Exhibit 4.1
INDENTURE dated as of May 27, 1999 among Edison Mission
Holdings Co., a California corporation (the "COMPANY") and United States Trust
Company of New York, as trustee (the "TRUSTEE").
The Company and the Trustee agree as follows for the benefit
of the other parties and for the equal and ratable benefit of the Holders of the
8.137% Senior Secured Bonds due 2019 (the "INITIAL SERIES A Bonds") and the
8.734% Senior Secured Bonds due 2026 (the "INITIAL SERIES B BONDS" and, together
with the Initial Series A Bonds, the "INITIAL BONDS") and, if and when issued in
the Exchange Offer, the 8.137% Senior Secured Bonds due 2019 (the "NEW SERIES A
BONDS") and the 8.734% Senior Secured Bonds due 2026 (the "NEW SERIES B BONDS"
and, together with the New Series A Bonds, the "NEW BONDS" and, together with
the New Series A Bonds and the Initial Bonds, the "BONDS"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFENCE
1.1 SECTION DEFINITIONS
"ACCEPTABLE CREDIT PROVIDER" means a bank or trust company
with a combined capital and surplus of at least $1 billion whose long term
unsecured debt is rated "A2" or higher by Moody's or "A" or higher by S&P.
"ACCEPTABLE CREDIT SUPPORT" means (i) an unconditional
guarantee by EME or any other Affiliate of the Company, with such entity in each
case being rated "Baa1" or higher by Moody's and "BBB+" or higher by S&P or (ii)
an irrevocable letter of credit from an Acceptable Credit Provider. In the event
of a downgrade of any Acceptable Credit Provider by Moody's or S&P to below the
minimum criteria specified above, substitute Acceptable Credit Support must be
provided within 30 days of such event. Otherwise, the Trustee shall draw down
the then outstanding amount of the Acceptable Credit Support and deposit such
monies into the Bond Debt Service Reserve Account.
"ACCRUED INTEREST ACCOUNT" has the meaning set forth in the
Security Deposit Agreement.
"AFFILIATE" means, with respect to any specified Person, any
other Person which, directly or indirectly, controls, is controlled by or is
under common control with such Person. A Person shall be deemed to be
"controlled by" any other Person if such other Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"AGENT" means any Registrar, Paying Agent, co-registrar,
authenticating agent or securities custodian.
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"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Bond, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BENEFICIAL OWNER" means any person who holds a beneficial
ownership interest in a Bond.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board
of Directors.
"BOARD RESOLUTION" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person or the general partner, in the case of a limited partnership, of such
Person (or, if such Person is a partnership, one of its general partners) to
have been duly adopted by the Board of Directors of such Person or the general
partner, in the case of a limited partnership, of such Person (or, if such
Person is a partnership, one of its general partners) and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"BOND DEBT SERVICE RESERVE ACCOUNT" means the Debt Service
Reserve Account established by the Collateral Agent for the benefit of Holders
pursuant to the Security Deposit Agreement.
"BOND DEBT SERVICE RESERVE REQUIREMENT" has the meaning set
forth in Section 4.20 hereof.
"BONDS" has the meaning set forth in the preamble to this
Indenture.
"BUSINESS DAY" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close.
"CAPITAL LEASE OBLIGATION" means, as to any Person, all
monetary obligations of such Person under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of the Indenture, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, and any and all equivalent ownership interests in a Person (other
than a corporation).
"CASH EQUIVALENTS" means, at any time: (i) any evidence of
Indebtedness, maturing not more than one year after such time, issued or
guaranteed by the United States
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Government or an agency thereof; (ii) other investments in securities or bank
instruments rated at least "A" by S&P and "A2" by Moody's or "A-1" by S&P and
"P-1" by Moody's and with maturities of less than 366 days; or (iii) other
securities as to which the Company has demonstrated, to the satisfaction of the
Trustee, adequate liquidity through secondary markets or deposit agreements.
"CEDEL" means Cedelbank.
"CHANGE OF CONTROL" means the reduction in EME's direct or
indirect beneficial ownership in the Company to less than 50% at any time unless
at such time either (i) the Bonds are rated at least Investment Grade by each
Rating Agency then rating the Bonds and a Ratings Reaffirmation is obtained or
(ii) the reduction in EME's voting interest has been approved by a vote of more
than 66-2/3% of the Holders.
"CLOSING DATE" means the date of issuance and delivery of the
Initial Bonds.
"COLLATERAL AGENT" has the meaning set forth in the Security
Deposit Agreement.
"COLLATERAL" means the collective reference to all assets,
whether now owned or hereafter acquired, upon which a Lien is created or granted
from time to time pursuant to any Security Document.
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMPANY" has the meaning set forth in the preamble to this
Indenture.
"CONSUMER PRICE INDEX" means the consumer price index as
published by the United States Department of Labor, Bureau of Labor Statistics.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the
address of the Trustee specified in Section 10.2 hereof or such other address as
to which the Trustee may give notice to the Company.
"CREDIT AGREEMENT" has the meaning set forth in the Security
Deposit Agreement.
"CUSTODIAN" means the Trustee, as custodian with respect to
the Bonds in global form, or any successor entity thereto.
"DEBT SERVICE COVERAGE RATIO" means, for any period, a ratio
the numerator of which is Net Cash Flow for such period, and the denominator of
which is the aggregate of all principal, interest and other fixed charges
payable during such period on the Bonds or on other Permitted Indebtedness which
is PARI PASSU with the Bonds.
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"DEBT SERVICE RESERVE ACCOUNTS" has the meaning set forth in
the Security Deposit Agreement.
"DEBT SERVICE RESERVE REQUIREMENT" has the meaning set forth
in the Security Deposit Agreement.
"DEFAULT" means an event or condition that, with the giving of
notice or the lapse of time, or both, would become an Event of Default.
"DEFINITIVE BOND" means a certificated Bond registered in the
name of the Holder thereof and issued in accordance with Section 2.6 hereof, in
the form of Exhibit A-1 hereto except that such Bond shall not bear the Global
Bond Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Bond" attached thereto.
"DEPOSITARY" means, with respect to the Bonds issuable or
issued in whole or in part in global form, the Person specified in Section 2.3
hereof as the Depositary with respect to the Bonds, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DSR LETTER OF CREDIT INDEBTEDNESS" has the meaning set forth
in the Security Deposit Agreement.
"DUFF & PHELPS" means Duff & Phelps Credit Rating Co.
"EME" means Edison Mission Energy, a California corporation.
"EME HOMER CITY" means EME Homer City Generation L.P., a
Pennsylvania limited partnership.
"EQUITY INTERESTS" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"EUROCLEAR" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set
forth in the Registration Rights Agreement.
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"FACILITIES" means the Homer City Electric Generating Station
and certain facilities and other assets associated therewith and ancillary
thereto.
"FINANCING DOCUMENTS" has the meaning set forth in the
Security Deposit Agreement.
"GAAP" means generally accepted accounting principles as in
effect in the United States from time to time.
"GLOBAL BONDS" means, individually and collectively, each of
the Restricted Global Bonds and the Unrestricted Global Bonds, in the form of
Exhibit A hereto issued in accordance with Section 2.1, 2.6(b)(iv), 2.6(d)(ii)
or 2.6(f) hereof.
"GLOBAL BOND LEGEND" means the legend set forth in Section
2.6(g)(ii), which is required to be placed on all Global Bonds issued under this
Indenture.
"GOVERNMENT SECURITIES" means direct obligations of, or
obligations guaranteed by, the United States of America, and the payment for
which the United States pledges its full faith and credit.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state, provincial or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
net payment Obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements in the ordinary course of business and pursuant to
past practices designed to protect such Person against fluctuations in commodity
prices, interest rates or currency exchange rates.
"HOLDER" means a Person in whose name a Bond is registered.
"INDEBTEDNESS" of any Person means, without duplication: (i)
all indebtedness for borrowed money; (ii) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services which purchase
price is due more than six months from the date of incurrence of the obligation
in respect thereof or is evidenced by a note or other instrument, except trade
accounts arising in the ordinary course of business; (iii) all reimbursement
obligations with respect to surety bonds, letters of credit (to the extent not
collateralized with cash or Cash Equivalents), bankers' acceptances and similar
instruments (in each case, whether
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or not matured); (iv) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (v) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to repossession or
sale of such property); (vi) all Capital Lease Obligations; (vii) all Interest
Rate Hedging Obligations; (viii) all indebtedness referred to in clauses (i)
through (vii) above secured by (or for which the holder of such indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including accounts and contracts rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness; and (ix) all contingent liabilities.
"INDENTURE" means this Indenture, dated as of the Closing
Date, between the Company and the Trustee.
"INDEPENDENT ENGINEER" means Stone and Webster Management
Consultants, Inc. or another nationally recognized independent engineering and
consulting firm which, as Independent Engineer, will independently review the
technical aspects of the project, analyze the contractual structure and create
financial projections for the benefit of the Holders.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Bond through a Participant.
"INITIAL BONDS" has the meaning specified in the preamble
hereto.
"INITIAL PURCHASER" has the meaning set forth in the
Registration Rights Agreement.
"INITIAL SERIES A BONDS" has the meaning specified in the
preamble hereto.
"INITIAL SERIES B BONDS" has the meaning specified in the
preamble hereto.
"INTERCREDITOR AGREEMENT" has the meaning ascribed to the term
"Collateral Agency and Intercreditor Agreement" in the Security Deposit
Agreement.
"INTEREST RATE HEDGING OBLIGATIONS" means, as to any Person,
the net payment Obligations of all interest rate swaps, caps or collar
agreements or similar arrangements entered into by such Person in order to
protect against fluctuations in interest rates or the exchange of nominal
interest obligations, either generally or under specific contingencies, and, in
any event, not for speculative purposes.
"INVESTMENT GRADE" means "Baa3" with respect to Moody's,
"BBB-" with respect to S&P and "BBB-" with respect to Duff & Phelps.
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"INVESTMENTS" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the form
of direct or indirect loans (including Guarantees of Indebtedness or other
Obligations), advances of assets or capital contributions (excluding commission,
travel and entertainment, moving and similar advances to officers and employees
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Bonds for use by such
Holders in connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in any asset and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction).
"MATERIAL ADVERSE EFFECT" means any event, development or
circumstance that has had or could reasonably be expected to have a material
adverse effect on (i) the business, assets, property, financial condition or
operations of the Company and the Guarantors, taken as a whole, since the
Closing Date or (ii) the ability of the Company or any Guarantor to perform its
obligations under the Financing Documents.
"MOODY'S" means Moody's Investors Service, Inc.
"NET CASH FLOW" means, for any period, (i) all Revenues for
such period, minus (ii) the sum of (a) all amounts paid by or on behalf of the
Company and the Guarantors during such period in respect of fuel,
administration, operation, maintenance, repairs and overhead, but excluding all
subordinated payments made to Affiliates and capital expenditures which are
funded with Permitted Indebtedness, plus (b) all taxes paid by the Company and
the Guarantors during such period, plus (c) all fees paid by the Company and the
Guarantors relating to financing activities during such period.
"NEW BONDS" has the meaning set forth in the preamble to this
Indenture.
"NEW SERIES A BONDS" has the meaning set forth in the preamble
to this Indenture.
"NEW SERIES B BONDS" has the meaning set forth in the preamble
to this Indenture.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
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"OBLIGATIONS" means any principal, premium, if any, interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any of the
Guarantors whether or not a claim for post-filing interest is allowed in such
proceeding), penalties, fees, charges, expenses, indemnifications, reimbursement
obligations, damages, guarantees and other liabilities or amounts payable under
the documentation governing any Indebtedness or in respect thereof.
"OFFERING" means the offering of the Initial Bonds by the
Company.
"OFFICER" means, with respect to any Person, any Chairman of
the Board, President, Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, Senior Vice President, Vice President, Treasurer or Secretary
of such Person.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Officer of the Company.
"144A GLOBAL BOND" means one or more global notes in the form
of Exhibit A-l hereto bearing the Global Bond Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in an aggregate denomination equal
to the outstanding principal amount of the Bonds sold in reliance on Rule 144A.
"OPINION OF COUNSEL" means a written opinion of counsel for
any Person either expressly referred to in the Indenture or otherwise reasonably
satisfactory to the Trustee which may include, without limitation, counsel for
the Company, whether or not such counsel is an employee of the Company.
"ORDINARY COURSE LETTER OF CREDIT INDEBTEDNESS" has the
meaning set forth in the Security Deposit Agreement.
"PARTICIPANT" means, with respect to the Depositary, Euroclear
or Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"PERMITTED INVESTMENTS" means (i) obligations issued or
guaranteed as to principal and interest (including money market securities) by
(a) the United States of America or (b) any agency thereof for which its
obligations are backed by the full faith and credit of the United States of
America, and certificates evidencing ownership of the right to the payment of
the principal of and interest on such obligations, provided that such
obligations are held in the custody of an Acceptable Credit Provider in a
special account separate from the general assets of such custodian; (ii)
certificates of deposit or other interest-bearing obligations of the Collateral
Agent, an Acceptable Credit Provider or other bank with long-term unsecured debt
rated either "AAA" by S&P or "Aaa" by Moody's, or "A" or higher by S&P and "A2"
or higher by Moody's; and (iii) commercial paper, money market securities and
other corporate debt securities rated, on the date of purchase, "A-1" by S&P or
"P-1" by Moody's or higher for securities with original
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maturities of less than one year and "AAA" by S&P or "Aaa" by Moody's, or "A" or
higher by S&P and "A2" or higher by Moody's, for securities with original
maturities of one year or greater and maturing not more than one year from the
date of acquisition thereof.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, Governmental Authority or any other entity.
"POWER MARKET CONSULTANT" means PHB Hagler Bailly, Inc. or
another nationally recognized power market consulting firm which, as Power
Market Consultant, will perform a market study of certain markets relating to
the Facilities and develop independent electricity price forecasts for the
benefit of the Holders.
"PRINCIPAL ACCOUNT" has the meaning set forth in Security
Deposit Agreement.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in
Section 2.6(g)(i) to be placed on all Bonds issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"PRUDENT INDUSTRY PRACTICE" means any of the practices,
methods, standards and acts (including but not limited to the practices,
methods, standards and acts engaged in or approved by a significant portion of
the electric power generation industry in the United States) that, at a
particular time, in the exercise of reasonable judgment in light of the facts
known or that should reasonably have been known at the time a decision was made,
could have been expected to accomplish the desired result consistent with good
business practices, reliability, economy, safety and expedition, and which
practices generally conform to applicable law and governmental approvals.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"RATING AGENCIES" means each of Moody's, S&P and Duff &
Phelps, together with any other nationally recognized credit rating agency of
similar standing if any such entity is not then currently rating the Bonds.
"RATINGS REAFFIRMATION" means, with respect to a specified
event, a written confirmation from two or more Rating Agencies that a lowering
of the then-current credit ratings of the Bonds will not result from such event.
"RECOVERY EVENT" means any settlement of or payment of
$5,000,000 or more in respect of (i) any property or casualty insurance claim
relating to any asset of the Company or any of the Guarantors or (ii) any
seizure, condemnation, confiscation or taking of, or requisition of title or use
of, the Facilities or any part thereof by any Governmental Authority.
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"REDEMPTION DATE" means a date set forth for redemption of
Bonds pursuant to the Indenture.
"REDEMPTION PRICE" means the price to be paid by the Company
for the Bonds that are redeemed pursuant to the Indenture.
"REGISTRATION RIGHTS AGREEMENT" means the Exchange and
Registration Rights Agreement, dated as of May 27, 1999, by and among the
Company, the Guarantors and the other parties named on the signature pages
thereof, as such agreement may be amended, modified or supplemented from time to
time.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL BOND" means a Regulation S Temporary
Global Bond or Regulation S Permanent Global Bond, as appropriate.
"REGULATION S PERMANENT GLOBAL BOND" means a permanent Global
Bond in the form of Exhibit A-1 hereto bearing the Global Bond Legend and the
Private Placement Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in an aggregate denomination
equal to the outstanding principal amount of the Regulation S Temporary Global
Bond upon expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL BOND" means a temporary Global
Bond in the form of Exhibit A-2 hereto bearing the Global Bond Legend and the
Private Placement Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in an aggregate denomination
equal to the outstanding principal amount of the Bonds initially sold in
reliance on Rule 903 of Regulation S.
"REINVESTMENT NOTICE" means a notice executed by an authorized
Officer of the Company to the Collateral Agent and the Trustee relating to a
Recovery Event (i) setting forth in reasonable detail the nature of the proposed
restoration or replacement relating to such Recovery Event and the estimated
cost and time to complete such restoration or replacement and (ii) stating that
(a) no Default or Event of Default has occurred and is continuing, (b) such
restoration or replacement is technologically and economically feasible, (c) the
net cash proceeds of such Recovery Event, together with other resources
available to the Company and the Guarantors, are sufficient to pay the estimated
cost of completing such restoration or replacement and (d) the Company and the
Subsidiary Guarantors have sufficient resources (through business interruption
insurance or otherwise) to pay all principal, interest and other fixed charges
projected to become due and payable with respect to Senior Debt prior to the
completion of such restoration or replacement.
"REQUIRED CAPITAL IMPROVEMENTS" means capital improvements to
the Facilities which are either required by applicable law or which the Company
reasonably believes are
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appropriate in response to enacted or anticipated changes in applicable law or
the interpretation thereof.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any officer within the Corporate Trust Office of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED GLOBAL BOND" means a Global Bond bearing the
Private Placement Legend.
"RESTRICTED INVESTMENT" means any Investment other than a
Permitted Investment.
"RESTRICTED PERIOD" means the 40-day restricted period as
defined in Regulation S.
"REVENUES" means (i) all revenues received from the operation
of the Facilities, (ii) all proceeds from business interruption or other
insurance and (iii) all other amounts received in respect of the Facilities.
"RULE 144" means Rule 144 promulgated under the Securities
Act.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"RULE 903" means Rule 903 promulgated under the Securities
Act.
"RULE 904" means Rule 904 promulgated under the Securities
Act.
"S&P" means Standard & Poor's Rating Services.
"SALE-LEASEBACK TRANSACTION" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Guarantor
transfers such property to a Person and the Company or a Guarantor leases it
from such Person.
"SECURITY DEPOSIT AGREEMENT" means the Security Deposit
Agreement, dated as of March 18, 1999, as amended, by and among the Company, the
Guarantors and the Collateral Agent.
"SECURITY DOCUMENTS" has the meaning set forth in the Security
Deposit Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SENIOR DEBT" has the meaning set forth in the Security
Deposit Agreement.
"SERIES A BONDS" means the Initial Series A Bonds and the New
Series A Bonds.
"SERIES B BONDS" means the Initial Series B Bonds and the New
Series B Bonds.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"STATED MATURITY" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the credit
agreement or other original documentation governing such Indebtedness, and shall
not include any contingent obligations to repay, redeem or repurchase any such
interest or principal prior to the date originally scheduled for the payment
thereof.
"SUBORDINATED INDEBTEDNESS" means (i) with respect to
Indebtedness of the Company or any Guarantor to any entity other than the
Company or any Guarantor, Indebtedness that is (a) payable solely and
exclusively from the funds that would otherwise have been available to make
Restricted Payments from the Company, (b) fully subordinated in all rights and
remedies to the Bonds and (c) unsecured, or (ii) with respect to Indebtedness
from the Company to any Guarantor or from any Guarantor to the Company or any
other Guarantor, Indebtedness for which payments of principal and interest are
included in cash flow available to pay senior Indebtedness.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, limited liability company or other entity of which
more than 50% of the outstanding capital stock, partnership interests or other
equity interests having ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation shall or might have
voting power upon the occurrence of any contingency) or to control the
management of such partnership, limited liability company or other entity is at
the time directly or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other Subsidiaries of
such Person.
"SUBSIDIARY GUARANTORS" means, collectively, EME Homer City,
Edison Mission Finance Co., Homer City Property Holdings, Inc., Mission Energy
Westside, Inc. and Chestnut Ridge Energy Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"TRUSTEE" means United States Trust Company of New York, as
trustee for the benefit of the Holders under the Indenture, together with its
successors and assigns.
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"UNRESTRICTED DEFINITIVE BOND" means one or more Definitive
Bonds that do not bear and are not required to bear the Private Placement
Legend.
"UNRESTRICTED GLOBAL BOND" means a permanent Global Bond in
the form of Exhibit A-1 attached hereto that bears the Global Bond Legend and
that has the "Schedule of Exchanges of Interests in the Global Bond" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Bonds that do not bear the Private
Placement Legend.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"YIELD MAINTENANCE PREMIUM" means, with respect to any Bond to
be redeemed on any Redemption Date, an amount calculated by the Company as of
such date equal to the excess, if any, of (i) the net present value of the then
remaining scheduled installments of principal and payments of interest (but
excluding that portion of any scheduled installment of principal or payment of
interest that is actually due and paid on the Redemption Date) in respect of
such Bond calculated using a discount factor equal to the sum of the Treasury
Yield plus 50 basis points, over (ii) the unpaid principal amount of such Bond.
Such Yield Maintenance Premium shall be determined in accordance with the
following provisions:
(a) the average life of the remaining scheduled installments
of principal in respect of such Bond (the "Remaining Average Life")
shall be calculated as of such Redemption Date; and
(b) the "Treasury Yield" shall be calculated for the United
States Treasury security having an average life equal to the Remaining
Average Life and trading in the secondary market at the price closest
to par (the "Primary Issue"); PROVIDED, HOWEVER, that, if no United
States Treasury security has an average life equal to the Remaining
Average Life, the yields (the "Other Yields") for maturities of the two
United States Treasury securities having average lives most closely
corresponding to such Remaining Average Life and trading in the
secondary market at the price closest to par shall be calculated, and
the yield to maturity for the Primary Issue shall be the yield
interpolated or extrapolated from such Other Yields on a straight-line
basis, rounding in each of such relevant periods to the nearest month.
SECTION 1.2 OTHER DEFINITIONS
Defined in
Term Section
"AUTHENTICATION ORDER"......................................2.2
"COVENANT DEFEASANCE".......................................8.3
"DTC" ......................................................2.3
"EVENT OF DEFAULT"..........................................6.1
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"INCUR" ....................................................4.9
"LEGAL DEFEASANCE" .........................................8.2
"PAYING AGENT"..............................................2.3
"PERMITTED INDEBTEDNESS"....................................4.9
"PERMITTED LIENS"..........................................4.13
"REGISTRAR".................................................2.3
"RESTRICTED PAYMENTS".......................................4.7
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"INDENTURE SECURITIES" means the Bonds;
"INDENTURE SECURITY HOLDER" means a Holder of a Bond;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee; and
"OBLIGOR" on the indenture securities means the Company and
any successor obligor upon the indenture securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
SECTION 1.4 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
15
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the Commission from time to time.
SECTION 1.5 ONE CLASS OF SECURITIES
The Initial Series A Bonds, Initial Series B Bonds, New Series
A Bonds and New Series B Bonds shall vote and consent together on all matters as
one class and none of the Initial Series A Bonds, Initial Series B Bonds, New
Series A Bonds and New Series B Bonds shall have the right to vote or consent as
a separate class on any matter.
ARTICLE 2.
THE BONDS
SECTION 2.1 FORM AND DATING
(a) GENERAL.
The Bonds and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Bonds may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Bond shall be dated the date of its authentication. The Bonds shall
be in denominations of $100,000 and integral multiples of $1,000 in excess
thereof.
The terms and provisions contained in the Bonds shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Bond conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) GLOBAL BONDS.
Bonds issued in global form shall be substantially in the form
of Exhibits A-1 or A-2 attached hereto (including the Global Bond Legend thereon
and the "SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL BOND" attached
thereto). Bonds issued in definitive form shall be substantially in the form of
Exhibit A-l attached hereto (but without the Global Bond Legend thereon and
without the "SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL BOND" attached
thereto). Each Global Bond shall represent such of the outstanding Bonds
16
as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Bonds from time
to time endorsed thereon and that the aggregate principal amount of
outstanding Bonds represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Bond to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Bonds
represented thereby shall be made by the Trustee or the Custodian, at
the direction of the Trustee, in accordance with written instructions
given by the Holder thereof as required by Section 2.6 hereof.
(c) TEMPORARY GLOBAL BONDS
Bonds offered and sold in reliance on Regulation S shall be
issued initially in the form of a Regulation S Temporary Global Bond, which
shall be deposited on behalf of the purchasers of the Bonds represented thereby
with the Trustee, at its New York office, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or Cedel, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The Restricted Period shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Cedel certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of a Regulation S Temporary Global Bond (except to the extent
of any beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a 144A Global Bond bearing a Private Placement Legend, all as contemplated by
Section 2.6(a)(ii) hereof), and (ii) an Officer's Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in a
Regulation S Temporary Global Bond shall be exchanged for beneficial interests
in Regulation S Permanent Global Bonds pursuant to the Applicable Procedures.
Simultaneously with the authentication of Regulation S Permanent Global Bonds,
the Trustee shall cancel the Regulation S Temporary Global Bond. The aggregate
principal amount of a Regulation S Temporary Global Bond and the Regulation S
Permanent Global Bonds may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its
nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
(d) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE.
The provisions of the "OPERATING PROCEDURES OF THE EUROCLEAR
SYSTEM" and "TERMS AND CONDITIONS GOVERNING USE OF EUROCLEAR" and the "GENERAL
TERMS AND CONDITIONS OF CEDELBANK" and "CUSTOMER HANDBOOK" of Cedel shall be
applicable to transfers of beneficial interests in a Regulation S Temporary
Global Bond and the Regulation S Global Bonds that are held by Participants
through Euroclear or Cedel.
SECTION 2.2 EXECUTION AND AUTHENTICATION
Two Officers shall sign the Bonds for the Company by manual or
facsimile signature. The Company's seals, if any, shall be reproduced on the
Bonds and may be in facsimile form.
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If an Officer whose signature is on a Bond no longer holds
that office at the time a Bond is authenticated, the Bond shall nevertheless be
valid.
A Bond shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Bond has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by two Officers of the Company (an "AUTHENTICATION ORDER"), authenticate Series
A Bonds for original issue up to the aggregate principal amount of $300,000,000
and Series B Bonds for original issue up to the aggregate principal amount of
$530,000,000. The aggregate principal amount of Series A Bonds or Series B Bonds
outstanding at any time may not exceed such amounts except as provided in
Section 2.7 hereof.
The Trustee may (at the expense of the Company) appoint an
authenticating agent acceptable to the Company to authenticate Bonds. An
authenticating agent may authenticate Bonds whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company and has the same
protections under Article 7 herein.
SECTION 2.3 REGISTRAR AND PAYING AGENT
The Company shall maintain an office or agency where Bonds may
be presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Bonds may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register of the Bonds and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "REGISTRAR" includes any co-registrar and the term
"PAYING AGENT" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
the Subsidiary Guarantors may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Bonds.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Bonds.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all
18
money held by the Paying Agent for the payment of principal of, premium, if any,
or interest on the Bonds, and will notify the Trustee in writing of any default
by the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary Guarantor) shall have no further liability for
the money. If the Company or a Subsidiary Guarantor acts as Paying Agent, it
shall segregate and hold in a separate trust funds for the benefit of the
Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Bonds.
SECTION 2.5 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 all Holders and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Bonds and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.6 TRANSFER AND EXCHANGE
(a) TRANSFER AND EXCHANGE OF GLOBAL BONDS.
A Global Bond may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Bonds will be exchanged by the Company for Definitive
Bonds if (i) the Company delivers to the Trustee written notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary or (ii) the Company in
its sole discretion determines that the Global Bonds (in whole but not in part)
should be exchanged for Definitive Bonds and delivers a written notice to such
effect to the Trustee; PROVIDED that in no event shall a Regulation S Temporary
Global Bond be exchanged by the Company for Definitive Bonds prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities
Act. Upon the occurrence of either of the preceding events in (i) or (ii) above,
Definitive Bonds shall be issued in such names as the Depositary shall instruct
the Trustee in writing. Global Bonds also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.7 and 2.10 hereof. Every Bond
authenticated and delivered in exchange for, or in lieu of, a Global Bond or any
portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Bond. A
19
Global Bond may not be exchanged for another Bond other than as provided
in this Section 2.6(a), however, beneficial interests in a Global Bond may be
transferred and exchanged as provided in Section 2.6(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL BONDS.
The transfer and exchange of beneficial interests in the
Global Bonds shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Bonds shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Bonds also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL BOND.
Beneficial interests in any Restricted Global Bond may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Bond in accordance with the
transfer restrictions set forth in the Private Placement Legend;
PROVIDED, HOWEVER, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Temporary Regulation S
Global Bond may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Bond may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Bond. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.6(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL BONDS. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.6(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Bond in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Bond in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose
name such Definitive Bond shall be registered to effect the transfer or
exchange referred to in (1) above; PROVIDED that in no event shall
Definitive Bonds be issued upon the transfer or exchange of beneficial
interests in a Regulation S Temporary Global Bond prior to (x) the
expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act.
20
Upon consummation of an Exchange Offer by the Company in accordance
with Section 2.6(f) hereof, the requirements of this Section 2.6(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global Bonds.
Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Bonds contained in this Indenture and
the Bonds or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Bond(s)
pursuant to Section 2.6(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL BOND. A beneficial interest in any Restricted Global Bond may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Bond if the transfer
complies with the requirements of Section 2.6(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Bond, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Bond or the Regulation S Permanent Global Bond, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL BOND FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED
GLOBAL BOND. A beneficial interest in any Restricted Global Bond may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Bond or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Bond if the exchange or transfer complies with the requirements of
Section 2.6(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
exchanged, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the New Bonds or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
21
(C) such transfer is effected by an Initial Purchaser
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Bond proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Bond, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Bond proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Bond, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Bond has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Bonds in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Bond cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Bond.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE BONDS.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL BONDS TO
RESTRICTED DEFINITIVE BONDS. If any holder of a beneficial interest in
a Restricted Global Bond proposes to exchange such beneficial interest
for a Restricted Definitive Bond or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Bond, then, upon receipt by the Registrar of the
following documentation:
22
(A) if the holder of such beneficial interest in a Restricted
Global Bond proposes to exchange such beneficial interest for a
Restricted Definitive Bond, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof;
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof; or
(G) if such beneficial interest is being transferred to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A,
Rule 144 or Rule 904 thereunder, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(d)
thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Bond to be reduced accordingly pursuant to Section
2.6(h) hereof, and the Company shall execute and the Trustee shall upon
receipt of an Authentication Order authenticate and deliver to the
Person designated in the instructions a Definitive Bond in the
appropriate principal amount. Any Definitive Bond issued in exchange
for a beneficial interest in a
23
Restricted Global Bond pursuant to this Section 2.6(c) shall bear the
Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii) Notwithstanding Sections 2.6(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Bond may not
be exchanged for a Definitive Bond or transferred to a Person who takes
delivery thereof in the form of a Definitive Bond prior to (x) the
expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
(iii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL BONDS TO
UNRESTRICTED DEFINITIVE BONDS. A holder of a beneficial interest in a
Restricted Global Bond may exchange such beneficial interest for an
Unrestricted Definitive Bond or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Bond only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case of
a transfer, certifies in the Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the New Bonds or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by an Initial
Purchaser pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Bond proposes to
exchange such beneficial interest for a Definitive
Bond that does not bear the Private Placement Legend,
a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Bond proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
Definitive Bond that does not bear the Private
Placement Legend, a certificate from such holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof,
24
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer
required in order to maintain compliance with the
Securities Act.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL
BONDS TO UNRESTRICTED DEFINITIVE BONDS. If any holder of a
beneficial interest in an Unrestricted Global Bond proposes to
exchange such beneficial interest for a Definitive Bond or to
transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Bond, then, upon
satisfaction of the conditions set forth in Section 2.6(b)(ii)
hereof, the Trustee shall cause the aggregate principal amount
of the applicable Global Bond to be reduced accordingly
pursuant to Section 2.6(h) hereof, and the Company shall
execute and the Trustee shall upon receipt of an
Authentication Order authenticate and (at the expense of the
Company) deliver to the Person designated in the instructions
a Definitive Bond in the appropriate principal amount. Any
Definitive Bond issued in exchange for a beneficial interest
pursuant to this Section 2.6(c)(iv) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the
Depositary and the applicable Participant or Indirect
Participant. The Trustee shall (at the expense of the Company)
deliver such Definitive Bonds to the Persons in whose names
such Bonds are so registered. Any Definitive Bond issued in
exchange for a beneficial interest pursuant to this Section
2.6(c)(iv) shall not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE BONDS FOR BENEFICIAL INTERESTS.
(i) RESTRICTED DEFINITIVE BONDS TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL BONDS. If any Holder of a Restricted Definitive Bond
proposes to exchange such Bond for a beneficial interest in a
Restricted Global Bond or to transfer such Restricted Definitive Bond
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Bond, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Bond proposes to exchange such Bond for a beneficial interest
in a Restricted Global Bond, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Definitive Bond is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
25
(C) if such Restricted Definitive Bond is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Bond is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Bond is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Bond is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof, the Trustee shall cancel the Restricted
Definitive Bond, increase or cause to be increased the
aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Bond, in the case of
clause (B) above, the 144A Global Bond, and in the case of
clause (C) above, the Regulation S Global Bond.
(ii) RESTRICTED DEFINITIVE BONDS TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL BONDS. A Holder of a Restricted Definitive Bond may
exchange such Bond for a beneficial interest in an Unrestricted Global
Bond or transfer such Restricted Definitive Bond to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Bond only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the
Letter of Transmittal that it is not (1) a broker-dealer, (2)
a Person participating in the distribution of the New Bonds or
(3) a Person who is an affiliate (as defined in Rule 144) of
the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by an Initial
Purchaser pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
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(1) if the Holder of such Restricted
Definitive Bond proposes to exchange such Bond for a
beneficial interest in the Unrestricted Global Bond,
a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Restricted
Definitive Bond proposes to transfer such Bond to a
Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global
Bond, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.6(d)(ii), the Trustee shall
cancel the Definitive Bonds and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Bond.
(iii) UNRESTRICTED DEFINITIVE BONDS TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL BONDS. A Holder of an Unrestricted Definitive
Bond may exchange such Bond for a beneficial interest in an
Unrestricted Global Bond or transfer such Unrestricted Definitive Bond
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Bond at any time. Upon receipt of a
written request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Bond and increase or
cause to be increased the aggregate principal amount of one of the
Unrestricted Global Bonds.
If any such exchange or transfer from a Definitive Bond to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Bond has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate, one or more
Unrestricted Global Bonds in an aggregate principal amount equal to the
principal amount of Definitive Bonds so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE BONDS FOR DEFINITIVE BONDS.
Upon request by a Holder of Definitive Bonds and such Holder's
compliance with the provisions of this Section 2.6(e), the Registrar shall
register the transfer or exchange of Definitive Bonds. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Bonds duly endorsed or accompanied by
a
27
written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.6(e).
(i) RESTRICTED DEFINITIVE BONDS TO RESTRICTED DEFINITIVE
BONDS. Any Restricted Definitive Bond may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Bond if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) RESTRICTED DEFINITIVE BONDS TO UNRESTRICTED DEFINITIVE
BONDS. Any Restricted Definitive Bond may be exchanged by the Holder
thereof for an Unrestricted Definitive Bond or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Bond if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the
Letter of Transmittal that it is not (1) a broker-dealer, (2)
a Person participating in the distribution of the New Bonds or
(3) a Person who is an affiliate (as defined in Rule 144) of
the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by an Initial
Purchaser pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
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(1) if the Holder of such Restricted
Definitive Bonds proposes to exchange such Bonds for
an Unrestricted Definitive Bond, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (I)(d) thereof;
or
(2) if the Holder of such Restricted
Definitive Bonds proposes to transfer such Bonds to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Bond, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE BONDS TO UNRESTRICTED
DEFINITIVE BONDS. A Holder of Unrestricted Definitive Bonds
may transfer such Bonds to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Bond. Upon receipt
of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Bonds pursuant to the
instructions from the Holder thereof.
(f) EXCHANGE OFFER.
Upon the occurrence of the Exchange Offer in accordance with
the Registration Rights Agreement, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.2, the Trustee shall
authenticate for each series of Bonds (i) one or more Unrestricted Global Bonds
in an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Bonds tendered for acceptance by Persons that
certify in the Letters of Transmittal that (x) they are not broker-dealers, (y)
they are not participating in a distribution of the New Bonds and (z) they are
not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (ii) Definitive Bonds in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Bonds accepted for exchange in the Exchange Offer. Concurrently with the
issuance of such Bonds, the Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Bonds to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and (at the expense of
the Company) deliver to the Persons designated by the Holders of Definitive
Bonds so accepted Definitive Bonds in the appropriate principal amount.
(g) LEGENDS.
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The following legends shall appear on the face of all Global
Bonds and Definitive Bonds issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below, each Global Bond
and each Definitive Bond (and all Bonds issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM OR NOT SUBJECT TO
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACQUISITION HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (B) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT IT
WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR
ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY
ON WHICH THE COMPANY OR AN AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
RESTRICTION TERMINATION DATE") OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY, EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER 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
30
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING THE
CERTIFICATES 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 IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D), (E) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Bond or Definitive Bond
issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii),
(e)(ii), (e)(iii) or (f) to this Section 2.6 (and all Bonds issued in exchange
therefor or substitution thereof) shall not bear the Private Placement Legend.
(ii) GLOBAL BOND LEGEND. Each Global Bond shall bear a legend in
substantially the following form:
"THIS GLOBAL BOND IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS BOND) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.7 OF THE
INDENTURE, (II) THIS GLOBAL BOND MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS GLOBAL
BOND MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL BOND MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
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(iii) REGULATION S TEMPORARY GLOBAL BOND LEGEND. The Regulation S
Temporary Global Bond shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL BOND, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
BONDS, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL BOND SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL BONDS.
At such time as all beneficial interests in a particular
Global Bond have been exchanged for Definitive Bonds or a particular Global Bond
has been redeemed, repurchased or canceled in whole and not in part, each such
Global Bond shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Bond is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Bond or for Definitive Bonds, the principal amount of Bonds
represented by such Global Bond shall be reduced accordingly and an endorsement
shall be made on such Global Bond by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Bond,
such other Global Bond shall be increased accordingly and an endorsement shall
be made on such Global Bond by the Trustee or by the Depositary at the direction
of the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Bonds
and Definitive Bonds upon receipt of an Authentication Order in
accordance with Section 2.2 hereof or upon receipt of a written request
of the Registrar in accordance with the terms hereof.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Bond or to a Holder of a Definitive
Bond for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.6, 3.7, 3.8 and 9.5
hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Bond selected for redemption in whole or in
part, except the unredeemed portion of any Bond being redeemed in part.
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(iv) All Global Bonds and Definitive Bonds issued upon any
registration of transfer or exchange of Global Bonds or Definitive
Bonds shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Bonds or Definitive Bonds surrendered upon such registration
of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Bonds during a period
beginning at the opening of business 15 days before the day of any
selection of Bonds for redemption under Section 3.2 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Bond so selected for redemption in whole
or in part, except the unredeemed portion of any Bond being redeemed in
part or (C) to register the transfer of or to exchange a Bond between a
record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Bond, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Bond is registered as the
absolute owner of such Bond for the purpose of receiving payment of
principal of and interest on such Bond and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Bonds and
Definitive Bonds in accordance with the provisions of Section 2.2
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.6 to effect a registration of transfer or exchange may be
submitted by facsimile.
SECTION 2.7 REPLACEMENT BONDS
If any mutilated Bond is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Bond, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Bond
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity Bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Bond is replaced. The Company and the Trustee may charge for their expenses
in replacing a Bond.
Every replacement Bond is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Bonds duly issued hereunder.
SECTION 2.8 OUTSTANDING BONDS
33
The Bonds outstanding at any time are all the Bonds
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Bond effected
by the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.9 hereof, a
Bond does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Bond.
If a Bond is replaced pursuant to Section 2.7 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Bond is held by a bona fide purchaser.
If the principal amount of any Bond is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Bonds payable on that date, then on and after that date such
Bonds shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.9 TREASURY BONDS
In determining whether the Holders of the required principal
amount of Bonds have concurred in any direction, waiver or consent, Bonds owned
by the Company or any Subsidiary Guarantor, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any Subsidiary Guarantor shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Bonds that the Trustee knows are so owned shall be so disregarded.
SECTION 2.10 TEMPORARY BONDS
Until certificates representing Bonds are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Bonds. Temporary Bonds shall be
substantially in the form of certificated Bonds but may have variations that the
Company considers appropriate for temporary Bonds and as shall be reasonably
acceptable to the Trustee.
Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Bonds in exchange for temporary Bonds.
Holders of temporary Bonds shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11 CANCELLATION
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The Company at any time may deliver Bonds to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Bonds surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Bonds surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Bonds (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Bonds shall be delivered
(at the expense of the Company) to the Company. The Company may not issue new
Bonds to replace Bonds that it has paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Bonds,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Bonds and in Section 4.1 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Bond and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, PROVIDED that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
SECTION 2.13 CUSIP NUMBERS
The Company in issuing the Bonds may use "CUSIP" numbers (if
then generally in use) and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders, PROVIDED, HOWEVER, that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Bonds or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Bonds, and any such redemption shall not be affected by
any defect in or omission of such numbers.
35
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.1 NOTICES TO TRUSTEE
If the Company elects to redeem Bonds pursuant to the
redemption provisions of Section 3.7 or 3.8 hereof, it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption date, an
Officer's Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Bonds to be redeemed and (iv) the redemption price.
SECTION 3.2 SELECTION OF BONDS TO BE REDEEMED
If less than all of the Bonds are to be redeemed at any time,
the Trustee shall select the Bonds to be redeemed among the Holders of the Bonds
in compliance with the requirements of the principal national securities
exchange, if any, on which the Bonds are listed or, if the Bonds are not so
listed, on a PRO RATA basis, by lot or in accordance with any other method the
Trustee considers fair and appropriate. In the event of partial redemption by
lot, the particular Bonds to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Bonds not previously called for
redemption.
The Trustee shall promptly notify the Company of the Bonds
selected for redemption and, in the case of any Bond selected for partial
redemption, the principal amount thereof to be redeemed. Bonds and portions of
Bonds selected shall be in amounts of $100,000 or whole multiples of $1,000 in
excess thereof; except that if all of the Bonds of a Holder are to be redeemed,
the entire outstanding amount of Bonds held by such Holder, even if not in the
amount of $100,000 or a multiple of $1,000 in excess thereof, shall be redeemed.
Except as provided in the preceding sentence, provisions of this Indenture that
apply to Bonds called for redemption also apply to portions of Bonds called for
redemption.
SECTION 3.3 NOTICE OF REDEMPTION
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Bonds are to be redeemed at its
registered address.
The notice shall identify the Bonds to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
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(c) if any Bond is being redeemed in part, the portion of the
principal amount of such Bond to be redeemed and that, after the redemption date
upon surrender of such Bond, a new Bond or Bonds in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Bond;
(d) the name and address of the Paying Agent;
(e) that Bonds called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Bonds called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Bonds and/or Section of this Indenture
pursuant to which the Bonds called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Bonds.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date (or such shorter time period acceptable to the Trustee), an
Officer's Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section
3.3 hereof, Bonds called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE
One Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest on all Bonds to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Bonds to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Bonds or the portions of Bonds called for redemption. If a Bond is redeemed
on or after an interest record date but on or prior to
37
the related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Bond was registered at the close of
business on such record date. If any Bond called for redemption shall not be so
paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at
the rate provided in the Bonds and in Section 4.1 hereof.
SECTION 3.6 BONDS REDEEMED IN PART
Upon surrender of a Bond that is redeemed in part, the Company
shall issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Bond equal in
principal amount to the unredeemed portion of the Bond surrendered.
SECTION 3.7 OPTIONAL REDEMPTION
The Bonds shall be subject to optional redemption at any time
at a Redemption Price equal to the outstanding principal amount of the Bonds to
be redeemed plus all accrued and unpaid interest thereon to the Redemption Date,
plus the Yield Maintenance Premium, if any.
SECTION 3.8 MANDATORY REDEMPTION
The Bonds will be subject to mandatory redemption, ratably
with all other Senior Debt in existence at such time, upon the occurrence of a
Recovery Event with respect to the Facilities, other than with respect to
amounts received by the Company and the Subsidiary Guarantors in connection with
a Recovery Event for which the Company elects to restore or replace the asset or
assets in respect of which such Recovery Event occurred and a Reinvestment
Notice is provided to the Collateral Agent and the Trustee within 45 days of
such Recovery Event (provided that, with respect to any Recovery Event of $50
million or more, the Independent Engineer shall have certified as to the
reasonableness, in light of Prudent Industry Practice, of the Company's repair
and replacement plans as set forth in the Company's Reinvestment Notice relating
to such Recovery Event). Any mandatory redemption of the Bonds will be without
premium or penalty at a Redemption Price equal to the unpaid principal amount
thereof plus accrued and unpaid interest thereon to the Redemption Date.
38
ARTICLE 4.
COVENANTS
SECTION 4.1 PAYMENT OF BONDS
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Bonds on the dates and in the manner
provided in the Bonds. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Bonds to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the
extent lawful.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Bonds may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Bonds and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Bonds may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.3.
SECTION 4.3 INFORMATION REQUIREMENTS
39
The Company shall furnish or cause to be furnished to the
Trustee, each of the Rating Agencies and, with respect to clauses (a) and (b)
below, upon written request (which may be a single continuing request), any
Holder or Beneficial Owner or prospective Holder or Beneficial Owner:
(a) as soon as available and in any event within 60 days
after the end of the Company's first, second and third fiscal quarters
of each fiscal year (commencing with the fiscal quarter ending June 30,
1999), unaudited financial statements of the Company as of the end of
such fiscal quarter, together with an Officer's Certificate of the
Company stating that such financial statements fairly present the
financial condition and results of operations of the Company on the
dates and for the periods indicated in accordance with GAAP;
(b) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company (commencing with the
fiscal year ending December 31, 1999), audited financial statements of
the Company, together with an Officer's Certificate of the Company
stating that no Default or Event of Default has occurred and is
continuing, or that if a Default or an Event of Default has occurred
and is continuing, a statement as to the nature thereof;
(c) within 10 days after an authorized officer of the
Company obtains actual knowledge thereof, written notice of the
occurrence of any event or condition which constitutes a Default or an
Event of Default, specifically stating that such event or condition has
occurred and describing it and any action being or proposed to be taken
with respect thereto;
(d) within 15 days after an authorized officer of the
Company has actual knowledge thereof, written notice of any pending or
threatened material litigation which has or could reasonably be
expected to have a Material Adverse Effect; and
(e) at any time when the Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act, copies
of any filing made with the Commission thereunder, within five days
after such filing is made.
At any time when the Company is not subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act, upon the
request of any Holder or Beneficial Owner or prospective Holder or Beneficial
Owner, the Company shall promptly furnish to such Holder or Beneficial Owner or
prospective Holder or Beneficial Owner the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act in order to permit
compliance with Rule 144A in connection with a resale or other permitted
transfer of any Bond.
The Company shall also provide to the Trustee and the Rating
Agencies annual budgets, quarterly operational reports, quarterly construction
reports, updated Power Market Consultant reports, any Officer's Certificates
provided by the Company relating to the incurrence
40
of Indebtedness under Section 4.9(f) or (g) (at least 30 days' prior to the
incurrence of such Indebtedness) and notice of any transfers of assets permitted
by Section 4.11(i) hereof (at least 30 days' prior to such transfer of assets).
SECTION 4.4 COMPLIANCE CERTIFICATE
So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.3 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable, directly or indirectly, to
any Person for any failure to obtain knowledge of any such violation.
SECTION 4.5 TAXES; MAINTENANCE OF BOOKS AND RECORDS
The Company shall pay, and shall cause each of the Subsidiary
Guarantors to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Bonds.
The Company shall, and shall cause each of the Subsidiary
Guarantors to, maintain its books and records in accordance with the generally
accepted accounting principles in effect in the United States.
SECTION 4.6 STAY, EXTENSION AND USURY LAWS
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.7 LIMITATION ON RESTRICTED PAYMENTS
The Company shall not, and shall not permit any of the
Subsidiary Guarantors to, directly or indirectly: (i) declare or pay any
dividend or make any other payment or distribution on account of the Company's
or any of the Subsidiary Guarantors' Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving
the Company or any Subsidiary Guarantor) or to the direct or indirect holders of
the Company's or any of the Subsidiary Guarantors' Equity Interests in their
capacity as such, other than (A) dividends or distributions payable in Equity
Interests of the Company, (B) dividends or distributions payable to the Company
or another Subsidiary of the Company or (C) dividends payable to EME not to
exceed $30 million from the proceeds of the Bonds; (ii) purchase, redeem or
otherwise acquire or retire for value (including without limitation, in
connection with any merger or consolidation involving the
41
Company or any Subsidiary Guarantor) any Equity Interests of the Company or any
direct or indirect parent of the Company or other Affiliate of the Company;
(iii) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Subordinated Indebtedness, except a
payment of interest or principal at Stated Maturity, or a payment of interest
made through the issuance of additional Indebtedness of the same kind as the
Indebtedness on which such interest shall have accrued; or (iv) make any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence of such Restricted
Payment; and
(b) the amount on deposit in each Accrued Interest Account
and in each Principal Account shall be equal to or greater than the
amount then required to be on deposit in such Accrued Interest Account
or Principal Account in accordance with priority THIRD or FOURTH, as
the case may be, in Section 4.1(a) of the Security Deposit Agreement;
(c) the Debt Service Reserve Accounts are each fully funded;
(d) the Debt Service Coverage Ratio for the preceding four
quarters, taken as one accounting period, is equal to or greater than
1.50 to 1.0 in the case of any such period ending on or prior to
December 31, 2001 or 1.70 to 1.0 in the case of any such period ending
thereafter, as set forth in an Officer's Certificate; and
(e) the projected Debt Service Coverage Ratio for each
four-quarter period, taken as one accounting period, during the next
eight quarters is equal to or greater than 1.50 to 1.0 in the case of
any such period ending on or prior to December 31, 2001 or 1.70 to 1.0
in the case of any such period ending thereafter, as set forth in an
Officer's Certificate.
The Company shall cause the Power Market Consultant to
provide, at intervals not to exceed every three years, updated electricity price
projections to allow the Company certification for purposes of making Restricted
Payments pursuant to this Section 4.7.
SECTION 4.8 LIMITATION ON SUBSIDIARIES AND INVESTMENTS
42
The Company shall not create or acquire any Subsidiary unless
(i) such Subsidiary shall become an additional Guarantor under the Security
Documents and (ii) such Subsidiary at the time of creation or acquisition shall
have no Indebtedness outstanding other than Indebtedness permitted under Section
4.10. The Company shall retain 100% direct or indirect beneficial ownership in
each of its Subsidiaries so long as the Bonds remain outstanding. The Company
shall not, nor shall it permit any of the Subsidiary Guarantors to, make any
investment other than Permitted Investments.
SECTION 4.9 LIMITATION ON INCURRENCE OF INDEBTEDNESS
The Company shall not, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness other than Permitted Indebtedness.
"PERMITTED INDEBTEDNESS" shall mean any of the following items
of Indebtedness:
(a) Indebtedness incurred in respect of the Bonds;
(b) Indebtedness outstanding on the Closing Date;
(c) Indebtedness incurred under the Credit Agreement;
(d) Capital Lease Obligations and purchase money
indebtedness entered into in the ordinary course of business in an
amount not to exceed $10 million outstanding at any one time;
(e) Indebtedness to any wholly-owned Subsidiary of the
Company (so long as such Indebtedness is held by such Subsidiary);
(f) Indebtedness in respect of Required Capital
Improvements, PROVIDED that (i) the Company delivers to the Trustee an
Officer's Certificate stating that the Indebtedness is being incurred
to fund a Required Capital Improvement and (ii) after giving effect to
the incurrence of such Indebtedness, either (A) the average projected
Debt Service Coverage Ratio through the final maturity date of the
Bonds shall not be less than 1.75 to 1.0 and the minimum projected Debt
Service Coverage Ratio for any four quarters through the final maturity
date of the Bonds, taken as one accounting period, shall not be less
than 1.50 to 1.0 or (B) a Ratings Reaffirmation is obtained;
(g) Indebtedness so long as, after giving effect to the
incurrence of such Indebtedness, the Company delivers to the Trustee an
Officer's Certificate stating that (i) the average projected Debt
Service Coverage Ratio through the final maturity date of the Bonds
shall not be less than 2.50 to 1.0 and the minimum projected Debt
Service Coverage Ratio for any four quarters through the final maturity
date of the Bonds, taken as one accounting period, shall not be less
than 2.00 to 1.0 (PROVIDED that if the proceeds
43
of such Indebtedness are to be applied to construct a new facility, the
Bonds must be rated Investment Grade after giving effect to the
incurrence of such Indebtedness) or (ii) the Bonds are rated at least
Investment Grade by each Rating Agency then rating the Bonds;
(h) Indebtedness incurred for working capital purposes only
and not in excess of $50 million at any one time outstanding (with such
amount to be escalated annually in accordance with increases in the
Consumer Price Index), PROVIDED that the outstanding principal amount
of such Indebtedness on each anniversary of the Closing Date shall be
$0;
(i) Indebtedness represented by Interest Rate Hedging
Obligations, so long as such Interest Rate Hedging Obligations relate
to Indebtedness otherwise permitted to be incurred by the Company
hereunder;
(j) Reimbursement obligations or other Indebtedness related
to reimbursement under any letter of credit issued to satisfy any Debt
Service Reserve Requirement;
(k) Subordinated Indebtedness to Affiliates of the Company,
PROVIDED that the incurrence of such Indebtedness complies with the
provisions of Section 4.7 hereof;
(l) Indebtedness in the form of guarantees entered into by
the Company in the ordinary course of business in connection with fuel
procurement or sales, purchases or exchanges by Affiliates of the
Company related to physical or financial capacity, energy and emissions
credits related to the Facilities, so long as such activities are not
for speculative purposes;
(m) Indebtedness in respect of letters of credit, surety
bonds or performance bonds issued in the ordinary course of the
Company's business;
(n) Indebtedness incurred in exchange for, or the net
proceeds of which are used to refund, refinance or replace,
indebtedness of the Company incurred under clause (c) above, PROVIDED
that (i) the principal amount (net of expenses) of such new
Indebtedness shall not exceed the principal amount of the old
Indebtedness and (ii) either (1) the average life of such new
Indebtedness shall not be shorter than the remaining average life of
the Bonds or (2) such new Indebtedness shall be rated at least
Investment Grade by each Rating Agency then rating such Indebtedness;
and
(o) other senior Indebtedness not to exceed $20 million at
any one time outstanding.
44
The Company shall cause the Power Market Consultant to
provide, for purposes of incurring Indebtedness under clauses (f), (g) and (n)
above, updated electricity price projections to allow the Company to provide the
requisite certification.
For purposes of determining compliance with this Section 4.9,
in the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Indebtedness described in clauses (a)
through (o) above as of the date of incurrence thereof, the Company shall, in
its sole discretion, be entitled to classify or reclassify such item of
Indebtedness in any manner that complies with this Section 4.9. Accrual of
interest, the accretion of accreted value and the payment of interest in the
form of additional Indebtedness will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.9.
SECTION 4.10 LIMITATION ON INCURRENCE OF SUBSIDIARY GUARANTOR
INDEBTEDNESS
The Company shall not permit any Subsidiary Guarantor to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
any Indebtedness other than (i) Subordinated Indebtedness or (ii) Indebtedness
in respect of letters of credit, surety bonds or performance bonds issued, or
purchase money or trade Indebtedness incurred, in the ordinary course of
business and in an aggregate amount not to exceed $15 million at any one time
outstanding.
SECTION 4.11 LIMITATION OF SALE OF ASSETS
Except in connection with a merger, consolidation or sale of
substantially all of its properties or assets, covered by Section 5.1 hereto,
the Company shall not, and shall not permit any of the Subsidiary Guarantors to,
sell or otherwise dispose of any assets or enter into Sale-Leaseback
Transactions (including by way of the issue or sale by the Company or any of the
Subsidiary Guarantors of Equity Interests in such Subsidiary Guarantors) other
than (i) transfers of assets among the Company and the Subsidiary Guarantors, so
long as a Ratings Reaffirmation is obtained, (ii) sales and dispositions in the
ordinary course of business not in excess of $10 million in any fiscal year,
(iii) any sales or dispositions of surplus, obsolete or worn out equipment, and
(iv) any sales or dispositions required for compliance with applicable law or
necessary governmental approvals.
SECTION 4.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit any of the
Subsidiary Guarantors to, enter into any transaction or arrangement, whether or
not in the ordinary course of business, with any Affiliate (other than the
Company and its Subsidiaries), other than (i) management, operating, marketing,
trading or other similar services agreements between and among the Company and
its Affiliates in existence on the Closing Date and (ii) any transaction which
is on terms that are no less favorable to the Company or the relevant Subsidiary
Guarantor than those
45
that would have been obtained in a comparable arm's-length transaction by the
Company or such Subsidiary Guarantor with an unrelated Person.
SECTION 4.13 LIMITATION ON LIENS
The Company shall not, and shall not permit any of the
Subsidiary Guarantors to, create, incur, assume or otherwise cause or suffer to
exist or become effective any Lien of any kind upon any of their property or
assets, now owned or hereafter acquired, other than Permitted Liens.
The provisions of the first paragraph of this Section 4.13
shall not apply to the incurrence of any of the following types of Liens
(collectively, "PERMITTED LIENS"):
(a) Liens existing on the Closing Date;
(b) Liens created under the Security Documents;
(c) carriers', warehousemen's, mechanics', landlords'
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business in respect of obligations not yet due and payable or
which are being contested in good faith by appropriate proceedings
promptly instituted and diligently prosecuted; PROVIDED that any
reserve or other appropriate provision as shall be required to conform
with GAAP shall have been made therefor;
(d) Liens for taxes, assessments or governmental charges or
levies that are not yet delinquent and remain payable without penalty
or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently prosecuted; PROVIDED that any
reserve or other appropriate provision as shall be required to conform
with GAAP shall have been made therefor;
(e) Liens that are incidental to the business of the Company
and the Subsidiary Guarantors, are not for borrowing money and are not
material, taken as a whole, to the business of the Company and the
Subsidiary Guarantors; and
(f) Liens to secure Indebtedness permitted under clauses
(c), (d), (f), (g), (h), (i), (j), (n) and (o) of Section 4.9 hereof.
SECTION 4.14 LIMITATION ON BUSINESS ACTIVITIES
The Company shall not, nor shall it permit any Subsidiary
Guarantor to, engage in any business or conduct any activities other than the
ownership and operation of the Facilities, any expansion of facilities or
improvements thereto, and matters reasonably incidental thereto. Notwithstanding
the previous sentence, the Company and the Subsidiary Guarantors may enter into
fuel procurement or sales, purchases or exchanges related to physical or
financial capacity,
46
energy and emissions credits related to the Facilities, so long as such
activities are not for speculative purposes.
SECTION 4.15 MAINTENANCE OF EXISTENCE
The Company shall, and shall cause each of the Subsidiary
Guarantors to, at all times (i) maintain their respective existence in good
standing under the laws of their respective jurisdictions of organization and
(ii) maintain and renew all of their respective rights, powers, privileges and
franchises except where the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.16 PAYMENTS FOR CONSENT
The Company shall not, and shall not permit any of the
Subsidiary Guarantors to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Bonds for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Bonds unless such consideration
is offered to be paid or is paid to all Holders of the Bonds that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
SECTION 4.17 COMPLIANCE WITH LAWS
The Company shall, and shall cause each of the Subsidiary
Guarantors to, comply with all applicable laws, acts, rules, regulations,
permits, orders and requirements of any legislative, executive, administrative
or judicial body relating to the Company and the Subsidiary Guarantors, except
where (i) the failure to do so could not reasonably be expected to have a
Material Adverse Effect or (ii) the Company is disputing in good faith any such
law, act, rule, regulation, permit, order or requirement and (A) the Company has
established or accrued adequate cash reserves in accordance with GAAP or
provided other appropriate assurances against any liabilities arising from such
dispute and (B) the Company's action to dispute such law, act, rule, regulation,
permit, order or requirement could not reasonably be expected to have a Material
Adverse Effect.
SECTION 4.18 GOVERNMENT APPROVALS
The Company shall, and shall cause each of the Subsidiary
Guarantors to, obtain and maintain in full force and effect all governmental
approvals required under applicable laws to be obtained by or on behalf of the
Company and the Subsidiary Guarantors to conduct their respective businesses
pursuant to and perform their obligations under the Financing Documents to which
each of them is a party, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.19 MAINTENANCE OF PROPERTY; INSURANCE
47
The Company shall cause EME Homer City to (i) keep and
maintain all property useful and necessary in its business in good working order
and condition consistent with Prudent Industry Practice and (ii) maintain good
and valid title to its properties and assets (subject to no Liens other than
Permitted Liens), except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
The Company shall cause EME Homer City to maintain with
financially sound and reputable insurance companies, insurance for such amounts
against such risks, loss, damage and liability as are customarily insured
against by other enterprises of like size and type as that of the Facilities,
subject to the availability of such coverage on commercially reasonable terms,
all on terms and conditions which are in accordance with Prudent Industry
Practice.
SECTION 4.20 BOND DEBT SERVICE RESERVE ACCOUNT
The Company shall establish and, so long as any Bonds remain
outstanding, maintain with the Collateral Agent the Bond Debt Service Reserve
Account for application pursuant to the Security Deposit Agreement. On the
Closing Date and on any date on which a Restricted Payment is made pursuant to
Section 4.7, the required balance of the Bond Debt Service Reserve Account (the
"BOND DEBT SERVICE RESERVE REQUIREMENT") on such date of determination will be
100% of the projected debt service on the Bonds for the succeeding six-month
period, and may be satisfied by one or a combination of the following: (i) cash;
(ii) a letter of credit issued by a bank or trust company that constitutes
Acceptable Credit Support; or (iii) a guarantee of the Company's obligations
with respect to the Bond Debt Service Reserve Requirement for the Bonds, in the
form set forth as Exhibit D hereto, made by EME in favor of the Collateral Agent
for the benefit of the Holders (so long as such guarantee constitutes Acceptable
Credit Support).
SECTION 4.21 PERFECTION OF SECURITY INTERESTS
The Company shall, and shall cause each of the Subsidiary
Guarantors to, preserve the security interests granted under the Security
Documents and undertake all actions which are necessary or appropriate in the
reasonable judgment of the Trustee to (a) maintain the security interest of the
Collateral Agent in the Collateral in full force and effect at all times
(including the priority thereof), and (b) preserve and protect the Collateral
and protect and enforce the Company's rights and title and the rights of the
Collateral Agent to the Collateral, including, without limitation, the making or
delivery of all filings and recordations, the payments of fees and other charges
and the issuance of supplemental documentation for such purposes.
ARTICLE 5.
SUCCESSORS
48
SECTION 5.1 LIMITATION ON MERGER, CONSOLIDATION AND SALE OF
SUBSTANTIALLY ALL ASSETS
(a) The Company shall not, directly or indirectly, consolidate or
merge with or into any other person (whether or not the Company is the surviving
corporation), or sell, assign, convey, lease, transfer or otherwise dispose of,
all or substantially all of its properties or assets in one or a series of
transactions, to any Person or Persons, except that the Company may consolidate
with or merge into any other Person so long as (i) the Company is the surviving
corporation and (ii) both immediately before and after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing. Notwithstanding the foregoing, the Company may merge or consolidate
with or transfer substantially all of its assets to an Affiliate that has no
significant assets or liabilities and was formed solely for the purpose of
changing the jurisdiction of organization of the Company or the form of
organization of the Company; PROVIDED that the amount of Indebtedness of the
Company and the Subsidiary Guarantors is not increased thereby; and PROVIDED,
FURTHER that the successor assumes all obligations of the Company under the
Indenture and the Registration Rights Agreement.
(b) The Company shall not permit any of the Subsidiary Guarantors to,
directly or indirectly, consolidate or merge with or into any other Person
(whether or not or such Subsidiary Guarantor is the surviving corporation), or
sell, assign, convey, lease, transfer or otherwise dispose of, all or
substantially all of its properties or assets in one or a series of
transactions, to any Person or Persons, other than a merger with or into the
Company or, in the case of any wholly-owned Subsidiary, a merger with or into
any other wholly-owned Subsidiary, a merger of any other wholly-owned Subsidiary
into such wholly-owned Subsidiary or a transfer or disposition of substantially
all of its properties or assets to the Company or any other wholly-owned
Subsidiary.
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1(a) hereof, the
successor corporation formed by such consolidation or into or with which the
Company is merged or to which such sale, assignment, transfer, lease, conveyance
or other disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, conveyance or other
disposition, the provisions of this Indenture referring to the "COMPANY" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein;
PROVIDED, HOWEVER, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Bonds except in the case
of a sale, assignment, transfer, conveyance or other disposition of all or
substantially all of the properties or assets of the Company on a combined basis
that meets the requirements of Section 5.1(a) hereof.
49
ARTICLE 6.
EVENTS OF DEFAULT
SECTION 6.1 EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default
hereunder:
(a) default for 15 days in the payment when due of any
principal of, premium, if any, or interest on the Bonds;
(b) failure by the Company or any of the Subsidiary
Guarantors to comply with the provisions described above under Sections
4.7, 4.9, 4.10, 4.11, 4.13, 4.14, 4.15, or 5.1, and such failure shall
continue uncured for 30 or more days from the date an authorized
officer of the Company receives actual notice thereof;
(c) failure by the Company or any of the Subsidiary
Guarantors to comply with any of its other agreements in the Indenture,
the Bonds or the Security Documents and such failure shall continue
uncured for 60 or more days from the date an authorized officer of the
Company receives actual notice thereof (or to the extent such Default
is curable but cannot be cured within such 60 day period, so long as
the Company provides an Officer's Certificate to the Trustee stating
that it is diligently pursuing a cure, such longer period of time which
may be necessary in good faith to cure the same, but in no event to
exceed 90 days);
(d) the occurrence of a Change of Control;
(e) any portion of the security interests granted under the
Security Documents ceasing to be a senior security interest in full
force and effect, which cessation has a Material Adverse Effect;
PROVIDED that the Company shall have 10 days to cure any such
cessation;
(f) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
the Subsidiary Guarantors (or the payment of which is guaranteed by the
Company or any of the Subsidiary Guarantors) whether such Indebtedness
or guarantee now exists, or is created after the Closing Date, which
default results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness the maturity of which has been so accelerated, aggregates
without duplication $15 million or more;
(g) failure by the Company or any of the Subsidiary
Guarantors to pay final, non-appealable judgments aggregating in excess
of $15 million (excluding amounts
50
covered by insurance), which judgments are not paid, discharged or
stayed for a period of 90 days; (h)ab the Company or any of the
Subsidiary Guarantors pursuant to or within the meaning of Bankruptcy
Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a custodian of
it or for all or substantially all of its property,
(iv) make a general assignment for the benefit of
its creditors, or
(v) generally is not paying its debts as they
become due; or
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of the
Subsidiary Guarantors in an involuntary case;
(ii) appoints a custodian of the Company or any of the
Subsidiary Guarantors or for all or substantially all of the property
of the Company or any of the Subsidiary Guarantors; or
(iii) orders the liquidation of the Company or any of the
Subsidiary Guarantors; and, in which case, the order or decree remains
unstayed and in effect for 60 consecutive days.
SECTION 6.2 ACCELERATION
If any Event of Default (other than an Event of Default
specified in clause (h) or (i) of Section 6.1 hereof with respect to the Company
or any Subsidiary Guarantor) occurs and is continuing, the Trustee may, and upon
written direction of the Holders of at least 33-1/3% (in the case of any Event
of Default specified in clause (a) of Section 6.1 hereof) or 50% (in the case of
any other Event of Default) in principal amount of the then outstanding Bonds
shall, declare, by written notice to the Company, all the Bonds to be due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (h) or (i) of Section 6.1 hereof occurs with respect to the
Company or any Subsidiary Guarantor, all outstanding Bonds shall be due and
payable without further action or notice. Holders of the Bonds may not enforce
this Indenture or the Bonds except as provided in this Indenture. The Trustee
may withhold from
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Holders of the Bonds notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the then outstanding
Bonds by notice to the Trustee may on behalf of the Holders of all of the Bonds
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
The Holders of a majority (or, with respect to the Event of
Default specified in clause (d) of Section 6.1 hereof, 66-2/3%) in aggregate
principal amount of the Bonds then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Bonds waive any existing Default or Event of
Default and its consequences under this Indenture except (i) a continuing
Default or Event of Default in the payment of principal of, premium, if any, or
interest on, the Bonds (including in connection with an offer to purchase) and
(ii) an Event of Default specified in clause (h) or (i) of Section 6.1 hereof.
SECTION 6.3 OTHER REMEDIES
Subject to the Intercreditor Agreement, if an Event of Default
occurs and is continuing, the Trustee, in its sole discretion, may pursue any
available remedy to collect the payment of principal, premium, if any, or
interest on the Bonds or to enforce the performance of any provision of the
Bonds or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Bonds or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Bond in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.4 WAIVER OF PAST DEFAULTS
Upon any waiver of any existing Default or Event of Default
pursuant to the second paragraph of Section 6.2, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
SECTION 6.5 CONTROL BY MAJORITY
Holders of a majority in principal amount of the then
outstanding Bonds may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Bonds or
that may involve
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the Trustee in personal liability. The Trustee may take any other action
consistent with this Indenture relating to any such direction.
SECTION 6.6 LIMITATION ON SUITS
A Holder of a Bond may pursue a remedy with respect to this Indenture
or the Bonds only if:
(a) the Holder of a Bond gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of a majority in principal amount of the then
outstanding Bonds make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Bond or Holders of Bonds offer and, if requested,
provide to the Trustee security and indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
security and indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Bonds do not give the Trustee a direction
inconsistent with the request.
A Holder of a Bond may not use this Indenture to prejudice the rights
of another Holder of a Bond or to obtain a preference or priority over another
Holder of a Bond.
SECTION 6.7 RIGHTS OF HOLDERS OF BONDS TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Bond, which is absolute and unconditional, to receive
payment of principal, premium, if any, and interest on the Bond, on or after the
respective due dates expressed in the Bond (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, or the obligation of the Company, which is also
absolute and unconditional, to pay the principal of, premium, if any, and
interest on the Bond to such Holder at the time and place set forth in the Bond,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.1(a) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Bonds and
interest on overdue principal and, to the extent lawful,
53
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, fees, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
fees, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Bonds allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Bonds), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the compensation, fees, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under or in connection with this Indenture. To the
extent that the payment of any such compensation, fees, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under or in connection with this Indenture out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be
secured by a perfected, first priority Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties that
the Holders may be entitled to receive in such proceeding whether in liquidation
or under any plan of reorganization or arrangement or otherwise, and such Lien
in favor of a predecessor Trustee shall be senior to the Lien in favor of the
current Trustee. 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
Bonds or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
FIRST: to the Trustee (including any predecessor Trustee), its agents
and attorneys for amounts due under Section 7.7 hereof, including payment of all
compensation, fees, expenses and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;
SECOND: to Holders of Bonds for amounts due and unpaid on the Bonds for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Bonds for
principal, premium, if any, and interest, respectively; and
54
THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Bonds pursuant to this Section 6.10.
SECTION 6.11 FOR COSTS
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Bond pursuant to Section 6.7 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Bonds.
ARTICLE 7.
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
55
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c), (e) and (f) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request or direction of any Holders, unless such Holder shall have offered
and, if requested, provided to the Trustee security and indemnity satisfactory
to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
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(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture. (e)ab Unless otherwise specifically
provided in this Indenture, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered and, if requested,
provided to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) No permissive right of the Trustee to act hereunder shall be
construed as a duty.
(h) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate, an Opinion of Counsel, or both.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become
the owner or pledgee of Bonds and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
SECTION 7.4 TRUSTEES DISCLAIMER
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Bonds or
the Registration Rights Agreement; it shall not be accountable for the Company's
use of the proceeds from the Bonds or any money paid to the Company or upon the
Company's direction under any provision of this Indenture; it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or any statement in the Bonds or any other document in connection
with the sale of the Bonds or pursuant to this Indenture other than its
certificate of authentication.
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SECTION 7.5 NOTICE OF DEFAULTS
If a Default or an Event of Default occurs and is continuing
and if the Trustee receives written notice thereof, the Trustee shall (at the
expense of the Company) mail to Holders of Bonds a notice of the Default or
Event of Default within 90 days after it occurs. Except in the case of a Default
or an Event of Default in payment of principal of, premium, if any, or interest
on any Bond, the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice
is in the interests of the Holders of the Bonds.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE BONDS
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Bonds remain
outstanding, the Trustee shall (at the expense of the Company) mail to the
Holders of the Bonds a brief report dated as of such reporting date that
complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA ss. 313(b). The Trustee
shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the
Holders of Bonds shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Bonds are listed in accordance with TIA ss.
313(d). The Company shall promptly notify the Trustee when the Bonds are listed
on any stock exchange.
SECTION 7.7 COMPENSATION AND INDEMNITY
The Company agrees to pay to the Trustee from time to time
compensation as agreed upon by the Trustee and the Company, and, in the absence
of any such agreement, reasonable compensation for its acceptance of this
Indenture and services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such expenses shall include the compensation, disbursements and
reasonable expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.7) and defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or liability in
connection with, relating to, or arising out of (i) the exercise or performance
of any of its powers or duties hereunder, or in connection herewith, and (ii)
the validity, invalidity, adequacy or inadequacy of this Indenture, the Bonds or
the Registration Rights Agreement, except to the extent any such
58
loss, liability or expense may be attributable to its negligence or bad faith.
The Trustee shall notify the Company promptly of any claim for which it intends
to seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company to the Trustee under this
Indenture shall survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Bonds on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Bonds. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(h) or (i) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss.
313(b)(2) to the extent applicable.
SECTION 7.8 REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Bonds of a majority in principal amount of the then outstanding Bonds
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may by a Board Resolution remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting as trustee hereunder.
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If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Bonds may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Bonds of at least 10% in principal amount of the then
outstanding Bonds may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after receiving a written request by any
Holder of a Bond who has been a BONA FIDE Holder of a Bond for at least six
months, fails to comply with Section 7.10, such Holder of a Bond may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Bonds. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, PROVIDED all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.7 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company's obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC
If the Trustee or any Agent consolidates, merges or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be
the successor Trustee or Agent, as the case may be.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that together with its direct parent, if any,
or in the case of a corporation included in a bank holding company system, its
related bank holding company, has a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
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SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
SECTION 7.12 OTHER CAPACITIES
All references in this Indenture to the Trustee shall be
deemed to refer to the Trustee in its capacity as Trustee and in its capacities
as any Agent, to the extent acting in such capacities, and every provision of
this Indenture relating to the conduct or affecting the liability or offering
protection, immunity or indemnity to the Trustee shall be deemed to apply with
the same force and effect to the Trustee acting in its capacities as any Agent.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANTDEFEASANCE
The Company may, at its option and at any time, elect to have
either Section 8.2 or 8.3 hereof be applied to all outstanding Bonds upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Bonds
on the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Bonds, which shall thereafter be deemed to be "OUTSTANDING" only for
the purposes of Section 8.5 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Bonds and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Bonds to receive solely from the trust fund described in Section 8.4
hereof, and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Bonds when such payments are
due, (b) the Company's obligations with respect to such Bonds under Article 2
and Section 4.2 hereof, (c) the rights, powers, trusts, duties and immunities of
the Trustee and any Agent hereunder and the Company's obligations in connection
therewith, including, without limitation, Article 7 and
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Section 8.5 and 8.7 hereunder, and (d) this Article 8. Subject to compliance
with this Article 8, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3 hereof.
SECTION 8.3 COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company and each Subsidiary Guarantor
shall, subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be released from its obligations under the covenants contained in
Sections 4.3 (except for the second to last paragraph thereto), 4.4, 4.5, 4.7,
4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.17, 4.18, 4.19, 4.20, 4.21 and 5.1
hereof with respect to the outstanding Bonds on and after the date the
conditions set forth in Section 8.4 are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Bonds shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "OUTSTANDING" for all other purposes hereunder (it being
understood that such Bonds shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Bonds, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.1
hereof, but, except as specified above, the remainder of this Indenture and such
Bonds shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.1 hereof of the option applicable to this Section 8.3 hereof,
subject to the satisfaction of the conditions set forth in Section 8.4 hereof,
Sections 6.1(d) through 6.1(g) hereof shall not constitute Events of Default.
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of
either Section 8.2 or 8.3 hereof to the outstanding Bonds:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Bonds, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest on the outstanding Bonds on the stated maturity or on the applicable
redemption date, as the case may be, and the Company must specify whether the
Bonds are being defeased to maturity or to a particular redemption date;
62
(b) in the case of an election under Section 8.2 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Bonds will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that, subject to customary
assumptions and exclusions, the Holders of the outstanding Bonds will not
recognize income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or an Event of
Default resulting from the borrowing of funds to be applied to such deposit) or
insofar as Sections 6.1(h) or 6.1(i) hereof are concerned, at any time in the
period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture or any other Financing Document) to
which the Company or any of the Subsidiary Guarantors is a party or by which the
Company or any of the Subsidiary Guarantors is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (subject to customary qualifications and assumptions)
after the 91st day following the deposit, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of Bonds over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and
(h) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that, subject to customary
assumptions and exclusions, all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.
63
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.6 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.5, the "TRUSTEE") pursuant to Section 8.4 hereof in respect of the outstanding
Bonds shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Bonds and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent), to the
Holders of such Bonds of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.
The Company agrees to pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.4 hereof or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Bonds.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(a) hereof), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
SECTION 8.6 REPAYMENT TO COMPANY
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company in trust for the payment of the principal of, premium,
if any, or interest on any Bond and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Bond shall thereafter, as a
secured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
64
SECTION 8.7 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United
States dollars or noncallable Government Securities in accordance with Section
8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Bonds shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted by such court or governmental authority to apply all such money in
accordance with Section 8.2 or 8.3 hereof, as the case may be; PROVIDED,
HOWEVER, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Bond following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Bonds to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF BONDS
Notwithstanding Section 9.2 of this Indenture, subject to the
Intercreditor Agreement, the Company and the Trustee may amend or supplement
this Indenture, the Bonds or any Financing Document without the consent of any
Holder of a Bond:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for uncertificated Bonds in addition to or in place of
certificated Bonds or to alter the provisions of Article 2 hereof (including the
related definitions) in a manner that does not adversely affect any Holder;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Bonds by a successor to the Company pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Bonds or that does not adversely affect the legal
rights hereunder of any Holder of the Bonds; or
(e) to make any newly created or acquired Subsidiary of the Company a
party to the Security Documents to comply with clause (i) of Section 4.8;
(f) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture or any Security Document under
the TIA.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by
65
the Trustee of the documents described in Section 7.2 hereof, the Trustee shall
join with the Company in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture
or otherwise.
SECTION 9.2 WITH CONSENT OF HOLDERS OF BONDS
Except as provided below in this Section 9.2, subject to the
Intercreditor Agreement, the Company and the Trustee may amend or supplement
this Indenture and the Bonds may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Bonds then
outstanding voting as a single class (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, the Bonds), and, subject to Sections 6.4 and 6.7 hereof, any existing
Default or Event of Default (other than a Default or an Event of Default in the
payment of the principal of, premium, if any, or interest on the Bonds, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture or the Bonds may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Bonds voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Bonds). Section 2.8 hereof shall determine which Bonds are considered to be
"outstanding" for purposes of this Section 9.2.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Bonds as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.2 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Bonds under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Bonds affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.4 and 6.7 hereof, the
Holders of a majority in aggregate principal amount of the Bonds then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Bonds.
However, without the consent of each Holder affected, an amendment or
66
waiver under this Section 9.2 may not (with respect to any Bonds held by a
non-consenting Holder):
(a) reduce the principal amount of Bonds whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Bond
or alter or waive any of the provisions with respect to the redemption of the
Bonds;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Bond;
(d) waive a Default or an Event of Default in the payment of
principal of, premium, if any, or interest on the Bonds (except a rescission of
acceleration of the Bonds by the Holders of at least 66-2/3% in aggregate
principal amount of the then outstanding Bonds and a waiver of the payment
Default that resulted from such acceleration);
(e) make any Bond payable in money other than that stated in the
Bonds;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Bonds to receive payments
of principal of, premium, if any, or interest on the Bonds;
(g) waive a redemption payment with respect to any Bond; or
(h) make any change in the foregoing amendment and waiver provisions.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Bonds
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Bond is a continuing consent by the Holder of a
Bond and every subsequent Holder of a Bond or portion of a Bond that evidences
the same debt as the consenting Holder's Bond, even if notation of the consent
is not made on any Bond. However, any such Holder of a Bond or subsequent Holder
of a Bond may revoke the consent as to its Bond if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
67
SECTION 9.5 NOTATION ON OR EXCHANGE OF BONDS
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Bond thereafter authenticated. The
Company in exchange for all Bonds may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Bonds that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Bond
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.1 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Section 10.4 hereof, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.1 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA ss. 318(c), the imposed duties shall
control.
SECTION 10.2 NOTICES
Any notice or communication by the Company, the Subsidiary
Guarantors or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others' address
If to the Company and/or any Subsidiary Guarantor:
Edison Mission Holdings Co.
18101 Von Karman Avenue
Suite 1700
Irvine, CA 92612-1046
68
Attention: Treasurer
Facsimile: 949-752-5624
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Harold F. Moore, Esq.
Facsimile: 212-735-2000
If to the Trustee:
United States Trust Company of New York
114 West 47th Street
25th Floor
New York, New York 10036
Attention: Corporate Trust Division
Facsimile: 212-852-1625
The Company, the Subsidiary Guarantors or the Trustee, by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA ss. 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it, except for notices or communications to the Trustee, which shall be
effective only upon actual receipt thereof.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
69
SECTION 10.3 COMMUNICATION BY HOLDERS OF BONDS WITH OTHERHOLDERS OF BONDS
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Bonds. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
SECTION 10.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee, if so requested by the Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.5 hereof) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.5 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 10.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
70
SECTION 10.6 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 10.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND SHAREHOLDERS
No director, officer, employee, incorporator, shareholder or
Affiliate (other than the Subsidiary Guarantors and EME under the Financing
Documents) of the Company, as such, shall have any liability for any obligations
of the Company under the Bonds, this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Bonds by accepting a Bond waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Bonds. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the Commission that such a waiver is against public policy.
SECTION 10.8 GOVERNING LAW
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE BONDS.
SECTION 10.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 10.10 SUCCESSORS
All agreements of the Company in this Indenture and the Bonds
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 10.11 SEVERABILITY
In case any provision in this Indenture or in the Bonds 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 10.12 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
71
SECTION 10.13 TABLE OF CONTENTS, HEADINGS, ETC
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
72
SIGNATURES
Dated as of May 27,1999
EDISON MISSION HOLDINGS CO.
By: /s/ Steven D. Eisenberg
-----------------------------
Name: Steven D. Eisenberg
Title: Vice President
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ Christopher J. Grell
------------------------------
Name: Christopher J. Grell
Title: Assistant Vice President
EXHIBIT A-1
(FACE OF BOND)
[INSERT THE GLOBAL BOND LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE] [INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE
PURSUANT TO THE PROVISIONS OF THE INDENTURE]
CUSIP/CINS ___________
[8.137] [8.734]% SENIOR SECURED BOND DUE [2019] [2026]
No.______ $__________
EDISON MISSION HOLDINGS CO.
promises to pay to__________________________________________________________
or registered assigns,
the principal sum of____________________________________________________________
Dollars in a series of installments as specified below with a final payment date
of _________________.
Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
EDISON MISSION HOLDINGS CO.
BY:________________________
Name:
Title:
BY:________________________
Name:
Title:
This is one of the Global
Bonds referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: _______________________ Dated: May 27 , 1999
Name:
Title:
A-1-1
A-1-2
(BACK OF BOND)
[8.137] [8734]% Senior Secured Bond due [2019] [2026]
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Edison Mission Holdings Co. (the "COMPANY"), a
California corporation, promises to pay interest on the principal amount of this
Bond at [8.137] [8.734]% per annum from May 27, 1999 until maturity, as adjusted
pursuant to Section 4 of the Registration Rights Agreement referred to below.
The Company shall pay interest semi-annually on April 1 and October 1 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each a "PAYMENT DATE"). Interest on the Bonds will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; PROVIDED that if there is no existing Default in the
payment of interest, and if this Bond is authenticated between a record date
referred to on the face hereof and the next succeeding Payment Date, interest
shall accrue from such next succeeding Payment Date; PROVIDED, FURTHER, that the
first Payment Date shall be October 1, 1999. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. PRINCIPAL. The principal of this Bond shall be due and
payable in consecutive semiannual installments on each Payment Date, commencing
on April 1, 2004, and ending on the Payment Date for the final installment of
principal set forth above, and each such installment of principal shall be in
the amount, if any, set forth in Schedule 1 attached hereto in the column headed
"Scheduled Principal Amount Payable" with respect to the date of such
installment, PROVIDED that the final installment of principal shall be equal to
the then unpaid principal balance of the Bond.
3. METHOD OF PAYMENT. The Company will pay interest or
principal due on the Bonds (except defaulted interest) to the Persons who are
registered Holders of Bonds at the close of business on the March 15 or
September 15 next preceding the Payment Date, even if such Bonds are canceled
after such record date and on or before such Payment Date, except as provided in
Section 2.12 of the Indenture (as herein defined) with respect to defaulted
interest. The Bonds will be payable as to principal, premium, if any, and
interest at the office or agency of the Company maintained for such purpose
within the City and State of New York, or, at the option of the Company, payment
of interest may be made by check mailed to the Holders at their addresses set
forth in the register of Holders, and provided that all payments of principal,
premium, if any, and interest with respect to Bonds the Holders of which have
given wire transfer instructions to the Company at least ten business days prior
to the applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
4. PAYING AGENT AND REGISTRAR. Initially, United States Trust
Company of New York, the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
A-1-3
5. INDENTURE. The Company issued the Bonds under an Indenture
dated as of May 27, 1999, as amended or supplemented from time to time
("INDENTURE"), between the Company and the Trustee. The terms of the Bonds
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb). The Bonds are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. To the extent any
provision of this Bond conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Series [A]
[B] Bonds are obligations of the Company limited to [$___] million in aggregate
principal amount.
6. OPTIONAL REDEMPTION. The Bonds shall be subject to optional
redemption at any time at a Redemption Price equal to the outstanding principal
amount of the Bonds to be redeemed plus all accrued and unpaid interest thereon
to the Redemption Date, plus the Yield Maintenance Premium, if any.
7. MANDATORY REDEMPTION. The Bonds will be subject to
mandatory redemption, ratably with all other Senior Debt in existence at such
time, upon the occurrence of a Recovery Event with respect to the Facilities,
other than with respect to amounts received by the Company and the Subsidiary
Guarantors in connection with a Recovery Event for which the Company elects to
restore or replace the asset or assets in respect of which such Recovery Event
occurred and a Reinvestment Notice is provided to the Collateral Agent and the
Trustee within 45 days of such Recovery Event (provided that, with respect to
any Recovery Event of $50 million or more, the Independent Engineer shall have
certified as to the reasonableness of the Company's repair and replacement plans
as set forth in the Company's Reinvestment Notice relating to such Recovery
Event). Any mandatory redemption of the Bonds will be without premium or penalty
at a Redemption Price equal to the unpaid principal amount thereof plus accrued
and unpaid interest thereon to the Redemption Date.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Bonds are to be redeemed at its registered address. Bonds in
denominations larger than $100,000 may be redeemed in part but only in whole
multiples of $1,000 in excess thereof, unless all of the Bonds held by a Holder
are to be redeemed. On and after the redemption date, interest ceases to accrue
on Bonds or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Bonds are in
registered form without coupons in denominations of $100,000 and integral
multiples of $1,000 in excess thereof. The transfer of Bonds may be registered
and Bonds may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Bond or portion of a Bond
selected for redemption, except for the unredeemed portion of any Bond being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Bonds for a period of 15 days before a selection of Bonds to be redeemed
or during the period between a record date and the next succeeding Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Bond may
be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Bonds may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Bonds voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Bonds may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Bonds voting as a single class. Without the consent of any Holder
A-1-4
of a Bond, the Indenture, the Bonds or any Financing Document may be amended or
supplemented to cure any ambiguity, omission, defect or inconsistency, to
provide for uncertificated Bonds in addition to or in place of certificated
Bonds or to alter the provisions of Article 2 of the Indenture (including the
related definitions) in a manner that does not affect any Holder, to provide for
the assumption of the Company's obligations to Holders of the Bonds in case of a
merger or consolidation, to make any change that would provide any additional
rights or benefits to the Holders of the Bonds or that does not adversely affect
the legal rights under the Indenture of any such Holder, to make any newly
created or acquired Subsidiary of the Company a party to the Security Documents
to comply with clause (i) of Section 4.8, or to comply with the requirements of
the Commission in order to effect or maintain the qualification of the Indenture
or any Security Document under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. An "Event of Default" occurs if
there is the occurrence of any of the following: (i) default for 15 days in the
payment when due of any principal of, premium, if any, or interest on the Bonds,
(ii) failure by the Company or any of the Subsidiary Guarantors to comply with
the provisions described under Sections 4.7, 4.9, 4.10, 4.11, 4.13, 4.14, 4.15,
or 5.1 of the Indenture, and such failure shall continue uncured for 30 or more
days from the date an authorized officer of the Company receives actual notice
thereof, (iii) failure by the Company or any of the Subsidiary Guarantors to
comply with any of its other agreements in the Indenture, the Bonds or the
Security Documents and such failure shall continue uncured for 60 or more days
from the date an authorized officer of the Company receives actual notice
thereof (or to the extent such Default is curable but cannot be cured within
such 60 day period, so long as the Company provides an Officer's Certificate to
the Trustee stating that it is diligently pursuing a cure, such longer period of
time which may be necessary in good faith to cure the same, but in no event to
exceed 90 days), (iv) the occurrence of a Change of Control, (v) any portion of
the security interests granted under the Security Documents ceasing to be a
senior security interest in full force and effect, which cessation has a
Material Adverse Effect; PROVIDED that the Company shall have 10 days to cure
any such cessation, (vi) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of the Subsidiary
Guarantors (or the payment of which is guaranteed by the Company or any of the
Subsidiary Guarantors) whether such Indebtedness or guarantee now exists, or is
created after the Closing Date, which default results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness the maturity of which has been so accelerated, aggregates
without duplication $15 million or more, (vii) failure by the Company or any of
the Subsidiary Guarantors to pay final, non-appealable judgments aggregating in
excess of $15 million (excluding amounts covered by insurance), which judgments
are not paid, discharged or stayed for a period of 90 days; and (viii) certain
events of bankruptcy or insolvency with respect to the Company or any of the
Subsidiary Guarantors. If any Event of Default occurs and is continuing, the
Trustee may, and upon the written direction of the Holders of at least 33-1/3%
(in the case of any Event of Default specified in clause (i) above) or 50% (in
the case of any other Event of Default) in principal amount of the then
outstanding Bonds shall, declare all the Bonds to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Company or any
Subsidiary Guarantor, all outstanding Bonds shall be due and payable without
further action or notice. Holders may not enforce the Indenture or the Bonds
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Bonds may in writing
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Bonds notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority (or, with respect to an Event of Default
specified in clause (iv) above, 66-2/3) in aggregate principal amount of the
Bonds then outstanding by written notice to the Trustee may on behalf of the
Holders
A-1-5
of all of the Bonds waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest on, or the principal of, the Bonds.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator, shareholder or Affiliate (other than the Subsidiary
Guarantors and EME) of the Company, as such, shall have any liability for any
obligations of the Company under the Bonds, the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Bond waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Bonds. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
15. AUTHENTICATION. This Bond shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL BONDS
AND RESTRICTED DEFINITIVE BONDS. In addition to the rights provided to Holders
of Bonds under the Indenture, Holders of Restricted Global Bonds and Restricted
Definitive Bonds shall have all the rights set forth in the Exchange and
Registration Rights Agreement dated as of May 27, 1999, among the Company, the
Subsidiary Guarantors and Lehman Brothers Inc. (the "REGISTRATION RIGHTS
AGREEMENT").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Bonds and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Bonds or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. GUARANTEES AND SECURITY. This Bond will be entitled to the
benefits of certain guarantees made and certain security interests created for
the benefit of the Holders and holders of other senior indebtedness of the
Company. Reference is hereby made to the Security Documents for a statement of
the security interests granted therein and the respective rights, limitations of
rights, duties and obligations thereunder of the Subsidiary Guarantors.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Edison Mission Holdings Co.
18101 Von Karman Avenue
Suite 1700
Irvine, CA 92612-1046
Attention: Treasurer
A-1-6
Facsimile: 949-752-5624
20. COUNTERPARTS. This Bond may be executed by one or more of
the parties to this Bond on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
21. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THIS BOND.
A-1-7
SCHEDULE OF SCHEDULED PAYMENTS OF PRINCIPAL
[Attach the following table for Series A Bonds]
PRINCIPAL PAYMENT DATES PERCENTAGE OF ORIGINAL PRINCIPAL
AMOUNT PAYABLE ON EACH PRINCIPAL
PAYMENT DATE
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2004 1.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2005 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2006 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2007 2.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2008 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2009 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2010 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2011 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2012 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2013 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2014 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2015 4.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2016 4.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2017 5.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2018 5.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2019 3.500%
======================================================= ===========================================================
A-1-8
[Attach the following table for Series B Bonds]
PRINCIPAL PAYMENT DATES PERCENTAGE OF ORIGINAL PRINCIPAL
AMOUNT PAYABLE ON EACH PRINCIPAL
PAYMENT DATE
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2004 0.055%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2005 0.480%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2006 0.590%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2007 0.375%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2008 0.375%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2009 0.415%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2010 1.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2011 1.750%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2012 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2013 1.250%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2014 1.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2015 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2016 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2017 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2018 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2019 2.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2020 3.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2021 3.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2022 3.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2023 4.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2024 4.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2025 5.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2026 6.210%
======================================================= ===========================================================
A-1-9
ASSIGNMENT FORM
To assign this Bond, fill in the form below: (I) or (we) assign and transfer
this Bond to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Bond on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Date:_____________________
Your signature:___________________________________
(Sign exactly as your name appears on the face of
this Bond)
Tax Identification No.:___________________________
SIGNATURE GUARANTEE:
___________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A-1-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL BOND(1)
The following exchanges of a part of this Global Bond for an
interest in another Global Bond or for a Definitive Bond, or exchanges of a part
of another Global Bond or Definitive Bond for an interest in this Global Bond,
have been made:
Principal Amount
Amount of Amount of increase of this Global Bond Signature of
decrease in in Principal following such authorized officer
Principal Amount Amount of this decrease (or of Trustee or
Date of Exchange of this Global Bond Global Bond Increase) Custodian
- ---------------- ------------------- --------------- ------------- -------------
- --------
(1) THIS SHOULD BE INCLUDED ONLY IF THE BOND IS ISSUED IN GLOBAL FORM.
A-1-11
EXHIBIT A-2
(FACE OF REGULATION S TEMPORARY GLOBAL BOND)
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
BOND, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
BONDS, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL BOND SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
[INSERT THE GLOBAL BOND LEGEND, PURSUANT TO THE PROVISIONS OF THE INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
A-2-1
CUSIP/CINS ___________
[8.137] [8.734]% SENIOR SECURED BOND DUE [2019] [2026]
No.______ $__________
EDISON MISSION HOLDINGS CO.
promises to pay to__________________________________________________________
or registered assigns,
the principal sum of___________________________________________________
Dollars in a series of installments as specified below with a final payment date
of _____________________________________________________________________________
Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
EDISON MISSION HOLDINGS CO.
BY:________________________
Name:
Title:
BY:________________________
Name:
Title:
This is one of the Global
Bonds referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: _______________________ Dated: May 27, 1999
Name:
Title:
A-2-2
(BACK OF REGULATION S TEMPORARY GLOBAL BOND)
[8.137] [8.734]% Senior Secured Bond due [2019] [2026]
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Edison Mission Holdings Co. (the "COMPANY"), a
California corporation, promises to pay interest on the principal amount of this
Bond at [8.137] [8.734]% per annum from May 27, 1999 until maturity, as adjusted
pursuant to Section 4 of the Registration Rights Agreement referred to below.
The Company shall pay interest semi-annually on April 1 and October 1 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each a "PAYMENT DATE"). Interest on the Bonds will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; PROVIDED that if there is no existing default in the
payment of interest, and if this Bond is authenticated between a record date
referred to on the face hereof and the next succeeding Payment Date, interest
shall accrue from such next succeeding Payment Date; PROVIDED, FURTHER, that the
first Payment Date shall be October 1, 1999. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
Until this Regulation S Temporary Global Bond is exchanged for
one or more Regulation S Permanent Global Bonds, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Bond shall in all other respects be entitled
to the same benefits as other Bonds under the Indenture.
2. PRINCIPAL. The principal of this Bond shall be due and
payable in consecutive semiannual installments on each Payment Date, commencing
on April 1, 2004, and ending on the Payment Date for the final installment of
principal set forth above, and each such installment of principal shall be in
the amount, if any, set forth in Schedule 1 attached hereto in the column headed
"Scheduled Principal Amount Payable" with respect to the date of such
installment, PROVIDED that the final installment of principal shall be equal to
the then unpaid principal balance of the Bond.
3. METHOD OF PAYMENT. The Company will pay interest or
principal due on the Bonds (except defaulted interest) to the Persons who are
registered Holders of Bonds at the close of business on the March 15 or
September 15 next preceding the Payment Date, even if such Bonds are canceled
after such record date and on or before such Payment Date, except as provided in
Section 2.12 of the Indenture (as herein defined) with respect to defaulted
interest. The Bonds will be payable as to principal, premium, if any, and
interest at the office or agency of the Company maintained for such purpose
within the City and State of New York, or, at the option of the Company, payment
of interest may be made by check mailed to the Holders at their addresses set
forth in the register of Holders, and provided that all payments of principal,
premium, if any, and interest with respect to Bonds the Holders of which have
given wire transfer instructions to the Company at least ten business days prior
to the applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
A-2-3
4. PAYING AGENT AND REGISTRAR. Initially, United States Trust
Company of New York, the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
5. INDENTURE. The Company issued the Bonds under an Indenture
dated as of May 27, 1999, as amended or supplemented from time to time
("INDENTURE"), between the Company and the Trustee. The terms of the Bonds
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb). The Bonds are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. To the extent any
provision of this Bond conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Series [A]
[B] Bonds are obligations of the Company limited to [$___] million in aggregate
principal amount.
6. OPTIONAL REDEMPTION. The Bonds shall be subject to optional
redemption at any time at a Redemption Price equal to the outstanding principal
amount of the Bonds to be redeemed plus all accrued and unpaid interest thereon
to the Redemption Date, plus the Yield Maintenance Premium, if any.
7. MANDATORY REDEMPTION. The Bonds will be subject to
mandatory redemption, ratably with all other Senior Debt in existence at such
time, upon the occurrence of a Recovery Event with respect to the Facilities,
other than with respect to amounts received by the Company and the Subsidiary
Guarantors in connection with a Recovery Event for which the Company elects to
restore or replace the asset or assets in respect of which such Recovery Event
occurred and a Reinvestment Notice is provided to the Collateral Agent and the
Trustee within 45 days of such Recovery Event (provided that, with respect to
any Recovery Event of $50 million or more, the Independent Engineer shall have
certified as to the reasonableness of the Company's repair and replacement plans
as set forth in the Company's Reinvestment Notice relating to such Recovery
Event). Any mandatory redemption of the Bonds will be without premium or penalty
at a Redemption Price equal to the unpaid principal amount thereof plus accrued
and unpaid interest thereon to the Redemption Date.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Bonds are to be redeemed at its registered address. Bonds in
denominations larger than $100,000 may be redeemed in part but only in whole
multiples of $1,000 in excess thereof, unless all of the Bonds held by a Holder
are to be redeemed. On and after the redemption date, interest ceases to accrue
on Bonds or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Bonds are in
registered form without coupons in denominations of $100,000 and integral
multiples of $1,000 in excess thereof. The transfer of Bonds may be registered
and Bonds may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Bond or portion of a Bond
selected for redemption, except for the unredeemed portion of any Bond being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Bonds for a period of 15 days before a selection of Bonds to be redeemed
or during the period between a record date and the next succeeding Payment Date.
This Regulation S Temporary Global Bond is exchangeable in
whole or in part for one or more Global Bonds only (i) on or after the
termination of the 40-day restricted period (as defined in Regulation S) and
(ii) upon presentation of certificates (accompanied by an Opinion of Counsel, if
applicable)
A-2-4
required by Article 2 of the Indenture. Upon exchange of this Regulation S
Temporary Global Bond for one or more Global Bonds, the Trustee shall cancel
this Regulation S Temporary Global Bond.
10. PERSONS DEEMED OWNERS. The registered Holder of a Bond may
be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Bonds may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Bonds voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Bonds may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Bonds voting as a single class. Without the consent of any Holder of
a Bond, the Indenture, the Bonds or any Financing Document may be amended or
supplemented to cure any ambiguity, omission, defect or inconsistency, to
provide for uncertificated Bonds in addition to or in place of certificated
Bonds or to alter the provisions of Article 2 of the Indenture (including the
related definitions) in a manner that does not affect any Holder, to provide for
the assumption of the Company's obligations to Holders of the Bonds in case of a
merger or consolidation, to make any change that would provide any additional
rights or benefits to the Holders of the Bonds or that does not adversely affect
the legal rights under the Indenture of any such Holder, to make any newly
created or acquired Subsidiary of the Company a party to the Security Documents
to comply with clause (i) of Section 4.8, or to comply with the requirements of
the Commission in order to effect or maintain the qualification of the Indenture
or any Security Document under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. An "Event of Default" occurs if
there is the occurrence of any of the following: (i) default for 15 days in the
payment when due of any principal of, premium, if any, or interest on the Bonds,
(ii) failure by the Company or any of the Subsidiary Guarantors to comply with
the provisions described under Sections 4.7, 4.9, 4.10, 4.11, 4.13, 4.14, 4.15,
or 5.1 of the Indenture, and such failure shall continue uncured for 30 or more
days from the date an authorized officer of the Company receives actual notice
thereof, (iii) failure by the Company or any of the Subsidiary Guarantors to
comply with any of its other agreements in the Indenture, the Bonds or the
Security Documents and such failure shall continue uncured for 60 or more days
from the date an authorized officer of the Company receives actual notice
thereof (or to the extent such Default is curable but cannot be cured within
such 60 day period, so long as the Company provides an Officer's Certificate to
the Trustee stating that it is diligently pursuing a cure, such longer period of
time which may be necessary in good faith to cure the same, but in no event to
exceed 90 days), (iv) the occurrence of a Change of Control, (v) any portion of
the security interests granted under the Security Documents ceasing to be a
senior security interest in full force and effect, which cessation has a
Material Adverse Effect; PROVIDED that the Company shall have 10 days to cure
any such cessation, (vi) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of the Subsidiary
Guarantors (or the payment of which is guaranteed by the Company or any of the
Subsidiary Guarantors) whether such Indebtedness or guarantee now exists, or is
created after the Closing Date, which default results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness the maturity of which has been so accelerated, aggregates
without duplication $15 million or more, (vii) failure by the Company or any of
the Subsidiary Guarantors to pay final, non-appealable judgments aggregating in
excess of $15 million (excluding amounts covered by insurance), which judgments
are not paid, discharged or stayed for a period of 90 days; and (viii) certain
events of bankruptcy or insolvency with respect to the Company or any of the
Subsidiary Guarantors. If any Event of Default occurs and is continuing, the
Trustee may, and upon the written direction of the Holders of at least 33-1/3%
(in the case of any Event of Default specified in clause (i) above) or 50% (in
the case of any other Event of Default) in principal amount of the then
A-2-5
outstanding Bonds shall, declare all the Bonds to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Company or any
Subsidiary Guarantor, all outstanding Bonds shall be due and payable without
further action or notice. Holders may not enforce the Indenture or the Bonds
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Bonds may in writing
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Bonds notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority (or, with respect to an Event of Default
specified in clause (iv) above, 66-2/3) in aggregate principal amount of the
Bonds then outstanding by written notice to the Trustee may on behalf of the
Holders of all of the Bonds waive any existing Default or Event of Default and
its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Bonds.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or shareholder or Affiliate (other than the Subsidiary
Guarantors and EME) of the Company, as such, shall have any liability for any
obligations of the Company under the Bonds, the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Bond waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Bonds. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
15. AUTHENTICATION. This Bond shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL BONDS
AND RESTRICTED DEFINITIVE BONDS. In addition to the rights provided to Holders
of Bonds under the Indenture, Holders of Restricted Global Bonds and Restricted
Definitive Bonds shall have all the rights set forth in the Exchange and
Registration Rights Agreement dated as of May 27, 1999, among the Company, the
Subsidiary Guarantors and Lehman Brothers Inc. (the "REGISTRATION RIGHTS
AGREEMENT").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Bonds and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Bonds or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. GUARANTEES AND SECURITY. This Bond will be entitled to the
benefits of certain guarantees made and certain security interests created for
the benefit of the Holders and holders of other senior indebtedness of the
Company. Reference is hereby made to the Security Documents for a statement of
the security interests granted therein and the respective rights, limitations of
rights, duties and obligations thereunder of the Subsidiary Guarantors.
A-2-6
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Edison Mission Holdings Co.
18101 Von Karman Avenue
Suite 1700
Irvine, CA 92612-1046
Attention: Treasurer
Facsimile: 949-752-5624
20. COUNTERPARTS. This Bond may be executed by one or more of
the parties to this Bond on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
21. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THIS BOND.
A-2-7
SCHEDULE OF SCHEDULED PAYMENTS OF PRINCIPAL
[Attach the following table for Series A Bonds]
PRINCIPAL PAYMENT DATES PERCENTAGE OF ORIGINAL PRINCIPAL
AMOUNT PAYABLE ON EACH PRINCIPAL
PAYMENT DATE
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2004 1.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2005 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2006 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2007 2.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2008 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2009 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2010 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2011 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2012 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2013 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2014 3.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2015 4.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2016 4.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2017 5.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2018 5.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2019 3.500%
======================================================= ===========================================================
A-2-8
[Attach the following table for Series B Bonds]
PRINCIPAL PAYMENT DATES PERCENTAGE OF ORIGINAL PRINCIPAL
AMOUNT PAYABLE ON EACH PRINCIPAL
PAYMENT DATE
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2004 0.055%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2005 0.480%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2006 0.590%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2007 0.375%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2008 0.375%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2009 0.415%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2010 1.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2011 1.750%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2012 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2013 1.250%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2014 1.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2015 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2016 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2017 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2018 2.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2019 2.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2020 3.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2021 3.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2022 3.500%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2023 4.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2024 4.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2025 5.000%
- ------------------------------------------------------- -----------------------------------------------------------
April 1 and October 1, 2026 6.210%
======================================================= ===========================================================
A-2-9
ASSIGNMENT FORM
To assign this Bond, fill in the form below: (I) or (we) assign and transfer
this Bond to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Bond on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date:__________________
Your signature:___________________________________
(Sign exactly as your name appears on the face of
this Bond)
Tax Identification No.:___________________________
SIGNATURE GUARANTEE:
___________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A-2-10
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL BOND
The following exchanges of a part of this Regulation S
Temporary Global Bond for an interest in another Global Bond, or of other
Restricted Global Bonds for an interest in this Regulation S Temporary Global
Bond, have been made:
Principal Amount
Amount of Amount of increase of this Global Bond Signature of
decrease in in Principal following such authorized officer
Principal Amount Amount of this decrease (or of Trustee or
Date of Exchange of this Global Bond Global Bond Increase) Custodian
- ---------------- ------------------- --------------- ------------- -------------
A-2-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Edison Mission Holdings Co.
18101 Von Karman Avenue
Suite 1700
Irvine, CA 92612-1046
Attention: Treasurer
United States Trust Company of New York
114 West 47th Street
25th Floor
New York, New York 10036
Attention: Corporate Trust Division
Re: [8.137] [8.734]% SENIOR SECURED BONDS DUE [2019] [2026]
Reference is hereby made to the Indenture, dated as of May 27,
1999 (the "INDENTURE"), between Edison Mission Holdings Co. (the "COMPANY"), and
United States Trust Company of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
__________________ (the "TRANSFEROR") owns and proposes to
transfer the Bond[s] or interest in such Bond[s] specified in Annex A hereto, in
the principal amount of $____ in such Bond[s] or interests (the "TRANSFER"), to
______ (the "TRANSFEREE"), as further specified in Annex A hereto. In connection
with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL BOND OR A DEFINITIVE BOND PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "SECURITIES ACT"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Bond is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Bond for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Bond
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Bond and/or the Definitive Bond and
in the Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE TEMPORARY REGULATION S GLOBAL BOND, THE REGULATION S GLOBAL BOND OR A
DEFINITIVE BOND PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United
B-1
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Bond will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Bond, the Temporary Regulation S Global Bond and/or the Definitive Bond
and in the Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A DEFINITIVE
BOND PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Bonds and
Restricted Definitive Bonds and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) / /such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / /such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) / /such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) / /such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Bond or Restricted Definitive Bonds
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee and (2) if such Transfer is in
respect of a principal amount of Bonds at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Bond will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Definitive Bonds and in the Indenture and the Securities Act.
B-2
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL BOND OR OF AN UNRESTRICTED DEFINITIVE BOND.
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Bond will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Bonds and the Restricted Definitive Bonds and in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Bond will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Bonds and the Restricted Definitive Bonds and in the
Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION.
(i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than
Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Bond will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Bonds and the Restricted Definitive Bonds and in the Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
___________________________
[Insert Name of Transferor]
By:________________________
Name:
Title:
Dated:___________,_____
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / /144A Global Bond (CUSIP _____), or
(ii) / /Regulation S Global Bond (CUSIP _____), or
(b) a Restricted Definitive Bond.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / /144A Global Bond (CUSIP _____), or
(ii) / /Regulation S Global Bond (CUSIP _____), or
(iii) / /Unrestricted Global Bond (CUSIP _____); or
(b) / / a Restricted Definitive Bond; or
(c) / / an Unrestricted Definitive Bond,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Edison Mission Holdings Co.
18101 Von Karman Avenue
Suite 1700
Irvine, CA 92612-1046
Attention: Treasurer
United States Trust Company of New York
114 West 47th Street
25th Floor
New York, New York 10036
Attention: Corporate Trust Division
Re: [8.137] [8.734]% SENIOR SECURED BONDS DUE [2019] [2026]
Reference is hereby made to the Indenture, dated as of May 27,
1999 (the "INDENTURE"), between Edison Mission Holdings Co. (the "COMPANY") and
United States Trust Company of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
________________ (the "OWNER") owns and proposes to exchange
the Bond[s] or interest in such Bond[s] specified herein, in the principal
amount of $______ in such Bond[s] or interests (the "EXCHANGE"). In connection
with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE BONDS OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL BOND FOR UNRESTRICTED DEFINITIVE BONDS OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL BOND
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL BOND TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL BOND. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Bond for a beneficial interest in an Unrestricted Global Bond in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Bonds and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "SECURITIES ACT"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Bond is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL BOND TO UNRESTRICTED DEFINITIVE BOND. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Bond for an
Unrestricted Definitive Bond, the Owner hereby certifies (i) the Definitive Bond
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Bonds and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Bond is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
C-1
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE BOND
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL BOND. In connection with the
Owner's Exchange of a Restricted Definitive Bond for a beneficial interest in an
Unrestricted Global Bond, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Bonds and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE BOND
TO UNRESTRICTED DEFINITIVE BOND. In connection with the Owner's Exchange of a
Restricted Definitive Bond for an Unrestricted Definitive Bond, the Owner hereby
certifies (i) the Unrestricted Definitive Bond is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Bonds and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Bond is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE BONDS OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL BONDS FOR RESTRICTED DEFINITIVE BONDS OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL BONDS
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL BOND TO RESTRICTED DEFINITIVE BOND. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Bond for a
Restricted Definitive Bond with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Bond is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Bond
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Bond and in
the Indenture and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE BOND
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL BOND. In connection with the
Exchange of the Owner's Restricted Definitive Bond for a beneficial interest in
the [CHECK ONE] 144A Global Bond, Regulation S Global Bond with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Bonds and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Bond and in the
Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
_______________________
[Insert Name of Owner]
By:____________________
Name:
Title:
Dated:__________,______
C-3
EXHIBIT D
FORM OF BOND DEBT SERVICE RESERVE GUARANTEE
[TO COME--CONFORMED FROM CREDIT AGREEMENT GUARANTEE]
D-1
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310(a)(1)..................................................................7.10
(a)(2)................................................................7.10
(a)(3).................................................................N.A.
(a)(4).................................................................N.A.
(a)(5)................................................................7.10
(b)...................................................................7.10
(c)....................................................................N.A.
311(a).....................................................................7.11
(b)...................................................................7.11
(c)....................................................................N.A.
312(a)......................................................................2.5
(b)...................................................................10.3
(c)...................................................................10.3
313(a)......................................................................7.6
(b)(1).................................................................7.7
(b)(2).................................................................7.7
(c)....................................................................7.6
10.2
(d)....................................................................7.6
314(a)......................................................................4.3;
10.2
(b)....................................................................N.A.
(c)(1)................................................................10.4
(c)(2)................................................................10.4
(c)(3).................................................................N.A.
(e)...................................................................10.5
(f)....................................................................N.A.
315(a)......................................................................7.1
(b)....................................................................7.5
10.2
(c)....................................................................7.1
(d)....................................................................7.1
(e)...................................................................6.11
316(a)(last sentence).......................................................2.9
(a)(1)(A)..............................................................6.5
(a)(1)(B)..............................................................6.4
(a)(2).................................................................N.A.
(b)....................................................................6.7
(c)...................................................................2.12
317(a)(1)...................................................................6.8
(a)(2).................................................................6.9
(b)....................................................................2.4
318(a).....................................................................10.1
(b)....................................................................N.A.
(c)...................................................................10.1
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
EXECUTION COPY
- --------------------------------------------------------------------------------
EDISON MISSION HOLDINGS CO.
$300,000,000 8.137% SENIOR SECURED BONDS DUE 2019
$530,000,000 8.734% SENIOR SECURED BONDS DUE 2026
INDENTURE
Dated as of May 27, 1999
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
TABLE OF CONTENTS
Page
----
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS...................................................1
SECTION 1.2 OTHER DEFINITIONS............................................13
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT..................................................13
SECTION 1.4 RULES OF CONSTRUCTION........................................14
SECTION 1.5 ONE CLASS OF SECURITIES......................................14
ARTICLE 2.
THE BONDS
SECTION 2.1 FORM AND DATING..............................................15
SECTION 2.2 EXECUTION AND AUTHENTICATION.................................16
SECTION 2.3 REGISTRAR AND PAYING AGENT...................................17
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST..........................17
SECTION 2.5 HOLDER LISTS.................................................18
SECTION 2.6 TRANSFER AND EXCHANGE........................................18
SECTION 2.7 REPLACEMENT BONDS............................................32
SECTION 2.8 OUTSTANDING BONDS............................................32
SECTION 2.9 TREASURY BONDS...............................................32
SECTION 2.10 TEMPORARY BONDS..............................................33
SECTION 2.11 CANCELLATION.................................................33
SECTION 2.12 DEFAULTED INTEREST...........................................33
SECTION 2.13 CUSIP NUMBERS................................................34
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.1 NOTICES TO TRUSTEE...........................................35
SECTION 3.2 SELECTION OF BONDS TO BE REDEEMED............................35
SECTION 3.3 NOTICE OF REDEMPTION.........................................35
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION...............................36
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE..................................36
SECTION 3.6 BONDS REDEEMED IN PART.......................................37
SECTION 3.7 OPTIONAL REDEMPTION..........................................37
SECTION 3.8 MANDATORY REDEMPTION.........................................37
i
Page
----
ARTICLE 4.
COVENANTS
SECTION 4.1 PAYMENT OF BONDS.............................................38
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY..............................38
SECTION 4.3 INFORMATION REQUIREMENTS.....................................38
SECTION 4.4 COMPLIANCE CERTIFICATE.......................................40
SECTION 4.5 TAXES; MAINTENANCE OF BOOKS AND RECORDS......................40
SECTION 4.6 STAY, EXTENSION AND USURY LAWS...............................40
SECTION 4.7 LIMITATION ON RESTRICTED PAYMENTS............................40
SECTION 4.8 LIMITATION ON SUBSIDIARIES AND INVESTMENTS...................41
SECTION 4.9 LIMITATION ON INCURRENCE OF INDEBTEDNESS.....................42
SECTION 4.10 LIMITATION ON INCURRENCE OF SUBSIDIARY
GUARANTOR INDEBTEDNESS ..............................44
SECTION 4.11 LIMITATION OF SALE OF ASSETS ................................44
SECTION 4.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES...................44
SECTION 4.13 LIMITATION ON LIENS..........................................45
SECTION 4.14 LIMITATION ON BUSINESS ACTIVITIES............................45
SECTION 4.15 MAINTENANCE OF EXISTENCE.....................................46
SECTION 4.16 PAYMENTS FOR CONSENT.........................................46
SECTION 4.17 COMPLIANCE WITH LAWS.........................................46
SECTION 4.18 GOVERNMENT APPROVALS.........................................46
SECTION 4.19 MAINTENANCE OF PROPERTY; INSURANCE...........................46
SECTION 4.20 BOND DEBT SERVICE RESERVE ACCOUNT............................47
SECTION 4.21 PERFECTION OF SECURITY INTERESTS.............................47
ARTICLE 5.
SUCCESSORS
SECTION 5.1 LIMITATION ON MERGER, CONSOLIDATION AND SALE OF
SUBSTANTIALLY ALL ASSETS.............................47
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED............................48
ARTICLE 6.
EVENTS OF DEFAULT
SECTION 6.1 EVENTS OF DEFAULT............................................49
SECTION 6.2 ACCELERATION.................................................50
SECTION 6.3 OTHER REMEDIES...............................................51
SECTION 6.4 WAIVER OF PAST DEFAULTS......................................51
SECTION 6.5 CONTROL BY MAJORITY..........................................51
SECTION 6.6 LIMITATION ON SUITS..........................................52
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SECTION 6.7 RIGHTS OF HOLDERS OF BONDS TO RECEIVE
PAYMENT..............................................52
SECTION 6.8 COLLECTION SUIT BY TRUSTEE...................................52
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.............................53
SECTION 6.10 PRIORITIES...................................................53
SECTION 6.11 FOR COSTS....................................................54
ARTICLE 7.
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE............................................54
SECTION 7.2 RIGHTS OF TRUSTEE............................................55
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.................................56
SECTION 7.4 TRUSTEE'S DISCLAIMER.........................................56
SECTION 7.5 NOTICE OF DEFAULTS...........................................56
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE BONDS...................57
SECTION 7.7 COMPENSATION AND INDEMNITY...................................57
SECTION 7.8 REPLACEMENT OF TRUSTEE.......................................58
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.............................59
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION................................59
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY..............................................59
SECTION 7.12 OTHER CAPACITIES.............................................59
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE...........................................60
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE...............................60
SECTION 8.3 COVENANT DEFEASANCE..........................................60
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE...................61
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS........62
SECTION 8.6 REPAYMENT TO COMPANY.........................................63
SECTION 8.7 REINSTATEMENT................................................63
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF BONDS..........................64
SECTION 9.2 WITH CONSENT OF HOLDERS OF BONDS.............................64
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SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT..........................66
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS............................66
SECTION 9.5 NOTATION ON OR EXCHANGE OF BONDS.............................66
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC..............................66
ARTICLE 10.
MISCELLANEOUS
SECTION 10.1 TRUST INDENTURE ACT CONTROLS.................................67
SECTION 10.2 NOTICES......................................................67
SECTION 10.3 COMMUNICATION BY HOLDERS OF BONDS WITH OTHER
HOLDERS OF BONDS.....................................68
SECTION 10.4 CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT............................................68
SECTION 10.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION................69
SECTION 10.6 RULES BY TRUSTEE AND AGENTS..................................69
SECTION 10.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND SHAREHOLDERS...................69
SECTION 10.8 GOVERNING LAW................................................69
SECTION 10.9 NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS...........................................70
SECTION 10.10 SUCCESSORS...................................................70
SECTION 10.11 SEVERABILITY.................................................70
SECTION 10.12 COUNTERPART ORIGINALS........................................70
SECTION 10.13 TABLE OF CONTENTS, HEADINGS, ETC.............................70
EXHIBITS:
A-1 Form of Bond
A-2 Form of Regulation S Temporary Global Bond
B Form of Certificate of Transfer
C Form of Certificate of Exchange
D Form of Bond Debt Service Reserve Guarantee
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