bankruptcy Event of Default occurs, the principal amount of,
any accrued interest on and all other amounts payable under the Notes due 2006
then Outstanding shall become immediately due and payable. The Trustee may
require indemnity reasonably satisfactory to it before it enforces the Indenture
or the Notes due 2006. Subject to certain limitations, the Majority Holders may
direct the Trustee in its exercise of any trust or power.
15. Trustee Dealings with Issuer.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes due 2006 and may make loans
to, accept deposits from, perform services for, and otherwise deal with, the
Issuer and its Affiliates as if it were not the Trustee; provided, that no
conflicting interest results.
16. No Recourse Against Certain Others.
Except as otherwise specifically provided in the Material
Agreements, no recourse under or upon any obligation, covenant or agreement
contained in this Note due 2006, the Indenture or any Security Document, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
member, manager, officer or director, as such, of the Issuer or the Issuer's
Members or of any successor, either directly or through the Issuer or the
Issuer's. Members, as the case may be, or any successor, under any rule of law,
statute, or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released
B1-7
by the acceptance of the Notes due 2006 by the Holders thereof and as part of
the consideration for the issuance of the Notes due 2006. Nothing contained
herein shall, however, limit the liability of any Person for any fraud, gross
negligence or willful misconduct on their part.
17. Authentication.
This Note due 2006 shall not be valid until the Trustee manually
signs the certificate of authentication on the other side of this Note due 2006.
18. Governing Law.
The Indenture and this Note due 2006 shall be governed by, and
construed in accordance with, the law of the State of New York without giving
effect to the principles thereof relating to conflicts of law except Section
5-1401 of the New York General Obligations Law.
The Issuer will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to POWER CONTRACT
FINANCING, L.L.C., 50 West San Fernando Street, Suite 670, San Jose, California
95113, Attention: President.
B1-8
ANNEX A to
Note
REPAYMENT SCHEDULE FOR INITIAL NOTE
Principal Payment Date Principal Amount Payable
---------------------- ------------------------
February 1, 2004 $
August 1, 2004 $
February 1, 2005 $
August 1, 2005 $
February 1, 2006 $
B1-9
Form of Transfer Notice
(To be executed by the registered Holder if such Holder desires to transfer this
Note)
To [__________]
[__________]
Attention: [__________]
FOR VALUE RECEIVED the undersigned registered Holder hereby sells,
assigns and transfers unto:
Name of Assignee:______________________________________________
Taxpayer Identification Number of Assignee:__________________________
(Please print or typewrite name and address including zip code of assignee)
[_________]
[_________]
[_________]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing [__________] attorney to transfer such Note on the books of the
Issuer with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES EXCEPT PERMANENT
REGULATION S PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
[__________] the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
| |(a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
or
| |(b) this Note is being transferred other than in accordance
with (a) above and documents are being furnished which comply
with the conditions of transfer set forth in this Note and
the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof
B1-10
unless and until the conditions to any such transfer of registration set forth
herein and in Section 307 of the Indenture shall have been satisfied.
Dated:____________________
By____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or
any change whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
By____________________________________
NOTICE: To be executed by an
executive officer
B1-11
EXHIBIT B2
FORM OF FACE OF NOTE
POWER CONTRACT FINANCING, L.L.C.
6.256% SENIOR SECURED NOTE DUE 2010
CUSIP [__________]
No. [__________] $[________]
POWER CONTRACT FINANCING, L.L.C., a Delaware limited liability
company (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, promises to pay to [_________], or
its registered assigns, the outstanding principal sum of [WRITTEN AMOUNT]
($[amount]), on or prior to February 1, 2010, or such earlier date as this Note
due 2010 may be redeemed (the "Maturity Date"), such payment to be made in
semi-annual installments on February 1 and August 1 in each year commencing on
February 1, 2004, and ending on the Maturity Date set forth above (or if any
such day is not a Business Day, then the next succeeding Business Day), each
such installment to be in the amount set forth opposite the applicable Payment
Date on Annex A attached hereto (provided, that the portion of the principal
amount remaining unpaid on the Maturity Date, together with all interest accrued
and unpaid thereon, shall in any and all cases be due and payable on the
Maturity Date), and to pay interest thereon from the Closing Date or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on February 1 and August 1 in each year commencing
on February 1, 2004 in each year (or, if any such day is not a Business Day,
then the next succeeding Business Day), at a rate of 6.256% per annum, until the
principal hereof is paid or made available for payment, plus additional interest
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of 1.0% per annum on any overdue principal and Make-Whole Premium
and on any overdue installment of interest. The principal and interest so
payable, and punctually paid or duly provided for, on any Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note due
2010 (or one or more Predecessor Notes) is registered at the close of business
on the Regular Record Date next preceding such Payment Date. Any such principal
or interest not so punctually paid or duly provided for (collectively,
"Defaulted Payments") will forthwith cease to be payable to the Holder on such
Regular Record Date and shall be paid to the Person in whose name this Note due
2010 (or one or more Predecessor Notes) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Payment to be fixed
by the Issuer, notice whereof shall be given by the Trustee to Holders of Notes
due 2010 not less than 10 days prior to such Special Record Date.
Reference is hereby made to the further provisions of this Note due
2010 set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Terms used but not otherwise defined in this Note due 2010 shall
have the meanings as defined in the Indenture. The provisions of this Note due
2010 do not
B2-1
purport to be complete and are subject to, and qualified in their entirety by
reference to, the provisions of the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below by manual signature, this Note due 2010 shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note due 2010 to be
duly executed manually or by facsimile by its duly authorized officers.
Dated: _____________________
POWER CONTRACT FINANCING, L.L.C.
By _____________________________________
Name:
Title: [President/Vice President]
Attest:
By ______________________________________
Name:
Title: [Secretary/Assistant Secretary]
B2-2
CERTIFICATE OF AUTHENTICATION
Dated:__________________
This is one of the 6.256% Senior Secured Notes due 2010 of the
Issuer described in the within-mentioned Indenture.
Wilmington Trust Company,
as Trustee
By_______________________________
Authorized Signatory
B2-3
FORM OF REVERSE SIDE OF NOTE
POWER CONTRACT FINANCING, L.L.C.
6.256% SENIOR SECURED NOTE DUE 2010
1. Principal and Interest.
The Issuer will pay the principal of this Note due 2010 on or prior
to February 1, 2010, in the manner set forth on the face of this Note due 2010.
The Issuer promises to pay accrued and unpaid interest on the
principal amount of this Note due 2010 on each Interest Payment Date, as set
forth below, at the rate per annum shown above.
Principal of and interest on this Note will be payable semi-annually
(to the Holders of record of the Notes (or any predecessor Notes) at the close
of business on the Regular Record Date immediately preceding the Principal
Payment Date) on each Principal Payment Date and on each Interest Payment Date
commencing February 1, 2004.
Interest on this Note due 2010 will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the
Closing Date; provided, that if there is no existing default in the payment of
interest and if this Note due 2010 is authenticated between a Regular Record
Date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such Interest Payment Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The principal of, Make-Whole Premium, if any, and interest on the
Notes due 2010 shall be payable and the Notes due 2010 shall be exchangeable and
transferable at the office or agency of the Issuer in the Borough of Manhattan,
the City of New York, maintained for such purposes (which initially shall be the
Corporate Trust Office of the Trustee) or, at the option of the Issuer, interest
may be paid by check mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register; provided, that (a) all
payments with respect to the Global Notes and the Physical Notes the Holders of
which have given wire transfer instructions to the Trustee by the Regular Record
Date shall be required to be made by wire transfer of immediately available
funds to the accounts specified by the Holders thereof; (b) the payment of the
final installment of principal of, or interest on, each Note due 2010 shall only
be made upon presentation and surrender of such Note due 2010 at the Corporate
Trust Office, or such other place as may be designated pursuant to the
Indenture; and (c) pursuant to the Indenture, upon written request from any
Holder of Outstanding Notes due 2010 in the aggregate principal amount of
$1,000,000 payments of interest on, or principal (other than the final payment
of principal) of, such Notes due 2010 shall be made by wire transfer to such
Holder. The Notes due 2010 will not be entitled to the benefit of any sinking
fund.
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3. Registrar.
The Trustee will act as the Registrar.
4. Indenture; Limitations.
The Issuer issued the Notes due 2010 under an Indenture dated as of
June 13, 2003 (the "Indenture"), between the Issuer and Wilmington Trust
Company, as trustee (the "Trustee"). The terms of the Notes due 2010 include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The Notes due 2010 are subject to all such terms and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note due 2010 and the terms
of the Indenture, the terms of the Indenture shall control.
The Notes due 2010 are general obligations of the Issuer. The
aggregate principal amount of Notes due 2010 issued on the Closing Date is
$462,317,000.
5. Optional Redemption.
The Notes due 2010 may be redeemed at the option of the Issuer, in
whole or in part, at any time and from time to time at a Redemption Price equal
to 100% of the Outstanding principal amount, plus accrued and unpaid interest to
but excluding the Redemption Date, plus a Make-Whole Premium, if any.
Notice of a redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of a Note due 2010 to be
redeemed at such Holder's last address as it appears in the Security Register.
On and after the Redemption Date, interest ceases to accrue on Notes due 2010 or
portions of Notes due 2010 called for redemption, unless the Issuer defaults in
the payment of the Redemption Price described above.
6. Denominations; Transfer; Exchange.
The Notes due 2010 are issued only in registered form without
coupons and initially only in minimum denominations of $100,000 and any integral
multiple of $1,000 above that amount; provided, that initial purchases of the
Notes due 2010 by purchasers who are institutional "accredited investors" who
are not Qualified Institutional Buyers shall be in minimum amounts of $250,000;
and provided, further that, after initial issuance, Notes due 2010 may be issued
upon exchange or transfer in such amounts as may be necessary to evidence the
entire unpaid principal amount of any Note due 2010 surrendered or exchanged. A
Holder may register the transfer or exchange of Notes due 2010 in accordance
with the Indenture. The Issuer may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Issuer need not register
the transfer or exchange of any Notes due 2010 selected for redemption (except
the unredeemed portion of any Note due 2010 being redeemed in part). Also, it
need not
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register the transfer or exchange of any Notes due 2010 for a period of 15 days
before a selection of Notes due 2010 to be redeemed is made.
7. Persons Deemed Owners.
A Holder may be treated as the owner of a Note due 2010 for all
purposes.
8. Treatment of Notes as Indebtedness for Tax Purposes.
Each Holder of a Note due 2010 by its acceptance of such Note due
2010 covenants and agrees to treat such Note as indebtedness for United States
federal income tax purposes.
9. Unclaimed Money.
If money for the payment of principal, Make-Whole Premium, if any,
or interest remains unclaimed for two years after the date that all amounts
payable by the Issuer to the Trustee or the Holders under any Financing Document
have been finally and irrevocably paid to the Trustee for the benefit of the
Holders, the Trustee will pay the money back to the Issuer at its request. After
that, the Holders entitled to the money must look solely to the Issuer for
payment and all liability of the Trustee will cease with respect to money
deposited with the Trustee or held in trust by the Issuer and returned to the
Issuer as unclaimed money.
10. Discharge Prior to Redemption or Maturity.
If the Issuer irrevocably deposits, or causes to be deposited, with
the Trustee money sufficient to pay the then outstanding principal of,
Make-Whole Premium, if any, and accrued and unpaid interest on the Notes due
2010 to redemption or maturity, the Issuer will be discharged from the Indenture
and the Notes due 2010, except in certain circumstances for certain sections
thereof.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes due 2010
may be amended or supplemented with the consent of the Majority Holders of any
Outstanding Notes due 2010, and any existing default or compliance with any
provision may be waived with the consent of the Majority Holders (other than for
a default in the payment of the principal of, Make-Whole Premium, if any, or
interest on any Note due 2010 or in respect of a covenant or provision of the
Indenture that cannot be modified or amended without the unanimous affirmative
vote of all Holders) of the principal amount of the Notes due 2010 then
outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes due 2010 to, among other
things, cure any ambiguity, defect or inconsistency; provided, that such cure
shall not materially adversely affect the interests of the Holders.
12. Restrictive Covenants.
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The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness of
the Issuer; (ii) restricted payments; (iii) transactions with Affiliates; (iv)
fundamental change; and (v) compliance with Material Agreements.
13. Successor Persons.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes due 2010 and the Indenture, the predecessor
person will be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default (other than a Bankruptcy Event of Default)
occurs and is continuing, then and in every such case the Trustee, upon the
direction of Holders of no less than 25% of the Outstanding Notes due 2010 (for
an Event of Default with respect to a default in payment of principal,
Make-Whole Premium, if any, or interest) or either the Majority Holders of the
Outstanding Notes due 2010 (for any other Event of Default), shall declare the
principal amount of all the Notes due 2010 to be due and payable immediately, by
a notice in writing to the Issuer, and, upon any such declaration, such
principal amount, any accrued and unpaid interest and all other amounts payable
under the Notes due 2010 shall become immediately due and payable.
If a Bankruptcy Event of Default occurs, the principal amount of,
any accrued interest on and all other amounts payable under the Notes due 2010
then Outstanding shall become immediately due and payable. The Trustee may
require indemnity reasonably satisfactory to it before it enforces the Indenture
or the Notes due 2010. Subject to certain limitations, the Majority Holders may
direct the Trustee in its exercise of any trust or power.
15. Trustee Dealings with Issuer.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes due 2010 and may make loans
to, accept deposits from, perform services for, and otherwise deal with, the
Issuer and its Affiliates as if it were not the Trustee; provided, that no
conflicting interest results.
16. No Recourse Against Certain Others.
Except as otherwise specifically provided in the Material
Agreements, no recourse under or upon any obligation, covenant or agreement
contained in this Note due 2010, the Indenture or any Security Document, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
member, manager, officer or director, as such, of the Issuer or the Issuer's
Members or of any successor, either directly or through the Issuer or the
Issuer's. Members, as the case may be, or any successor, under any rule of law,
statute, or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released
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by the acceptance of the Notes due 2010 by the Holders thereof and as part of
the consideration for the issuance of the Notes due 2010. Nothing contained
herein shall, however, limit the liability of any Person for any fraud, gross
negligence or willful misconduct on their part.
17. Authentication.
This Note due 2010 shall not be valid until the Trustee manually
signs the certificate of authentication on the other side of this Note due 2010.
18. Governing Law.
The Indenture and this Note due 2010 shall be governed by, and
construed in accordance with, the law of the State of New York without giving
effect to the principles thereof relating to conflicts of law except Section
5-1401 of the New York General Obligations Law.
The Issuer will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to POWER CONTRACT
FINANCING, L.L.C., 50 West San Fernando Street, Suite 670, San Jose, California
95113, Attention: President.
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ANNEX A to
Note
REPAYMENT SCHEDULE FOR INITIAL NOTE
Principal Payment Date Principal Amount Payable
---------------------- ------------------------
February 1, 2004 $ --
August 1, 2004 $ --
February 1, 2005 $
August 1, 2005 $
February 1, 2006 $
August 1, 2006 $
February 1, 2007 $
August 1, 2007 $
February 1, 2008 $
August 1, 2008 $
February 1, 2009 $
August 1, 2009 $
February 1, 2010 $
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Form of Transfer Notice
(To be executed by the registered Holder if such Holder desires to transfer this
Note)
To [__________]
[__________]
Attention: [__________]
FOR VALUE RECEIVED the undersigned registered Holder hereby sells,
assigns and transfers unto:
Name of Assignee:___________________________________
Taxpayer Identification Number of Assignee:_____________________
(Please print or typewrite name and address including zip code of assignee)
[__________]
[__________]
[__________]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing [__________] attorney to transfer such Note on the books of the
Issuer with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES EXCEPT PERMANENT
REGULATION S PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
[__________] the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
| |(a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
or
| |(b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof
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unless and until the conditions to any such transfer of registration set forth
herein and in Section 307 of the Indenture shall have been satisfied.
Dated:____________________
By____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
By____________________________________
NOTICE: To be executed by an executive officer
B2-11
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED UPON TERMINATION
OF DISTRIBUTION COMPLIANCE PERIOD ON OR AFTER FEBRUARY 1, 2004
[date]
Power Contract Financing, L.L.C.
50 West San Fernando Street
San Jose, California 95113
Attn: Secretary
Wilmington Trust Company, as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Office
Re: Power Contract Financing, L.L.C. (the "Issuer") [ ]% Senior Secured
Notes due 20[ ] (the "Notes")
Ladies and Gentlemen:
This letter relates to U.S.$ __________ principal amount of Notes
represented by the Regulation S Global Note (as defined in the Indenture) which
bears a legend outlining restrictions upon transfer of such Regulation S Global
Note. Pursuant to Section 201 of the Indenture (the "Indenture"), dated as of
June 13, 2003, relating to the Notes, we hereby certify that we are (or we will
hold such Notes on behalf of) a person who is not a U.S. person, as defined in
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act") or who is a U.S. person who purchased such
interests pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act. Accordingly, you are hereby
requested to exchange the legended certificate for an unlegended certificate
representing an identical principal amount at maturity of Notes, all in the
manner provided by the Indenture.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By_____________________________
Authorized Signature
C-1
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO NON-QIB
INSTITUTIONAL ACCREDITED INVESTORS
[date]
Wilmington Trust Company, as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Office
Power Contract Financing, L.L.C.
50 West San Fernando Street
San Jose, California 95113
Attn: Secretary
Re: Power Contract Financing, L.L.C. (the "Issuer") [ ]% Senior Secured
Notes due 20[ ] (the "Notes")
Ladies and Gentlemen:
In connection with our proposed purchase of $[__________] aggregate
principal amount of the Notes:
1. We understand that the Notes have not been and will not be
registered under the Securities Act of 1933, as amended (the "Securities
Act"), and may not be sold except as permitted in the following sentence.
We agree on our own behalf and on behalf of any investor account for which
we are purchasing the Notes to offer, sell or otherwise transfer such
Notes prior to the date which is two years after the later of the date of
original issue and the last date on which the Issuer or any affiliate of
the Issuer was the owner of such Notes, or any predecessor thereto (the
"Resale Restriction Termination Date") only (a) to the Issuer, (b)
pursuant to a registration statement which has been declared effective
under the Securities Act, (c) for so long as the Notes are eligible for
resale pursuant to Rule 144A under the Securities Act ("Rule 144A"), to a
person we reasonably believe is a qualified institutional buyer under Rule
144A (a "QIB") that purchases for its own account or for the account of a
QIB to whom notice is given that the transfer is being made in reliance on
Rule 144A, (d) pursuant to offers and sales to Non-U.S. Persons (as
defined in the Indenture pursuant to which the Notes were issued) that
occur outside the United States within the meaning of Regulations S under
the Securities Act, (e) to an institutional "accredited investor" within
the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act
D-1
that is acquiring the Notes for its own account or for the account of such
an institutional "accredited investor" for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution
thereof in violation of the Securities Act or (f) pursuant to any other
available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that
the disposition of our property and the property of such investor account
or accounts be at all times within our or their control and to compliance
with any applicable state securities laws. The foregoing restrictions on
resale will not apply subsequent to the Resale Restriction Termination
Date. If any resale or other transfer of the Notes is proposed to be made
pursuant to clause (e) above prior to the Resale Restriction Termination
Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Trustee, which shall
provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3)
or (7) or Rule 501 under the Securities Act and that it is acquiring such
Notes for investment purposes and not for distribution in violation of the
Securities Act. We acknowledge that the Issuer and the Trustee reserve the
right prior to any offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Notes pursuant to clauses (d), (e) and
(t) above to require the delivery of an Opinion of Counsel (as defined in
the Indenture pursuant to which the Notes were issued) certifications
and/or other information satisfactory to the Issuer and the Trustee.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Notes for investment
purposes and not with a view to, or for offer or sale in connection with,
any distribution in violation of the Securities Act and we have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
3. We are acquiring the Notes purchased by us for our own account,
or for one or more accounts as to each of which we exercise sole
investment discretion and have authority to make, and do make, the
statements contained in this letter.
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
D-2
Very truly yours,
[Insert Name of Transferor]
By____________________________
Name:
Title:
Dated:_______________
Upon transfer, the Notes should be registered in the name of the new
beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
D-3
EXHIBIT E
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
[date]
Power Contract Financing, L.L.C.
50 West San Fernando Street
San Jose, California 95113
Wilmington Trust Company, as Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Office
Re: Power Contract Financing, L.L.C. (the "Issuer") [ ]% Senior Secured
Notes due 20[ ] (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $[__________] aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S ("Regulation S") under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Notes was not made to a person in the United
States and the proposed transferee is a Non-U.S. Person (as defined in the
Indenture pursuant to which the Notes were issued);
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a distribution compliance
period and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S
are applicable thereto,
E-1
we confirm that such sale has been made in accordance with the applicable
provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Insert Name of Transferor]
By___________________________________
Name:
Title:
Dated:_______________________
E-2
EXHIBIT F
FORM OF ISSUER ORDER AND OFFICER'S CERTIFICATE
OF
POWER CONTRACT FINANCING, L.L.C.
Wilmington Trust Company
as Trustee under the Indenture,
dated as of June 13, 2003,
between Wilmington Trust Company and
Power Contract Financing, L.L.C.
Attention: Corporate Trust Department
Re: Delivery to Trustee of $[__________] Power Contract
Financing, L.L.C. [ ]% Senior Secured Notes due 20[ ]
Ladies and Gentlemen:
The undersigned, Power Contract Financing, L.L.C. (the "Issuer"),
hereby delivers to you, in your capacity as Trustee under the above-referenced
Indenture (the "Indenture"), $[__________] in aggregate principal amount of the
Issuer's [ ]% Senior Secured Notes due 20[ ] (the "Notes"). This Issuer Order
and Officer's Certificate (this "Issuer Order") is delivered pursuant to Section
303(c) of the Indenture and terms used and not otherwise defined herein have the
respective meanings assigned to such terms in the Indenture. The Notes delivered
with this Issuer Order are [Initial Notes/Unrestricted Notes], are to be issued
as [Physical Notes/Global Notes] in accordance with the terms of the Indenture
and are to be authenticated as of the date of this Issuer Order. Pursuant to
Section 303(c) of the Indenture, the Issuer hereby directs that you (i)
authenticate the Notes and (ii) upon such authentication, deliver each of such
Notes to the respective Holder thereof or to special New York counsel for such
Holder, acting on such Holder's behalf.
The Issuer hereby certifies that the Notes delivered with this
Issuer Order have been duly executed by the Issuer and that all conditions
precedent to the issuance of the Notes contained in the Indenture have been
fully complied with.
Very truly yours,
POWER CONTRACT FINANCING, L.L.C.
By:_________________________________
Name:
Title: [President/Vice President]
Dated:___________________________
F-1