INDENTURE dated as of July 8, 1997, between Calpine
Corporation, a Delaware corporation (the "Company"), and The Bank of New York, a
New York banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the holders of the Company's 8
3/4% Senior Notes Due 2007:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time at which such Person became a Subsidiary and not incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary.
Acquired Indebtedness shall be deemed to be Incurred on the date the acquired
Person becomes a Subsidiary.
"Additional Assets" means (i) any property or assets related
to the Line of Business which will be owned and used by the Company or a
Restricted Subsid iary; (ii) the Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary or (iii) Capital Stock constituting
a minority interest in any Person that at such time is a Restricted Subsidiary.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securi ties, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 3.11 and 3.12 only, "Affiliate" shall also mean any
beneficial owner of 5% or more of the total Voting Shares (on a Fully Diluted
Basis) of the Company or of rights or warrants to purchase such stock (whether
or not currently exercisable) and any Person who would be an
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Affiliate of any such beneficial owner pursuant to the first sentence hereof.
For purposes of Section 3.3, "Affiliate" shall also mean any Person of which the
Company owns 5% or more of any class of Capital Stock or rights to acquire 5% or
more or any class of Capital Stock and any Person who would be an Affiliate of
any such Person pursuant to the first sentence hereof.
"Agent" means any Registrar, Paying Agent, authenticating
agent, co-registrar or additional paying agent.
"Asset Sale" means any sale, transfer or other disposition
(includ ing by way of merger, consolidation or sale leaseback transactions, but
excluding (except as provided for in the provisions described in the last
paragraph of Section 3.12(b)) those permitted by Article IV hereof and those
permitted by Section 3.6 hereof) in one or a series of transactions by the
Company or any Re stricted Subsidiary to any Person other than the Company or
any Wholly Owned Subsidiary, of (i) all or any of the Capital Stock of the
Company or any Restrict ed Subsidiary, (ii) all or substantially all of the
assets of any operating unit, Facility, division or line of business of the
Company or any Restricted Subsidiary or (iii) any other property or assets or
rights to acquire property or assets of the Company or any Restricted Subsidiary
outside of the ordinary course of business of the Company or such Restricted
Subsidiary.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total obliga
tions of the lessee for rental payments during the remaining term of the lease
included in such Sale/Leaseback Transaction (including any period for which such
lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of (A) the numbers of years from the date
of determi nation to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled redemption or similar payment with respect to
such In debtedness or Preferred Stock multiplied by (B) the amount of such
payment by (ii) the sum of all such payments.
"Bank Credit Agreement" means the Credit Agreement, dated
September 25, 1996, among the Company, certain commercial lending institutions
named therein and The Bank of Nova Scotia, as agent for the lenders, as amend
ed, refinanced, renewed or extended from time to time.
"Board of Directors" means the Board of Directors of the Compa
ny or any authorized committee thereof.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation or any and all equivalent ownership interests in a Person (other
than a corporation).
"Capitalized Lease" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such Person as lessee, in conformity
with GAAP, is required to be capitalized on the balance sheet of such Person;
the Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty; and "Capitalized
Lease Obligations" means the rental obligations, as aforesaid, under such lease.
"Change of Control" means the occurrence of any of the
following events: (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than Parent or an underwriter engaged in a
firm commit ment underwriting on behalf of the Company, is or becomes the
beneficial owner (as such term is used in Rules 13d-3 and 13d-5 under the
Exchange Act, except that for purposes of this clause (i) a person shall be
deemed to have beneficial ownership of all shares that such person has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 40% of the total Voting
Shares of the Company; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (together with any new directors whose election by the Board of
Directors or whose nomination for election by the stockholders was approved by a
vote of 66-2/3% of the directors of the Company then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office; (iii) all or substantially
all of the Company's and its Restricted Subsidiaries' assets are sold, leased,
exchanged or otherwise transferred to any Person or group of Per
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sons acting in concert; or (iv) the Company is liquidated or dissolved or adopts
a plan of liquidation.
"Change of Control Triggering Event" means (A) if a Rating
Agency maintains a rating of the Securities at the time a Change of Control
occurs, the occurrence of a Change of Control and the occurrence of a Rating
Decline or (B) if no Rating Agency maintains a rating of the Securities at the
time a Change of Control occurs, the occurrence of a Change of Control.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in the Indenture until
a successor replaces it pursuant to the terms and conditions of the Indenture
and thereafter means the successor.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters to (ii) the Consolidated Interest
Expense (excluding interest capitalized in connection with the construction of a
new Facility which interest is capitalized during the construction of such
Facility) for such four fiscal quarters; provided, however, that if the Company
or any Restrict ed Subsidiary has Incurred any Indebtedness since the beginning
of such period that remains outstanding or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, or both, both EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving effect on a pro forma basis to (x) such
new Indebtedness as if such Indebtedness had been Incurred on the first day of
such period and (y) the repayment, redemption, repurchase, defeasance or
discharge of any Indebtedness repaid, redeemed, repurchased, defeased or
discharged with the proceeds of such new Indebtedness as if such repayment,
redemption, repurchase, defeasance or discharge had been made on the first day
of such period; provided, further, that if within the period during which EBITDA
or Consolidated Interest Expense is measured, the Company or any of its
Restricted Subsidiaries shall have made any Asset Sales, (x) the EBITDA for such
period shall be reduced by an amount equal to the EBITDA (if positive) directly
attributable to the assets or Capital Stock which are the subject of such Asset
Sales for such period, or increased by an amount equal to the EBITDA (if
negative), directly attributable thereto for such period and (y) the
Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly
attributable to any Indebtedness for which neither Company nor any Restricted
Subsidiary shall continue to be liable as a result of any such Asset Sale or
repaid, redeemed, defeased, discharged or otherwise retired in connection with
or with the proceeds of the assets or Capital Stock which are the subject of
such Asset Sales for such period; and provided, further, that if the Company or
any Restrict ed Subsidiary shall have made any acquisition of assets or Capital
Stock (occur ring by merger or otherwise) since the beginning of such period
(including any acquisition of assets or Capital Stock occurring in connection
with a transaction causing a calculation to be made hereunder) the EBITDA and
Consolidated Interest Expense for such period shall be calculated, after giving
pro forma effect thereto (and without regard to clause (iv) of the proviso to
the definition of "Consolidated Net Income"), as if such acquisition of assets
or Capital Stock took place on the first day of such period. For all purposes of
this definition, if the date of determination occurs prior to the completion of
the first four full fiscal quarters following the Issue Date, then "EBITDA" and
"Consolidated Interest Ex pense" shall be calculated after giving effect on a
pro forma basis to the Offering as if the Offering occurred on the first day of
the four full fiscal quarters that were completed preceding such date of
determination.
"Consolidated Current Liabilities," as of the date of
determination, means the aggregate amount of liabilities of the Company and its
Consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), after eliminating (i) all
inter-company items between the Company and any Consolidated Subsidiary and (ii)
all current maturities of long-term Indebtedness, all as determined in
accordance with GAAP.
"Consolidated Income Tax Expense" means, for any period, as
applied to the Company, the provision for local, state, federal or foreign
income taxes on a Consolidated basis for such period determined in accordance
with GAAP.
"Consolidated Interest Expense" means, for any period, as
applied to the Company, the sum of (a) the total interest expense of the Company
and its Consolidated Restricted Subsidiaries for such period as determined in
accordance with GAAP, including, without limitation, (i) amortization of debt
issuance costs or of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in accordance
with the effective interest method of accounting, (ii) accrued interest, (iii)
noncash interest payments, (iv) commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, (v) interest actually paid by the Compa
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ny or any such Subsidiary under any guarantee of Indebtedness or other obliga
tion of any other Person and (vi) net costs associated with Interest Rate Agree
ments (including amortization of discounts) and Currency Agreements, plus (b)
all but the principal component of rentals in respect of Capitalized Lease
Obliga tions paid, accrued, or scheduled to be paid or accrued by the Company or
its Consolidated Restricted Subsidiaries, plus (c) one-third of all Operating
Lease Obligations paid, accrued and/or scheduled to be paid by the Company and
its Consolidated Restricted Subsidiaries, plus (d) capitalized interest, plus
(e) dividends paid in respect of Preferred Stock of the Company or any
Restricted Subsidiary held by Persons other than the Company or a Wholly Owned
Subsid iary, plus (f) cash contributions to any employee stock ownership plan to
the extent such contributions are used by such employee stock ownership plan to
pay interest or fees to any person (other than the Company or a Restricted
Subsidiary) in connection with loans incurred by such employee stock ownership
plan to pur chase Capital Stock of the Company.
"Consolidated Net Income (Loss)" means, for any period, as
applied to the Company, the Consolidated net income (loss) of the Company and
its Consolidated Restricted Subsidiaries for such period, determined in
accordance with GAAP, adjusted by excluding (without duplication), to the extent
included in such net income (loss), the following: (i) all extraordinary gains
or losses; (ii) any net income of any Person if such Person is not a Domestic
Subsidiary, except that (A) the Company's equity in the net income of any such
Person for such period shall be included in Consolidated Net Income (Loss) up to
the aggregate amount of cash actually distributed by such Person during such
period to the Company or a Restricted Subsidiary as a dividend or other
distribution and (B) the equity of the Company or a Restricted Subsidiary in a
net loss of any such Person for such period shall be included in determining
Consolidated Net Income (Loss); (iii) the net income of any Restricted
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such income is not at the time
thereof permitted, directly or indi rectly, by operation of the terms of its
charter or by-laws or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Restricted
Subsidiary or its stockholders; (iv) any net income (or loss) of any Person
combined with the Company or any of its Restricted Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of such
combination; (v) any gain (but not loss) realized upon the sale or other
disposition of any property, plant or equipment of the Company or its Restricted
Subsidiaries (including pursuant to any sale-and-leaseback arrangement)
which is not sold or otherwise disposed of in the ordinary course of business
and any gain (but not loss) realized upon the sale or other disposition by the
Company or any Restricted Subsidiary of any Capital Stock of any Person,
provided that losses shall be included on an after-tax basis; and (vi) the
cumulative effect of a change in accounting principles; and further adjusted by
subtracting from such net income the tax liability of any parent of the Company
to the extent of payments made to such parent by the Company pursuant to any tax
sharing agreement or other arrangement for such period.
"Consolidated Net Tangible Assets" means, as of any date of
determination, as applied to the Company, the total amount of assets (less
accumulated depreciation or amortization, allowances for doubtful receivables,
other applicable reserves and other properly deductible items) which would
appear on a Consolidated balance sheet of the Company and its Consolidated Re
stricted Subsidiaries, determined on a Consolidated basis in accordance with
GAAP, and after giving effect to purchase accounting and after deducting
therefrom, to the extent otherwise included, the amounts of: (i) Consolidated
Current Liabilities; (ii) minority interests in Consolidated Subsidiaries held
by Persons other than the Company or a Restricted Subsidiary; (iii) excess of
cost over fair value of assets of businesses acquired, as determined in good
faith by the Board of Directors; (iv) any revaluation or other write-up in value
of assets subsequent to December 31, 1993 as a result of a change in the method
of valuation in accordance with GAAP; (v) unamortized debt discount and expenses
and other unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or developmental expenses
and other intangible items; (vi) treasury stock; and (vii) any cash set apart
and held in a sinking or other analogous fund established for the purpose of
redemp tion or other retirement of Capital Stock to the extent such obligation
is not reflected in Consolidated Current Liabilities.
"Consolidated Net Worth" means, at any date of determination,
as applied to the Company, stockholders' equity as set forth on the most
recently available Consolidated balance sheet of the Company and its
Consolidated Re stricted Subsidiaries (which shall be as of a date no more than
60 days prior to the date of such computation), less any amounts attributable to
Redeemable Stock or Exchangeable Stock, the cost of treasury stock and the
principal amount of any promissory notes receivable from the sale of Capital
Stock of the Company or any Subsidiary.
"Consolidation" means, with respect to any Person, the consolida
tion of accounts of such Person and each of its subsidiaries if and to the
extent the accounts of such Person and such subsidiaries are consolidated in
accordance with GAAP. The term "Consolidated" shall have a correlative meaning.
"Controlled Non-Subsidiary Investment" means any Investment of
the type specified in clause (iv) of Section 3.3(a) which is made by the Company
or its Restricted Subsidiaries in an Affiliate other than a Subsidiary; provided
that (i) at the time such Investment is made, no Default or Event of Default
shall have occurred and be continuing (or would result therefrom); (ii) after
giving effect to the Investment and to the Incurrence of any Indebtedness in
connection therewith on a pro forma basis, the Consolidated Coverage Ratio is at
least 1.75:1; (iii) after giving effect to the Investment, the aggregate
Investment made by the Company and its Subsidiaries in Controlled Non-Subsidiary
Investments does not exceed $100,000,000; (iv) the Person in which the
Investment is made is engaged only in the business described in Section 3.18
including Unrelated Businesses to the extent permitted by Section 3.18; (v) the
Company, directly or through its Restricted Subsidiaries is entitled to (A) in
the case of an Investment in Capital Stock, receive dividends or other
distributions on its Investment at the same time as or prior to, and on a basis
pro rata with, any other holder or holders of Capital Stock of such Person and
(B) in the case of an Investment other than in Capital Stock, receive interest
thereon at a rate per annum not less than the rate on the Securities, and, on
the liquidation or dissolution of such Person, receive repay ment of the
principal thereof prior to the payment of any dividends or distribu tions on
Capital Stock of such Person; (vi) the Company directly or through its
Restricted Subsidiaries, either (x) controls, under an operating and management
agreement or otherwise, the day to day management and operation of such Person
and any Facility of the Person in which the Investment is made or (y) has signif
icant influence over the management and operation of such Person and any
Facility of such Person in all material respects (significant influence to
include the right to control or veto any material act or decision) in connection
with such management or operation; and (vii) any encumbrances or restrictions on
the ability of the Person in which the Investment is made to make the payments,
distributions, losses, advances or transfers referred to in clauses (i) through
(iii) under Section 3.5, in the written opinion of the President or Chief
Financial Officer of the Company (x) is required in order to obtain necessary
financing, (y) is customary for such financings and (z) applies only to the
assets of or revenues of the Person in whom the Investment is made.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary against fluctuations in
currency values to or under which the Company or any Restricted Subsidiary is a
party or a beneficiary on the Issue Date or becomes a party or beneficiary
thereafter.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"defaulted interest" means any interest on any Security which
is payable, but is not punctually paid or duly provided for on any Interest
Payment Date.
"Depositary" means The Depositary Trust Company, its nominees,
and their respective successors until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture and thereafter "De
positary" shall mean or include each Person who is then a Depositary hereunder.
"Domestic Subsidiary" means a Restricted Subsidiary that is not a
Foreign Subsidiary.
"EBITDA" means, for any period, as applied to the Company, the
sum of Consolidated Net Income (Loss) (but without giving effect to adjustments,
accruals, deductions or entries resulting from purchase accounting,
extraordinary losses or gains and any gains or losses from any Asset Sales),
plus the following to the extent included in calculating Consolidated Net Income
(Loss): (a) Consoli dated Income Tax Expense, (b) Consolidated Interest Expense,
(c) depreciation expense, (d) amortization expense and (e) all other non-cash
items reducing Consolidated Net Income, less all non-cash items increasing
Consolidated Net Income, in each case for such period; provided that, if the
Company has any Sub sidiary that is not a Wholly Owned Subsidiary, EBITDA shall
be reduced (to the extent not otherwise reduced by GAAP) by an amount equal to
(A) the consoli dated net income (loss) of such Subsidiary (to the extent
included in Consolidated Net Income (Loss)) multiplied by (B) the quotient of
(1) the number of shares of outstanding common stock of such Subsidiary not
owned on the last day of such period by the Company or any Wholly Owned
Subsidiary of the Company divided by (2) the total number of shares of
outstanding common stock of such Subsidiary on the last day of such period.
"Exchangeable Stock" means any Capital Stock which by its
terms is exchangeable or convertible at the option of any Person other than the
Compa ny into another security (other than Capital Stock of the Company which is
neither Exchangeable Stock nor Redeemable Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Securities" means the 8 3/4% Senior Notes Due 2007
to be issued by the Company, and containing terms identical to those of the
Initial Securities (except that such Exchange Securities (i) shall have been
issued in an exchange offer registered under the Securities Act and (ii) shall
have an interest rate of 8 3/4% per annum (9 1/4% per annum if such exchange
offer is not consum mated before January 5, 1997), without provision for
adjustment as provided in paragraph 1 on the reverse of the Initial Securities),
that are issued and ex changed for the Initial Securities pursuant to the
Registration Rights Agreement and this Indenture or any indenture or indentures
supplemental hereto.
"Facility" means a power generation facility or energy
producing facility, including any related fuel reserves.
"Foreign Asset Sale" means an Asset Sale in respect of the
Capital Stock or assets of a Foreign Subsidiary or a Restricted Subsidiary of
the type de scribed in Section 936 of the Code to the extent that the proceeds
of such Asset Sale are received by a Person subject in respect of such proceeds
to the tax laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"Foreign Subsidiary" means a Restricted Subsidiary that is
incorpo rated in a jurisdiction other than the United States of America or a
State thereof or the District of Columbia.
"Fully Diluted Basis" means after giving effect to the
exercise of any outstanding options, warrants or rights to purchase Voting
Shares and the conversion or exchange of any securities convertible into or
exchangeable for Voting Shares.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect and, to the extent optional, adopted by
the Company on the Issue Date, consistently applied, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board.
"guarantee" means, as applied to any obligation, contingent or
otherwise, of any Person, (i) a guarantee, direct or indirect, in any manner, of
any part or all of such obligation (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) and (ii) an agree
ment, direct or indirect, contingent or otherwise, the practical effect of which
is to insure in any way the payment or performance (or payment of damages in the
event of nonperformance) of any part or all of such obligation, including the
payment of amounts drawn down under letters of credit.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means, as applied to any obligation, to create, incur,
issue, assume, guarantee or in any other manner become liable with respect to,
contin gently or otherwise, such obligation, and "Incurred," "Incurrence" and
"Incur ring" shall each have a correlative meaning; provided, however, that any
Indebt edness or Capital Stock of a Person existing at the time such Person
becomes (after the Issue Date) a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at
the time it becomes a Subsidiary; and provided, further, that any amendment,
modification or waiver of any provision of any document pursuant to which
Indebtedness was previously Incurred shall not be deemed to be an Incurrence of
Indebtedness as long as (i) such amendment, modification or waiver does not (A)
increase the principal or premium thereof or interest rate thereon, (B) change
to an earlier date the Stated Maturity thereof or the date of any scheduled or
required principal payment thereon or the time or circumstances under which such
Indebtedness may or shall be redeemed, (C) if such Indebtedness is contractually
subordinated in right of payment to the Securities, modify or affect, in any
manner adverse to the Holders, such subordination, (D) if the Company is the
obligor thereon, provide that a Restricted Subsidiary shall be an obligor, (E)
if such Indebtedness is Non- Recourse Debt, cause such Indebtedness to no longer
constitute Non-Recourse Debt or (F) violate, or cause the Indebtedness to
violate, the provisions of Sections 3.5 or 3.7 and (ii) such Indebtedness would,
after giving effect to such amendment, modification or waiver as if it were an
Incurrence, comply with clause (i) of the first proviso to the definition of
"Refinancing Indebtedness."
"Indebtedness" of any Person means, without duplication, (i)
the principal of and premium (if any such premium is then due and owing) in
respect of (A) indebtedness of such Person for money borrowed and (B)
indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable; (ii) all Capitalized
Lease Obligations of such Person; (iii) all obligations of such Person Incurred
as the deferred purchase price of property, all conditional sale obligations of
such Person and all obligations of such Person under any title retention
agreement; (iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in (i) through (iii) above)
entered into in the ordinary course of busi ness of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the tenth Business Day following
receipt by such Person of a demand for reimbursement following payment on the
letter of credit); (v) Redeemable Stock of such Person and, in the case of any
Subsidiary, any other Preferred Stock, in either case val ued at, in the case of
Redeemable Stock, the greater of its voluntary or involun tary maximum fixed
repurchase price exclusive of accrued and unpaid dividends or, in the case of
Preferred Stock that is not Redeemable Stock, its liquidation preference
exclusive of accrued and unpaid dividends; (vi) contractual obligations to
repurchase goods sold or distributed; (vii) all obligations of such Person in re
spect of Interest Rate Agreements and Currency Agreements; (viii) all
obligations of the type referred to in clauses (i) through (vii) of other
Persons and all divi dends of other Persons for the payment of which, in either
case, such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any guarantee; and (ix) all
obligations of the type referred to in clauses (i) through (viii) of other
Persons secured by any Lien on any prop erty or asset of such Person (whether or
not such obligation is assumed by such Person), the amount of such obligation
being deemed to be the lesser of the value of such property or assets or the
amount of the obligation so secured; provided, however, that Indebtedness shall
not include trade accounts payable arising in the ordinary course of business.
For purposes hereof, the "maximum fixed repur chase price" of any Redeemable
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Stock as if such Redeemable Stock
were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Redeemable Stock, such fair market
value to be determined in good faith by the Board of Directors. The amount of
Indebtedness of any Person at any date shall be, with respect to unconditional
obligations, the outstanding balance at such date of all such obliga tions as
described above and, with respect to any contingent obligations (other than
pursuant to clause (vi) above, which shall be included to the extent reflected
on the balance sheet of such Person in accordance with GAAP) at such date, the
maximum liability determined by such Person's board of directors, in good faith,
as, in light of the facts and circumstances existing at the time, reasonably
likely to be Incurred upon the occurrence of the contingency giving rise to such
obliga tion.
"Indenture" means this Indenture as amended or supplemented
from time to time in accordance with the applicable provisions hereunder.
"Initial Securities" means the 8 3/4% Senior Notes Due 2007
issued by the Company under this Indenture or pursuant to any indenture or
indentures supplemental hereto.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an
install ment of interest on the Securities.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or
arrangement designed to protect against fluctuations in interest rates to or
under which the Company or any of its Restricted Subsidiaries is a party or
beneficiary on the Issue Date or becomes a party or beneficiary thereunder.
"Investment" means, with respect to any Person, any direct or
indirect advance, loan or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any other investment
in any other Person, or any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities or assets issued or
owned by any other Person (whether by merger, consolidation, amalgamation, sale
of assets or otherwise). For purposes of the definition of "Unrestricted
Subsidiary" and the provisions set forth in Section 3.3, (i) "Investment" shall
include the portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of any Restricted
Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary and shall exclude
the fair market value of the net assets of any Unrestricted Subsidiary at the
time that such Unrestricted Subsidiary is designated a Restricted Subsidiary and
(ii) any property transferred to or from an Unrestricted Subsidiary shall be
valued at its fair market value at the time of such transfer, in each case as
determined by the Board of Directors in good faith. For purposes of determining
the aggregate amount of Investments in Controlled Non-Subsidiary Investments,
the amount of such Investments shall be reduced by an amount equal to the net
payments of interest on Indebtedness, dividends, repayments of interest on
Indebtedness, divi dends, repayments of loans or advances, or other transfers of
assets, in each case to the Company or any Restricted Subsidiary from any Person
in whom a Con trolled Non-Subsidiary Investment has been made, not to exceed in
the case of any Controlled Non-Subsidiary Investment the amount of Investments
previously made by the Company or any Restricted Subsidiary in such Person.
"Investment Grade" means, with respect to the Securities, a
rating of Baa3 or higher by Moody's together with a rating of BBB- or higher by
S&P, provided that neither of such entities shall have announced or informed the
Company that it is reviewing the rating of the Securities in light of
downgrading the rating thereof.
"Issue Date" means the date on which the Initial Securities
are originally issued under this Indenture.
"Lien" means any mortgage, lien, pledge, charge, or other
security interest or encumbrance of any kind (including any conditional sale or
other title retention agreement and any lease in the nature thereof).
"Line of Business" means the ownership, acquisition,
development, construction, improvement and operation of Facilities.
"Moody's" means Moody's Investors Service, Inc. and its succes
sors.
"Net Available Cash" means, with respect to any Asset Sale,
the cash or cash equivalent payments received by the Company or a Subsidiary in
connection with such Asset Sale (including any cash received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as or when received and also including the proceeds of other property
received when converted to cash or cash equivalents) net of the sum of, without
duplication, (i) all reasonable legal, title and recording tax expenses,
reasonable
commissions, and other reasonable fees and expenses incurred directly relating
to such Asset Sale, (ii) all local, state, federal and foreign taxes required to
be paid or accrued as a liability by the Company or any of its Restricted
Subsidiaries as a consequence of such Asset Sale, (iii) payments made to repay
Indebtedness which is secured by any assets subject to such Asset Sale in
accordance with the terms of any Lien upon or other security agreement of any
kind with respect to such assets, or which must by its terms, or by applicable
law, be repaid out of the proceeds from such Asset Sale and (iv) all
distributions required by any contract entered into other than in contemplation
of such Asset Sale to be paid to any holder of a minority equity interest in
such Restricted Subsidiary as a result of such Asset Sale, so long as such
distributions do not exceed such minority holder's pro rata portion (based on
such minority holder's proportionate equity interest) of the cash or cash
equivalent payments described above, net of the amounts set forth in clauses
(i)-(iii) above.
"Net Cash Proceeds" means, with respect to any issuance or
sale of Capital Stock by any Person, the cash proceeds to such Person of such
issuance or sale net of attorneys' fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultancy and
other fees actually incurred by such Person in connection with such issuance or
sale and net of taxes paid or payable by such Person as a result thereof.
"Non-Convertible Capital Stock" means, with respect to any
corporation, any Capital Stock of such corporation which is not convertible into
another security other than non-convertible common stock of such corporation;
provided, however, that Non-Convertible Capital Stock shall not include any
Redeemable Stock or Exchangeable Stock.
"Non-U.S. Person" means a person who is not a U.S. Person as
that term is defined in Regulation S.
"Non-Recourse Debt" means Indebtedness of the Company or any
Restricted Subsidiary that is Incurred to acquire, construct or develop a
Facility provided that such Indebtedness is without recourse to the Company or
any Re stricted Subsidiary or to any assets of the Company or any such
Restricted Subsidiary other than such Facility and the income from and proceeds
of such Facility.
"Offering" means the offering and sale of the Initial
Securities pursuant to the Purchase Agreement dated July 1, 1997 among the
Company, Credit Suisse First Boston Corporation, Morgan Stanley & Co.
Incorporated, Salomon Brothers Inc, Scotia Capital Markets (USA) Inc.,
CIBC Wood Gundy Securities Corp. and BancAmerica Securities, Inc.
"Officer" means the Chairman, the President, any Vice President,
the Chief Operating Officer, the Chief Financial Officer, the Treasurer, the
Secretary, any Assistant Treasurer, any Assistant Secretary or the Controller of
the Company.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the President, the Treasurer or a Vice President
of the Company. Each Officers' Certificate (other than certificates provided
pursuant to TIA Section 314(a)(4)) shall include the statements provided for in
TIA Section 314(e).
"Operating Lease Obligations" means any obligation of the
Compa ny and its Restricted Subsidiaries on a Consolidated basis incurred or
assumed under or in connection with any lease of real or personal property
which, in accordance with GAAP, is not required to be classified and accounted
for as a capital lease.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel, if so acceptable, may be
an employee of or counsel to the Company or the Trustee. Each such Opinion of
Counsel shall include the statements provided for in TIA Section 314(e).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corpora tion, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Principal" of a Security means the principal of the Security plus,
if applicable, the premium on the Security.
"Private Placement Legend" means the legend set forth on the
Initial Securities in the form set forth in Section 2.1(c).
"Public Equity Offering" means an underwritten primary public
offering of equity securities of the Company pursuant to an effective
registration statement under the Securities Act.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended.
"PURPA" means the Public Utility Regulatory Policies Act of
1978, as amended.
"QIB" means a "qualified institutional buyer" as that term is
defined in Rule 144A.
"Rating Agencies" is defined to mean S&P and Moody's.
"Rating Category" is defined to mean (i) with respect to S&P,
any of the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or
equivalent successor categories) and (ii) with respect to Moody's, any of the
following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent
successor categories). In determining whether the rating of the Securities has
decreased by one or more gradations, gradations within Rating Categories (+ and
- - for S&P; 1, 2 and 3 for Moody's) shall be taken into account (e.g., with
respect to S&P, a decline in a rating from BB+ to BB, as well as from BB- to B+,
will constitute a decrease of one gradation).
"Rating Decline" is defined to mean the occurrence of (i) or
(ii) below on, or within 90 days after, the earliest of (A) the Company having
become aware that a Change of Control has occurred, (B) the date of public
notice of the occurrence of a Change of Control or (C) the date of public notice
of the intention by Parent or the Company to approve, recommend or enter into,
any transaction which, if consummated, would result in a Change of Control
(which period shall be extended so long as the rating of the Securities is under
publicly announced consideration or possible downgrade by either of the Rating
Agencies), (i) a decrease of the rating of the Securities by either Rating
Agency by one or more rating gradations or (ii) the Company shall fail to
promptly advise the Rating Agencies, in writing, of such occurrence or any
subsequent material developments or shall fail to use its best efforts to
obtain, from at least one Rating Agency, a written, publicly announced
affirmation of its rating of the Securities, stating that it is not downgrading,
and is not considering downgrading, the Securities.
"Redeemable Stock" means any class or series of Capital Stock
of any Person that (a) by its terms, by the terms of any security into which it
is convertible or exchangeable or otherwise is, or upon the happening of an
event or passage of time would be, required to be redeemed (in whole or in part)
on or prior to the first anniversary of the Stated Maturity of the Securities,
(b) is re deemable at the option of the holder thereof at any time on or prior
to the first anniversary of the Stated Maturity of the Securities (other than on
a Change of Control or Asset Sale, provided that such Change of Control or Asset
Sale shall not yet have occurred) or (c) is convertible into or exchangeable for
Capital Stock referred to in clause (a) or clause (b) above or debt securities
at any time prior to the first anniversary of the Stated Maturity of the
Securities.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances, replaces, renews, repays or extends (including pursuant to any
defeasance or discharge mechanism) (collectively, "refinances," and "refinanced"
shall have a correlative meaning) any Indebtedness of the Company or a Restrict
ed Subsidiary existing on the Issue Date or Incurred in compliance with the
Indenture (including Indebtedness of the Company that refinances Indebtedness of
any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that
refi nances Indebtedness of another Restricted Subsidiary) including
Indebtedness that refinances Refinancing Indebtedness; provided, however, that
(i) if the Indebted ness being refinanced is contractually subordinated in right
of payment to the Securities, the Refinancing Indebtedness shall be
contractually subordinated in right of payment to the Securities to at least the
same extent as the Indebtedness being refinanced, (ii) if the Indebtedness being
refinanced is Non-Recourse Debt, such Refinancing Indebtedness shall be
Non-Recourse Debt, (iii) the Refinancing Indebtedness is scheduled to mature
either (a) no earlier than the Indebtedness being refinanced or (b) after the
Stated Maturity of the Securities, (iv) the Refi nancing Indebtedness has an
Average Life at the time such Refinancing Indebted ness is Incurred that is
equal to or greater than the Average Life of the Indebt edness being refinanced
and (v) such Refinancing Indebtedness is in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to
or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding (plus fees and
expenses, including any premium, swap breakage and defeasance costs) under the
Indebtedness being refinanced; and provided, further, that Refinancing
Indebtedness shall not include (x) Indebtedness of a Subsidiary of the Company
that refinances Indebtedness of the Company or (y) Indebtedness of the Company
or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsid iary.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of July 1, 1997, by and among the Company, Credit Suisse
First Boston Corporation, Morgan Stanley & Co. Incorporated, Salomon
Brothers Inc, Scotia Capital Markets (USA) Inc., CIBC Wood Gundy Securities
Corp. and BancAmerica Securities, Inc.
"Registration Statement" means the Registration Statement as
defined and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Related Assets" means electric power plants that, on the
Issue Date, produce electricity solely by utilizing steam from steam fields
owned and operated by a Restricted Subsidiary that is a Wholly Owned Subsidiary
on the Issue Date.
"Related Asset Indebtedness" means Non-Recourse Debt of a
Restricted Subsidiary that is a Wholly Owned Subsidiary on the Issue Date, the
proceeds of which are used by such Restricted Subsidiary to finance the acqui
sition of Related Assets by such Restricted Subsidiary; provided, however, that
(i) such Related Asset Indebtedness is Incurred contemporaneously with a
Refinanc ing of all of the Non-Recourse Debt of such Restricted Subsidiary then
outstand ing and (ii) the principal amount of such Related Asset Indebtedness
shall not exceed the purchase price of the Related Assets plus reasonable
out-of-pocket transaction costs and expenses of the Company and its Restricted
Subsidiaries required to acquire, or finance the acquisition of, such Related
Assets.
"Restricted Subsidiary" means any Subsidiary of the Company
that is not designated an Unrestricted Subsidiary by the Board of Directors.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard and Poor's Corporation and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Subsidiary
transfers such property to a Person and leases it back from such Person, other
than leases for a term of not more than 36 months or between the Company and a
Wholly Owned Subsidiary or between Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Initial Securities and the Exchange
Securi ties that are issued under and pursuant to the terms of this Indenture
and any indenture or indentures supplemental hereto, as amended or supplemented
from time to time. For purposes of this Indenture and any indenture or
indentures supplemental hereto, all Initial Securities and Exchange Securities
shall be treated as a single class and shall vote together as one series of
Securities under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Senior Indebtedness" means (i) all obligations consisting of
the principal of and premium, if any, and accrued and unpaid interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not post-filing interest is
allowed in such proceeding), whether existing on the Issue Date or thereafter In
curred, in respect of (A) Indebtedness of the Company for money borrowed and (B)
Indebtedness evidenced by notes, debentures, bonds or other similar instru ments
for the payment of which the Company is responsible or liable; (ii) all
Capitalized Lease Obligations of the Company; (iii) all obligations of the Compa
ny (A) for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction, (B) under Interest Rate Agreements and
Currency Agreements entered into in respect of any obligations described in
clauses (i) and (ii) or (C) issued or assumed as the deferred purchase price of
property, and all conditional sale obligations of the Company and all
obligations of the Company under any title retention agreement; (iv) all
guarantees of the Company with respect to obligations of other persons of the
type referred to in clauses (ii) and (iii) and with respect to the payment of
dividends of other Persons; and (v) all obligations of the Company consisting of
modifications, renewals, extensions, replacements and refundings of any
obligations described in clauses (i), (ii), (iii) or (iv); unless, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are subordinated in right of
payment to the Securities, or any other Indebtedness or obligation of the
Company; provided, however, that Senior Indebtedness shall not be deemed to
include (1) any obligation of the Company to any Subsidiary, (2) any liability
for Federal, state, local or other taxes or (3) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including guarantees thereof or instruments evidencing such
liabili ties).
"Significant Subsidiary" means any Subsidiary (other than an
Unrestricted Subsidiary) that would be a "Significant Subsidiary" of the Company
within the meaning of Rule 1-02 under Regulations S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency).
"Subordinated Indebtedness" means any Indebtedness of the
Company (whether outstanding on the Issue Date or thereafter Incurred) which is
contractually subordinated or junior in right of payment to the Securities or
any other Indebtedness of the Company.
"Subsidiary" means, as applied to any Person, any corporation,
limited or general partnership, trust, association or other business entity of
which an aggregate of at least a majority of the outstanding Voting Shares or an
equiva lent controlling interest therein, of such Person is, at the time,
directly or indirectly, owned by such Person and/or one or more Subsidiaries of
such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa-77bbbb) as in effect on the date first above written.
"Trustee" means the party named as such above until a
successor replaces it and thereafter means the successor.
"Trust Officer" means any officer of the Trustee assigned by
the Trustee to administer its corporate trust matters or to whom any corporate
trust matter is referred because of that officer's knowledge of and familiarity
with the particular subject.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrelated Business" means any business other than the Line of
Business.
"Unrestricted Subsidiary" means (i) any Subsidiary that at the
time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (ii) any subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, the Company or any other Subsidiary that is not a
Subsidiary of the Subsidiary to be so designated; provided, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, that such designation would be
permitted pursuant to Section 3.3. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided,
however, that imme diately after giving effect to such designation (x) the
Company could Incur $1.00 of additional Indebtedness pursuant to Section 3.4(a)
and (y) no Default or Event of Default shall have occurred and be continuing.
Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the board resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions; provided, however, that the
failure to so file such resolution and/or Officers' Certificate with the Trustee
shall not impair or affect the validity of such designation.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obliga tion by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable before the maturity thereof.
"Voting Shares," with respect to any corporation, means the
Capital Stock having the general voting power under ordinary circumstances to
elect at least a majority of the board of directors (irrespective of whether or
not at the time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
"Wholly Owned Subsidiary" means a Subsidiary (other than an
Unrestricted Subsidiary) all the Capital Stock of which (other than directors'
qualifying shares) is owned by the Company or another Wholly Owned Subsid iary.
"Working Capital Credit Agreement" means the Line of Credit
Note, dated as of June 4, 1993, between the Company and The Bank of Califor nia,
N.A., as amended, refinanced, renewed or extended from time to time.
SECTION 1.2 Other Definitions.
Term Defined in Section
"Application Period".................................................. 3.12
"Asset Sale Offer".................................................... 3.12
"Asset Sale Offer Amount"............................................. 3.12
"Asset Sale Purchase Date"............................................ 3.12
"Bankruptcy Law"...................................................... 5.1
"Change of Control Offer"............................................. 3.8
"Change of Control Purchase Date"..................................... 3.8
"Custodian"........................................................... 5.1
"Event of Default".................................................... 5.1
"Global Note" ........................................................ 2.1(b)
"Legal Holiday"....................................................... 10.7
"Notice of Default"................................................... 5.1
"Offer Period"........................................................ 3.12
"Paying Agent"........................................................ 2.3
"Registrar"........................................................... 2.3
"Restricted Payment".................................................. 3.3(a)
"Successor Corporation"................................................ 4.1(i)
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:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Holder or Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings assigned to them.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) generally accepted accounting principles" means,
and any accounting term not otherwise defined has the meaning assigned
to it and shall be construed in accordance with, GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) provisions apply to successive events and transactions;
(f) "including" means including, without limitation;
(g) unsecured debt shall not be deemed to be subordinate
or junior to secured debt merely by virtue of its nature as unsecured debt;
(h) the principal amount of any non-interest bearing or
other discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer dated such
date pre pared in accordance with generally accepted accounting
principles and accretion of principal on such security shall be deemed
to be the Incurrence of Indebtedness; and
(i) the principal amount (if any) of any Preferred
Stock shall be the greatest of (i) the stated value, (ii) the
redemption price or (iii) the liquidation preference of such Preferred
Stock.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
(a) The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A annexed hereto,
which is part of this Indenture. The Exchange Securities and the Trustee's
certificate of authorization shall be substantially in the form of Exhibit B
annexed hereto, which is part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the forms of Securities
annexed hereto as Exhibit A and Exhibit B shall constitute, and are expressly
made, a part of this Indenture. To the extent applicable, 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.
(b) Securities offered and sold in reliance on Rule 144A
and securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more permanent
global Securities in registered form, substantially in the form of Exhibit A
hereto, with such applicable legends as are provided in Exhibit A hereto (the
"Global Note"), deposited with the Trustee, as custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggre gate principal amount of the Global Note may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
(c) Unless and until an Initial Security is exchanged for an
Exchange Security in connection with an effective Registration Statement
pursuant to the Registration Rights Agreement, the Global Note, shall bear the
following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTI TUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S.
PERSON AND IS AC QUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT
IT WILL NOT, WITHIN TWO YEARS AF TER THE LATER OF THE ORIGINAL ISSUANCE
OF THIS SECURI TY OR THE LAST DATE ON WHICH THIS SECURITY WAS HELD BY
AN AFFILIATE OF THE COMPANY, RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COM PLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVID ED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATE MENT UNDER THE SECURITIES ACT AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUANCE OF THIS SECURITY OR THE LAST DATE ON
WHICH THIS SECURITY WAS HELD BY AN AFFILIATE OF THE COMPANY, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH HEREIN RELATING TO THE MANNER
OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE TRUSTEE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNIT
4
ED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall bear
the following legend on the face thereof:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS RE QUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTA TIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HERE OF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANS FERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN SECTION 2.8 OF THE INDENTURE.
SECTION 2.2 Execution and Authentication.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature. The Company's seal shall be impressed, affixed,
imprint ed or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Trustee. The signature shall
be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate (i) Initial Securities for
original issue in an aggregate principal amount of $200,000,000 and (ii)
Exchange Securities for issue only in exchange pursuant to the Registration
Rights Agreement, for a like principal amount of Initial Securities, in each
case, upon a written order of the Company signed by two Officers. Such order
shall specify the amount of the Securities to be authenticated and the date on
which the original issue of Securi ties is to be authenticated and whether the
Securities are to be Initial Securities or Exchange Securities. The aggregate
principal amount of Securities outstanding at any time may not exceed
$275,000,000 except as provided in Section 2.9.
The Trustee shall initially act as authenticating agent and
may subsequently appoint another Person acceptable to the Company as
authenticating agent to authenticate Securities. Unless limited by the terms of
such appoint ment, an authenticating agent may authenticate Securities 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 the Company or an Affiliate of the Company.
Provided that the authentication agent has entered into an agreement with the
Company concerning the authentication agent's duties, the Trustee shall not be
liable for any act or any failure of the authenticating agent to perform any
duty either required herein or authorized herein to be performed by such person
in accordance with this Indenture.
The Securities shall be issued only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Securities may be presented for
payment ("Paying Agent"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent and the term "Registrar" includes any
co-registrar.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture.
The agreement shall implement the provisions of this Indenture that relate to
such agent. The Company shall promptly notify the Trustee of the name and
address of any such agent and any change in the address of such agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor pursuant to
Section 6.7. The Company or any Subsidiary or Affiliate of the Company may act
as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.4 Paying Agent To Hold Money in Trust.
On or prior to 11:00 a.m., eastern standard time, on each due
date of the principal and interest on any Security (including any redemption
date fixed under the terms of such Security or this Indenture) the Company shall
deposit with the Paying Agent a sum of money, in immediately available funds,
sufficient to pay such principal and interest in funds available when such
becomes due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the pay ment of principal of or interest on the Securities (whether such money
has been paid to it by the Company or any other obligor on the Securities) and
shall notify the Trustee of any default by the Company (or any other obligor on
the Securi ties) in making any such payment. If the Company or a Subsidiary or
an affiliate of the Company acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund for the benefit
of the Securityholders. If the Company defaults in its obligation to deposit
funds for the payment of principal and interest the Trustee may, during the
continuation of such default, 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 and to account for any funds disbursed by it.
Upon doing so, the Paying Agent (other than the Company or a Subsidiary or
Affiliate of the Company) shall have no further liability for the money
delivered to the Trustee.
SECTION 2.5 Securityholder Lists.
The Trustee shall preserve in as current a form as reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of the Securityholders, and the Company shall otherwise comply with
TIA Sec 312(a).
SECTION 2.6 Transfer and Exchange.
(a) The Securities shall be transferable only upon the sur-
render of a Security for registration of transfer. When a Security is presented
to the Registrar or a co-registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if the requirements of
Section 8-401(1) of the Uniform Commercial Code are met (and the Registrar shall
be entitled to assume such requirements have been met unless it receives written
notice to the contrary), the requirements of Section 2.7 or Section 2.8 of this
Indenture, if applicable, are met and, if so required by the Trustee or the
Company, if the Security presented is accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Company, duly executed by
the registered owner or by his or her attorney duly authorized in writing. When
Securities are presented to the Registrar or a co-registrar with a request to
exchange them for an equal principal amount of Securities of other authorized
denominations (including on exchange of Initial Securities for Exchange
Securities), the Regis trar shall make the exchange as requested if the same
requirements are met; provided that no exchanges of Initial Securities for
Exchange Securities shall occur until a Registration Statement shall have been
declared effective by the SEC and that any Initial Securities that are exchanged
for Exchange Securities shall be cancelled by the Trustee. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's or co-registrar's
request. The Depositary shall, by acceptance of a Global Note, agree that
transfers of beneficial interests in such Global Note may be effected only
through a book-entry system maintained by the Depositary (or its agent), and
that ownership of a beneficial interest in the Global Note shall be required to
be reflected in a book entry.
No service charge shall be made for any registration of
transfer or exchange of the Securities, but the Company may require payment of a
sum suffi
5
cient to cover any transfer tax or similar governmental charge payable in connec
tion therewith (other than any such transfer taxes or similar governmental
charge payable upon exchange pursuant to Section 2.12 or 8.5 of this Indenture).
The Company shall not be required to make and the Registrar
need not register transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed) or for a period of 15 days before a selection of Securities
to be redeemed or 15 days before an interest payment date.
Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
SECTION 2.7 Book-Entry Provisions for Global Note.
-------------------------------------
(a) The Global Note initially shall (i) be registered in the
name of the Depositary for such Global Notes or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in Section 2.1(c).
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depositary, or the Trustee as its custodian, or
under the Global Note and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note, for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authoriza tion furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
(b) Transfers of the Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees. Beneficial interests in the Global Note
may be transferred in accordance with the applicable rules and procedures of the
Depositary and the provisions of Section 2.8 hereof.
(c) The registered holder of the Global Note may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which such
holder is entitled to take under this Indenture or the Securities.
SECTION 2.8 Special Transfer Provisions.
Unless and until an Initial Security is exchanged for an
Exchange Note, or the Initial Securities are registered for sale in connection
with an effective Registration pursuant to the Registration Rights Agreement,
the follow ing provisions shall apply:
(a) Transfers to QIBs and to Non-U.S. Persons. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Security to a QIB and transfers to or by
Non-U.S. Persons:
(i) The Registrar shall register the
transfer if such transfer is being made by a proposed
transferor who has checked the box provided for on the form of
Initial Security stating, or has otherwise advised the Company
and the Registrar in writing sub stantially in the form of
Exhibit C hereto, that the sale has been made in compliance
with the provisions of Rule 144A to a transfer ee who has
signed the certification provided for on the form of Initial
Security stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Initial
Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and
any such account is a QIB within the meaning of Rule 144A, and
is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information
regarding the Company as it has request ed pursuant to Rule
144A or has determined not to request such information and
that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(ii) The Registrar shall register the
transfer of any Initial Security if the proposed transferee is
a Non-U.S. Person and the proposed transferor has delivered to
the Registrar a certificate substantially in the form of
Exhibit D hereto.
(b) Private Placement Legend. Upon the transfer, ex
change or replacement of Securities not bearing the Private Placement
Legend, the Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall
deliver only Securities that bear the Private Placement Legend unless
there is delivered to the Registrar an opinion of counsel reasonably
satisfactory to the Company and the Registrar to the effect that
neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act.
(c) General. By its acceptance of any Security
bearing the Private Placement Legend, each holder of such Security
acknowledges the restrictions on transfer of such Security set forth in
this Indenture and in the Private Placement Legend and agrees that it
will transfer such Security only as provided in this Indenture. The
Registrar shall not register a transfer of any Security unless such
transfer complies with the restrictions on transfer of such Security
set forth in this Indenture, provided, however, that the Registrar
shall register the transfer of any Initial Security, whether or not
such Initial Security bears the Private Placement Legend, if the
requested transfer is at least two years after the later of the
original Issue Date of the Initial Security and the last date on which
such Initial Security was held by an affiliate of the Company. In
connection with any transfer of Securities, each holder agrees by its
acceptance of the Initial Securities to furnish the Registrar or the
Company such certifications, legal opinions or other information as
either of them may reasonably require to confirm that such transfer is
being made pursuant to an exemption from, or a transaction not subject
to, the registration requirements of the Securities Act; provided that
the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of
any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.7 hereof or this
Section
2.8. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
SECTION 2.9 Replacement Securities.
If a mutilated Security is surrendered to the Registrar or if
the Holder of a Security claims that the Security has been lost, destroyed or
wrong fully taken and the Holder furnishes to the Company and the Trustee
evidence to their satisfaction of such loss, destruction or wrongful taking, the
Company shall issue and the Trustee shall, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, authenti cate a replacement Security if the requirements of Section
8-405 of the Uniform Commercial Code are met (and the Registrar shall be
entitled to assume such requirements have been met unless it receives written
notice to the contrary) and if there is delivered to the Company and the Trustee
such security or indemnity as may be required to save each of them harmless,
satisfactory to the Company or the Trustee, as the case may be. The Company and
the Trustee may charge the Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
SECTION 2.10 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.9, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If all the principal and interest on any Securities are
considered paid under Section 3.1, such Securities cease to be outstanding under
this Inden ture and interest on such Securities shall cease to accrue.
If the Paying Agent (other than the Company or a Subsidiary or
an Affiliate of the Company) holds in accordance with this Indenture on a redemp
tion date or maturity date money sufficient to pay all principal and interest
due on
that date then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue (unless there shall be a default in such
pay ment).
If a Security is called for redemption, the Company and the
Trustee need not treat the Security as outstanding in determining whether
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent.
Subject to Section 2.11, a Security does not cease to be
outstanding because the Company or an Affiliate thereof holds the Security.
SECTION 2.11 Determination of Holders' Action.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, waiver or
consent, Securities owned by or pledged to the Company, any other obligor upon
the Securities or any Affiliate of the Company, or such other obligor shall be
disregarded and deemed not to be outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned or pledged shall be so disregarded.
SECTION 2.12 Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee, upon the written order of the Company signed by two Officers, shall
authenticate definitive Securities in exchange for temporary Securities. Such
exchange shall be made by the Company at its own expense and without any charge
therefor. Until so ex changed, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities.
SECTION 2.13 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment or cancellation and shall return such cancelled
securities to the Company. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
SECTION 2.14 Defaulted Interest.
If the Company defaults in a payment of interest on the
Securities, it shall pay defaulted interest, plus any interest payable on the
defaulted interest to the extent permitted by law, in any lawful manner. It may
pay the defaulted interest to the Persons who are Securityholders on a
subsequent special record date which date shall be at least five Business Days
prior to the payment date. The Company shall fix the special record date and
payment date. At least 15 days before the special record date, the Company (or
the Trustee, in the name of and at the expense of the Company) shall mail to
Securityholders a notice that states the special record date, payment date and
amount of interest to be paid.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Securities.
The Company shall pay the principal of and interest on the
Securi ties on the dates and in the manner provided in the Securities. The
Company shall pay interest on overdue principal at the rate borne by the
Securities; it shall pay interest on overdue installments of interest at the
rate borne by the Securities to the extent lawful. Principal and interest shall
be considered paid on the date due (including a redemption date) if the Trustee
or the Paying Agent (other than the Company or a Subsidiary or an Affiliate of
the Company) has received from or on behalf of the Company on or prior to 11:00
a.m., eastern standard time, on that date, in immediately available funds, money
sufficient to pay all principal and interest then due.
SECTION 3.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2 of this Indenture.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such designa
tions; 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
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agen
cy.
SECTION 3.3 Limitation on Restricted Payments.
(a) So long as any of the Securities are outstanding, the
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, (i) declare or pay any dividend on or make any distribution or
similar payment of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving the Company) to
the direct or indirect holders of its Capital Stock (other than dividends or
distributions payable solely in its Non-Convertible Capital Stock or rights to
acquire its Non-Convertible Capital Stock and dividends or distributions payable
solely to the Company or a Restricted Subsidiary and other than pro rata
dividends paid by a Subsidiary with respect to a series or class of its Capital
Stock the majority of which is held by the Company or a Wholly Owned Subsidiary
that is not a Foreign Subsidiary), (ii) purchase, redeem, defease or otherwise
acquire or retire for value any Capital Stock of the Company or of any direct or
indirect parent of the Company, or, with respect to the Company, exercise any
option to exchange any Capital Stock
that by its terms is exchangeable solely at the option of the Company (other
than into Capital Stock of the Company which is neither Exchangeable Stock nor
Redeemable Stock), (iii) purchase, repurchase, redeem, defease or otherwise ac
quire or retire for value, prior to scheduled maturity or scheduled repayment
thereof or scheduled sinking fund payment thereon, any Subordinated Indebted
ness (other than the purchase, repurchase or other acquisition of Subordinated
Indebtedness purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the
date of acquisition) or (iv) make any Investment, other than a Controlled Non-
Subsidiary Investment or a payment described in clause (vi) of the second
sentence of Section 3.11, in any Unrestricted Subsidiary or any Affiliate of the
Company other than a Restricted Subsidiary or a Person which will become a
Restricted Subsidiary as a result of any such Investment (each such payment de
scribed in clauses (i)-(iv) of this paragraph, a "Restricted Payment"), unless
at the time of and after giving effect to the proposed Restricted Payment:
(1) no Default or Event of Default shall have occurred and
be continuing (or would result therefrom);
(2) the Company would be permitted to Incur an additional
$1 of Indebtedness pursuant to the provisions of Section 3.4(a); and
(3) the aggregate amount of all such Restricted Payments
subsequent to the Issue Date shall not exceed the sum of:
(A) 50% of aggregate Consolidated Net Income accrued during
the period (treated as one accounting period) from January 1, 1994 to
the end of the most recent fiscal quarter for which financial
statements are avail able (or if such Consolidated Net Income is a
deficit, minus 100% of such deficit), and minus 100% of the amount of
any write-downs, write-offs, other negative reevaluations and other
negative extraordinary charges not otherwise reflected in Consolidated
Net Income during such period;
(B) if the Securities are Investment Grade immediately
following the Restricted Payment in connection with which this
calculation is made, an additional 25% of Consolidated Net Income for
any period of one or more consecutive completed fiscal quarters ending
with the last fiscal quarter completed prior to the date of such
Restricted Payment during which the Securities were Investment Grade
for the entire period;
(C) the aggregate Net Cash Proceeds received by the Company
after January 1, 1994 from the sale of Capital Stock (other than Redeem
able Stock or Exchangeable Stock) of the Company to any person other
than the Company, any of its Subsidiaries or an employee stock
ownership plan;
(D) the amount by which the principal amount of, and any
accrued interest on, Indebtedness of the Company or its Restricted
Subsidiaries is reduced on the Company's Consolidated balance sheet
upon the conversion or exchange (other than by a Subsidiary) subsequent
to the Issue Date of any Indebtedness of the Company or any Restricted
Subsidiary converted or exchanged for Capital Stock (other than
Redeemable Stock or Ex changeable Stock) of the Company (less the
amount of any cash, or the value of any other property, distributed by
the Company or any Restricted Subsidiary upon such conversion or
exchange);
(E) an amount equal to the net reduction in Investments in
Unre stricted Subsidiaries resulting from payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other
transfers of assets, in each case to the Company or any Restricted
Subsidiary from Unrestricted Subsidiaries, or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each
case as provided in the definition of "Investments"), not to exceed in
the case of any Unrestricted Subsidiary the amount of Investments
previously made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary; and
(F) $15 million.
(b) The failure to satisfy the conditions set forth in clauses
(2) and (3) of Subsection 3.3(a) shall not prohibit any of the following as long
as the condition set forth in clause (1) of Subsection 3.3(a) is satisfied
(except as set forth below):
(i) notwithstanding clause (1) of Section 3.3(a), the
occurrence or existence of a Default at the time of payment of
dividends paid within 60 days after the date of declaration thereof if
at such date of declaration such dividend would have complied with
Subsection 3.3(a); shall not prohibit the payment of such dividends;
(ii) any purchase, redemption, defeasance, or other
acquisi tion or retirement for value of Capital Stock or Subordinated
Indebtedness of the Company made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Capital Stock of the
Company (other than Redeemable Stock or Exchangeable Stock and other
than stock issued or sold to a Subsidiary or to an employee stock
ownership plan), provided, however, that notwithstanding clause (1) of
Subsection 3.3(a), the occur rence or existence of a Default or Event
of Default shall not prohibit, for purposes of this Section, the making
of such purchase, redemption, defea sance or other acquisition or
retirement, and provided, further, such purchase, redemption,
defeasance or other acquisition or retirement shall not be included in
the calculation of Restricted Payments made for purpos es of clause (3)
of Subsection 3.3(a) and provided, further, that the Net Cash Proceeds
from such sale shall be excluded from sub-clause (C) of clause (3) of
Subsection 3.3(a);
(iii) any purchase, redemption, defeasance or other
acqui sition or retirement for value of Subordinated Indebtedness of
the Compa ny made by exchange for, or out of the proceeds of the
substantially concurrent Incurrence of for cash (other than to a
Subsidiary), new In debtedness of the Company, provided, however, that
(A) such new Indebtedness shall be contractually subordinated in right
of payment to the Securities at least to the same extent as the
Indebtedness being so re deemed, repurchased, defeased, acquired or
retired, (B) if the Indebt edness being purchased, redeemed, defeased
or acquired or retired for value is Non-Recourse Debt, such new
Indebtedness shall be Non-Re course Debt, (C) such new Indebtedness has
a Stated Maturity either (1) no earlier than the Stated Maturity of the
Indebtedness redeemed, repur chased, defeased, acquired or retired or
(2) after the Stated Maturity of the Securities and (D) such
Indebtedness has an Average Life equal to or greater than the Average
Life of the Indebtedness redeemed, repurchased, defeased, acquired or
retired, and provided, further, that such purchase, redemption,
defeasance or other acquisition or retirement shall not be included in
the calculation of Restricted Payments made for purposes of clause (3)
of Subsection 3.3(a);
(iv) any purchase, redemption, defeasance or other
acqui sition or retirement for value of Subordinated Indebtedness upon
a Change of Control or an Asset Sale to the extent required by the
indenture or
other agreement pursuant to which such Subordinated Indebtedness was
issued, but only if the Company (A) in the case of a Change of Control,
has made an offer to repurchase the Securities as described under
Section 3.8 or (B) in the case of an Asset Sale, has applied the Net
Available Cash from such Asset Sale in accordance with the provisions
described under Section 3.12; and
SECTION 3.4 Limitation on Incurrence of Indebtedness.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness, except that the
Company may Incur Indebtedness if, after giving effect thereto, the Consolidated
Coverage Ratio would be greater than 2:1.
(b) Notwithstanding the foregoing, this Section shall not
limit the ability of the Company or any Restricted Subsidiary to Incur the
following Indebtedness:
(i) Refinancing Indebtedness (except with respect to Indebt
edness referred to in clause (ii), (iii) or (iv) below);
(ii) in addition to any Indebtedness otherwise
permitted to be Incurred hereunder, Indebtedness of the Company at any
one time out standing in an aggregate principal amount not to exceed
$25,000,000 and provided that the proceeds of such Indebtedness shall
not be used for the purpose of making any Restricted Payments pursuant
to clause (i) or (ii) of Section 3.3(a);
(iii) Indebtedness of the Company which is owed to
and held by a Wholly Owned Subsidiary and Indebtedness of a Wholly
Owned Subsidiary which is owed to and held by the Company or a Wholly
Owned Subsidiary; provided, however, that any subsequent issuance or
transfer of any Capital Stock which results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or any transfer of
such Indebtedness (other than to the Company or a Wholly Owned Subsid
iary) shall be deemed, in each case, to constitute the Incurrence of
such Indebtedness by the Company or by a Wholly Owned Subsidiary, as
the case may be;
(iv) Indebtedness of the Company under the Bank Credit
Agreement which, when taken together with the aggregate amount of
Indebtedness Incurred pursuant to clause (viii) of this subsection, is
not in excess of $50,000,000, and Indebtedness of the Company under the
Working Capital Credit Agreement not in excess of $25,000,000;
(v) Acquired Indebtedness; provided, however, that
the Company would have been able to Incur such Indebtedness at the time
of the Incurrence thereof pursuant to Section 3.4(a);
(vi) Indebtedness of the Company or a Restricted
Subsidiary outstanding on the Issue Date (other than Indebtedness
referred to in clause (iv) above and Indebtedness being repaid or
retired with the pro ceeds of the Offering);
(vii) Non-Recourse Debt of a Restricted Subsidiary
(other than a Restricted Subsidiary existing on the Issue Date), the
proceeds of which are used to acquire, develop, improve or construct a
new Facility of such Restricted Subsidiary;
(viii) guarantees by the Company of Indebtedness of
Re stricted Subsidiaries which, but for such guarantees, would be
permitted to be Incurred pursuant to clause (vii) of this Section
3.4(b), provided that the aggregate principal amount of Indebtedness
Incurred pursuant to this clause (viii), when taken together with
outstanding Indebtedness Incurred under the Bank Credit Agreement
pursuant to clause (iv) of this Section 3.4(b), is not in excess of
$50,000,000;
(ix) Related Asset Indebtedness, provided that at the
time of the Incurrence thereof, giving pro forma effect to the
Incurrence thereof, Moody's and S&P shall have affirmed their
respective ratings of the Securities in effect prior to the Incurrence
of such Related Asset In debtedness; and
(x) the Securities.
(c) Notwithstanding Sections 3.4(a) and (b), the Company shall
not Incur any Indebtedness if the proceeds thereof are used, directly or
indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any
Subordinated Indebtedness unless such repayment, prepayment, redemption,
defeasance, retire ment, refunding or refinancing is not prohibited by Section
3.3 or unless such In
6
debtedness shall be contractually subordinated to the Securities at least to the
same extent as such Subordinated Indebtedness.
SECTION 3.5 Limitation on Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any Subsidiary to,
create or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to (i)
pay dividends to or make any other distributions on its Capital Stock, or pay
any Indebtedness or other obligations owed to the Company or any other
Restricted Subsidiary, (ii) make any Investments in the Company or any other
Restricted Subsidiary or (iii) transfer any of its property or assets to the
Company or any other Restricted Subsidiary; provided, however, that the
foregoing shall not apply to:
(a) any encumbrance or restriction existing pursuant to this
Indenture or any other agreement or instrument as in effect or entered into on
the Issue Date;
(b) any encumbrance or restriction with respect to a
Subsidiary pursuant to an agreement relating to any Acquired Indebtedness;
provided, however, that such encumbrance or restriction was not Incurred in
connection with or in contemplation of such Subsidiary becoming a Subsidiary;
(c) any encumbrance or restriction pursuant to an agreement
effecting a refinancing of Indebtedness referred to in clause (a) or (b) above
or contained in any amendment or modification with respect to such Indebtedness;
provided, however, that the encumbrances and restrictions contained in any such
agreement, amendment or modification are no less favorable in any material re
spect with respect to the matters referred to in clauses (i), (ii) and (iii)
above than the encumbrances and restrictions with respect to the Indebtedness
being refi nanced, amended or modified;
(d) in the case of clause (iii) above, customary
non-assignment provisions of (A) any leases governing a leasehold interest, (B)
any supply, license or other agreement entered into in the ordinary course of
business of the Company or any Subsidiary or (C) any security agreement relating
to a Lien permitted by Section 3.7(l), that, in the reasonable determination of
the President or Chief Financial Officer of the Company (x) is required in order
to obtain such financing referred to in Section 3.7(l) and (y) is customary for
such financings;
(e) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary pending the
closing of such sale or disposition;
(f) any encumbrance imposed pursuant to the terms of Indebted
ness incurred pursuant to Section 3.4(b)(vii), provided that such encumbrance in
the written opinion of the President or Chief Financial Officer of the Company,
(x) is required in order to obtain such financing, (y) is customary for such
financings and (z) applies only to the assets of or revenues of the applicable
Facility; or
(g) any encumbrance or restriction existing by reason of applicable
law.
SECTION 3.6 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any Sale/Leaseback Transaction unless (i) the Company
or such Subsidiary would be entitled to create a Lien on such property securing
Indebtedness in an amount equal to the Attributable Debt with respect to such
transaction without equally and ratably securing the Securities pursuant to
Section 3.7 or (ii) the net proceeds of such sale are at least equal to the fair
value (as determined by the Board of Directors) of such property and the Company
or such Subsidiary shall apply or cause to be applied an amount in cash equal to
the net proceeds of such sale to the retirement, within 30 days of the effective
date of any such arrangement, of Senior Indebtedness or Indebtedness of a
Restricted Subsidiary; provided, however, that in addition to the transactions
permitted pursuant to the foregoing clauses (i) and (ii), the Company or any
Restricted Sub sidiary may enter into a Sale/Leaseback Transaction as long as
the sum of (x) the Attributable Debt with respect to such Sale/Leaseback
Transaction and all other Sale/Leaseback Transactions entered into pursuant to
this proviso, plus (y) the amount of outstanding Indebtedness secured by Liens
Incurred pursuant to the final proviso to Section 3.7, does not exceed 10% of
Consolidated Net Tangible Assets as determined based on the consolidated balance
sheet of the Company as of the end of the most recent fiscal quarter for which
financial statements are available; and provided, further, that a Restricted
Subsidiary that is not a Re stricted Subsidiary on the Issue Date may enter into
a Sale/Leaseback Transaction with respect to property owned by such Restricted
Subsidiary, the proceeds of
which are used to acquire, develop, construct, or repay (within 365 days of the
commencement of commercial operation of such Facility) Indebtedness Incurred to
acquire, develop or construct, a new Facility of such Restricted Subsidiary, as
long as neither the Company nor any other Restricted Subsidiary shall have any
obligation or liability in connection therewith.
SECTION 3.7 Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, incur or permit to exist any Lien of any
nature whatsoever on any of its properties (including, without limitation,
Capital Stock), whether owned at the date of such Indenture or thereafter
acquired, other than (a) pledges or deposits made by such Person under workers'
compensation, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
statutory or regulatory obligations of such Person or deposits of cash of United
States Gov ernment bonds to secure surety, appeal or performance bonds to which
such Person is a party, or deposits as security for contested taxes or import
duties or for the payment of rent, in each case Incurred in the ordinary course
of business; (b) Liens imposed by law such as carriers', warehousemen's and
mechanics' Liens, in each case, arising in the ordinary course of business and
with respect to amounts not yet due or being contested in good faith by
appropriate legal pro ceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made; or other Liens arising out of
judgments or awards against such Person with respect to which such Person shall
then be diligently prosecut ing appeal or other proceedings for review; (c)
Liens for property taxes not yet subject to penalties for non-payment or which
are being contested in good faith and by appropriate legal proceedings promptly
instituted and diligently conducted and for which a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made; (d) Liens in favor of issuers or surety bonds or letters of credit issued
pursuant to the request of and for the account of such Person in the ordinary
course of its business; provided, however, that such letters of credit may not
constitute Indebtedness; (e) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real properties or liens
incidental to the conduct of the business of such Person or to the ownership of
its properties which were not Incurred in connection with
Indebtedness or other extensions of credit and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person; (f) Liens securing
Indebted ness Incurred to finance the construction or purchase of, or repairs,
improve ments or additions to, property, which shall include, without
limitation, Liens on the stock of the Restricted Subsidiary that has purchased
or owns such property, provided, however, that the Lien may not extend to any
other property owned by the Company or any Restricted Subsidiary at the time the
Lien is incurred, and the Indebtedness secured by the Lien may not be issued
more than 270 days after the later of the acquisition, completion of
construction, repair, improvement, addition or commencement of full operation of
the property subject to the Lien; (g) Liens existing on the Issue Date (other
than Liens relating to Indebtedness or other obligations being repaid or liens
that are otherwise extinguished with the proceeds of the Offering); (h) Liens on
property or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided, however, that any such Lien may not extend to any other
property owned by the Company or any Restricted Subsidiary; (i) Liens on
property at the time the Company or a Subsidiary acquires the property,
including any acquisition by means of a merger or consolidation with or into the
Company or a Subsidiary; provided, however, that such Liens are not incurred in
connection with, or in contemplation of, such merger or consolidation; and
provided, further, that the Lien may not extend to any other property owned by
the Company or any Restricted Subsidiary; (j) Liens securing Indebtedness or
other obligations of a Subsidiary owing to the Company or a Wholly Owned
Subsidiary; (k) Liens incurred by a Person other than the Company or any
Subsidiary on assets that are the subject of a Capitalized Lease Obligation to
which the Company or a Subsidiary is a party; provided, however, that any such
Lien may not secure Indebtedness of the Company or any Subsid iary (except by
virtue of clause (ix) of the definition of "Indebtedness") and may not extend to
any other property owned by the Company or any Restricted Subsidiary; (l) Liens
incurred by a Restricted Subsidiary on its assets to secure Non-Recourse Debt
Incurred pursuant to Section 3.4(b)(vii), provided that such Lien (A) is
Incurred at the time of the initial Incurrence of such Indebtedness and (B) does
not extend to any assets or property of the Company or any other Restricted
Subsidiary; (m) Liens not in respect of Indebtedness arising from Uni form
Commercial Code financing statements for informational purposes with re spect to
leases Incurred in the ordinary course of business and not otherwise pro hibited
by this Indenture; (n) Liens not in respect of Indebtedness consisting of the
interest of the lessor under any lease Incurred in the ordinary course of
business and not otherwise prohibited by this Indenture; (o) Liens which consti
tute banker's liens, rights of set-off or similar rights and remedies as to
deposit accounts or other funds maintained with any bank or other financial
institution, whether arising by operation of law or pursuant to contract; (p)
Liens to secure any refinancing, refunding, extension, renewal or replacement
(or successive refinancings, refundings, extensions, renewals or replacements)
as a whole, or in part, of any Indebtedness secured by any Lien referred to in
the foregoing clauses (f), (g), (h) and (i), provided, however, that (x) such
new Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements on such property) and (y) the Indebtedness
secured by such Lien at such time is not increased (other than by an amount
necessary to pay fees and expenses, including premiums, related to the
refinancing, refunding, extension, renewal or replacement of such Indebtedness);
and (q) Liens by which the Securities are secured equally and ratably with other
Indebtedness pursuant to this Section 3.7; in any such case without effectively
providing that the Securities shall be secured equally and ratably with (or
prior to) the obligations so secured for so long as such obligations are so
secured; provided, however, that the Company may incur other Liens to secure
Indebtedness as long as the sum of (x) the amount of outstanding Indebtedness
secured by Liens incurred pursuant to this proviso plus (y) the Attributable
Debt with respect to all outstanding leases in connection with Sale/Leaseback
Transactions entered into pursuant to the first proviso to Section 3.6 does not
exceed 10% of Consolidated Net Tangible Assets as determined with respect to the
Company as of the end of the most recent fiscal quarter for which financial
statements are available.
SECTION 3.8 Change of Control.
In the event of a Change of Control Triggering Event, the
Compa ny shall make an offer to purchase (the "Change of Control Offer") the
Securities then outstanding at a purchase price equal to one hundred one percent
(101%) of the principal amount (excluding any premium) thereof plus accrued and
unpaid interest to the Change of Control Purchase Date (as defined below) on the
terms set forth in this Section. The date on which the Company shall purchase
the Securities pursuant to this Section (the "Change of Control Purchase Date")
shall be no earlier than 30 days, nor later than 60 days, after the notice
referred to below is mailed, unless a longer period shall be required by law.
The Company shall notify the Trustee in writing promptly after the occurrence of
any Change of Control Triggering Event of the Company's obligation to offer to
purchase all of the Securities.
Notice of a Change of Control Offer shall be mailed by the
Company to the Holders of the Securities at their last registered address (with
a
copy to the Trustee and the Paying Agent) within thirty (30) days after a Change
in Control Triggering Event has occurred. The Change of Control Offer shall
remain open from the time of mailing until a date not more than five (5)
Business Days before the Change of Control Purchase Date. The notice shall
contain all instructions and materials necessary to enable such Holders to
tender Securities (in whole or in part) pursuant to the Change of Control Offer.
The notice, which shall govern the terms of the Change of Control Offer, shall
state:
(a) that the Change of Control Offer is being made pursu
ant to this Section;
(b) the purchase price and the Change of Control Purchase
Date;
(c) that any Security not surrendered or accepted for pay
ment will continue to accrue interest;
(d) that any Security accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after the
Change of Control Purchase Date;
(e) that any Holder electing to have a Security
purchased (in whole or in part) pursuant to a Change of Control Offer
will be required to surrender the Security, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Security
completed, to the Paying Agent at the address specified in the notice
(or otherwise make effective delivery of the Security pursuant to
book-entry procedures and the related rules of the applicable
depositories) at least five (5) Business Days before the Change of
Control Purchase Date; and
(f) that any Holder will be entitled to withdraw his
or her election if the Paying Agent receives, not later than three (3)
Business Days prior to the Change of Control Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder delivered for
purchase and a statement that such Holder is withdrawing his or her
election to have the Security purchased.
On the Change of Control Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof surrendered and properly
tendered, and not withdrawn, pursuant to the Change of Control Offer, (ii)
deposit with the Paying Agent, no later than 11:00 a.m. eastern standard time,
money, in immediately available funds, sufficient to pay the purchase price of
all Securities or portions thereof so accepted and (iii) deliver to the Trustee,
no later than 11:00 a.m. eastern standard time, Securities so accepted together
with an Officers' Certificate stating that such Securities have been accepted
for payment by the Company. The Paying Agent shall promptly, and in any event
within one (1) Business Day following the deposit and delivery specified in
clauses (ii) and (iii) of the immediately preceding sentence, mail or deliver to
Holders of Securi ties so accepted payment in an amount equal to the purchase
price. Holders whose Securities are purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
appli cable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 3.9 Compliance Certificate.
The Company shall, within 120 days after the close of each
fiscal year following the issuance of the Securities, file with the Trustee an
Officer's Certificate, provided that one Officer executing the same shall be the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, covering the period from the date of issuance
of the Securities to the end of the fiscal year in which the Securities were
issued, in the case of the first such certificate, and covering the preceding
fiscal year in the case of each subsequent certificate, and stating whether or
not, to the knowledge of each such executing Officer, the Company has complied
with and performed and fulfilled all covenants on its part contained in this
Indenture and is not in default in the performance or observance of any of the
terms or provisions contained in this Indenture, and, if any such signer has
obtained knowledge of any default by the Company in the performance, observance
or fulfillment of any such covenant, term or provision specifying each such
default and the nature thereof. For the purpose of this Section 3.9, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 3.10 SEC Reports.
The Company shall, to the extent required by TIA Sec 314(a),
file with the Trustee, within 15 days after the filing with the SEC, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. In the event the Company is
at any time no longer subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, it shall, for so long as the Securities remain
outstanding, file with the Trustee and the SEC and mail to each Securityholder
at such Securityholder's registered address, within 15 days after the Company
would have been required to file such documents with the SEC, copies of the
annual reports and of the information, documents and other reports which the
Company would have been required to file with the SEC if the Company had
continued to be subject to such Sections 13 or 15(d). The Company also shall
comply with the other provisions of TIA Sec 314(a).
SECTION 3.11 Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into, permit to exist, renew or
extend any transaction or series of transactions (including, without limitation,
the sale, purchase, exchange or lease of any assets or property or the rendering
of any services) with any Affiliate of the Company unless (i) the terms of such
transac tion or series of transactions are (A) no less favorable to the Company
or such Restricted Subsidiary, as the case may be, than would be obtainable in a
compa rable transaction or series of related transactions in arm's-length
dealings with an unrelated third party and (B) set forth in writing, if such
transaction or series of transactions involve aggregate payments or
consideration in excess of $1,000,000, and (ii) with respect to a transaction or
series of transactions involving the sale, purchase, lease or exchange of
property or assets having a value in excess of $5,000,000, such transaction or
series of transactions has been approved by a majority of the disinterested
members of the Board of Directors or, if there are no disinterested members of
the Board of Directors, the Board of Directors of the Company shall have
received a written opinion of a nationally recognized investment banking firm
stating that such transaction or series of transactions is fair to the Company
or such Restricted Subsidiary from a financial point of view. The foregoing
provisions do not prohibit (i) the payment of reasonable fees to
directors of the Company and its subsidiaries who are not employees of the
Company or its subsidiaries; (ii) any transaction between the Company and a
Wholly Owned Subsidiary or between Wholly Owned Subsidiaries otherwise
permitted by the terms of the Indenture; (iii) the payment of any Restricted Pay
ment which is expressly permitted to be paid pursuant to Section 3.3(b); (iv)
any issuance of securities or other reasonable payments, awards or grants, in
cash or otherwise, pursuant to, or the funding of, employment arrangements
approved by the Board of Directors; (v) the grant of stock options or similar
rights to employ ees and directors of the Company pursuant to plans approved by
the Board of Di rectors; (vi) loans or advances to employees in the ordinary
course of business; (vii) any repurchase, redemption or other retirement of
Capital Stock of the Company held by employees of the Company or any of its
Subsidiaries upon death, disability or termination of employment at a price not
in excess of the fair market value thereof approved by the Board of Directors;
(viii) any transaction between or among the Company and any Subsidiary in the
ordinary course of business and consistent with past practices of the Company
and its Subsidiaries; (ix) payments pursuant to Existing Agreements and payments
of principal, interest and commitment fees under the Bank Credit Agreement; and
(x) any agreement to do any of the foregoing. Any transaction which has been
determined, in the written opinion of an independent nationally recognized
investment banking firm, to be fair, from a financial point of view, to the
Company or the applicable Restricted Subsidiary shall be deemed to be in
compliance with this Section.
SECTION 3.12 Sales of Assets.
(a) Neither the Company nor any Restricted Subsidiary shall
consummate any Asset Sale unless (i) the Company or such Restricted Subsidiary
receives consideration at the time of such Asset Sale at least equal to the fair
market value, as determined in good faith by the Board of Directors, of the
shares or assets subject to such Asset Sale, (ii) at least 60% of the
consideration thereof received by the Company or such Restricted Subsidiary is
in the form of cash or cash equivalents which are promptly converted into cash
by the Person receiving such payment and (iii) an amount equal to 100% of the
Net Available Cash is applied by the Company (or such Subsidiary, as the case
may be) as set forth herein. The Company shall not permit any Unrestricted
Subsidiary to make any Asset Sale unless such Unrestricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the shares or assets so disposed of as determined in good faith by the
Board of Directors.
(b) Within three hundred sixty-five (365) days (such 365 days
being the "Application Period") following the consummation of an Asset Sale, the
Company or such Restricted Subsidiary shall apply the Net Available Cash from
such Asset Sale as follows: (i) first, to the extent the Company or such
Restrict ed Subsidiary elects, to reinvest in Additional Assets (including by
means of an investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted Subsidiary); (ii)
second, to the extent of the balance of such Net Available Cash after
application in accor dance with clause (i), and to the extent the Company or
such Restricted Subsid iary elects (or is required by the terms of any Senior
Indebtedness or any Indebt edness of such Restricted Subsidiary), to prepay,
repay or purchase Senior Indebtedness (other than Securities) or Indebtedness
(other than any Preferred Stock) of a Restricted Subsidiary (in each case other
than Indebtedness owed to the Company or an Affiliate of the Company); (iii)
third, to the extent of the balance of such Net Available Cash after application
in accordance with clauses (i) and (ii), and to the extent the Company or such
Restricted Subsidiary elects, to purchase Securities; and (iv) fourth, to the
extent of the balance of such Net Available Cash after application in accordance
with clauses (i), (ii) and (iii), to make an offer to purchase Securities
pursuant to and subject to the conditions of Section 3.12(c); provided, however,
that in connection with any prepayment, repayment or purchase of Indebtedness
pursuant to clause (ii), (iii) or (iv) above, the Company or such Restricted
Subsidiary shall retire such Indebtedness and cause the related loan commitment
(if any) to be permanently reduced in an amount equal to the principal amount so
prepaid, repaid or purchased. To the extent that any Net Available Cash from any
Asset Sale remains after the applica tion of such Net Available Cash in
accordance with this paragraph, the Company or such Restricted Subsidiary may
utilize such remaining Net Available Cash in any manner not otherwise prohibited
by the Indenture.
To the extent that any or all of the Net Available Cash of any
Foreign Asset Sale is prohibited or delayed by applicable local law from being
repatriated to the United States, the portion of such Net Available Cash so
affect ed shall not be required to be applied at the time provided above, but
may be retained by the applicable Restricted Subsidiary so long, but only so
long, as the applicable local law will not permit repatriation to the United
States (the Compa ny hereby agreeing to promptly take or cause the applicable
Restricted Subsidiary to promptly take all actions required by the applicable
local law to permit such repatriation). Once such repatriation of any of such
affected Net Available Cash is permitted under the applicable local law, such
repatriation shall be immediately effected and such repatriated Net Available
Cash will be applied in the manner set forth in this Section as if such Asset
Sale had occurred on the date of such repatriation.
Notwithstanding the foregoing, to the extent that the Board of
Directors determines, in good faith, that repatriation of any or all of the Net
Available Cash of any Foreign Asset Sale would have a material adverse tax
consequence to the Company, the Net Available Cash so affected may be retained
outside of the United States by the applicable Restricted Subsidiary for so long
as such material adverse tax consequence would continue.
Notwithstanding the foregoing, this Section shall not apply
to, or prevent any sale of assets, property, or Capital Stock of Subsidiaries to
the extent that the fair market value (as determined in good faith by the Board
of Directors) of such asset, property or Capital Stock, together with the fair
market value of all other assets, property, or Capital Stock of Subsidiaries
sold, transferred or otherwise disposed of in Asset Sales during the twelve
month period preceding the date of such sale, does not exceed 5% of Consolidated
Net Tangible Assets as determined as of the end of the most recent fiscal
quarter for which financial statements are available, (it being understood that
this provision shall only apply with respect to the fair market value of such
asset, property or Capital Stock in excess of 5% of consolidated Net Tangible
Assets), and no violation of this provision shall be deemed to have occurred as
a consequence thereof.
In the event of the transfer of substantially all (but not
all) of the property and assets of the Company as an entirety to a Person in a
transaction permitted under Article IV, the Successor Corporation shall be
deemed to have sold the properties and assets of the Company not so transferred
for purposes of this Section 3.12, and shall comply with the provisions of this
Section 3.12 with respect to such deemed sale as if it were an Asset Sale.
(c) Subject to the last sentence of this paragraph, in the
event of an Asset Sale that requires the purchase of Securities pursuant to
clause (iii) of the first paragraph of Section 3.12(b), the Company will be
required to purchase Securities tendered pursuant to an offer by the Company for
the Securities (the "Asset Sale Offer") at a purchase price of not less than
their principal amount plus accrued interest to the Asset Sale Purchase Date in
accordance with the procedures (including proration in the event of
oversubscription) set forth in Section 3.12(d). If the aggregate purchase price
of Securities tendered pursuant to the Asset Sale Offer is less than the Net
Available Cash allotted to the pur chase of the Securities, the Company shall
apply the remaining Net Available Cash in accordance with the last sentence of
the first paragraph of Section 3.12(b). The Company shall not be required to
make an Asset Sale Offer for
Securities pursuant to this Section if the Net Available Cash available therefor
(after application of the proceeds as provided in Section 3.12(b)(i) and (ii))
is less than $1,000,000 for any particular Asset Sale (which lesser amounts
shall not be carried forward for purposes of determining whether an Asset Sale
Offer is required with respect to the Net Available Cash from any subsequent
Asset Sale).
(d) (1) Promptly, and in any event prior to the 360th day
after the later of the date of each Asset Sale as to which the Company must make
an Asset Sale Offer or the receipt of Net Available Cash therefrom, the Company
shall be obligated to deliver to the Trustee and send, by first-class mail to
each Holder, a written notice stating that the Holder may elect to have his
Securities purchased by the Company either in whole or in part (subject to
proration as hereinafter described in the event the Asset Sale Offer is
oversubscribed) in integral multiples of $1,000 of principal amount, at the
applicable purchase price. The notice shall specify a purchase date not less
than 30 days, nor more than 60 days, after the date of such notice (the "Asset
Sale Purchase Date") and shall contain the information required in a notice for
a Change of Control Offer, to the extent applicable.
(2) Not later than the date upon which written notice of an
Asset Sale Offer is delivered to the Trustee as provided below, the Company
shall deliver to the Trustee an Officers' Certificate as to (i) the amount of
the Asset Sale Offer (the "Asset Sale Offer Amount"), (ii) the allocation of the
Net Avail able Cash from the Asset Sales pursuant to which such Asset Sale Offer
is being made and (iii) the compliance of such allocation with the provisions of
Section 3.12(a). On such date, the Company shall also deposit with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust) funds in an amount equal to the Asset Sale Offer Amount to be held for
payment in accordance with the provisions of this Section. Upon the expiration
of the period for which the Asset Sale Offer remains open (the "Offer Period"),
the Company shall deliver, or cause to be delivered, to the Trustee the
Securities or portions thereof which have been properly tendered to and are to
be accepted by the Company. Paying Agent shall promptly, and in any event within
one (1) Business Day following the Asset Sale Purchase Date, mail or deliver
payment to each tendering Holder in the amount of the purchase price. In the
event that the aggregate purchase price of the Securities delivered, or caused
to be delivered, by the Company to the Trustee is less than the Asset Sale Offer
Amount, the Paying Agent shall deliver the excess to the Company immediately
after the expiration of the Offer Period and the delivery to the Trustee of the
Securities, or portions thereof that have been properly tendered to and are to
be accepted for payment by the Company.
(3) Holders electing to have a Security purchased will be
required to surrender the Security, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Security duly completed, to the Company or
the Paying Agent, as specified in, and at the address specified in, the notice
at least ten Business Days prior to the Asset Sale Purchase Date. Holders will
be entitled to withdraw their election if the Trustee or the Paying Agent
receives, not later than three Business Days prior to the Asset Sale Purchase
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Security which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased. If at the expiration of the Offer
Period the aggregate principal amount of Securities surrendered by Holders
exceeds the Asset Sale Offer Amount, the Company shall select the Securities to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securi ties in denominations of $1,000,
or integral multiples thereof, shall be purchased) and shall notify the Trustee
of its selection in a writing signed by two Officers. Holders whose Securities
are purchased only in part will be issued new Securities equal in principal
amount to the unpurchased portion of the Securities surren dered.
(4) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company will also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Company pursu ant to and in accordance with the terms of this Section. A
Security shall be deemed to have been accepted for purchase at the time the
Paying Agent, directly or through an agent, mails or delivers payment therefor
to the surrendering Holder.
(e) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the appli cable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 3.13 Corporate Existence.
Except as permitted under Article IV, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate existence of each Restricted
Subsidiary in accordance with the respective organizational documents of the
Company and of each Restricted Subsidiary and the rights (charter and
statutory), licenses and franchises of the Company and the Restricted
Subsidiaries necessary or appropri ate to carry out their businesses; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate existence of any Restricted Subsidiary,
if the preservation thereof is no longer desirable in the conduct of the
business of the Company and the Restricted Subsidiaries taken as a whole; and
provided, further, that any Restricted Subsid iary may consolidate with, merge
into, or sell, convey, transfer, lease or other wise dispose of all or part of
its property and assets to the Company or any Wholly Owned Subsidiary to the
extent otherwise permitted under this Indenture.
SECTION 3.14 Payment of Taxes and Other Claims.
The Company shall pay or discharge, or cause to be paid or
discharged, before any material penalty accrues thereon all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Compa ny or
any Restricted Subsidiary; provided, however, that the Company shall not be
required to pay or discharge, or cause to be paid or discharged, any such tax,
assessment, charge or claim the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which adequate
reserves, if the same shall be required in accordance with GAAP, have been made.
SECTION 3.15 Notice of Defaults and Other Events.
In the event that any Indebtedness of the Company or any
Signifi cant Subsidiary having an outstanding principal amount of $1,000,000 or
more individually or $2,500,000 or more in the aggregate has been or could be de
clared due and payable before its maturity because of the occurrence of any
event of default under such Indebtedness (including any Default under this
Indenture), the Company, promptly after it becomes aware thereof, will give
written notice thereof to the Trustee.
SECTION 3.16 Maintenance of Properties and Insurance.
The Company shall cause all properties used or useful in the
conduct of its business or the business of each Restricted Subsidiary and
material to the Company and the Restricted Subsidiaries taken as a whole to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment; provided, however, that nothing in this Section
3.16 shall prevent the Company or any Restricted Subsidiary from discontinuing
the use, operation or maintenance of any of such properties or disposing of any
of them, if such discontinuance or disposal is, in the judgment of an Officer
(or other employee of the Company or any Restricted Subsidiary) of the Company
or such Restricted Subsidiary having managerial responsibility for any such
property, appropriate.
The Company shall provide or cause to be provided, for itself
and the Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds customarily insured against
by corporations similarly situated and owning like properties, including, but
not limited to, product liability insurance and public liability insurance with
reputable insurers or with the government of the United States of America, or an
agency or instrumen tality thereof, of such kinds, and in such amounts, with
such deductibles and by such methods as the Company in good faith shall
determine to be reasonable and appropriate in the circumstances.
SECTION 3.17 Limitation on Issuance of Capital Stock and Incurrence
of Indebtedness of Restricted Subsidiaries.
The Company shall not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell, and shall not permit any Person other
than the Company or a Wholly Owned Subsidiary to own (except to the extent that
any such Person may own on the Issue Date), any shares of such Restricted
Subsidiary's Capital Stock (including options, warrants or other rights to
purchase shares of Capital Stock) except, to the extent otherwise permitted by
the Inden ture, (i) to the Company or another Restricted Subsidiary that is a
Wholly Owned Subsidiary of the Company, or (ii) if, immediately after giving
effect to such issuance and sale, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary for purposes of the Indenture; provided,
however, that a Restricted Subsidiary that has an interest in a Facility may
sell shares of NonConvertible Stock that is not Preferred Stock if, after giving
effect to such sale,
the Company or a Wholly Owned Subsidiary continues to hold at least a majority
of each class of Capital Stock of such Restricted Subsidiary. The Company shall
not permit any Restricted Subsidiary, directly or indirectly, to Incur
Indebtedness other than pursuant to Section 3.4(b).
SECTION 3.18 Limitation on Changes in the Nature of the Business.
The Company and its Subsidiaries shall engage only in the
business of acquiring, constructing, managing, developing, improving, owning and
operating Facilities, as well as any other activities reasonably related to the
foregoing activities (including acquiring and holding reserves), including but
not limited to investing in Facilities; provided that up to 10% of the Company's
Consolidated total assets may be used in Unrelated Businesses without constitut
ing a violation of this Section. In addition, the Company will, and will cause
its Subsidiaries, to conduct their respective businesses in a manner so as to
maintain the exemption of the Company and its Subsidiaries from treatment as a
public utility holding company under PUHCA or an electric utility or public
utility under any federal, state or local law; provided, however, to the extent
that any such law is amended following the Issue Date in such a manner that
would (absent application of this proviso) make compliance with this Section
3.18 result in a material adverse effect on the Company's results of operations
or financial condition, then the Company shall not be required to comply with
this Section 3.18, but only to the extent of actions or failures to act that
would (absent application of this proviso) constitute violations of this
Covenant solely as a result of such amendment.
SECTION 3.19 Limitation on Subsidiary Investments.
The Company will not permit any Subsidiary with an interest in
a Facility to make any investment in or merge with any other person with an
interest in a power generation facility or, except in connection with the
acquisi tion of Related Assets by such Subsidiary, in an Unrelated Business.
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
SECTION 4.1 Merger and Consolidation of Company.
The Company shall not in a single transaction or through a
series of related transactions consolidate with or merge with or into any other
corpora tion or sell, assign, convey, transfer or lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety to any
Person or group of affiliated Persons, unless:
(i) either (A) the Company shall be the continuing
Person, or (B) the Person (if other than the Company) formed by such
consolida tion or into which the Company is merged or to which the
properties and assets of the Company as an entirety are transferred
(the "Successor Corporation") shall be a corporation organized and
existing under the laws of the United States or any State thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form and
substance reasonably satisfactory to the Trustee, all the obligations
of the Company under this Indenture and the Securities;
(ii) immediately before and immediately after giving
effect to such transaction on a pro forma basis (and treating any
Indebtedness which becomes an obligation of the Company (or the
Successor Corpora tion if the Company is not the continuing obligor
under this Indenture) or any Restricted Subsidiary as a result of such
transaction as having been Incurred by such Person at the time of such
transaction), no Default shall have occurred and be continuing;
(iii) the Company shall have delivered, or caused to
be delivered, to the Trustee an Officers' Certificate and, as to legal
matters, an Opinion of Counsel, each in form and substance reasonably
satisfactory to the Trustee, each stating that such consolidation,
merger or transfer and such supplemental indenture comply with this
Indenture and that all conditions precedent herein provided for
relating to such transaction have been complied with;
(iv) immediately after giving effect to such
transaction on a pro forma basis (and treating any Indebtedness which
becomes an obliga tion of the Company (or the Successor Corporation if
the Company is not the continuing obligor under this Indenture) or a
Restricted Subsidiary in connection with or as a result of such
transaction as having been Incurred by such Person at the time of such
transaction), the Company (or the Successor Corporation if the Company
is not the continuing obligor under this Indenture) shall have
Consolidated Net Worth in an amount which is not less than the
Consolidated Net Worth of the Company immediately prior to such
transaction; and
(v) immediately after giving effect to such
transaction on a pro forma basis (and treating any Indebtedness which
becomes an obliga tion of the Company (or the Successor Corporation if
the Company is not the continuing obligor under the Indenture) or a
Restricted Subsidiary in connection with or as a result of such
transaction as having been Incurred by such Person at the time of such
transaction), the Consolidated Cover age Ratio of the Company (or the
Successor Corporation if the Company is not the continuing obligor
under the Indenture) is at least 1.10:1, or, if less, equal to the
Consolidated Coverage Ratio of the Company immedi ately prior to such
transaction; provided that, if the Consolidated Coverage Ratio of the
Company before giving effect to such transaction is within the range
set forth in column (A) below, then the pro forma Consolidated Coverage
Ratio of the Company (or the Successor Corporation if the Company is
not the continuing obligor under the Indenture) shall be at least equal
to the lesser of (1) the ratio determined by multiplying the percentage
set forth in column (B) below by the Consolidated Coverage Ratio of the
Company prior to such transaction and (2) the ratio set forth in column
(C) below:
(A) (B) (C)
1.11:1 to 1.99:1......................................... 100% 1.6:1
2.00:1 to 2.99:1......................................... 90% 2.1:1
3.00:1 to 3.99:1......................................... 80% 2.4:1
4.00:1 or more........................................... 70% 2.5:1
Notwithstanding the foregoing paragraphs (ii), (iv) and (v), any
Restricted Subsidiary (other than a Subsidiary having an interest in a Facility)
may consolidate with, merge into or transfer all or part of its properties and
assets to the Company or any Wholly Owned Subsidiary or Wholly Owned
Subsidiaries (other than a Subsidiary or Subsidiaries which have an interest in
a Facility) and no violation of this Section shall be deemed to have occurred as
a consequence thereof, as long as the requirements of paragraphs (i) and (iii)
are satisfied in connection therewith.
SECTION 4.2 Successor Substituted.
(a) Upon any such consolidation or merger, or any conveyance,
transfer, or disposition of all or substantially all of the properties or assets
of the Company in accordance with Section 4.1, but not in the case of a lease,
the Successor Corporation shall succeed to and be substituted for the Company
under this Indenture and the Securities, and the Company shall thereupon be
released from all obligations hereunder and under the Securities and the
Company, as the predecessor corporation, may thereupon or at any time thereafter
be dissolved, wound up or liquidated. The Successor Corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, all or any of the Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee; and, upon the
order of the Successor Corporation instead of the Company and subject to all the
terms, conditions and limitations prescribed in this Indenture, the Trustee
shall authenti cate and shall deliver any Securities which the Successor
Corporation thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accor dance with the terms of this Indenture as though all
such Securities had been issued at the date of the execution hereof.
(b) In the case of any consolidation, merger or transfer
described in Section 4.2(a) above, such changes in form (but not in substance)
may be made in the Securities thereafter to be issued as may be appropriate.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.1 Events of Default.
An "Event of Default" means any of the following events:
(a) default in the payment of interest on any
Security when the same becomes due and payable, and such default
continues for a period of 30 days;
(b) default in the payment of the principal of any
Security when the same becomes due and payable at maturity or otherwise
or a failure to redeem or purchase Securities when required pursuant to
this Indenture or the Securities;
(c) default in performance of any other covenants or
agree ments in the Securities or this Indenture and the default
continues for 30 days after the date on which written notice of such
default is given to the Company by the Trustee or to the Company and
the Trustee by Holders of at least 25% in principal amount of the
Securities then outstanding hereun der;
(d) there shall have occurred either (i) a default by
the Company or any Subsidiary under any instrument or instruments under
which there is or may be secured or evidenced any Indebtedness of the
Company or any Subsidiary of the Company (other than the Securities)
having an outstanding principal amount of $2,000,000 (or its foreign
currency equivalent) or more individually or $5,000,000 (or its foreign
currency equivalent) or more in the aggregate that has caused the
holders thereof to declare such Indebtedness to be due and payable
prior to its Stated Maturity or (ii) a default by the Company or any
Subsidiary in the payment when due of any portion of the principal
under any such instru ment, and such unpaid portion exceeds $2,000,000
(or its foreign currency equivalent) individually or $5,000,000 (or its
foreign currency equivalent) in the aggregate and is not paid, or such
default is not cured or waived, within any grace period applicable
thereto, unless such Indebtedness is dis charged within 20 days of the
Company or a Restricted Subsidiary becom
7
ing aware of such default; provided, however, that the foregoing shall
not apply to any default on Non-Recourse Indebtedness;
(e) any final judgment or order (not covered by
insurance) for the payment of money shall be rendered against the
Company or any Significant Subsidiary in an amount in excess of
$2,000,000 (or its foreign currency equivalent) individually or
$5,000,000 (or its foreign currency equivalent) in the aggregate for
all such final judgments or orders against all such Persons (treating
any deductibles, self-insurance or retention as not so covered) and
shall not be discharged, and there shall be any period of 30
consecutive days following entry of the final judgment or order in
excess of $2,000,000 (or its foreign currency equivalent) individually
or that causes the aggregate amount for all such final judgments or
orders outstanding against all such Persons to exceed $5,000,000 (or
its foreign currency equivalent) during which a stay of enforcement of
such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
(f) the Company or any Significant Subsidiary pursuant to
or within the meaning of any 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) makes a general assignment for the benefit of its credi
tors, or
(v) admits in writing its inability to generally pay its debts
as such debts become due;
or takes any comparable action under any foreign laws relating to insol
vency;
(g) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(ii) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of its property, or
(iii) orders the winding up or liquidation of the Company
or any Significant Subsidiary;
or any similar relief is granted under any foreign laws; and the order or decree
remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11 of the United States
Code or any similar Federal or State law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
Any notice of Default given by the Trustee or Securityholders
under this Section must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice of any event which with the giving of
notice or the lapse of time or both would become an Event of Default under
clause (c), (d), (e) or (g) hereof.
Subject to the provisions of Section 6.1 and 6.2, the Trustee
shall not be charged with knowledge of any Event of Default unless written
notice thereof shall have been given to the Trustee by the Company, the Paying
Agent, any Holder or an agent of any Holder.
SECTION 5.2 Acceleration.
If an Event of Default (other than an Event of Default
specified in clause (f) and (g) of Section 5.1 with respect to the Company)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 25% in principal amount of the Securities by notice to the Company
and the Trustee, may declare the principal of and accrued and unpaid interest on
all the Securities to be due and payable. Upon such declaration the principal
and interest shall be
due and payable immediately. If an Event of Default specified in clause (f) or
(g) of Section 5.1 with respect to the Company occurs, the principal of and
interest on all the Securities shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Securityholders. The Holders of a majority in principal amount of the
Securities by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration. No such rescis sion shall affect any subsequent or other Default
or Event of Default or impair any consequent right.
SECTION 5.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal or interest
on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder 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 5.4 Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Securities by notice to the Trustee may waive an existing Default and its
consequences except (a) a Default in the payment of the principal of or interest
on any Security or (b) a Default in respect of a provision that under Section
8.2 cannot be amended without the consent of each Securityholder affected. When
a Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any consequent right.
SECTION 5.5 Control by Majority.
The Holders of a majority in principal amount of the
Securities may direct the time, method and place of conducting any proceeding
for any
remedy available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture, or, subject to Section 6.1, that the Trustee determines
is unduly prejudicial to the rights of other Securityholders, or would involve
the Trustee in personal liability; provided, however, that the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification reasonably satisfactory to it against all risk, losses and
expenses caused by taking or not taking such action. Subject to Section 6.1, 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 the
Securityholders pursuant to this Indenture, unless such Securityholders shall
have provided to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred in
compliance with such request or direction.
SECTION 5.6 Limitation on Suits.
A Securityholder may pursue a remedy with respect to this
Inden ture or the Securities only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee security
reasonably satisfactory to it or indemnity 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 of security
or indemnity; and
(e) the Holders of a majority in principal amount of
the Securities do not give the Trustee a direction inconsistent with
the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder. SECTION 5.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal and interest
on the Security, on or after the respective due dates expressed in the Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
SECTION 5.8 Collection Suit by Trustee.
If an Event of Default specified in Section 5.1(a) or (b)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal and interest remaining unpaid (together with interest on such unpaid
interest to the extent lawful) and the amounts provided for in Section 6.7.
SECTION 5.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents and take such other actions including participating as a member or
otherwise in any committees of creditors appointed in the matter as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the amounts provided in Section 6.7) and the Securityholders allowed
in any judicial proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, ex penses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 6.7. To the
extent that the pay ment of any such amount due to the Trustee under Section 6.7
out of the estate in any such proceeding shall be denied for any reason, payment
of the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, divi dends, money, securities and other properties which the
Holders of the Securities may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
SECTION 5.10 Priorities.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.7;
Second: to Securityholders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall give written notice to each Securityholder
and the Trustee of the record date, the payment date and amount to be paid.
SECTION 5.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discre tion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 5.7, or a suit by Holders of more than 10% in
principal amount of the Securities.
SECTION 5.12 Waiver of Stay or Extension Laws.
The Company shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
exten sion law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
hereby expressly waives all benefit or advantage of any such law, and shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE VI
TRUSTEE
SECTION 6.1 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 their exercise, as a
prudent Person 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 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.
(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. Howev er, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(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
judg ment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(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 5.2, 5.4 or 5.5.
(iv) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, unless it receives
indemnity satisfactory to it against any risk, loss, liability or
expense.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee, in its capacity as Trustee and Registrar and
Paying Agent, shall not be liable to the Company, the Securityholders or any
other Person for interest on any money received by it, including, but not
limited to, money with respect to principal of or interest on the Securities,
except as the Trustee may agree with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
SECTION 6.2 Rights of Trustee.
(a) The Trustee may rely on any document reasonably believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate, 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 any such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsi ble for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers provided, however, that the Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice of such counsel.
(f) The Trustee shall not be obligated to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instru ment, opinion, report, notice, request, direction, consent,
order, bond, debenture or any other paper or document.
SECTION 6.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representa tion as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities other than its authenti cation. The Trustee shall have no duty to
ascertain or inquire as to the perfor mance of the Company's covenants in
Article III hereof.
SECTION 6.5 Notice of Defaults.
If a Default or an Event of Default occurs and is continuing
and if it is actually known to a Trust Officer of the Trustee, the Trustee shall
mail to Securityholders a notice of the Default or Event of Default within 90
days after a Trust Officer of the Trustee has actual knowledge of the occurrence
thereof. Except in the case of a Default in any payment on any Security, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Securityholders.
SECTION 6.6 Reports by Trustee to Holders.
Within 60 days after the reporting date stated in Section
10.10, the Trustee shall mail to Securityholders a brief report dated as of such
date that complies with TIA Sec 313(a) if required by that Section. The Trustee
also shall comply with TIA Sec 313(b)(2).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange on which the
Securities are listed. The Company shall promptly notify the Trustee when the
Securities are listed on any stock exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as the parties shall agree. The Trustee's compensa
tion shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket disbursements, expenses and advances incurred by it. Such expenses
shall include the reasonable compensation and out-of-pocket disburse ments and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense, including reasonable
attorneys' fees, disbursements and expenses, incurred by it arising out of or in
connection with the administration of this trust and the performance of its
duties hereunder including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The Trustee shall notify the Company promptly of
any claim for which it may 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 expens es of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of adminis
tration under any Bankruptcy Law.
The Company's obligations under this Section 6.7 and any Lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article VII of this Indenture
and the termination of this Indenture.
SECTION 6.8 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 at any time by so notifying the
Company. The Holders of a majority in principal amount of the Securities may, by
written notice to the Trustee, remove the Trustee by so notifying the Trustee
and the Company. The Company, by notice to the Trustee, shall remove the Trustee
if:
(a) the Trustee fails to comply with Section 6.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the 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 Securities 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 at least 10% in principal amount of the Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 6.10, any
Securityholder 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 resigna
tion 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 Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the Lien
provided for in Section 6.7.
SECTION 6.9 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 6.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sec 310(a)(1). The Trustee shall always have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent pub
lished annual report of condition. The Trustee shall comply with TIA Sec 310(b).
Nothing herein shall prevent the Trustee from filing with the SEC the
application referred to in the second-to-last paragraph of TIA Sec 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Sec 311(a), except with
respect to any creditor relationship listed in TIA Sec 311(b). A Trustee who has
resigned or been removed is subject to TIA Sec 311(a) to the extent indicated.
ARTICLE VII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 7.1 Discharge of Liability on Securities; Defeasance.
If (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.9) for
cancellation or (ii) all outstanding Securities have become due and payable and
the Company irrevoca bly deposits with the Trustee as trust funds solely for the
benefit of the Holders for that purpose funds sufficient to pay at maturity the
principal of and all accrued interest on all outstanding Securities (other than
Securities replaced pursuant to Section 2.9), and if in either case the Company
pays all other sums payable hereunder by the Company, then, subject to Sections
7.2 and 7.7, this Indenture shall cease to be of further effect. The Trustee
shall acknowledge satisfaction and discharge of this Indenture on demand of the
Company accompa nied by an Officers' Certificate and an Opinion of Counsel and
at the cost and expense of the Company.
SECTION 7.2 Termination of Company's Obligations.
Except as otherwise provided in this Section 7.2, the Company
may terminate its obligations under the Securities and this Indenture if:
(i) the Securities mature within one year or all of them are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for giving the notice of redemption, (ii) the Company irrevocably
depos its in trust with the Trustee or Paying Agent (other than the Company or a
Subsidiary or Affiliate of the Company) under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
solely for the benefit of the Holders for that purpose, money or U.S. Government
Obli gations that, through the payment of interest and principal in respect
thereof in accordance with its terms, will provide, not later than one (1)
Business Day prior to the applicable payment date, money sufficient (in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certif ication thereof delivered to the Trustee), without
consideration of any reinvest ment of interest, to pay principal and interest on
the Securities to maturity or redemption, as the case may be, and to pay all
other sums payable by it hereun der, (iii) no Default shall have occurred and be
continuing on the date of such
deposit, (iv) such deposit will not result in or constitute a Default or result
in a breach or violation of, or constitute a default under, any other agreement
or in strument to which the Company is a party or by which it is bound and (v)
the Company has delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, in each case stating that all conditions precedent provided for
herein relating to the satisfaction and discharge of this Indenture have been
complied with; provided that the Trustee or Paying Agent shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal and interest with
respect to the Secu rities.
With respect to the foregoing, the Company's obligations in
Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.14, 3.1, 3.2, 6.7, 6.8, 7.5
and 7.6 shall survive until the Securities are no longer outstanding.
Thereafter, only the Company's obligations in Sections 6.7, 6.8 and 7.6 shall
survive. After any such irrevocable deposit and fulfillment of the other
requirements of this Section 7.2, the Trustee upon request shall acknowledge in
writing the discharge of the Company's obligations under the Securities and this
Indenture except for those surviving obligations specified above.
SECTION 7.3 Defeasance and Discharge of Indenture.
The Company will be deemed to have paid and will be discharged
from any and all obligations in respect of the Securities on the 123rd day after
the date of the deposit referred to in clause (i) hereof, and the provisions of
this Indenture will no longer be in effect with respect to the Securities, in
each case subject to the penultimate paragraph of this Section 7.3, and the
Trustee, at the reasonable request of and at the expense of the Company, shall
execute proper in struments acknowledging the same, except as to (a) rights of
registration of transfer and exchange, (b) substitution of apparently mutilated,
defaced, de stroyed, lost or stolen Securities, (c) rights of Holders to receive
payments of principal thereof and interest thereon, (d) the Company's
obligations under Section 3.2, (e) the rights, obligations and immunities of the
Trustee hereunder including, without limitation, those arising under Section 6.7
hereof, (f) the rights of the Holders as beneficiaries of this Indenture with
respect to the property so deposited with the Trustee payable to all or any of
them and (g) the rights, obligations and immunities which survive as provided in
the penultimate para graph of this Section 7.3; provided that the following
conditions shall have been satisfied:
(i) with reference to this Section 7.3, the Company
has irrevocably deposited or caused to be irrevocably deposited with
the Trustee (or another trustee satisfying the requirement of Section
6.10) or Paying Agent (other than the Company or a Subsidiary or
Affiliate of the Company) and conveyed all right, title and interest
for the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders, in and to, (A) money in an
amount, (B) U.S. Government Obligations that, through the payment of
interest and principal in respect thereof in accordance with their
terms, will provide, not later than one Business Day before the due
date of any payment referred to in this clause (i), money in an amount
or (C) a combination thereof in an amount sufficient, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, without consideration of any reinvestment of
interest and after payment of all federal, state and local taxes or
other fees, charges and assessments in respect thereof payable by the
Trustee or Paying Agent, the principal of and interest on the
outstanding Securities when due; provided that the Trustee or Paying
Agent shall have been irrevo cably instructed to apply such money or
the proceeds of such U.S. Gov ernment Obligations to the payment of
such principal and interest with respect to the Securities;
(ii) such deposit will not result in or constitute a
Default or result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company is a
party or by which it is bound;
(iii) no Default shall have occurred and be
continuing on the date of such deposit or during the period ending on
the 123rd day after such date of deposit;
(iv) the Company shall have delivered to the Trustee
(A) either (1) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders will not
recognize income, gain or loss for federal income tax purposes as a
result of the Company's exercise of its option under this Section 7.3
and will be subject to federal income tax on the same amount and in the
same manner and at the same
times as would have been the case if such option had not been exercised
or (2) an Opinion of Counsel (who may not be an employee of the Com
pany) to the same effect as the ruling described in clause (1)
accompanied by a ruling to that effect published by the Internal
Revenue Service, unless there has been a change in the applicable
federal income tax law since the date of this Indenture such that a
ruling from the Internal Revenue Service is no longer required and (B)
an Opinion of Counsel to the effect that (1) the creation of the
defeasance trust does not violate the Investment Com pany Act of 1940,
(2) after the passage of 123 days following the deposit (except, with
respect to any trust funds for the account of any Holder who may be
deemed to be an "insider" for purposes of Title 11 of the United States
Code, after one year following the deposit), the trust funds will not
be subject to the effect of Section 547 of the United States Bankruptcy
Code or Section 15 of the New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute, and
either (x) the trust funds will no longer remain the property of the
Compa ny (and therefore, will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (y) if a court were to rule
under any such law in any case or proceeding that the trust funds
remained property of the Company, (I) assuming such trust funds
remained in the possession of the Trustee prior to such court ruling to
the extent not paid to Holders, the Trustee will hold, for the benefit
of the Holders, a valid and perfected security interest in such trust
funds that is not avoidable in bankruptcy or otherwise except for the
effect of Section 552(b) of the United States Bankruptcy Code on
interest on the trust funds accruing after the commencement of a case
under such statute and (II) the Holders will be entitled to receive
adequate protection of their interests in such trust funds if such
trust funds are used in such case or proceeding; and
(v) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all condi tions precedent provided for herein relating to the
defeasance contemplated by this Section 7.3 have been complied with.
Notwithstanding the foregoing clause (i), prior to the end of
the 123-day period referred to in clause (iv)(B)(2) above, none of the Company's
obligations under this Indenture shall be discharged. Subsequent to the end of
such 123-day period with respect to this Section 7.3, the Company's obligations
in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.14, 3.1, 3.2, 6.7, 6.8,
7.6
and 7.7 shall survive until the Securities are no longer outstanding.
Thereafter, only the Company's obligations in Sections 6.7, 7.6 and 7.7
shall survive. If and
when a ruling from the Internal Revenue Service or Opinion of Counsel referred
to in clause (iv(A) above is able to be provided specifically without regard to,
and not in reliance upon, the continuance of the Company's obligations under
Section 3.1, then the Company's obligations under such Section 3.1 shall cease
upon delivery to the Trustee of such ruling or Opinion of Counsel and compliance
with the other conditions precedent provided for herein relating to the
defeasance contemplated by this Section 7.3.
After any such irrevocable deposit and the fulfillment of the
other requirements of this Section 7.3, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 7.4 Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or
condition set forth in clauses (iv) and (v) of Section 4.1 and Sections 3.3
through 3.19, and clause (c) of Section 5.1 with respect to clauses (iv) and (v)
of Section 4.1 and Section 3.3 through 3.19, and clauses (d) and (e) of Section
5.1 shall be deemed not to be Events of Default, in each case with respect to
the outstanding Securities if:
(i) with reference to this Section 7.4, the Company
has irrevocably deposited or caused to be irrevocably deposited with
the Trustee (or another trustee satisfying the requirements of Section
6.10) or Paying Agent (other than the Company or a Subsidiary or
Affiliate of the Company) and conveyed all right, title and interest
for the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders, in and to, (A) money in an
amount, (B) U.S. Government Obligations that, through the payment of
interest and principal in respect thereof in accordance with their
terms, will provide, not later than one Business Day before the due
date of any payment referred to in this clause (i), money in an amount
or (C) a combination thereof in an amount, sufficient, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay
and discharge, without consideration of the reinvestment of such
interest and after payment of all federal, state and local taxes or
other fees, charges and assessments in respect thereof payable by the
Trustee or Paying Agent, the principal of and interest on the
outstanding Securities when due; provided that the Trustee or Paying
Agent shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of such
principal and interest with respect to the Securities;
(ii) such deposit will not result in or constitute a
Default or result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company is a
party or by which it is bound;
(iii) no Default shall have occurred and be continuing on
the date of such deposit;
(iv) the Company has delivered to the Trustee an
Opinion of Counsel who is not employed by the Company to the effect
that (A) the creation of the defeasance trust does not violate the
Investment Company Act of 1940, (B) the Holders have a valid
first-priority security interest in the trust funds, (C) the Holders
will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and defeasance of certain obligations and
will be subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred and (D) after the passage of
123 days following the deposit (except, with respect to any trust funds
for the account of any Holder who may be deemed to be an "insider" for
purposes of the United States Bankruptcy Code, after one year following
the deposit), the trust funds will not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the
New York Debtor and Creditor Law in a case commenced by or against the
Company under either such statute, and either (1) the trust funds will
no longer remain the property of the Company (and therefore, will not
be subject to the effect of any applicable bankruptcy, insolvency,
reorganiza tion or similar laws affecting creditors' rights generally)
or (2) if a court were to rule under any such law in any case or
proceeding that the trust funds remained property of the Company, (x)
assuming such trust funds remained in the possession of the Trustee
prior to such court ruling to the extent not paid to Holders, the
Trustee will hold, for the benefit of the
Holders, a valid and perfected security interest in such trust funds
that is not avoidable in bankruptcy or otherwise except for the effect
of Section 552(b) of the United States Bankruptcy Code on interest on
the trust funds accruing after the commencement of a case under such
statute and (y) the Holders will be entitled to receive adequate
protection of their interests in such trust funds if such trust funds
are used in such case or proceeding; and
(v) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all condi tions precedent provided for herein relating to the
defeasance contemplated by this Section 7.4 have been complied with.
SECTION 7.5 Application of Trust Money.
Subject to Section 7.7 of this Indenture, the Trustee or
Paying Agent shall hold in trust money or U.S. Government Obligations deposited
with it pursuant to Section 7.2, 7.3 or 7.4 of this Indenture, as the case may
be, and shall apply the deposited money and the money from U.S. Government
Obliga tions in accordance with this Indenture to the payment of principal of
and interest on the Securities. The Trustee shall be under no obligation to
invest such money or U.S. Government Obligations except as it may agree with the
Company and in no event shall the Trustee have any liability for, or in respect
of, any such investment made as agreed with the Company.
SECTION 7.6 Repayment to Company.
Subject to Sections 6.7, 7.2, 7.3 and 7.4 of this Indenture,
the Trustee and the Paying Agent shall promptly pay to the Company upon written
request any excess money held by them at any time and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years; provided, however, that the Company shall if requested by the Trustee or
the Paying Agent, give the Trustee or such Paying Agent indemnification reason
ably satisfactory to it against any and all liability which may be incurred by
it by reason of such payment; and provided, further, that the Trustee or such
Paying Agent before being required to make any payment may cause to be published
at the request and expense of the Company once in a newspaper of general circula
tion in the City of New York or mail to each Holder entitled to such money at
such Holder's address as set forth in the Security Register notice that such
money remains unclaimed and that after a date specified therein (which shall be
at least 30 days from the date of such publication or mailing) any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to the Company
for payment as general creditors unless an applicable law designates another
person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
SECTION 7.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 7.2, 7.3 or 7.4 of this
Indenture, as the case may be, by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining, restrain
ing or otherwise prohibiting such application, the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 7.2, 7.3 or 7.4 of this Indenture, as
the case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section
7.2, 7.3 or 7.4 of this Indenture, as the case may be; provided that, if the
Company has made any payment of principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE VIII
AMENDMENTS AND SUPPLEMENTS
SECTION 8.1 Without Consent of Holders.
The Company and the Trustee may amend this Indenture or the
Securities or enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as then in effect)
without notice to or the consent of any Securityholder for one or more of the
following purposes:
(a) to cure any ambiguity, omission, defect or
inconsistency;
(b) to comply with Article IV;
(c) to provide for uncertificated Securities in
addition to certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Internal Revenue Code of 1986, as amended, or in
a manner such that the uncertificated Securities are described in
Section 163(f)(2)(B) of the Code;
(d) to add additional guarantees with respect to the Securi
ties or to secure the Securities;
(e) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein conferred upon
the Company;
(f) to comply with the requirements of the SEC in con
nection with qualification of the Indenture under the TIA;
(g) to make any change that does not adversely affect the
rights of any Securityholder; or
(h) to provide for the issuance of additional
Securities in an aggregate principal amount not to exceed $75,000,000;
provided, howev er, the aggregate principal amount of Securities
outstanding at any time may not exceed $275,000,000.
After an amendment or supplement under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly describing
such amendment or supplement. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment or supplement under this Section.
SECTION 8.2 With Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities with the written consent of the Holders of a
majority in principal amount of the Securities. However, without the consent of
each Securityholder affected, an amendment or supplement under this Section may
not:
(a) reduce the amount of Securities the Holders of which
must consent to an amendment or supplement;
(b) reduce the rate of or change the time for payment of
interest on any Security;
(c) reduce the principal of or change the Stated Maturity of
any Security;
(d) reduce the premium payable upon the redemption of
any Security or change the time at which any Security may or shall be
redeemed in accordance with Article IX;
(e) make any Security payable in currency or consideration
other than that stated in the Security;
(f) make any change in Section 5.4, Section 5.7 or
this second sentence of this Section 8.2.
It shall not be necessary for the consent of the Holders under
this Section 8.2 to approve the particular form of any proposed amendment,
supple ment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or supplement under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly describing
such amendment or supplement. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment or supplement under this Section.
SECTION 8.3 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Securities shall be set forth in a supplemental indenture that complies with the
TIA as then in effect.
SECTION 8.4 Revocation and Effect of Consents.
Until an amendment or supplement under this Article or a waiver
under Article VI becomes effective, a consent to it by a Holder of a Security is
a continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective.
After an amendment or supplement becomes effective, it shall
bind every Securityholder.
SECTION 8.5 Notation on or Exchange of Securities.
If an amendment changes the terms of a Security, the Trustee
may require the Holder of the Security to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Security regarding the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
deter mines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment.
SECTION 8.6 Trustee To Sign Amendments.
The Trustee shall sign any supplemental indenture which sets
forth an amendment or supplement authorized pursuant to this Article if the
amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such supplemental indenture the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
such supplemental indenture is authorized or permitted by this Indenture and,
with respect to an amendment or supplement pursuant to Section 8.2, evidence of
the consents of Holders required in connec tion therewith.
SECTION 8.7 Fixing of Record Dates.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to take any action
under this Indenture by vote or consent. Except as provided herein, such record
date shall
be the later of 30 days prior to the first solicitation of such consent or vote
or the date of the most recent list of Securityholders furnished to the Trustee
pursuant to Section 2.5 prior to such solicitation. If a record date is fixed,
those Persons who were Securityholders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such Persons continue to be Holders after such record date;
provided, however, that unless such vote or consent is obtained from the Holders
(or their duly designated proxies) of the requisite principal amount of
outstanding Securities prior to the date which is the 120th day after such
record date, any such vote or consent previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
ARTICLE IX
REDEMPTION
SECTION 9.1 Notices to Trustee.
If the Company elects to redeem Securities pursuant to
paragraph 5 of the Securities it shall notify the Trustee of the redemption date
and the princi pal amount (not including any premium in respect thereof) of
Securities to be redeemed and the paragraph of the Securities pursuant to which
the redemption will occur.
The Company shall give the notices provided for in this
Section at least 40 days before the redemption date (unless a shorter period
shall be satisfac tory to the Trustee). Such notice shall be accompanied by an
Officers' Certificate to the effect that such redemption will comply with the
conditions herein. If fewer than all the Securities are to be redeemed, the
record date relating to such redemption shall be selected by the Company and
given to the Trustee, which record date shall be not less than 15 days after the
date of notice to the Trustee.
SECTION 9.2 Selection of Securities To Be Redeemed.
If fewer than all the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed pro rata or by lot or by any
other method that complies with applicable legal and securities exchange
requirements, if any, and that the Trustee considers, in its sole discretion,
fair and appropriate
and in accordance with methods generally used at the time of selection by
fiduciaries in similar circumstances. The Trustee shall make the selection not
more than 75 days before the redemption date from outstanding Securities not
previously called for redemption. The Trustee may select for redemption por
tions of the principal of Securities that have denominations larger than $1,000.
Securities and portions of them selected by the Trustee shall be in amounts of
$1,000 or whole multiples of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
SECTION 9.3 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption to each Holder whose
Securities are to be redeemed at the address set forth for such Holder on the
register referred to in Section 2.3.
The notice shall identify the Securities to be redeemed and
shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(e) if fewer than all the outstanding Securities are
to be redeemed, the identification and principal amounts of the
particular Securities to be redeemed;
(f) that, unless the Company defaults in making the
re demption payment, interest on Securities called for redemption
ceases to accrue on and after the redemption date; and
(g) 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 Securities.
At the Company's written request, made at least 45 days before
a redemption date, unless a shorter period shall be satisfactory to the Trustee,
the Trustee shall give the notice of redemption provided for in this Section in
the Company's name and at its expense.
SECTION 9.4 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemp tion become due and payable on the redemption date at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
re demption price stated in the notice, plus accrued and unpaid interest to the
redemption date.
SECTION 9.5 Deposit of Redemption Price.
Prior to 11:00 a.m., eastern standard time, the redemption
date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued and unpaid interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to the
Trustee for cancel lation.
SECTION 9.6 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Compa ny shall execute and the Trustee shall authenticate for the Holder (at the
Company's expense) a new Security equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by any of TIA Secs 310 to 317, inclusive,
through operation of TIA Sec 318(c), such imposed duties shall control. SECTION
10.2 Notices.
Any notice or communication shall be in writing and delivered
in person, or mailed by first-class mail (certified, return receipt requested),
ad dressed as follows:
if to the Company:
Calpine Corporation
50 West San Fernando Street
San Jose, California 95113
Attention: Corporate Secretary
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10271
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications. Any notice to the Trustee under this Indenture shall be deemed
given only when received by the Trustee at the address specified in this Section
10.2.
Any notice or communication to a Securityholder shall be
mailed by first-class mail to the Securityholder's address shown on the register
kept by the Registrar. Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with respect
to other Securityholders.
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.
If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the same
time.
SECTION 10.3 Communication by Holders with Other
Holders.
Securityholders may communicate pursuant to TIA Sec 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Sec 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, if requested by the
Trustee, furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reason ably satisfactory to the Trustee stating that, in the opinion of
the signers, all conditions precedent (including any covenants
compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(b) an Opinion of Counsel in form and substance
reason ably satisfactory to the Trustee stating that, in the opinion of
such counsel (which may rely upon an Officers' Certificate as to
factual matters), all such conditions precedent have been complied
with.
SECTION 10.5 Statements Required in Certificate or
Opinion.
Each Officers' Certificate or Opinion of Counsel with respect
to compliance with a condition or covenant provided for in this Indenture other
than certificates provided pursuant to Section 3.9 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 complied with; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied with.
SECTION 10.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 10.7 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York or the
State(s) in which the offices of the Trustee and the Paying Agent are located.
If a payment date is a Legal Holiday, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period. If a regular record date is a Legal Holiday, the
regular record date shall not be affected.
SECTION 10.8 Successors; No Recourse Against Others.
(a) All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this Inden
ture shall bind its successor.
(b) All liability of the Company described in the Securities
insofar as it relates to any director, officer, employee or stockholder, as
such, of the Company is waived and released by each Securityholder.
SECTION 10.9 Duplicate Originals.
The parties may sign any number of copies of this Indenture.
One signed copy is enough to prove this Indenture.
SECTION 10.10 Other Provisions.
The first certificate pursuant to Section 3.09 shall be for
the fiscal year ending on December 31, 1997.
The reporting date for Section 6.6 is July 15 of each year. The first
reporting date is July 15, 1998.
SECTION 10.11 Governing Law.
The laws of the State of New York govern this Indenture and
the Securities, without regard to the conflicts of laws rules thereof.
0173469.05-01S6a
8
SIGNATURES
CALPINE CORPORATION
By
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
Name:
Title:
Dated: July 8, 1997
9
EXHIBIT A
(Form of Face of Initial Security)
[UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTA TIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANS FERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.8
OF THE INDENTURE (AS DEFINED BELOW).]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISI TION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURI TIES ACT) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULA TION S UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THIS SECURITY OR THE LAST DATE ON WHICH THIS SECURITY WAS HELD BY AN
AFFILIATE OF THE COMPANY, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLI ANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEG
END. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUANCE OF THIS
SECURITY OR THE LAST DATE ON WHICH THIS SECURITY WAS HELD BY
AN AFFILIATE OF THE COMPANY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
HEREIN RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE
TRUSTEE. 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. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
- --------
This legend should only be added if the Security is issued as a Global
Note.
A-1
CALPINE CORPORATION
8 3/4% Senior Note Due 2007
No. S-1 $200,000,000
CUSIP: 131347AE6
ISIN: US131347AE66
Calpine Corporation, a Delaware corporation, promises to pay to Cede &
Co., or registered assigns, the principal sum of Two Hundred Million Dollars on
July 15, 2007.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Additional provisions of this Security are set forth on the reverse
hereof.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Date:
CALPINE CORPORATION
By
Name:
Title:
By
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION:
The Bank of New York, as Trustee, certifies that this is one of the Securities
referred to in the Indenture.
By: _________________________ Dated: ______________________
Authorized Signature
(Form of Reverse of Initial Security)
Calpine Corporation
8 3/4% Senior Note Due 2007
(1) Interest. Calpine Corporation, a Delaware corporation
(such corpora tion, and its successors and assigns under the Indenture referred
to below, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at 8 3/4% per annum (subject to adjustment as
provided below). The Company will pay interest semiannually on January 15 and
July 15 of each year. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from July 8, 1997. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
If an exchange offer registered under the Securities Act (as
defined in the Indenture) is not consummated, or a registration statement under
the Securities Act with respect to resales of the Securities is not declared
effective by the SEC (as defined in the Indenture), by the 180th calendar day
following the initial sale of the Securities, in accordance with the terms of a
Registration Rights Agreement dated July 1, 1997 by and among the Company,
Credit Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated,
Salomon Brothers Inc and Scotia Capital Markets (USA) Inc., BancAmerica
Securities, Inc. and CIBC Wood Gundy Securities Corp. interest due per annum on
the Securities shall be permanently increased by one-half of one percent, com
mencing as of January 5, 1998 (the 181st calendar day following the initial sale
of the Securities). The holder of this Security is entitled to the benefits of
such Registration Rights Agreement.
(2) Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the persons who are registered Holders
of Securities at the close of business on the record date next preceding the
interest payment date even though Securities are canceled after the record date
and on or before the interest payment date. Holders must surrender Securities to
a Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
principal and interest by check payable in such money. It may mail an interest
check to a Holder's registered address.
(3) Paying Agent, Registrar. Initially, The Bank of New York, a New
York banking corporation (the "Trustee"), will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-registrar
without notice. The Company may act as Paying Agent, Registrar or co-registrar.
(4) Indenture. The Company issued the Securities under an
Indenture dated as of July 8, 1997 (the "Indenture") between the Company and the
Trustee. The Securities are unsecured general obligations of the
Company limited to $275,000,000 in aggregate principal amount. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Secs 77aaa-77bbbb) (the "TIA"). Capitalized terms used herein but not defined
herein are used as defined in the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the Indenture and the TIA for a
statement of such terms.
(5) Optional Redemption. Except as set forth in the following
paragraph, the Company may not redeem the Securities prior to July 15, 2002. On
and after such date, the Company may redeem the Securities at any time as a
whole, or from time to time in part, at the following redemption prices
(expressed in percentages of principal amount), plus accrued interest to the
redemption date, if redeemed during the 12-month period beginning July 15,
Year %
2002 . . . . . . . . . . 104.3750%
2003 . . . . . . . . . . 102.1875%
2004 and thereafter . . 100.000%
The Company may redeem up to $70,000,000 principal amount of
Securi ties with the proceeds of one or more Public Equity Offerings following
which there is a Public Market, at any time in whole or from time to time in
part, at a price (expressed as a percentage of principal amount), plus accrued
interest to the redemption date, of 108.75% if redeemed at any time prior to
July 15, 2000.
(6) 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 of Securi ties to be redeemed at the address set forth for such Holder on
the register referred to in Section 2.3 of the Indenture. Unless the Company
shall default in payment of the re demption price plus accrued interest, on and
after the redemption date interest ceases to accrue on such Securities or
portions of them called for redemption. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000.
(7) Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any
Security or portion of a Security selected for redemption (except, in the
case of a Security to be redeemed in part, the portion thereof not to be
redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed, or 15 days before an interest payment date.
(8) Put Provisions. Upon a Change of Control Triggering Event,
any Holder of Securities will have the right to cause the Company to repurchase
all or any part of the Securities of such Holder at a repurchase price equal to
101% of the principal amount of the Securities to be repurchased plus accrued
interest to the date of repurchase as provided in, and subject to the terms of,
the Indenture.
(9) Defeasance. Subject to certain conditions, the Company at
any time may terminate some or all of its obligations under the Securities and
the Indenture if the Company deposits with the Trustee money and/or U.S.
Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
(10) Persons Deemed Owners. The registered Holder of a
Security may be treated as its owner for all purposes, except that interest
(other than defaulted interest) will be paid to the person that was the
registered Holder on the relevant record date for such payment of interest.
(11) Amendments and Waivers. Subject to certain exceptions,
(i) the Indenture or the Securities may be amended or supplemented with the
consent of the Holders of a majority in principal amount of the Securities; and
(ii) any existing default may be waived with the consent of the Holders of a
majority in principal amount of the Securities. Without the consent of any
Securityholder, the Indenture or the Securities may be amended or supplemented
to cure any ambiguity, omission, defect or incon sistency, to provide for
assumption of Company obligations to Securityholders or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
to provide for guarantees with respect to, or security for, the Securities, or
to comply with the TIA or to add additional covenants or surrender Company
rights, or to make any change that does not adversely affect the rights of any
Securityholder.
(12) Remedies. If an Event of Default occurs and is
continuing, the Trustee or Holders of at least 25% in principal amount of the
Securities may declare all the Securities to be due and payable immediately.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require an indemnity before it
enforces the Indenture or the Securities. Subject to certain limita tions,
Holders of a majority in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company must furnish an annual compliance certificate to the
Trustee.
(13) Trustee Dealings with Company. Subject to the provisions
of the TIA, the Trustee under the Indenture, 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 Trustee.
The Trustee will initially be The Bank of New York.
(14) No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
(15) Authentication. This Security shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.
(16) Abbreviations. Customary abbreviations may be used in the
name of a Securityholder 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).
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture, which has in it the text of
this Security in larger type. Requests may be made to: Secretary, Calpine
Corporation, 50 West San Fernando Street, San Jose, California 95113.
A-2
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Insert assignee's soc. sec or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
Dated: Signed:
(Sign exactly as your name appears on the
other side of this Security)
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.
MANNER OF TRANSFER (Check one)
Transfer to Calpine Corporation o
Transfer to Qualified Institutional Buyer o
Transfer outside the United States in
compliance with Rule 904 under
the Securities Act of 1993 o
OPTION OF HOLDER TO ELECT PURCHASE FORM
If you wish to elect to have this Security purchased by the Company
pursuant to Section 3.8 or 3.12 of the Indenture, check this box: |_|
If you wish to elect to have only part of this Security purchased by
the Company pursuant to Section 3.8 or 3.12 of the Indenture, state the amount:
$
*As set forth in the Indenture, any purchase pursuant to Section 3.12
is subject to proration in the event the offer is oversubscribed.
Dated: Signed:
(Sign exactly as your name appears on the
other side of this Security)
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-3
EXHIBIT B
(Form of Face of Exchange Security)
[UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.8
OF THE INDENTURE (AS DEFINED BELOW).]
- --------
This legend should only be added if the Security is issued as a Global
Note.
B-1
CALPINE CORPORATION
8 3/4% Senior Note Due 2007
No. $200,000,000
CUSIP: 131347AE6
ISIN: US131347AE66
Calpine Corporation, a Delaware corporation, promises to pay to Cede &
Co., or registered assigns, the principal sum of Two Hundred Million Dollars on
July 15, 2007.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Additional provisions of this Security are set forth on the reverse
hereof.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Date:
CALPINE CORPORATION
By
Name:
Title:
By
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION:
The Bank of New York, as Trustee, certifies that this is one of the Securities
referred to in the Indenture.
By: _________________________ Dated: ____________________
Authorized Signature
B-2
(Form of Back of Exchange Security)
Calpine Corporation
8 3/4 Senior Note Due 2007
(1) Interest. Calpine Corporation, a California corporation
(such corpora tion, and its successors and assigns under the Indenture referred
to below, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at 8 3/4 per annum. The Company will pay
interest semiannually on January 15 and July 15 of each year. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from July 8, 1997. Interest will be computed
on the basis of a 360-day year consisting of twelve 30-day months.
(2) Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the persons who are registered Holders
of Securities at the close of business on the record date next preceding the
interest payment date even though Securities are canceled after the record date
and on or before the interest payment date. Holders must surrender Securities to
a Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
principal and interest by check payable in such money. It may mail an interest
check to a Holder's registered address.
(3) Paying Agent, Registrar. Initially, The Bank of New
York, a New York banking corporation (the "Trustee"), will act as Paying Agent
and Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without notice. The Company may act as Paying Agent, Registrar or
co-registrar.
(4) Indenture. The Company issued the Securities under an
Indenture dated as of July 8, 1997 (the "Indenture") between the Company and the
Trustee. The Securities are unsecured general obligations of the Company limited
to $275,000,000 in aggregate principal amount. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code Secs 77aaa-77bbbb)
(the "TIA"). Capitalized terms used herein but not defined herein are used as
defined in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
such terms.
(5) Optional Redemption. Except as set forth in the following
paragraph, the Company may not redeem the Securities prior to July 15, 2002. On
and after such date, the Company may redeem the Securities at any time as a
whole, or from time to time in part, at the following redemption prices
(expressed in percentages of principal amount), plus accrued interest to the
redemption date, if redeemed during the 12-month period beginning July 15,
Year %
2002 . . . . . . . . . . 104.3750%
2003 . . . . . . . . . . 102.1875%
2004, and thereafter . . 100.00%
The Company may redeem up to $70,000,000 principal amount of
Securities with the proceeds of one or more Public Equity Offerings at any time
in whole or from time to time in part, at a price (expressed as a percentage of
principal amount), plus accrued interest to the redemption date, of 108.75% if
redeemed at any time prior to July 15, 2000.
(6) 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 of Securities to be redeemed at the address set forth for such Holder on
the register referred to in Section 2.3 of the Indenture. Unless the Company
shall default in payment of the redemption price plus accrued interest, on and
after the redemption date interest ceases to accrue on such Securities or
portions of them called for redemption. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000.
(7) Denominations; Transfer; Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any
Security or portion of a Security selected for redemption (except, in the case
of a Security to be redeemed in part, the portion thereof not to be redeemed) or
any Securities for a period of 15 days before a selection of Securities to be
redeemed, or 15 days before an interest payment date.
(8) Put Provisions. Upon a Change of Control Triggering Event,
any Holder of Securities will have the right to cause the Company to repurchase
all or any part of the Securities of such Holder at a repurchase price equal to
101% of the principal amount of the Securities to be repurchased plus accrued
interest to the date of repurchase as provided in, and subject to the terms of,
the Indenture.
(9) Defeasance. Subject to certain conditions, the Company at
any time may terminate some or all of its obligations under the Securities and
the Indenture if the Company deposits with the Trustee money and/or U.S.
Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
(10) Persons Deemed Owners. The registered Holder of a
Security may be treated as its owner for all purposes, except that interest
(other than defaulted interest) will be paid to the person that was the
registered Holder on the relevant record date for such payment of interest.
(11) Amendments and Waivers. Subject to certain exceptions,
(i) the Indenture or the Securities may be amended or supplemented with the
consent of the Holders of a majority in principal amount of the Securities; and
(ii) any existing default may be waived with the consent of the Holders of a
majority in principal amount of the Securities. Without the consent of any
Securityholder, the Indenture or the Securities may be amended or supplemented
to cure any ambiguity, omission, defect or inconsistency, to provide for
assumption of Company obligations to Securityholders or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
to provide for guarantees with respect to, or security for, the Securities, or
to comply with the TIA or to add additional covenants or surrender Company
rights, or to make any change that does not adversely affect the rights of any
Securityholder.
(12) Remedies. If an Event of Default occurs and is
continuing, the Trustee or Holders of at least 25% in principal amount of the
Securities may declare all the Securi ties to be due and payable immediately.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require an indemnity before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company must furnish an annual compliance certificate to the
Trustee.
(13) Trustee Dealings with Company. Subject to the
provisions of the TIA, the Trustee under the Indenture, 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 Trustee. The Trustee will initially be The
Bank of New York.
(14) No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
(15) Authentication. This Security shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.
(16) Abbreviations. Customary abbreviations may be used in the
name of a Securityholder 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).
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture, which has in it the text of
this Security in larger type. Requests may be made to: Secretary, Calpine
Corporation, 50 West San Fernando Street, San Jose, California 95113.
- --------
9 1/4% if the exchange offer is not consummated before January 5, 1998.
B-3
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Insert assignee's soc. sec or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
Dated: Signed:
(Sign exactly as your name appears on the
other side of this Security)
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.
OPTION OF HOLDER TO ELECT PURCHASE FORM
If you wish to elect to have this Security purchased by the Company
pursuant to Section 3.8 or 3.12 of the Indenture, check this box: |_|
If you wish to elect to have only part of this Security purchased by
the Company pursuant to Section 3.8 or 3.12 of the Indenture, state the amount:
$
*As set forth in the Indenture, any purchase pursuant to Section 3.12
is subject to proration in the event the offer is oversubscribed.
Dated: Signed:
(Sign exactly as your name appears on the
other side of this Security)
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.
B-4
EXHIBIT C
Form of Certificate to be Delivered
In Connection with Transfer
Pursuant to Rule 144A
The Bank of New York, as Depositary
101 Barclay Street, Floor 21 West
New York, NY 10286
Attention: Corporate Trust Trustee Administration
Re: Calpine Corporation (the "Company")
8 3/4% Senior Notes due 2007 (the "Securities")
Dear Sirs:
In connection with our proposed sale of $________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with a transaction meeting the requirements of
Rule 144A under the Securities Act of 1933, as amended (the "Act"). We hereby
certify that we are and the transferee is a "qualified institutional buyer" (as
defined in Rule 144A under the Act) and that we are acting for our own account
or for the account of one or more qualified institutional buyers, and,
accordingly, we agree (or if we were acting for the account of one or more
qualified institutional buyers, each such qualified institutional buyer has
confirmed to us that it agrees) that we or the transferee will not offer, sell,
pledge or otherwise transfer the Notes except (A) to a Person who we reasonably
believe (or the transferee and anyone acting on its behalf reasonably believes)
is a qualified institutional buyer in a transaction meeting the requirements of
Rule 144A, or (B) pursuant to the exemption from registration under the Act
provided by Rule 144 (if available), in each case in accordance with any
applicable securities laws of the states of the United States.
If we are a broker-dealer, we further certify that we are
acting for the account of our customer and that our customer has confirmed the
accuracy of the representations contained herein that are applicable to it
(including the representations with respect to beneficial ownership).
This certificate and the statements contained herein are made
for the benefit of the Company and the Initial Purchasers. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By:
Name:
Title:
C-1
EXHIBIT D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------, ----
The Bank of New York
101 Barclay Street
New York, New York 10026
Attention: Corporate Trust Department
Calpine Corporation
50 West San Fernando Street
San Jose, California 95113
Attention: Corporate Secretary
Re: Calpine Corporation (the "Company")
8 3/4% Senior Notes Due 2007 (the "Securities")
Dear Sirs:
In connection with our proposed sale of $___________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in
the United States;
(2) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_______________________
Authorized Signature
D-1
CALPINE CORPORATION
and
THE BANK OF NEW YORK, Trustee
Indenture
Dated as of July 8, 1997
$275,000,000
8 3/4% Senior Notes Due 2007
D-2
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE................................... 1
SECTION 1.1 Definitions........................................... 1
SECTION 1.2 Other Definitions..................................... 23
SECTION 1.3 Incorporation by Reference of Trust Indenture Act..... 23
SECTION 1.4 Rules of Construction................................. 24
ARTICLE II
THE SECURITIES............................................................... 25
SECTION 2.1 Form and Dating........................................ 25
SECTION 2.2 Execution and Authentication........................... 27
SECTION 2.3 Registrar and Paying Agent............................. 28
SECTION 2.4 Paying Agent To Hold Money in Trust.................... 29
SECTION 2.5 Securityholder Lists................................... 30
SECTION 2.6 Transfer and Exchange.................................. 30
SECTION 2.7 Book-Entry Provisions for Global Note.................. 31
SECTION 2.8 Special Transfer Provisions............................ 32
SECTION 2.9 Replacement Securities................................. 34
SECTION 2.10 Outstanding Securities................................ 34
SECTION 2.11 Determination of Holders' Action...................... 35
SECTION 2.12 Temporary Securities.................................. 35
SECTION 2.13 Cancellation.......................................... 35
SECTION 2.14 Defaulted Interest.................................... 36
ARTICLE III
COVENANTS.................................................................... 36
SECTION 3.1 Payment of Securities.................................. 36
SECTION 3.2 Maintenance of Office or Agency........................ 37
SECTION 3.3 Limitation on Restricted Payments...................... 37
SECTION 3.4 Limitation on Incurrence of Indebtedness............... 41
SECTION 3.5 Limitation on Payment Restrictions Affecting
Subsidiaries........................................... 43
SECTION 3.6 Limitation on Sale/Leaseback Transactions.............. 44
SECTION 3.7 Limitation on Liens.................................... 45
SECTION 3.8 Change of Control...................................... 47
SECTION 3.9 Compliance Certificate................................. 49
SECTION 3.10 SEC Reports........................................... 50
SECTION 3.11 Transactions with Affiliates.......................... 50
SECTION 3.12 Sales of Assets....................................... 51
SECTION 3.13 Corporate Existence................................... 55
SECTION 3.14 Payment of Taxes and Other Claims..................... 56
SECTION 3.15 Notice of Defaults and Other Events................... 56
SECTION 3.16 Maintenance of Properties and Insurance............... 57
SECTION 3.17 Limitation on Issuance of Capital Stock and Incurrence
of Indebtedness of Restricted Subsidiaries... 57
SECTION 3.18 Limitation on Changes in the Nature of the Business... 58
SECTION 3.19 Limitation on Subsidiary Investments.................. 58
ARTICLE IV
CONSOLIDATION, MERGER AND SALE............................................... 59
SECTION 4.1 Merger and Consolidation of Company. .................. 59
SECTION 4.2 Successor Substituted.................................. 61
ARTICLE V
DEFAULTS AND REMEDIES........................................................ 62
SECTION 5.1 Events of Default...................................... 62
SECTION 5.2 Acceleration........................................... 64
SECTION 5.3 Other Remedies......................................... 65
SECTION 5.4 Waiver of Past Defaults................................ 65
SECTION 5.5 Control by Majority.................................... 65
SECTION 5.6 Limitation on Suits.................................... 66
SECTION 5.7 Rights of Holders To Receive Payment................... 67
SECTION 5.8 Collection Suit by Trustee............................. 67
SECTION 5.9 Trustee May File Proofs of Claim....................... 67
SECTION 5.10 Priorities............................................ 68
SECTION 5.11 Undertaking for Costs................................. 68
SECTION 5.12 Waiver of Stay or Extension Laws...................... 68
ARTICLE VI
TRUSTEE...................................................................... 69
SECTION 6.1 Duties of Trustee...................................... 69
SECTION 6.2 Rights of Trustee...................................... 70
SECTION 6.3 Individual Rights of Trustee........................... 71
SECTION 6.4 Trustee's Disclaimer................................... 71
SECTION 6.5 Notice of Defaults..................................... 71
SECTION 6.6 Reports by Trustee to Holders.......................... 72
SECTION 6.7 Compensation and Indemnity............................. 72
SECTION 6.8 Replacement of Trustee................................. 73
SECTION 6.9 Successor Trustee by Merger, etc....................... 74
SECTION 6.10 Eligibility; Disqualification......................... 74
SECTION 6.11 Preferential Collection of Claims Against Company. .. 74
ARTICLE VII
SATISFACTION AND DISCHARGE OF INDENTURE...................................... 75
SECTION 7.1 Discharge of Liability on Securities; Defeasance....... 75
SECTION 7.2 Termination of Company's Obligations................... 75
SECTION 7.3 Defeasance and Discharge of Indenture.................. 76
SECTION 7.4 Defeasance of Certain Obligations...................... 79
SECTION 7.5 Application of Trust Money............................. 81
SECTION 7.6 Repayment to Company................................... 81
SECTION 7.7 Reinstatement.......................................... 82
ARTICLE VIII
AMENDMENTS AND SUPPLEMENTS................................................... 82
SECTION 8.1 Without Consent of Holders............................. 82
SECTION 8.2 With Consent of Holders................................ 83
SECTION 8.3 Compliance with Trust Indenture Act.................... 84
SECTION 8.4 Revocation and Effect of Consents...................... 84
SECTION 8.5 Notation on or Exchange of Securities.................. 85
SECTION 8.6 Trustee To Sign Amendments............................. 85
SECTION 8.7 Fixing of Record Dates................................. 85
ARTICLE IX
REDEMPTION................................................................... 86
SECTION 9.1 Notices to Trustee..................................... 86
SECTION 9.2 Selection of Securities To Be Redeemed................. 86
SECTION 9.3 Notice of Redemption................................... 87
SECTION 9.4 Effect of Notice of Redemption......................... 88
SECTION 9.5 Deposit of Redemption Price............................ 88
SECTION 9.6 Securities Redeemed in Part............................ 88
ARTICLE X
MISCELLANEOUS................................................................ 88
SECTION 10.1 Trust Indenture Act Controls.......................... 88
SECTION 10.2 Notices............................................... 89
SECTION 10.3 Communication by Holders with Other Holders........... 90
SECTION 10.4 Certificate and Opinion as to Conditions Precedent.... 90
SECTION 10.5 Statements Required in Certificate or Opinion......... 90
SECTION 10.6 Rules by Trustee and Agents........................... 91
SECTION 10.7 Legal Holidays........................................ 91
SECTION 10.8 Successors; No Recourse Against Others................ 91
SECTION 10.9 Duplicate Originals................................... 91
SECTION 10.10 Other Provisions..................................... 92
SECTION 10.11 Governing Law........................................ 92
SIGNATURES................................................................... 93
EXHIBIT A....................................................................A-1
EXHIBIT B....................................................................B-1
EXHIBIT C....................................................................C-1
EXHIBIT D....................................................................D-1
i