------------------------------------
CALIFORNIA ENERGY COMPANY, INC.
TO
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Indenture
Dated as of _________, 1994
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$__________________
______% Senior Discount Notes due 2004
IBJ SCHRODER BANK & TRUST COMPANY
Trustee
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CROSS-REFERENCE TABLE
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Trust Indenture Indenture
Act Section Section
- --------------- -------------------
(S) 310 (a)(1)............................................................. 609
(a)(2)............................................................. 609
(a)(3).................................................. Not Applicable
(a)(4).................................................. Not Applicable
(b)........................................................... 608, 610
(S) 311 (a)................................................................ 613
(b)................................................................ 613
(c)..................................................... Not Applicable
(S) 312 (a)........................................................... 701, 702
(b)................................................................ 702
(c)................................................................ 702
(S) 313 (a)................................................................ 703
(b)................................................................ 703
(c)................................................................ 703
(d)................................................................ 703
(S) 314 (a)................................................................ 704
(a)(4)........................................................ 101, 704
(b)..................................................... Not Applicable
(c)(1)............................................................. 102
(c)(2)............................................................. 102
(c)(3).................................................. Not Applicable
(d)..................................................... Not Applicable
(e)................................................................ 102
(f)..................................................... Not Applicable
(S) 315 (a)................................................................ 601
(b)................................................................ 602
(c)................................................................ 601
(d)................................................................ 601
(e)................................................................ 514
(S) 316 (a)................................................ 101 ("Outstanding")
(a)(1)(A)..................................................... 502, 512
(a)(1)(B).......................................................... 513
(a)(2).................................................. Not Applicable
(b)................................................................ 508
(c)................................................................ 104
(S) 317 (a)(1)............................................................. 503
(a)(2)............................................................. 504
(b)............................................................... 1003
(S) 318 (a)................................................................ 107
(b)..................................................... Not Applicable
(c)................................................................ 107
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS*
Page
----
Parties.................................................................... 1
Recitals of the Company.................................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.................................................. 1
SECTION 102. Compliance Certificates and Opinions......................... 42
SECTION 103. Form of Documents Delivered to Trustee....................... 43
SECTION 104. Acts of Holders; Record Dates................................ 44
SECTION 105. Notices, Etc., to Trustee and Company........................ 47
SECTION 106. Notice to Holders; Waiver.................................... 48
SECTION 107. Conflict with Trust Indenture Act............................ 48
SECTION 108. Effect of Headings and Table of Contents..................... 49
SECTION 109. Successors and Assigns....................................... 49
SECTION 110. Separability Clause.......................................... 49
SECTION 111. Benefits of Indenture........................................ 49
SECTION 112. Governing Law................................................ 49
SECTION 113. Legal Holidays............................................... 50
SECTION 114. No Recourse Against Others................................... 50
SECTION 115. Duplicate Originals.......................................... 50
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.............................................. 51
SECTION 202. Form of Face of Security..................................... 51
SECTION 203. Form of Reverse of Security.................................. 54
SECTION 204. Form of Trustee's Certificate of Authentication.............. 61
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*Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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ARTICLE THREE
The Securities
SECTION 301. Title and Terms.............................................. 62
SECTION 302. Denominations................................................ 62
SECTION 303. Execution, Authentication, Delivery and Dating............... 63
SECTION 304. Temporary Securities......................................... 63
SECTION 305. Registration, Registration of Transfer and Exchange.......... 64
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............. 66
SECTION 307. Payment of Interest; Interest Rights Preserved............... 67
SECTION 308. Persons Deemed Owners........................................ 68
SECTION 309. Cancellation................................................. 69
SECTION 310. Computation of Interest...................................... 69
SECTION 311. CUSIP Numbers................................................ 69
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture...................... 70
ARTICLE FIVE
Remedies
SECTION 501. Events of Default............................................ 70
SECTION 502. Acceleration of Maturity; Rescission and Annulment........... 74
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee..................................... 75
SECTION 504. Trustee May File Proofs of Claim............................. 76
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.............................................. 78
SECTION 506. Application of Money Collected............................... 78
SECTION 507. Limitation on Suits.......................................... 78
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................... 79
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SECTION 509. Restoration of Rights and Remedies........................... 80
SECTION 510. Rights and Remedies Cumulative............................... 80
SECTION 511. Delay or Omission Not Waiver................................. 80
SECTION 512. Control by Holders........................................... 81
SECTION 513. Waiver Of Past Defaults...................................... 81
SECTION 514. Undertaking for Costs........................................ 82
SECTION 515. Waiver of Stay or Extension Laws............................. 82
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.......................... 82
SECTION 602. Notice of Defaults; Notice of Acceleration................... 84
SECTION 603. Certain Rights of Trustee.................................... 84
SECTION 604. Not Responsible for Recitals or Issuance of Securities....... 86
SECTION 605. May Hold Securities.......................................... 86
SECTION 606. Money Held in Trust.......................................... 86
SECTION 607. Compensation and Reimbursement............................... 87
SECTION 608. Conflicting Interests........................................ 88
SECTION 609. Corporate Trustee Required; Eligibility...................... 88
SECTION 610. Resignation and Removal; Appointment of Successor............ 89
SECTION 611. Acceptance of Appointment by Successor....................... 90
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business................................................ 91
SECTION 613. Preferential Collection of Claims Against Company............ 91
SECTION 614. Appointment of Authenticating Agent.......................... 92
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.... 94
SECTION 702. Preservation of Information; Communications to Holders....... 95
SECTION 703. Reports by Trustee........................................... 95
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SECTION 704. Reports by Company........................................... 95
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms.......... 96
SECTION 802. Successor Substituted........................................ 98
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders........... 98
SECTION 902. Supplemental Indentures with Consent of Holders.............. 99
SECTION 903. Execution of Supplemental Indentures......................... 101
SECTION 904. Effect of Supplemental Indentures............................ 101
SECTION 905. Conformity with Trust Indenture Act.......................... 102
SECTION 906. Reference in Securities to Supplemental Indentures........... 102
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest................... 103
SECTION 1002. Maintenance of Office or Agency.............................. 103
SECTION 1003. Money for Security Payments to be Held in Trust.............. 104
SECTION 1004. Existence.................................................... 105
SECTION 1005. Maintenance of Properties.................................... 106
SECTION 1006. Payment of Taxes and Other Claims............................ 106
SECTION 1007. Maintenance of Insurance..................................... 107
SECTION 1008. Limitation on Debt........................................... 107
SECTION 1009. Limitation on Subsidiary Debt................................ 109
SECTION 1010. Limitation on Restricted Payments............................ 109
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SECTION 1011. Limitation on Transactions with Affiliates................... 112
SECTION 1012. Limitations on Liens......................................... 113
SECTION 1013. Purchase of Securities Upon a Change of Control.............. 115
SECTION 1014. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries..................................... 117
SECTION 1015. Limitation on Dispositions................................... 119
SECTION 1016. Limitation on Certain Sale-Leasebacks........................ 124
SECTION 1017. Provision of Financial Information........................... 124
SECTION 1018. Limitation on Sale of Subsidiary Preferred Stock............. 125
SECTION 1019. Statement by Officers as to Default; Compliance
Certificates............................................... 126
SECTION 1020. Waiver of Certain Covenants.................................. 127
SECTION 1021. Company to Supply Information Concerning Original
Issue Discount............................................. 128
SECTION 1022. Limitation on Business....................................... 128
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.......................................... 129
SECTION 1102. Applicability of Article..................................... 129
SECTION 1103. Election to Redeem; Notice to Trustee........................ 129
SECTION 1104. Selection by Trustee of Securities to Be Redeemed............ 130
SECTION 1105. Notice of Redemption......................................... 130
SECTION 1106. Deposit of Redemption Price................................. 131
SECTION 1107. Securities Payable on Redemption Date........................ 131
SECTION 1108. Securities Redeemed in Part.................................. 132
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant
Defeasance................................................. 133
SECTION 1202. Defeasance and Discharge..................................... 133
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SECTION 1203. Covenant Defeasance.......................................... 134
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.............. 134
SECTION 1205. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.................... 137
SECTION 1206. Reinstatement................................................ 138
TESTIMONIUM................................................................ 139
SIGNATURES AND SEALS....................................................... 140
ACKNOWLEDGEMENTS........................................................... 141
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INDENTURE, dated as of __________, 1994, between California Energy Company,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 10831 Old
Mill Road, Omaha, Nebraska 68154, and IBJ Schroder Bank & Trust Company, a New
York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its _____%
Senior Discount Notes due 2004 (the "Securities") of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
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(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
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(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (whether or not such is
indicated herein);
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as the case may
be, of this Indenture;
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(6) "or" is not exclusive;
(7) provisions apply to successive events and transactions; and
(8) each reference herein to a rule or form of the Commission shall
mean such rule or form and any rule or form successor thereto, in each
case as amended from time to time.
Whenever this Indenture requires that a particular ratio or amount be
calculated with respect to a specified period after giving effect to certain
transactions or events on a pro forma basis, such calculation shall be made as
---------
if the transactions or events occurred on the first day of such period, unless
otherwise specified.
"Accreted Value" means, with respect to each Security of a minimum
denomination, the lesser of (i) $1,000
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and (ii) an amount per $1,000 of principal amount that is equal to the sum of
(i) the issue price of such Security as determined in accordance with Section
1273 of the Internal Revenue Code or any successor provision plus (ii) the
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aggregate of the portions of the original issue discount (the excess of the
amounts considered as part of the "stated redemption price at maturity" of
such Security within the meaning of Section 1273(a)(2) of the Internal Revenue
Code or any successor provision, whether denominated as principal or interest,
over the issue price of such Security) that shall theretofore have accrued
pursuant to Section 1272 of the Internal Revenue Code or any successor
provision (without regard to Section 1272(a)(7) of the Internal Revenue Code
or any successor provision) from the date of issue of such Security (a) for
each six months or shorter period ending January 15 and July 15 (to January
15, 1997) prior to the date of determination and (b) for the shorter period,
if any, from the end of the immediately preceding six month period, as the
case may be, to the date of determination, minus (iii) all amounts theretofore
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paid in respect of such Security, which amounts are considered as part of the
"stated redemption price at maturity" of such Security within the meaning of
Section 1273(a)(2) of the Internal Revenue Code or any successor provision
(whether such amounts were denominated principal or interest).
"Acquired Debt" means Debt Incurred by a Person prior to the time (i) such
Person becomes a Restricted Subsidiary of the Company or an Eligible Joint
Venture, (ii) such Person merges with or into a Restricted Subsidiary of the
Company or an Eligible Joint Venture, or (iii) a Restricted Subsidiary of the
Company or an Eligible Joint Venture merges with or into such Person (in a
transaction in which such Person becomes a Restricted Subsidiary of the Company
or an Eligible Joint Venture), provided that, after giving effect to such
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transaction, the Non-Recourse Debt of such Person could have been Incurred
pursuant to clause (iii) of Section 1009(b) and all the other Debt of such
Person could have been Incurred by the Company at the time of such merger
or acquisition pursuant to the provision described in Section 1008(a), and
provided further that such Debt was not Incurred in connection with, or in
- -------- -------
contemplation of, such
-3-
merger or such Person becoming a Restricted Subsidiary of the Company or an
Eligible Joint Venture.
"Acquisition Debt" means Debt of any Person existing at the time such
Person is merged into the Company or assumed in connection with the acquisition
of Property from any such Person (other than Property acquired in the ordinary
course of business), including Debt Incurred in connection with, or in
contemplation of, such Person being merged into the Company (but excluding Debt
of such Person that is extinguished, retired or repaid in connection with such
merger or acquisition).
"Adjusted Consolidated Net Income" means for any period, for any Person
(the "Referenced Person") the aggregate Net Income (or loss) of the Referenced
Person and its consolidated Subsidiaries for such period determined in
conformity with GAAP, provided that the following items shall be excluded in
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computing Adjusted Consolidated Net Income (without duplication): (i) the Net
Income (or loss) of any other Person (other than a Subsidiary of the Referenced
Person) in which any third Person has an interest , except to the extent of
the amount of dividends or other distributions actually paid in cash to the
Referenced Person during such period, or after such period and on or before the
date of determination, by such Person in which the interest is held, which
dividends and distributions shall be included in such computation, (ii) solely
for the purposes of calculating the amount of Restricted Payments that may be
made pursuant to the provision described in clause (c) of Section 1010(a) (and
in such case, except to the extent includable pursuant to clause (i) above),
the Net Income (if positive) of any other Person accrued prior to the date it
becomes a Subsidiary of the Referenced Person or is merged into or consolidated
with the Referenced Person or any of its Subsidiaries or all or substantially
all the Property of such other Person are acquired by the Referenced Person or
any of its Subsidiaries, (iii) the Net Income (if positive) of any Subsidiary
of the Referenced Person, to the extent that the declaration or payment of
dividends or similar distributions by the Subsidiary to such Person or to any
other Subsidiary of such Net Income is not at the time permitted by operation
of the terms of its charter or any agreement, instrument,
-4-
judgment, decree, order, statute, rule or governmental regulation applicable
to the Subsidiary, (iv) any gains or losses (on an after-tax basis)
attributable to Asset Sales (except, solely for the purposes of calculating
the amount of Restricted Payments that may be made pursuant to the provision
described in clause (c) of Section 1010(a), any gains or losses of the Company
and any of its Restricted Subsidiaries from Asset Sales of Capital Stock of
Unrestricted Subsidiaries), (v) the cumulative effect of a change in
accounting principles and (vi) any amounts paid or accrued as dividends on
Preferred Stock of any Subsidiary of the Referenced Person that is not held by
the Referenced Person or another Subsidiary thereof. When the "Referenced
Person" is the Company, the foregoing references to "Subsidiaries" shall be
deemed to refer to "Restricted Subsidiaries."
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with") when used with respect to any Person means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise. For the purpose of Section 1011, the term
"Affiliate" includes only Kiewit, any entity beneficially owning 10% or more of
the Voting Stock of the Company and their respective Affiliates other than the
Restricted Subsidiaries and the Eligible Joint Ventures and the other equity
investors in the Restricted Subsidiaries and the Eligible Joint Ventures (solely
on account of their investments in the Restricted Subsidiaries and the Eligible
Joint Ventures), and for such purpose such term also includes the Unrestricted
Subsidiaries.
"Asset Acquisition" means (i) an investment by the Company, any of its
Subsidiaries or any Joint Venture in any other Person pursuant to which such
Person shall become a direct or indirect Subsidiary of the Company or a Joint
Venture or shall be merged into or consolidated with the Company, any of its
Subsidiaries or
-5-
any Joint Venture or (ii) an acquisition by the Company, any of its
Subsidiaries or any Joint Venture of the Property of any Person other than the
Company, any of its Subsidiaries or any Joint Venture that constitutes
substantially all of an operating unit or business of such Person.
"Asset Disposition" means any sale, transfer, conveyance, lease or other
disposition (including by way of merger, consolidation or sale-leaseback) by the
Company, any of its Restricted Subsidiaries or any Eligible Joint Venture to any
Person (other than to the Company, a Restricted Subsidiary of the Company or an
Eligible Joint Venture and other than in the ordinary course of business) of
any Property of the Company, any of its Restricted Subsidiaries or any Eligible
Joint Venture other than any shares of Capital Stock of the Unrestricted
Subsidiaries. Notwithstanding the foregoing to the contrary, the term "Asset
Disposition" shall include the sale, transfer, conveyance or other disposition
of any shares of Capital Stock of any Unrestricted Subsidiary to the extent that
the Company or any of its Restricted Subsidiaries or Eligible Joint Ventures
made an Investment in such Unrestricted Subsidiary pursuant to clause (vii) of
the definition of "Permitted Payment," and the Company shall, and shall cause
each of its Restricted Subsidiaries and Eligible Joint Ventures to, apply
pursuant to Section 1015 that portion of the Net Cash Proceeds from the sale,
transfer, conveyance or other disposition of such Unrestricted Subsidiary that
is equal to the portion of the total Investment in such Unrestricted Subsidiary
that is represented by the Investment that was made pursuant to clause (vii) of
the definition of "Permitted Payment." For purposes of this definition, any
disposition in connection with directors' qualifying shares or investments by
foreign nationals mandated by applicable law shall not constitute an Asset
Disposition. In addition, the term "Asset Disposition" shall not include (i)
any sale, transfer, conveyance, lease or other disposition of the Capital
Stock or Property of Restricted Subsidiaries or Eligible Joint Ventures
pursuant to the terms of any power sales agreements or steam sales agreements
to which such Restricted Subsidiaries or such Eligible Joint Ventures are
parties on the Issue Date of the Securities or pursuant to the
-6-
terms of any power sales agreements or steam sales agreements, or other
agreements or contracts that are related to the output or product of, or
services rendered by, a Permitted Facility as to which such Restricted
Subsidiary or such Eligible Joint Venture is the supplying party, to which such
Restricted Subsidiaries or such Eligible Joint Ventures become a party after
such date if the President or Chief Financial Officer of the Company determines
in good faith (evidenced by an Officers' Certificate) that such provisions are
customary (or, in the absence of any industry custom, reasonably necessary) in
order to effect such agreements and are reasonable in light of comparable
transactions in the applicable jurisdiction, (ii) any sale, transfer,
conveyance, lease or other disposition of Property governed by Section 801 ,
(iii) any sale, transfer, conveyance, lease or other disposition of any Cash
Equivalents, (iv) any transaction or series of related transactions consisting
of the sale, transfer, conveyance, lease or other disposition of Capital Stock
or Property with a fair market value aggregating less than $5 million and (v)
any Permitted Payment or any Restricted Payment that is permitted to be made
pursuant to Section 1010. The term "Asset Disposition" also shall not include
(i) the grant of or realization upon a Lien permitted under Section 1012 or
the exercise of remedies thereunder, (ii) a sale-leaseback transaction involving
substantially all the Property constituting a Permitted Facility pursuant to
which a Restricted Subsidiary of the Company or an Eligible Joint Venture sells
the Permitted Facility to a Person in exchange for the assumption by that Person
of the Debt financing the Permitted Facility and the Restricted Subsidiary or
the Eligible Joint Venture leases the Permitted Facility from such Person,
(iii) dispositions of Capital Stock, contract rights, development rights and
resource data made in connection with the initial development of Permitted
Facilities, or the formation or capitalization of Restricted Subsidiaries or
Eligible Joint Ventures in respect of the initial development of Permitted
Facilities, in respect of which only an insubstantial portion of the prospective
Construction Financing that would be required to commence commercial operation
has been funded or (iv) transactions determined in good faith by the Chief
Financial Officer, as evidenced by an Officers' Certificate, made in order to
enhance the repatriation
-7-
of the Net Cash Proceeds for a Foreign Asset Disposition or in order to
increase the after-tax proceeds thereof available for immediate distribution
to the Company. Any Asset Disposition that results from the bona fide exercise
by any governmental authority of its claimed or actual power of eminent domain
need not comply with the provisions of clauses (i) and (ii) of Section
1015(a). Any Asset Disposition that results from a casualty loss need not
comply with the provisions of clause (i) of Section 1015(a).
"Asset Sale" means the sale or other disposition by the Company, any of
its Subsidiaries or any Joint Venture (other than to the Company, another
Subsidiary of the Company or another Joint Venture) of (i) all or substantially
all of the Capital Stock of any Subsidiary of the Company or any Joint Venture
or (ii) all or substantially all of the Property that constitutes an operating
unit or business of the Company, any of its Subsidiaries or any Joint Venture.
"Attributable Value" means, as to a Capitalized Lease Obligation under
which any Person is at the time liable and at any date as of which the amount
thereof is to be determined, the capitalized amount thereof that would appear on
the face of a balance sheet of such Person in accordance with GAAP.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 hereof to act on behalf of the Trustee to authenticate
Securities.
"Average Life" means, at any date of determination with respect to any Debt
security or Preferred Stock, the quotient obtained by dividing (i) the sum of
the product of (A) the number of years from such date of determination to the
dates of each successive scheduled principal or involuntary liquidation value
payment of such Debt security or Preferred Stock, respectively, multiplied by
(B) the amount of such principal or involuntary liquidation value payment by
(ii) the sum of all such principal or involuntary liquidation value payments.
-8-
"Board of Directors" means either the Board of Directors of the Company or
any duly authorized committee of such Board .
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors (unless the context specifically requires that such resolution be
adopted by a majority of the Disinterested Directors, in which case by a
majority of such directors) and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means a day that, in the city (or in any of the cities, if
more than one) where amounts are payable in respect of the Securities, is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in, or interests (however designated) in, the equity of
such Person that is outstanding or issued on or after the date of Indenture,
including, without limitation, all Common Stock and Preferred Stock and
partnership and joint venture interests in such Person.
"Capitalized Lease" means, as applied to any Person, any lease of any
Property of which the discounted present value of the rental obligations of
such Person as lessee, in conformity with GAAP, is required to be capitalized
on the balance sheet of such Person, and "Capitalized Lease Obligation" means
the rental obligations, as aforesaid, under such lease.
"Cash Equivalent" means any of the following: (i) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof), (ii) time deposits
and certificates of deposit of any commercial bank organized in the United
States having capital and surplus in excess of
-9-
$500,000,000 or any commercial bank organized under the laws of any other
country having total assets in excess of $500,000,000 with a maturity date not
more than two years from the date of acquisition, (iii) repurchase obligations
with a term of not more than 30 days for underlying securities of the types
described in clauses (i) or (v) that were entered into with any bank meeting
the qualifications set forth in clause (ii) or another financial institution
of national reputation, (iv) direct obligations issued by any state or other
jurisdiction of the United States of America or any other country or any
political subdivision or public instrumentality thereof maturing, or subject
to tender at the option of the holder thereof, within 90 days after the date
of acquisition thereof and, at the time of acquisition, having a rating of A
from S&P or A-2 from Moody's (or, if at any time neither S&P nor Moody's may
be rating such obligations, then from another nationally recognized rating
service acceptable to the Trustee), (v) commercial paper issued by (a) the
parent corporation of any commercial bank organized in the United States
having capital and surplus in excess of $500,000,000 or any commercial bank
organized under the laws of any other country having total assets in excess of
$500,000,000, and (b) others having one of the two highest ratings obtainable
from either S&P or Moody's (or, if at any time neither S&P nor Moody's may be
rating such obligations, then from another nationally recognized rating
service acceptable to the Trustee) and in each case maturing within one year
after the date of acquisition, (vi) overnight bank deposits and bankers'
acceptances at any commercial bank organized in the United States having
capital and surplus in excess of $500,000,000 or any commercial bank organized
under the laws of any other country having total assets in excess of
$500,000,000, (vii) deposits available for withdrawal on demand with any
commercial bank organized in the United States having capital and surplus in
excess of $500,000,000 or any commercial bank organized under the laws of any
other country having total assets in excess of $500,000,000, (viii)
investments in money market funds substantially all of whose assets comprise
securities of the types described in clauses (i) through (vi) and (ix), and
(ix) auction rate securities or money market preferred stock having one of the
two highest ratings obtainable from either S&P or Moody's
-10-
(or, if at any time neither S&P nor Moody's may be rating such obligations,
then from another nationally recognized rating service acceptable to the
Trustee).
"Change of Control" means the occurrence of one or more of the following
events:
(i) for so long as at least $25 million principal amount of the
Company's 5% Convertible Subordinated Debentures due July 1, 2000 remain
outstanding and are not defeased, (x) a report is filed on Schedule 13D
or 14D-1 (or any successor schedule, form or report) pursuant to the
Exchange Act, disclosing that any person (for the purposes of this
provision only, as the term "person" is used in Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act or any successor provision to either
of the foregoing) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of 50% or more of the then
outstanding shares of the Voting Stock of the Company and (y) such
beneficial ownership is acquired by means of a tender offer in which cash
is the sole consideration paid and the purchase price for each share
tendered is less than the conversion price then in effect under the
Company's 5% Convertible Subordinated Debentures due July 1, 2000;
provided that a person shall not be deemed to be the beneficial owner of,
--------
or to own beneficially, any securities tendered until such tendered
securities are accepted for purchase under the tender offer;
(ii) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than Kiewit, is or becomes the beneficial
owner (as defined in clause (i) above), directly or indirectly, of more
than 35% of the total voting power of the Voting Stock of the Company
(for the purposes of this clause (ii), any person shall be deemed to
beneficially own any Voting Stock of any corporation (the "specified
corporation") held by any other corporation (the "parent corporation"),
if such person "beneficially owns" (as so defined), directly or
indirectly, more than 35% of the voting power of
-11-
the Voting Stock of such parent corporation) and Kiewit "beneficially
owns" (as so defined), directly or indirectly, in the aggregate a lesser
percentage of the voting power of the Voting Stock of the Company and
does not have the right or ability by voting power, contract or otherwise
to elect or designate for election a majority of the board of directors
of the Company;
(iii) during any one-year period, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together
with any new directors elected by such Board of Directors or nominated
for election by the shareholders of the Company by a vote of at least a
majority of the directors of the Company then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors then in office, unless
a majority of such new directors were elected or appointed by Kiewit; or
(iv) the Company or its Restricted Subsidiaries sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all the
Property of the Company and the Restricted Subsidiaries taken as a whole;
provided that with respect to the foregoing subparagraphs (ii), (iii) and (iv),
- --------
a Change of Control shall not be deemed to have occurred unless and until a
Rating Decline has occurred as well.
"Common Stock" means with respect to any Person, Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable
-12-
provisions of this Indenture and thereafter "Company" shall mean such
successor Person.
"Company Refinancing Debt" means Debt issued in exchange for, or the
proceeds of which are used to refinance (including to purchase), outstanding
Securities or other Debt of the Company Incurred pursuant to clauses (i), (iv),
and (vii) of Section 1008(b) and Debt Incurred pursuant to Section 1008(a) in
an amount (or, if such new Debt provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration thereof,
with an original issue price) not to exceed the amount so exchanged or
refinanced (plus accrued interest and all fees, premiums (in excess of the
accreted value) and expenses related to such exchange or refinancing), for
which purpose the amount so exchanged or refinanced shall be deemed to equal the
lesser of (x) the principal amount of the Debt so exchanged or refinanced and
(y) if the Debt being exchanged or refinanced was issued with an original issue
discount, the accreted value thereof (as determined in accordance with GAAP)
at the time of such exchange or refinancing, provided that (A) such Debt shall
--------
be subordinated in right of payment to the Securities at least to the same
extent, if any, as the Debt so exchanged or refinanced is subordinated to the
Securities, (B) such Debt shall be Non-Recourse if the Debt so exchanged or
refinanced is Non-Recourse, (C) the Average Life of the new Debt shall be
equal to or greater than the Average Life of the Debt to be exchanged or
refinanced and (D) the final Stated Maturity of the new Debt shall not be
sooner than the earlier of the final Stated Maturity of the Debt to be
exchanged or refinanced or six months after the final Stated Maturity of the
Securities, provided that if such new Debt refinances the Securities in part
--------
only, the final Stated Maturity of such new Debt must be at least six months
after the final Stated Maturity of the Securities.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
-13-
"Consolidated EBITDA" of any Person for any period means the Adjusted
Consolidated Net Income of such Person, plus, only to the extent deducted in
----
computing Adjusted Consolidated Net Income and without duplication, (i) income
taxes, excluding income taxes (either positive or negative) attributable to
extraordinary and non-recurring gains or losses or Asset Sales, all determined
on a consolidated basis for such Person and its consolidated Subsidiaries in
accordance with GAAP, (ii) Consolidated Fixed Charges, (iii) depreciation and
amortization expense, all determined on a consolidated basis for such Person and
its consolidated Subsidiaries in accordance with GAAP and (iv) all other non-
cash items reducing Adjusted Consolidated Net Income for such period, all
determined on a consolidated basis for such Person and its consolidated
Subsidiaries in accordance with GAAP, and less all non-cash items increasing
----
Adjusted Consolidated Net Income during such period, provided that
--------
depreciation and amortization expense of any Subsidiary of such Person and any
other non-cash item of any Subsidiary of such Person that reduces Adjusted
Consolidated Net Income shall be excluded (without duplication) in computing
Consolidated EBITDA, except to the extent that the positive cash flow
associated with such depreciation and amortization expense and other non-cash
items is actually distributed in cash to such Person during such period,
provided further that as applied to the Company, cash in respect of
- -------- -------
depreciation and amortization and other non-cash items of Restricted
Subsidiaries and Eligible Joint Ventures may be deemed to have been
distributed or paid to the Company to the extent that such cash (I) is or was
under the exclusive dominion and control of such Restricted Subsidiary or such
Eligible Joint Venture and is free and clear of the Lien of any other Person,
(II) is immediately available for distribution and (III) could be or could
have been repatriated to the United States by means that are both lawful and
commercially reasonable, provided that the amount of the cash deemed by this
sentence to have been distributed or paid shall be reduced by the amount of
tax that would have been payable with respect to the repatriation thereof,
provided further that any cash that enables the recognition of depreciation
- -------- -------
and amortization and other non-cash items pursuant to this sentence may not be
used to enable the recognition of depreciation and amortization and other non-
cash items with respect to any prior or subsequent period, regardless of
whether such cash is distributed to the Company, and provided further that the
-------- -------
recognition of any depreciation and amortiza-
-14-
tion and other non-cash items as a result of this sentence shall be determined
in good faith by the Chief Financial Officer, as evidenced by an Officers'
Certificate that shall set forth in reasonable detail the relevant facts and
assumptions supporting such recognition. When the "Person" referred to above
is the Company, the foregoing references to "Subsidiaries" shall be deemed to
refer to "Restricted Subsidiaries."
"Consolidated Fixed Charges" of any Person means, for any period, the
aggregate of (i) Consolidated Interest Expense, (ii) the interest component of
Capitalized Leases, determined on a consolidated basis for such Person and its
consolidated Subsidiaries in accordance with GAAP, excluding any interest
component of Capitalized Leases in respect of that portion of a Capitalized
Lease Obligation of a Subsidiary that is Non-Recourse to such Person, and
(iii) cash and non-cash dividends due (whether or not declared) on the
Preferred Stock of any Subsidiary of such Person held by any Person other than
such Person and any Redeemable Stock of such Person or any Subsidiary of such
Person. When the "Person" referred to above is the Company, the foregoing
references to "Subsidiaries" shall be deemed to refer to "Restricted
Subsidiaries."
"Consolidated Interest Expense" of any Person means, for any period, the
aggregate interest expense in respect of Debt (including amortization of
original issue discount and non-cash interest payments or accruals) of such
Person and its consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP, including all commissions, discounts, other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs associated with Interest Rate Protection Agreements and Currency
Protection Agreements and any amounts paid during such period in respect of such
interest expense, commissions, discounts, other fees and charges that have been
capitalized, provided that Consolidated Interest Expense of the Company shall
--------
not include any interest expense (including all commissions,
-15-
discounts, other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs associated with Interest Rate
Protection Agreements or Currency Protection Agreements) in respect of that
portion of any Debt that is Non-Recourse, and provided further that
-------- -------
Consolidated Interest Expense of the Company in respect of a Guarantee by the
Company of Debt of another Person shall be equal to the commissions,
discounts, other fees and charges that would be due with respect to a
hypothetical letter of credit issued under a bank credit agreement that can be
drawn by the beneficiary thereof in the amount of the Debt so guaranteed if
(i) the Company is not actually making directly or indirectly interest
payments on such Debt and (ii) GAAP does not require the Company on an
unconsolidated basis to record such Debt as a liability of the Company. When
the "Person" referred to above is the Company, the foregoing references to
"Subsidiaries" shall be deemed to refer to "Restricted Subsidiaries."
"Construction Financing" means the debt and/or equity financing provided
(over and above the owners' equity investment) to permit the acquisition,
development, design, engineering, procurement, construction and equipping of a
Permitted Facility and to enable it to commence commercial operations, provided
--------
that Construction Financing may remain outstanding after the commencement of
commercial operations of a Permitted Facility, without any increase in the
amount of such financing, and such Construction Financing shall not cease to be
Construction Financing.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
address as of the date of this Indenture is located at One State Street, New
York, New York 10004.
"Currency Protection Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement or
arrangement
-16-
intended to protect such Person against fluctuations in currency values to or
under which such Person is a party or a beneficiary on the date of this
Indenture or becomes a party or a beneficiary thereafter.
"Debt" means, with respect to any Person, at any date of determination
(without duplication), (i) all indebtedness of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person in respect of
letters of credit, bankers' acceptances, surety, bid, operating and
performance bonds, performance guarantees or other similar instruments or
obligations (or reimbursement obligations with respect thereto) (except, in each
case, to the extent incurred in the ordinary course of business), (iv) all
obligations of such Person to pay the deferred purchase price of property or
services, except Trade Payables, (v) the Attributable Value of all obligations
of such Person as lessee under Capitalized Leases, (vi) all Debt of others
secured by a Lien on any Property of such Person, whether or not such Debt is
assumed by such Person, provided that, for purposes of determining the amount of
--------
any Debt of the type described in this clause, if recourse with respect to such
Debt is limited to such Property, the amount of such Debt shall be limited to
the lesser of the fair market value of such Property or the amount of such Debt,
(vii) all Debt of others Guaranteed by such Person to the extent such Debt is
Guaranteed by such Person, (viii) all Redeemable Stock valued at the greater of
its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends and (ix) to the extent not otherwise included in this definition, all
net obligations of such Person under Currency Protection Agreements and Interest
Rate Protection Agreements.
For purposes of determining any particular amount of Debt that is or would
be outstanding, Guarantees of, or obligations with respect to letters of credit
or similar instruments supporting (to the extent the foregoing constitutes
Debt), Debt otherwise included in the determination of such particular amount
shall not be included. For purposes of determining compliance with this
Indenture, in the event that an item of Debt meets the criteria of more than one
of the types of Debt described in
-17-
the above clauses, the Company, in its sole discretion, shall classify such
item of Debt and only be required to include the amount and type of such Debt
in one of such clauses.
"Default" means any event that is, or after notice or passage of time, or
both, would be, an Event of Default.
"Default Amount" means, prior to January 15, 1997, the Accreted Value, and
from and including January 15, 1997, the principal amount plus accrued interest.
"Disinterested Director" means, with respect to any proposed transaction
between the Company , a Restricted Subsidiary of the Company or an Eligible
Joint Venture, as applicable, and an Affiliate thereof, a member of the Board of
Directors who is not an officer or employee of the Company, a Restricted
Subsidiary of the Company or an Eligible Joint Venture, as applicable, would not
be a party to, or have a financial interest in, such transaction and is not an
officer, director or employee of, and does not have a financial interest in,
such Affiliate. For purposes of this definition, no person would be deemed not
to be a Disinterested Director solely because such person holds Capital Stock of
the Company.
"Eligible Joint Venture" means a Joint Venture (other than a Subsidiary)
(i) that is or shall be formed with respect to the construction, development,
acquisition, servicing, ownership, operation or management of one or more
Permitted Facilities and (ii) in which the Company and Kiewit together,
directly or indirectly, own at least 50% of the Capital Stock therein (of which
the Company must own at least half (in any event not less than 25% of the total
outstanding Capital Stock)) and (iii) in respect of which the Company alone or
in combination with Kiewit, directly or indirectly, (a) controls, by voting
power, board or management committee membership, or through the provisions of
any applicable partnership, shareholder or other similar agreement or under an
operating, maintenance or management agreement or otherwise, the management and
operation of the Joint Venture or any Permitted Facilities of the Joint Venture
or (b) otherwise has significant influence over the
-18-
management or operation of the Joint Venture or any Permitted Facility of the
Joint Venture in all material respects (significant influence includes,
without limitation, the right to control or veto any material act or decision)
in connection with such management or operation. Any Joint Venture that is an
Eligible Joint Venture pursuant to this definition because of the ownership of
Capital Stock therein by Kiewit shall cease to be an Eligible Joint Venture if
(x) Kiewit disposes of any securities issued by the Company and, as a result
of such disposition, Kiewit becomes the beneficial owner (as such term is
defined under Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) of less than 25% of the outstanding shares of Voting Stock
of the Company or (y) (I) as a result of any action other than a disposition
of securities by Kiewit, Kiewit becomes the beneficial owner of less than 25%
of the outstanding shares of Voting Stock of the Company and (II) thereafter
Kiewit disposes of any securities issued by the Company as a result of which
the beneficial ownership by Kiewit of the outstanding Voting Stock of the
Company is further reduced, provided that thereafter such Joint Venture may
--------
become an Eligible Joint Venture if Kiewit becomes the beneficial owner of at
least 25% of the outstanding shares of Voting Stock of the Company and the
other conditions set forth in this definition are fulfilled.
"Exchange Act" refers to the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Fixed Charge Ratio" means the ratio, on a pro forma basis, of (i) the
aggregate amount of Consolidated EBITDA of any Person for the Reference Period
immediately prior to the date of the transaction giving rise to the need to
calculate the Fixed Charge Ratio (the "Transaction Date") to (ii) the aggregate
Consolidated Fixed Charges of such Person during such Reference Period, provided
--------
that for purposes of such computation, in calculating Consolidated EBITDA and
Consolidated Fixed Charges, (1) the Incurrence of the Debt giving rise to the
need to calculate the Fixed Charge Ratio and the application of the proceeds
-19-
therefrom (including the retirement or defeasance of Debt) shall be assumed to
have occurred on the first day of the Reference Period, (2) Asset Sales and
Asset Acquisitions that occur during the Reference Period or subsequent to the
Reference Period and prior to the Transaction Date (but including any Asset
Acquisition to be made with the Debt Incurred pursuant to (1) above) and any
related retirement of Debt pursuant to an Offer to Purchase (in the amount of
the Excess Proceeds with respect to which such Offer to Purchase has been made
or would be made on the Transaction Date if the purchase of Securities
pursuant to such Offer to Purchase has not occurred on or before the
Transaction Date) shall be assumed to have occurred on the first day of the
Reference Period, (3) the Incurrence of any Debt during the Reference Period
or subsequent to the Reference Period and prior to the Transaction Date and
the application of the proceeds therefrom (including the retirement or
defeasance of other Debt) shall be assumed to have occurred on the first day
of such Reference Period, (4) Consolidated Interest Expense attributable to
any Debt (whether existing or being Incurred) computed on a pro forma basis
and bearing a floating interest rate shall be computed as if the rate in
effect on the date of computation had been the applicable rate for the entire
period unless the obligor on such Debt is a party to an Interest Rate
Protection Agreement (that shall remain in effect for the twelve month period
after the Transaction Date) that has the effect of fixing the interest rate on
the date of computation, in which case such rate (whether higher or lower)
shall be used and (5) there shall be excluded from Consolidated Fixed Charges
any Consolidated Fixed Charges related to any amount of Debt that was
outstanding during or subsequent to the Reference Period but is not
outstanding on the Transaction Date, except for Consolidated Fixed Charges
actually incurred with respect to Debt borrowed (as adjusted pursuant to
clause (4)) (x) under a revolving credit or similar arrangement to the extent
the commitment thereunder remains in effect on the Transaction Date or (y)
pursuant to the provision described in clause (iii) of Section 1008(b). For
the purpose of making this computation, Asset Sales and Asset Acquisitions
that have been made by any Person that has become a Restricted Subsidiary of
the Company or an Eligible Joint Venture or been merged with or into the
Company or any
-20-
Restricted Subsidiary of the Company or an Eligible Joint Venture during the
Reference Period, or subsequent to the Reference Period and prior to the
Transaction Date shall be calculated on a pro forma basis, as shall be all the
transactions contemplated by the calculations referred to in clauses (1)
through (5) above with respect to the Persons or businesses that were the
subject of such Asset Sales and Asset Dispositions, assuming such Asset Sales
or Asset Acquisitions occurred on the first day of the Reference Period.
"Foreign Asset Disposition" means an Asset Disposition in respect of the
Capital Stock or Property of a Restricted Subsidiary of the Company or an
Eligible Joint Venture to the extent that the proceeds of such Asset Disposition
are received by a Person subject in respect of such proceeds to the tax laws of
a jurisdiction other than the United States of America or any State thereof or
the District of Columbia.
"GAAP" means generally accepted accounting principles in the U.S. as in
effect as of the date of this Indenture, applied on a basis consistent with the
principles, methods, procedures and practices employed in the preparation of the
Company's audited financial statements, including, without limitation, those set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt of any other Person and, without
limiting the generality of the foregoing, any Debt obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt of such other
Person (whether arising by virtue of partner ship arrangements (other than
solely by reason of being a general partner of a partnership), or by agreement
to keep-well, to purchase assets, goods, securities or services, or to take-or-
pay, or to maintain financial statement
-21-
conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Debt of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part),
provided that the term "Guarantee" shall not include endorsements for collection
- --------
or deposit in the ordinary course of business or the grant of a Lien in
connection with any Non-Recourse Debt. The term "Guarantee" used as a verb has
a corresponding meaning.
"Holder," "holder of Securities," "Securityholder" and other similar terms
are defined to mean the registered holder of any Security.
"Incur" means with respect to any Debt, to incur, create, issue, assume,
Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Debt, provided
--------
that neither the accrual of interest (whether such interest is payable in cash
or kind) nor the accretion of original issue discount shall be considered an
Incurrence of Debt. The term "Incurrence" has a corresponding meaning.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Protection Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement intended to protect such Person against
fluctuations in interest rates to or under which such
-22-
Person or any of its Subsidiaries is a party or a beneficiary on the date of
this Indenture or becomes a party or a beneficiary thereafter.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" in a Person means any investment in, loan or advance to,
Guarantee on behalf of, directly or indirectly, or other transfer of assets to
such Person (other than sales of products and services in the ordinary course of
business).
"Investment Grade" means with respect to the Securities, (i) in the case of
S&P, a rating of at least BBB--, (ii) in the case of Moody's, a rating of at
least Baa3, and (iii) in the case of a Rating Agency other than S&P or Moody's,
the equivalent rating, or in each case, any successor, replacement or equivalent
definition as promulgated by S&P, Moody's or other Rating Agency as the case may
be.
"Issue Date" means the date on which the Securities are first authenticated
and delivered under the Indenture.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form.
"Kiewit" means and includes Kiewit Energy Company and any other Subsidiary
of Peter Kiewit Sons', Inc., Kiewit Construction Group Inc. or Kiewit
Diversified Group, Inc.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property, but shall not include any partnership, joint venture, shareholder,
voting trust or other similar governance agreement with respect to Capital
Stock in a Subsidiary or Joint Venture. For purposes of this Indenture, the
Company shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale
-23-
agreement, capital lease or other title retention agreement relating to such
Property.
"Moody's" means Moody's Investors Services, Inc.
"Net Cash Proceeds" from an Asset Disposition means cash payments received
(including any cash payments received by way of a payment of principal pursuant
to a note or installment receivable or otherwise, but only as and when received
(including any cash received upon sale or disposition of any such note or
receivable), excluding any other consideration received in the form of
assumption by the acquiring Person of Debt or other obligations relating to the
Property disposed of in such Asset Disposition or received in any form other
than cash) therefrom, in each case, net of (i) all legal, title and recording
tax expenses, commissions and other fees and expenses of any kind (including
consent and waiver fees and any applicable premiums, earn-out or working
interest payments or payments in lieu or in termination thereof) incurred, (ii)
all federal, state, provincial, foreign and local taxes and other governmental
charges required to be accrued as a liability under GAAP (a) as a consequence of
such Asset Disposition, (b) as a result of the repayment of any Debt in any
jurisdiction other than the jurisdiction where the Property disposed of was
located or (c) as a result of any repatriation of any proceeds of such Asset
Disposition, (iii) a reasonable reserve for the after-tax cost of any
indemnification payments (fixed and contingent) attributable to seller's
indemnities to the purchaser undertaken by the Company, any of its Restricted
Subsidiaries or any Eligible Joint Venture in connection with such Asset
Disposition (but excluding any payments that by the terms of the indemnities
shall not, under any circumstances, be made during the term of the Securities),
(iv) all payments made on any Debt that is secured by such Property, in
accordance with the terms of any Lien upon or with respect to such Property,
or that must by its terms or by applicable law or in order to obtain a
required consent or waiver be repaid out of the proceeds from or in connection
with such Asset Disposition, and (v) all distributions and other payments made
to holders of Capital Stock of Restricted Subsidiaries or Eligible Joint
Ventures (other than the Company or its
-24-
Restricted Subsidiaries) as a result of such Asset Disposition.
"Net Income" of any Person for any period means the net income (loss) of
such Person for such period, determined in accordance with GAAP, except that
extraordinary and non-recurring gains and losses as determined in accordance
with GAAP shall be excluded.
"Net Worth" of any Person means, as of any date, the aggregate of
capital, surplus and retained earnings (including any cumulative currency
translation adjustment) of such Person and its consolidated Subsidiaries as
would be shown on a consolidated balance sheet of such Person and its
consolidated Subsidiaries prepared as of such date in accordance with GAAP.
When the "Person" referred to above is the Company, the foregoing references
to "Subsidiaries" will be deemed to refer to "Restricted Subsidiaries."
"Non-Recourse", as applied to any Debt or any sale-leaseback, means any
project financing that is or was Incurred with respect to the development,
acquisition, design, engineering, procurement, construction, operation,
ownership, servicing or management of one Permitted Facility (or two or more
Permitted Facilities that are operated in the form of a single business and as
one technological unit), provided that such financing is without recourse to
--------
the Company, any Restricted Subsidiary or any Eligible Joint Venture other than
any Restricted Subsidiary or any Eligible Joint Venture that does not own any
Property other than such Permitted Facility or a direct or indirect interest
therein, provided further that such financing may be secured by a Lien on only
-------- -------
(i) the Property that constitutes such Permitted Facility, (ii) the income from
and proceeds of such Permitted Facility, (iii) the Capital Stock of the
Restricted Subsidiary or Eligible Joint Venture that owns the Property that
constitutes such Permitted Facility and (iv) the Capital Stock of the
Restricted Subsidiary or Eligible Joint Venture obligated with respect to such
financing and of any Subsidiary or Joint Venture (that is a Restricted
Subsidiary or an Eligible Joint Venture) of such Person that owns a direct or
indirect interest in the Permitted Facility, and provided further that an
-------- -------
increase in the amount of Debt with respect to a Permitted Facility pursuant
to the financing provided pursuant to the terms of this definition (except for
the first refinancing of Construction Financing) may not be Incurred to fund
or enable the funding of any dividend or other distribution in respect of
Capital Stock. The fact that a portion of financing with respect to a
Permitted Facility is not Non-Recourse shall not prevent other portions of the
financing with
-25-
respect to such Permitted Facility from constituting Non-Recourse Debt if the
foregoing requirements of this definition are fulfilled with respect to such
other portions. Notwithstanding anything in this definition to the contrary,
(i) Non-Recourse Debt in respect of any Permitted Facility that uses thermal
energy drawn from a single localized geothermal reservoir may be cross-
collateralized with the Property, income, proceeds and Capital Stock in
respect of any other Permitted Facility that uses thermal energy drawn from
the same localized geothermal reservoir, (ii) Acquired Debt of a Person that
was Incurred with respect to, and that is jointly secured by, two or more
Permitted Facilities (all of which need not use thermal energy drawn from the
same localized geothermal reservoir) (and other Property related to such
Permitted Facilities) shall be deemed to be Non-Recourse if, upon such Person
becoming a Restricted Subsidiary or an Eligible Joint Venture, such Acquired
Debt would fulfill the requirements of the first sentence of this definition
if such Permitted Facilities constituted a single Permitted Facility and (iii)
for the purpose of this Indenture, (a) the Permitted Facilities that jointly
secure a single Non-Recourse Debt pursuant to clause (i) of this sentence
shall be deemed to be a single Permitted Facility and (b) the Permitted
Facilities that jointly secure a single Acquired Debt shall be deemed to be a
single Permitted Facility.
"Offer to Purchase" means, as appropriate, a Change of Control Offer
pursuant to Section 1013 or an Excess Proceeds Offer pursuant to Section 1015.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors , the President or any Vice President and by the Chief
Financial Officer , the Treasurer, an Assistant Treasurer, the Controller, the
Assistant Controller, the Secretary or any Assistant Secretary of the Company
and delivered to the Trustee. Each such certificate shall comply with Section
314 of the Trust Indenture Act and include the statements provided for in this
Indenture if and to the extent required thereby.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or
-26-
counsel to the Company or who may be other counsel satisfactory to the
Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act and include the statements provided for in this Indenture, if
and to the extent required thereby.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities that have come due or that are to be called for
redemption, for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company or a Restricted Subsidiary) in trust for the
Holders of such Securities; provided that if such Securities are to be
--------
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision for giving such notice within 10 days of such date
of determination satisfactory to the Trustee, has been made;
(iii) Securities that have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities as to which Defeasance has been effected pursuant to
Section 1202;
provided that in determining whether the Holders of the requisite principal
- --------
amount of the Outstanding Securities have given, made or taken any request,
demand, authorization, direction, notice, consent, waiver or other action
hereunder as of any date, Securities owned by the Company
-27-
or any other obligor upon the Securities or any Affiliate or Restricted
Subsidiary of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which the
Trustee knows to be so owned shall be so disregarded, Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Restricted Subsidiary of the
Company or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Facility" means (i) an electric power or thermal energy
generation or cogeneration facility or related facilities (including residual
waste management and facilities that use thermal energy from a cogeneration
facility), and its or their related electric power transmission, fuel supply
and fuel transportation facilities, together with its or their related power
supply, thermal energy and fuel contracts and other facilities, services or
goods that are ancillary, incidental, necessary or reasonably related to the
marketing, development, construction, management, servicing, ownership or
operation of the foregoing, owned by a utility or otherwise, as well as other
contractual arrangements with customers, suppliers and contractors or (ii) any
infrastructure facilities related to (A) the treatment of water for municipal
and other uses, (B) the treatment and/or management of waste water, (C) the
treatment, management and/or remediation of waste, pollution and/or potential
pollutants and (D) any other process or environmental purpose.
"Permitted Funding Company Loans" means (a) Debt of a Restricted
Subsidiary, all the Capital Stock of which is owned, directly or indirectly by
the Company and that (x) does not own any direct or indirect interest in
-28-
a Permitted Facility and (y) is not directly or indirectly obligated on any Debt
owed to any Person other than the Company, a Restricted Subsidiary or an
Eligible Joint Venture (a "Funding Company"), owed to a Restricted Subsidiary or
an Eligible Joint Venture that is not directly or indirectly obligated on any
Debt owed to any Person other than the Company, a Restricted Subsidiary or an
Eligible Joint Venture (a "Holding Company"), provided that such Debt (i) does
--------
not require that interest be paid in cash at any time sooner than six months
after the final Stated Maturity of the Securities, (ii) does not require any
payment of principal at any time sooner than six months after the final Stated
Maturity of the Securities, (iii) is subordinated in right of payment to all
other Debt of such Restricted Subsidiary other than Debt Incurred pursuant to
clause (vii) of Section 1009(b), all of which shall be pari passu, (iv) does not
---- -----
contain any events of default or acceleration provisions that are applicable at
any time sooner than six months after the final Stated Maturity of the
Securities and (v) is evidenced by a subordinated note in the form attached to
the Indenture as Exhibit A, and (b) Debt of a Holding Company to a Funding
Company.
"Permitted Investment" means any Investment that is made directly or
indirectly by the Company and its Restricted Subsidiaries in (i) a Restricted
Subsidiary or Eligible Joint Venture (excluding for the purpose of this clause
(i) any Construction Financing) that, directly or indirectly, is or shall be
engaged in the construction, development, acquisition, operation, servicing,
ownership or management of a Permitted Facility or in any other Person as a
result of which such other Person becomes such a Restricted Subsidiary or an
Eligible Joint Venture, provided that at the time that any of the foregoing
Investments is proposed to be made, no Event of Default or event that, after
giving notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing, (ii) Construction Financing provided by
the Company (A) to any of its Restricted Subsidiaries (other than an Eligible
Joint Venture) up to 100% of the Construction Financing required by such
Restricted Subsidiary and (B) to any Eligible Joint Venture a portion of the
Construction Financing required by such Eligible Joint Venture that does not
exceed the
-29-
ratio of the Capital Stock in such Eligible Joint Venture that is owned
directly or indirectly by the Company to the total amount of the Capital Stock
in such Eligible Joint Venture that is owned directly and indirectly by the
Company and Kiewit together (provided that the Company may provide such
--------
Construction Financing to such Eligible Joint Venture only if Kiewit provides
the balance of such Construction Financing or otherwise causes it to be
provided), if, in either case, (x) the aggregate proceeds of all the
Construction Financing provided is not more than 85% of the sum of the
aggregate proceeds of such Construction Financing and the aggregate owners'
equity investment in such Restricted Subsidiary or such Eligible Joint
Venture, as the case may be, (y) the Company receives a pledge or assignment
of all the Capital Stock of such Restricted Subsidiary or such Eligible Joint
Venture, as the case may be, that is owned by non-governmental Person (other
than the Company, its Subsidiaries or the Eligible Joint Ventures) that is
permitted to be pledged for such purpose under applicable law and (z) neither
the Company nor Kiewit reduces its beneficial ownership in such Restricted
Subsidiary or such Eligible Joint Venture, as the case may be, prior to the
repayment in full of the Company's portion of the Construction Financing,
(iii) any Cash Equivalents, (iv) prepaid expenses, negotiable instruments held
for collection and lease, utility and workers' compensation, performance and
other similar deposits in the ordinary course of business consistent with past
practice, (v) loans and advances to employees made in the ordinary course of
business and consistent with past practice, (vi) Debt incurred pursuant to
Currency Protection Agreements and Interest Rate Protection Agreements as
otherwise permitted by this Indenture, (vii) bonds, notes, debentures or other
debt securities and instruments received as a result of Asset Dispositions to
the extent permitted by Sections 1015 and 1022, (viii) any Lien permitted
under Section 1012 and (ix) bank deposits and other Investments (to the extent
they do not constitute Cash Equivalents) required by lenders in connection
with any Non-Recourse Debt, provided that the President or the Chief Financial
--------
Officer of the Company determines in good faith, as evidenced by an Officers'
Certificate, that such bank deposits or Investments are required to effect
such financings and are not materially more restrictive, taken as a whole,
-30-
than comparable requirements in comparable financings in the applicable
jurisdiction.
"Permitted Joint Venture" means a Joint Venture (i) that is or shall be
formed with respect to the construction, development, acquisition, servicing,
ownership, operation or management of one or more Permitted Facilities and (ii)
in which (A) the Company or (B) the Company and Kiewit together, directly or
indirectly, own at least 70% of the Capital Stock therein (of which the Company
must own at least half (in any event not less than 35% of the total outstanding
Capital Stock)), provided that if applicable non-U.S. law restricts the amount
--------
of Capital Stock that the Company may own, the Company must own at least 70% of
the amount of Capital Stock that it may own pursuant to such law, which in any
event must be not less than 35% of the total outstanding Capital Stock therein
and (iii) in respect of which the Company alone or in combination with Kiewit,
directly or indirectly, (a) controls, by voting power, board or management
committee membership, or through the provisions of any applicable partnership,
shareholder or other similar agreement or under an operating, maintenance or
management agreement or otherwise, the management and operation of the Joint
Venture or any Permitted Facilities of the Joint Venture or (b) otherwise has
significant influence over the management or operation of the Joint Venture or
any Permitted Facility of the Joint Venture in all material respects
(significant influence includes, without limitation, the right to control or
veto any material act or decision) in connection with such management or
operation. Any Joint Venture that is a Permitted Joint Venture pursuant to this
definition because of the ownership of Capital Stock therein by Kiewit shall
cease to be a Permitted Joint Venture if (x) Kiewit disposes of any securities
issued by the Company and, as a result of such disposition, Kiewit becomes the
beneficial owner (as such term is defined under Rule 13d-3 or any successor rule
or regulation promulgated under the Exchange Act) of less than 25% of the
outstanding shares of Voting Stock of the Company or (y) (I) as a result of any
action other than a disposition of securities by Kiewit, Kiewit becomes the
beneficial owner of less than 25% of the outstanding shares of Voting Stock of
the Company and (II) thereafter Kiewit disposes of any securities
-31-
issued by the Company as a result of which the beneficial ownership by Kiewit
of the outstanding Voting Stock of the Company is further reduced, provided
--------
that thereafter such Joint Venture may a Permitted Joint Venture if Kiewit
becomes the beneficial owner of at least 25% of the outstanding shares of the
Voting Stock of the Company and the other conditions set forth in this
definition are fulfilled.
"Permitted Payments" means, with respect to the Company, any of its
Restricted Subsidiaries or any Eligible Joint Venture, (i) any dividend on
shares of Capital Stock of the Company payable (or to the extent paid) solely in
Capital Stock (other than Redeemable Stock) or in options, warrants or other
rights to purchase Capital Stock (other than Redeemable Stock) of the Company
and any distribution of Capital Stock (other than Redeemable Capital Stock) of
the Company in respect of the exercise of any right to convert or exchange any
instrument (whether Debt or equity and including Redeemable Capital Stock)
into Capital Stock (other than Redeemable Capital Stock) of the Company, (ii)
the purchase or other acquisition or retirement for value of any shares of the
Company's Capital Stock, or any option, warrant or other right to purchase
shares of the Company's Capital Stock with additional shares of, or out of the
proceeds of a substantially contemporaneous issuance of, Capital Stock other
than Redeemable Stock, (iii) any defeasance, redemption, purchase or other
acquisition for value of any Debt that by its terms ranks subordinate in right
of payment to the Securities with the proceeds from the issuance of (x) Debt
that is subordinate to the Securities at least to the extent and in the manner
as the Debt to be defeased, redeemed, purchased or otherwise acquired is
subordinate in right of payment to the Securities, provided that such
subordinated Debt provides for no mandatory payments of principal by way of
sinking fund, mandatory redemption or otherwise (including defeasance) by the
Company (including, without limitation, at the option of the holder thereof
other than an option given to a holder pursuant to a "change of control" or an
"asset disposition" covenant that is no more favorable to the holders of such
Debt than comparable covenants for the Debt being defeased, redeemed,
purchased or acquired or, if none, Sections 1013 and 1015
-32-
and such Debt is not in an amount (net of any original issue discount) greater
than, any Stated Maturity of the Debt being replaced and the proceeds of such
subordinated Debt are utilized for such purpose within 45 days of issuance or
(y) Capital Stock (other than Redeemable Stock), (iv) Restricted Payments in
an amount not to exceed $50 million in the aggregate provided that no payment
--------
may be made pursuant to this clause (iv) if an Event of Default, or an event
that, after giving notice or lapse of time or both, would become an Event of
Default, has occurred and is continuing, (v) any payment or Investment
required by applicable law in order to conduct business operations in the
ordinary course, (vi) a Permitted Investment and (vii) Investments in
Unrestricted Subsidiaries and other Persons that are not Restricted
Subsidiaries or Eligible Joint Ventures in an amount not to exceed $50 million
in the aggregate, provided that no payment or Investment may be made pursuant
--------
to this clause (vii) if an Event of Default, or an event that, after giving
notice or lapse of time or both, would become an Event of Default, has
occurred and is continuing. Notwithstanding the foregoing, the amount of
Investments that may be made pursuant to clauses (iv) and (vii), as the case
may be, may be increased by the net reduction in Investments of the type made
previously pursuant to clauses (iv) and (vii), as the case may be, that result
from payments of interest on Debt, dividends, or repayment of loans or
advances, the proceeds of the sale or disposition of the Investment or other
return of the amount of the original Investment to the Company, the Restricted
Subsidiary or the Eligible Joint Venture that made the original Investment
from the Person in which such Investment was made or any distribution or
payment of such Investment to the extent that such distribution or payment
constituted either a Restricted Payment or a Permitted Payment, provided that
--------
(x) the aggregate amount of such payments shall not exceed the amount of the
original Investment by the Company, such Restricted Subsidiary or Eligible
Joint Venture that reduced the amount available pursuant to clause (iv) or
clause (vii), as the case may be, for making Restricted Payments and (y) such
payments may be added pursuant to this proviso only to the extent such
payments are not included in the calculation of Adjusted Consolidated Net
Income.
-33-
"Permitted Working Capital Facilities" means one or more loan or credit
agreements providing for the extension of credit to the Company for the
Company's working capital purposes, which credit agreements shall be ranked pari
----
passu with or subordinate to the Securities in right of payment and may be
- -----
secured or unsecured.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) or preferred or preference stock of such Person that is
outstanding or issued on or after the Issue Date of the Securities.
"Property" of any Person means all types of real, personal, tangible or
mixed property owned by such Person whether or not included in the most recent
consolidated balance sheet of such Person under GAAP.
"Purchase Date" means, as appropriate, the Change of Control Purchase Date
under Section 1013 or the Excess Proceeds Purchase Date under Section 1015.
"Purchase Money Debt" means Debt representing, or Incurred to finance, the
cost of acquiring any Property, provided that (i) any Lien securing such Debt
--------
does not extend to or cover any other Property other than the Property being
acquired and (ii) such Debt is incurred, and any Lien with respect thereto is
granted, within 180 days of the acquisition of such Property.
-34-
"Rating Agencies" means (i) S&P and (ii) Moody's or (iii) if S&P or Moody's
or both do not make a rating of the Securities publicly available, a nationally
recognized securities rating agency or agencies, as the case may be, selected by
the Company, which shall be substituted for S&P, Moody's or both, as the case
may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories), (ii)
with respect to Moody's, any of the following categories: Ba, B, Caa,
Ca, C and D (or equivalent successor categories) and (iii) the equivalent of any
such category of S&P or Moody's used by another Rating Agency. In determining
whether the rating of the Securities has decreased by one or more gradations,
gradations within Rating Categories (+ and - for S&P, 1, 2 and 3 for Moody's or
the equivalent gradations for another Rating Agency) shall be taken into account
(e.g., with respect to S&P, a decline in a rating from BB+ to BB, as well as
from BB- to B+, shall constitute a decrease of one gradation).
"Rating Decline" means the occurrence of the following on, or within 90
days after, the earlier of (i) the occurrence of a Change of Control and (ii)
the date of public notice of the occurrence of a Change of Control or of the
public notice of the intention of the Company to effect a Change of Control (the
"Rating Date") which period shall be extended so long as the rating of the
Securities is under publicly announced consideration for possible downgrading by
any of the Rating Agencies): (a) in the event that the Securities are rated by
either Rating Agency on the Rating Date as Investment Grade, the rating of the
Securities by both such Rating Agencies shall be reduced below Investment Grade,
or (b) in the event the Securities are rated below Investment Grade by both such
Rating Agencies on the Rating Date, the rating of the Securities by either
Rating Agency shall be decreased by one or more gradations (including gradations
within Rating Categories as well as between Rating Categories).
-35-
"Redeemable Stock" means any class or series of Capital Stock of any Person
that by its terms or otherwise is (i) required to be redeemed prior to the
Stated Maturity of the Securities, (ii) redeemable at the option of the holder
of such class or series of Capital Stock at any time prior to the Stated
Maturity of the Securities or (iii) convertible into or exchangeable for Capital
Stock referred to in clause (i) or (ii) above or Debt having a scheduled
maturity prior to the Stated Maturity of the Securities, provided that any
--------
Capital Stock that would not constitute Redeemable Stock but for provisions
thereof giving holders thereof the right to require the Company to purchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or a "change
of control" occurring prior to the Stated Maturity of the Securities shall not
constitute Redeemable Stock if the "asset sale" or "change of control"
provision applicable to such Capital Stock is no more favorable to the holders
of such Capital Stock than the provisions contained in Section 1013 and 1015
and such Capital Stock specifically provides that the Company shall not
purchase or redeem any such Capital Stock pursuant to such covenants prior to
the Company's purchase of Securities required to be repurchased by the Company
under Sections 1013 and 1015.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed for redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Period" means the four most recently completed fiscal quarters
for which financial information is available preceding the date of a transaction
giving rise to the need to make a financial calculation.
"Regular Record Date", for the interest payable on any Interest Payment
Date means the January 1 or July 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
-36-
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Payment" means (i) any dividend or other distribution on any
shares of the Company's Capital Stock, provided that a dividend or other
--------
distribution consisting of the Capital Stock of an Unrestricted Subsidiary shall
not constitute a Restricted Payment except to the extent of the portion thereof
that is equal to the portion of the total Investment in such Unrestricted
Subsidiary that is represented by the Investment that was made pursuant to
clause (vii) of the definition of "Permitted Payment," (ii) any payment on
account of the purchase, redemption, retirement or acquisition for value of the
Company's Capital Stock, (iii) any defeasance, redemption, purchase or other
acquisition or retirement for value prior to the scheduled maturity of any Debt
ranked subordinate in right of payment to the Securities other than repayment of
Debt of the Company to a Restricted Subsidiary or an Eligible Joint Venture,
(iv) any Investment made in a Person (other than the Company or any Restricted
Subsidiary or any Eligible Joint Venture) and (v) designating a Restricted
Subsidiary as an Unrestricted Subsidiary (the Restricted Payment made upon such
a designation to be determined as the fair market value of the Capital Stock of
such Restricted Subsidiary owned directly or indirectly by the Company at the
time of the designation, but in no event less than the amount of the Investment
made in such Restricted Subsidiary directly or indirectly by the Company).
Notwithstanding the foregoing, "Restricted Payment" shall not include any
Permitted Payment, except that any pay-
-37-
ment made pursuant to clauses (iv) and (v) of the definition of "Permitted
Payment" shall be counted in the calculation set forth in clause (c) of
Section 1010(a).
"Restricted Subsidiary" means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"S&P" means Standard & Poor's Corporation.
"Securities" means securities designated in the first paragraph of the
RECITALS OF THE COMPANY.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Senior Debt" means the principal of and interest on all Debt of the
Company whether created, Incurred or assumed before, on or after the Issue Date
of the Securities (other than the Securities), provided that Senior Debt shall
--------
not include (i) Debt that, when Incurred and without respect to any election
under Section 1111(b) of Title 11, United States Code, was without recourse to
the Company, (ii) Debt of the Company to any Affiliate and (iii) any Debt of the
Company that, by the terms of the instrument creating or evidencing the same, is
specifically designated as being junior in right of payment to the Securities
or any other Debt of the Company.
"Significant Subsidiary" means a Restricted Subsidiary that is a
"significant subsidiary" as defined in Rule 1-02(v) of Regulation S-X under the
Securities Act and the Exchange Act.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, with respect to any debt security or any
installment of interest thereon, the date specified in such debt security as the
fixed date on
-38-
which any principal of such debt security or any such installment of interest
is due and payable.
"Subsidiary" means, with respect to any Person including, without
limitation, the Company and its Subsidiaries, (i) any corporation or other
entity of which such Person owns, directly or indirectly, a majority of the
Capital Stock or other ownership interests and has ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions, and (ii) with respect to the Company and, as appropriate, its
Subsidiaries, any Permitted Joint Venture, including, without limitation, Coso
Land Company Joint Venture, Coso Finance Partners, Coso Energy Developers and
Coso Power Developers, provided that in respect of any Subsidiary that is not
--------
a Permitted Joint Venture, the Company must exercise control over such
Subsidiary and its Property to the same extent as a Permitted Joint Venture.
"Subsidiary Refinancing Debt" means Debt issued in exchange for, or the
proceeds of which are used to refinance (including to purchase), outstanding
Debt of a Restricted Subsidiary or an Eligible Joint Venture, including, without
limitation, Construction Financing, in an amount (or, if such new Debt provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration thereof, with an original issue price) not to
exceed the amount so exchanged or refinanced (plus accrued interest or dividends
and all fees, premiums (in excess of accreted value) and expenses related to
such exchange or refinancing), for which purpose the amount so exchanged or
refinanced shall not exceed, in the case of Debt, to the lesser of (x) the
principal amount of the Debt so exchanged or refinanced and (y) if the Debt
being exchanged or refinanced was issued with an original issue discount, the
accreted value thereof (as determined in accordance with GAAP) at the time of
such exchange or refinancing, and, in the case of an equity investment made in
lieu or as part of Construction Financing Debt, in an amount not to exceed the
capital and surplus shown on the balance sheet of such Restricted Subsidiary or
Eligible Joint Venture, provided that (A) such Debt shall be Non-Recourse, if
--------
the Debt so exchanged or refinanced is Non-Recourse and (B) the Average Life of
the new Debt shall be equal to or
-39-
greater than the Average Life of the Debt to be exchanged or refinanced,
provided further that upon the first refinancing of any Construction Financing
- -------- -------
of a Restricted Subsidiary or an Eligible Joint Venture, (i) the amount of the
Subsidiary Refinancing Debt issued in exchange for or to refinance such
Construction Financing shall not be limited by this provision and (ii) the
Subsidiary Refinancing Debt issued in exchange for or to refinance such
Construction Financing shall not be subject to the provisions of the foregoing
clause (B) of this provision.
"Trade Payables" means, with respect to any Person, any accounts payable or
any other indebtedness or monetary obligation to trade creditors Incurred,
created, assumed or Guaranteed by such Person or any of its Subsidiaries or
Joint Ventures arising in the ordinary course of business.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was executed; provided that in the event the
--------
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
shall mean, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Unrestricted Subsidiary" means any Subsidiary of the Company that becomes
an Unrestricted Subsidiary in accordance with the requirements set forth in the
next sentence. The Company may designate any Restricted Subsidiary as an
Unrestricted Subsidiary if (a) such designation is in compliance with Section
1010(a) and (b) after giving effect to such designation, such Subsidiary does
not own, directly or indirectly, a majority of the Capital Stock or the Voting
Stock of any other Restricted Subsidiary unless such other Restricted
Subsidiary is designated as an Unrestricted Subsidiary at the same time. Any
such designation shall be effected by
-40-
filing with the Trustee an Officers' Certificate certifying that such
designation complies with the requirements of the immediately preceding
sentence. No Debt or other obligation of an Unrestricted Subsidiary may be
with recourse to the Company, any of its Restricted Subsidiaries, any Eligible
Joint Venture or any of their respective Property. An Unrestricted Subsidiary
may be designated as a Restricted Subsidiary if, (i) all the Debt of such
Unrestricted Subsidiary could be Incurred under Section 1009, and (ii) any
portion of such Debt could not be incurred thereunder, if the Company could
borrow all such remaining Debt pursuant to Section 1008(a).
"U.S. Government Obligations" means securities that are (i) direct
obligations of the U.S. for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the U.S., the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the U.S.,
that, in either case are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligations or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
--------
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors (or persons fulfilling similar responsibilities) of such Person.
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(b) Other definitions:
Defined Term Defined in Section
- ------------ ------------------
Act 104
Change of Control Offer 1013(b)
Change of Control Purchase Date 1013(b)
Covenant Defeasance 1203
Defaulted interest 307
Defeasance 1202
Default Amount 502
Excess Proceeds 1015(a)
Excess Proceeds Offer 1015(a)
Excess Proceeds Purchase Date 1015(e)
Event of Default 501
Ineligible Investment 1022
Notice of Default 501(5)
Record Expiration Date 104
Security Register 305
Security Registrar 305
Surviving Entity 801
10% Limit 1022
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
If several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to such matters are erroneous.
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If any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, if it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 104.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. If such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
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Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or taken by Holders of
Securities, provided that the Company may not set a record date for, and the
--------
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to take the relevant actions whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
--------
hereunder unless taken on or prior to the applicable Record Expiration Date by
Holders of the requisite principal amount of Outstanding Securities on such
record date; and provided further that for the purpose of determining whether
-------- -------
Holders of the requisite principal amount of such Securities have taken
such action, no Security shall be deemed to have been Outstanding on such record
date unless it is also Outstanding on the date such action is to become
effective. Nothing in this paragraph shall prevent the Company from setting a
new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
nor shall anything in this paragraph be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Company, at its own expense, shall cause
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notice of such record date, the proposed action by Holders and the applicable
Record Expiration Date to be given to the Trustee in writing and to each Holder
of Securities in the manner set forth in Section 106 .
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 502, (iii) any request to institute proceedings referred to in
Section 507(2) or (iv) any direction referred to in Section 512. If any record
date is set pursuant to this paragraph, the Holders of Outstanding Securities on
such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
--------
hereunder unless taken on or prior to the applicable Record Expiration Date by
Holders of the requisite principal amount of Outstanding Securities on such
record date; and provided further that for the purpose of determining whether
-------- -------
Holders of the requisite principal amount of such Securities have taken such
action, no Security shall be deemed to have been Outstanding on such record date
unless it is also Outstanding on the date such action is to become effective.
Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action (whereupon the record date previously
set shall automatically and without any action by any Person be cancelled and
of no effect), nor shall anything in this paragraph be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the matter(s) to be submitted
for potential action by Holders and the applicable Record Expiration Date to
be given to the Company in writing and to each Holder of Securities in the
manner set forth in Section 106.
With respect to any record date set pursuant to this Section 104, the party
hereto that sets such record date may designate any day as the "Record
Expiration Date" and
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from time to time may change the Record Expiration Date to
any earlier or later day, provided that no such change shall be effective unless
--------
notice of the proposed new Record Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities in the manner set forth in
Section 106, on or before the existing Record Expiration Date. If a Record
Expiration Date is not designated with respect to any record date set pursuant
to this Section 104, the party hereto that set such record date shall be deemed
to have initially designated the 180th day after such record date as the Record
Expiration Date with respect thereto, subject to its right to change the Record
Expiration Date as provided in this paragraph. Notwithstanding the foregoing,
no Record Expiration Date shall be later than the 180th day after the applicable
record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing and
mailed, first-class postage prepaid, to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of
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this Indenture, Attention: General Counsel, or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
-------------------------
When this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. Neither the failure to
mail or give such notice as otherwise provided herein, nor any defect in any
notice so mailed or given to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. When this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
-48-
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein, the Cross-Reference Table and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to
the full extent permitted by law.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person other than the parties hereto and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture. This Indenture may not be used to
interpret another indenture, loan agreement or debt agreement of the Company or
any of its Subsidiaries. No such other indenture or loan or debt agreement may
be utilized to interpret this Indenture.
Section 112. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW, BUT OTHERWISE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
-49-
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES,
AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER OF THE SECURITIES
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
Section 113. Legal Holidays.
--------------
If any Interest Payment Date, Redemption Date, Purchase Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date but may be made on
the next succeeding Business Day with the same force and effect (including with
respect to the accrual of interest) as if made on the Interest Payment Date,
Redemption Date or Purchase Date, or at the Stated Maturity.
Section 114. No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder or incorporator, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
Section 115. Duplicate Originals.
-------------------
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All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Securities and the Trustee's certificates of authentication shall be
in substantially the forms set forth in this Article Two, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
------------------------
CALIFORNIA ENERGY COMPANY, INC.
___% Senior Discount Notes Due 2004.
No. _________ $_____________
CUSIP No._____________
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California Energy Company, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of ___________________ Dollars on January 15, 2004
and to pay interest thereon from January 15, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on January 15 and July 15 in each year, commencing July 15, 1997
at the rate of _____% per annum, until the principal hereof is paid or duly
provided for, provided that any principal and premium, if any, and any such
--------
installment of interest, that is overdue shall bear interest at the rate of
[coupon plus 1%] _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or duly provided for, and such interest shall be payable on
demand. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date shall, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
-52-
Payment of the principal of (and premium, if any) and any interest on this
Security shall be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, or at such
additional offices or agencies as the Company from time to time may designate
for such purpose, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts,
provided that payment of the principal of (and premium, if any, on) this
- --------
Security shall be made only upon presentation and surrender hereof
at any such office or agency and, at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-53-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CALIFORNIA ENERGY COMPANY, INC.
[Seal]
By:
---------------------------
Title:
Attest:
- ---------------------------------
Title:
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as its _____% Senior Discount Notes due 2004 (herein called
the "Securities"), limited in aggregate principal amount at final Stated
Maturity to $___________, issued and to be issued under an Indenture, dated as
of ______________, 1994 (herein called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the Company and IBJ
Schroder Bank & Trust Company, as Trustee (herein called the "Trustee" which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, at any time on or after January 15, 1999 and prior
to maturity, as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount at
Stated Maturity), if redeemed during the 12-month period commencing on or after
January 15 of the years indicated,
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Redemption
Year Price
---- ----------------
1999..................................
2000..................................
2001 and thereafter................... 100%
together in the case of any such redemption with accrued interest, if any, to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date shall be payable to the Holders of such
Securities, or one or more predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
The Securities do not have the benefit of any sinking fund
obligations.
Upon the occurrence of both a Change of Control and a Rating Decline,
the Company shall be required to make an Offer to Purchase all or a specified
portion of the Securities at a Purchase Price in cash equal to (a) 101 percent
of the Accreted Value thereof on any Purchase Date occurring prior to January
15, 1997 or (b) 101 percent of the principal amount thereof on any Purchase
Date occurring on or after January 15, 1997 plus accrued and unpaid interest, if
any, to such Purchase Date. If the Company or any Restricted Subsidiary
consummates an Asset Sale, under certain circumstances, the Company shall be
required to make an Offer to Purchase up to all or a specified portion of the
Securities at a Purchase Price in cash equal to (a) 100 percent of the Accreted
Value thereof on any Purchase Date occurring prior to the January 15, 1997 or
(b) 100 percent of the principal amount thereof on any Purchase Date occurring
on or after January 15, 1997, plus accrued and unpaid interest, if any, to such
Purchase Date, in an amount equal to any Net Cash Proceeds from such an Asset
Sale that are not used to reinvest in the business of the Company and/or repay
in a permanent reduction of Debt of the Company or Debt of its Restricted
Subsidiaries and Eligible Joint Ventures. Holders of Securities shall receive
notice of any such Offer to Purchase from the Company prior to the related
Purchase Date and may elect to have such
-55-
Securities purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing on the reverse side of the Security.
In the event of redemption, or purchase pursuant to an Offer to
Purchase, of this Security in part only, a new Security or Securities for the
portion hereof not redeemed or purchased shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire Debt of this Security or certain restrictive covenants and Events of
Default with respect to this Security, including, without limitation, covenants
relating to Offers to Purchase, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the Default Amount of the Securities, in the manner and
with the effect provided in the Indenture. Until January 15, 1997, the Default
Amount in respect of this Security as of the date upon which the Securities are
declared due and payable shall equal the Accreted Value of this Security as of
such date. On and after January 15, 1997, the Default Amount in respect of this
Security as of any particular date shall equal 100% of the principal amount of
this Security plus accrued and unpaid interest, if any, to such date.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. In addition,
-56-
without the consent of any Holder of a Security, the Indenture and the
Securities may be amended and supplemented to cure any ambiguity or
inconsistency, make other changes that shall not adversely affect the rights
of the Holders or certain other matters specified in the Indenture. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver, or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities, the Holders of not less than 25 percent in principal amount
of the Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at
the time Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to
certain suits described in the Indenture, including any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates
expressed herein (or, in the case of redemption, on or after the Redemption
Date or, in the case of any purchase of this Security required to be made
pursuant to an Offer to Purchase, on or after the Purchase Date).
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium,
-57-
if any) and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, (which initially shall be the corporate trust office of the Trustee),
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, shall be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
A director, officer, employee, stockholder or incorporator of the
Company shall not have any liability for any obligations of the Company under
this Security or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting this
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of this Security.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person
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in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of 12 30-day months.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed under the State of New York, without regard to principles of
conflicts of law.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Your Signature:
---------------------------
(sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent
Medallion Program ("STAMP"), the Stock Exchange Medallion
Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other
signature guarantee program as may be determined by the
Security Registrar in addition to, or in substitution for,
STAMP, SEMP or MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety by the
Company pursuant to Section 1013 or 1015 of the Indenture, check the box: [ ]
If you want to elect to have only a part of the principal amount at Stated
Maturity of this Security purchased by the Company pursuant to Section 1013 or
1015 of the Indenture, state the portion of such amount: $________
Dated:
Your Signature:
-----------------------------------------
(sign exactly as name appears
on the other side of this
Security)
Signature Guarantee:
----------------------------------------------------------
(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent
Medallion Program ("STAMP"), the Stock Exchange Medallion
Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other
signature guarantee program as may be determined by the
Security Registrar in addition to, or in substitution
for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
Section 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Dated:
This is one of the Securities referred to in the within-mentioned
Indenture.
IBJ SCHRODER BANK & TRUST COMPANY,
As Trustee
By
-------------------------------------
Authorized Signatory
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ARTICLE THREE
The Securities
Section 301. Title and Terms.
---------------
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is limited to $___________, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 304, 305, 306,
906 or 1108 or in connection with an Offer to Purchase pursuant to Section 1013
or 1015.
The Securities shall be known and designated as the "_____% Senior Discount
Notes due 2004" of the Company. Their Stated Maturity shall be January 15,
2004 and they shall bear interest at the rate of _____% per annum, from July
15, 1997 or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, as the case may be, payable semi-annually on
January 15 and July 15, commencing July 15, 1997 until the principal thereof
is paid or made available for payment.
The principal of (and premium, if any) and interest on the Securities shall
be payable at the office or agency of the Company in the Borough of Manhattan,
The City of New York maintained for such purpose and at any other office or
agency maintained by the Company for such purpose; provided that (except as may
--------
be provided in any representation letter or agreement with a "clearing" agency
registered under the Exchange Act), payment of the principal of (and premium, if
any, on) the Securities shall be made only upon presentation and surrender
thereof at any such office or agency and at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Section 302. Denominations.
-------------
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The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 principal amount and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating.
-----------------------------------------------
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
Section 304. Temporary Securities.
--------------------
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Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities that are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company shall cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002 without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations and of a like tenor. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated
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pursuant to Section 1002 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906 or 1108 or in accordance
with any Offer to Purchase pursuant to Section 1013 or 1015 , and in any such
case not involving any transfer.
Neither the Trustee, the Security Registrar nor the Company shall be
required (i) to issue, register the transfer of or exchange any Security during
a period
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beginning at the opening of business 15 days before the day of the mailing of
a notice of redemption of Securities selected for redemption under Section
1104 and ending at the close of business on the day of such mailing or (ii) to
register the transfer of or exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
-------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 306 in lieu of any
destroyed, lost or stolen Security
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shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security that is payable and is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security that is payable but is not punctually paid or
duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money
-67-
when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as provided in this clause. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest that
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given to each Holder in the manner
specified in Section 106 not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of
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such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any Offer to Purchase pursuant to
Section 1013 or 1015 shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 309,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order; provided
--------
that the Trustee shall not be required to destroy cancelled Securities.
Section 310. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 311. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption or repurchase as a convenience to Holders; provided that any such
--------
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
repurchase
-69-
shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) no Securities remain Outstanding;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, (i) the obligations of the Company to the Trustee under
Section 607, the obligations of the Company to any Authenticating Agent under
Section 614 and (ii) if the Company shall have effected a Defeasance pursuant to
Article Twelve, the provisions hereof specified in Section 1202 shall also
survive.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", whenever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary
-70-
or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of (or premium, if any,
on) any Security at its maturity (whether at final Stated Maturity or upon
repurchase, acceleration, optional redemption or otherwise); or
(2) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(3) default in the purchase of Securities, on the applicable Purchase
Date, required to be purchased by the Company pursuant to an Offer to Purchase
under Section 1013 or Section 1015 as to which an offer has been mailed to
Holders or the failure to make such offer as required hereunder; or
(4) default in the performance, or breach, of any covenant, agreement
or warranty of the Company in this Indenture and the Securities (other than a
covenant, agreement or warranty a default in whose performance or whose breach
is elsewhere in this Section 501 specifically dealt with), and continuance of
such default or breach for a period of 30 days after there has been given to
the Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25 percent in principal amount at final Stated Maturity of the
Outstanding Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) a default or defaults under any bond, debenture, note or other
evidence of Debt by the Company or any Significant Subsidiary (or under any
mortgage, in denture or instrument under which there may be issued or by which
there may be secured or evidenced any Debt by the Company or any Significant
Subsidiary) (other than Non-Recourse Debt of Significant Subsidiaries) if either
(x) such default results from failure to pay principal of such Debt in excess of
$25 million when due after any applicable grace period or (y) as a result of
such de-
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fault, the maturity of such Debt has been accelerated prior to its
scheduled maturity and such default has not been cured within the applicable
grace period, and such acceleration has not been rescinded, and the principal
amount of such Debt, together with the principal amount of any other Debt of the
Company and its Significant Subsidiaries (not including Non-Recourse Debt of the
Significant Subsidiaries) that is in default as to principal, or the maturity of
which has been accelerated, aggregates $25 million or more; or
(6) the entry by a court of one or more judgments or orders against
the Company or any Significant Subsidiary for the payment of money that in
aggregate exceeds $25 million (excluding the amount thereof covered by
insurance or by a bond written by a Person other than an Affiliate of the
Company), which judgments or orders have not been vacated, discharged or
satisfied or stayed pending appeal within 60 days from the entry thereof,
provided that such a judgment or order shall not be on Event of Default if
such judgment or order does not require any payment by the Company or any
Significant Subsidiary, except to the extent that such judgment is only
against Property that secures Non-Recourse Debt that is otherwise permitted
under this Indenture, and the Company could, at the expiration of the
applicable 60 day period, after giving effect to such judgement or order and
the consequences thereof, Incur at least $1 of Debt under the provisions
described in Section 1008(a); or
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal, state,
or foreign bankruptcy, insolvency, or other similar law or (B) a decree or order
adjudging the Company or any Significant Subsidiary a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Significant
Subsidiary under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal, State or foreign bankruptcy, insolvency, or
similar law, or appointing a custodian, receiver, liq-
-72-
uidator, assignee, trustee, sequestrator or other similar official of the
Company or any Significant Subsidiary or of any substantial part of the
Property or assets of the Company or any Significant Subsidiary, or ordering
the winding up or liquidation of the affairs of the Company or any Significant
Subsidiary, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(8) (A) the commencement by the Company or any Significant Subsidiary
of a voluntary case or proceeding under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal, state, or foreign
bankruptcy, insolvency or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or (B) the consent by the Company
or any Significant Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in an involuntary case or
proceeding under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable federal, state, or foreign bankruptcy, insolvency, or
other similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or any Significant Subsidiary, or (C) the
filing by the Company or any Significant Subsidiary of a petition or answer or
consent seeking reorganization or relief under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal, state or
foreign bankruptcy, insolvency or other similar law, or (D) the consent by the
Company or any Significant Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or of any substantial part of the Property or assets of
the Company or any Significant Subsidiary, or the making by the Company or any
Significant Subsidiary of an assignment for the benefit of creditors, or (E)
the admission by the Company or any Significant Subsidiary in writing of its
inability to pay its debts generally as they become due, or (F) the taking of
corporate action by the Company or any Significant Subsidiary in furtherance
of any such action.
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Section 502. Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
If an Event of Default (other than an Event of Default specified in Section
501(7) or (8)) occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25 percent in principal amount at Stated
Maturity of the Outstanding Securities may declare the Default Amount of all the
Securities to be due and payable immediately by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such
declaration such Default Amount shall become immediately due and payable. If
an Event of Default specified in Section 501(7) or (8) occurs, the Default
Amount of the Securities then Outstanding shall ipso facto become immediately
---- -----
due and payable without any declaration or other Act on the part of the
Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article Five provided, the Holders of a
majority in principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities (without duplication
of any amount thereof paid or deposited pursuant to clause (B) or (C) below),
(B) the Default Amount of (and premium, if any, on) any
Securities that have become due otherwise than by such declaration of
acceleration (including any Securities required to have been purchased on any
Purchase Date pursuant to an Offer to Purchase made by the Company) and, to
the extent that payment of such interest is lawful, interest thereon at the
rate provided by the Securities (without duplication of any amount
-74-
thereof paid or deposited pursuant to clause (A) above or clause (C) below),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Securities (without
duplication of any amount thereof paid or deposited pursuant to clause (A) or
(B) above), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default (other than the non-payment of the
Accreted Value of Securities that have become due solely by such declaration of
acceleration) have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
----------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal or Accreted Value
of (or premium, if any, on) any Security at the final Stated Maturity thereof
or, with respect to any Security required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the Purchase Date thereof, the
Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities
-75-
Accreted Value or principal, as the case may be, (premiums, if any)
and interest, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue Accreted Value or principal, as the case
may be, (premium, if any) and interest, and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the Property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its Property or assets or its creditors, the
Trustee (irrespective of whether the Accreted Value or principal, as the case
may be, (premium, if any) or interest of the Securities then shall be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee has made any demand on the Company for the payment of
overdue Accreted Value or principal, as the case may be, (premium, if any) or
interest shall
-76-
be entitled and empowered, by intervention in such proceeding or otherwise, to
file such proofs of claim and other papers or documents and to take any and
all actions authorized under the Trust Indenture Act in order to have claims
of the Holders and the Trustee (including any claim for reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
or counsel) allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607 . To the extent that payment
of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any amounts due the Trustee under Section 607
hereof out of the estate in any such proceeding shall be denied for any
reason, payment of the same shall be secured by a Lien and shall be paid out
of any and all distributions, dividends, money, securities and other
properties that the Holders of the Securities may be entitled to receive in
such proceedings whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided that the
--------
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors or other similar
committee.
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Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article Five shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid on the
Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities in respect of principal (and
premium, if any) and interest; and
THIRD: To whosoever may be lawfully entitled thereto, the
remainder, if any.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with
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respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25 percent in principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
-----------------------------------------------------------------
Interest.
- --------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
full payment of the Accreted Value or principal, as the case may be, of (and
premium, if any) and (subject to Section
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307) interest on such Security on the respective Stated Maturities expressed
in such Security (or, in the case of redemption on the Redemption Date or in
the case of an Offer to Purchase made by the Company and accepted as to such
Security, on the Purchase Date) in accordance with the terms of this Indenture
and the Securities and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder or otherwise shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or
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remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article Five or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
Section 513. Waiver Of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security that is required to have been
purchased pursuant to an Offer to Purchase that has been made by the Company),
or
(2) in respect of a covenant or provision hereof that under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subse-
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quent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act.
Section 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 601.
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(b) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture but need not confirm the accuracy of any calculations contained
therein.
(c) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(d) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
------
(1) this subsection (d) shall not be construed to limit the effect
of subsections (b) or (c) of this Section 601;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in
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good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 602. Notice of Defaults; Notice of Acceleration.
------------------------------------------
Within 90 days after the occurrence of any Default or Event of Default, the
Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, notice of such Default or Event of Default
known to the Trustee, unless such Default or Event of Default shall have been
cured or waived; provided that, except in the case of a default in any payment
--------
of the principal of (or premium, if any) or interest on any Security and any
payment required in connection with a Change of Control or an Asset Disposition,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders; and provided further that in
-------- -------
the case of any Default or Event of Default of the character specified in
Section 501(5), no such notice to Holders shall be given until at least 30
days after the occurrence thereof.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, re-
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port, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request, order, demand or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investi-
-85-
gation, it shall be entitled (subject to reasonable confidentiality arrangements
as may be proposed by the Company) to examine the books, records and premises of
the Company, personally or by agent or attorneys;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
-------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent
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required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee in its individual capacity and each of
its officers, directors, agents and counsel for, and to hold it harmless
against, any loss, damage, claim, liability or expense incurred without
negligence or bad faith on such Person's part, arising out of or in connection
with the acceptance or administration of this Indenture or the performance of
any of its powers and duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder and complying
with any process served upon the Trustee or any such other Person hereunder.
The Trustee shall have a Lien prior to the Securities with respect to all
Property and funds held or collected by the Trustee hereunder for any amount
owing to it pursuant to this Section 607, except with respect to funds held in
trust for the benefit of the Holders of particular Securities.
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When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(7) or Section 501(8), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The Company's obligations under this Section 607 and any Lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Company's obligations pursuant to Article Twelve, any rejection or
termination of the Indenture under any Federal or state bankruptcy, insolvency
or other similar law or any other termination of this Indenture.
Section 608. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder that shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and its Corporate Trust
Office in the Borough of Manhattan, The City of New York and shall be subject to
supervision or examination by Federal or State authority. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 609 and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 609, it shall resign immediately in the
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manner and with the effect hereinafter specified in this Article Six.
Section 610. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Six shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
in accordance with the applicable requirements of Section 611 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
-89-
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee and supersede the successor Trustee appointed by the
Company. If no successor Trustee shall have been so appointed by the Company
or the Holders and accepted appointment in accordance with the applicable
requirements of Section 611, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give written notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such
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successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of any amounts then due under Section 607, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject, nevertheless, to its Lien, if any, provided for in
Section 607. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation
---------------------------------
or Succession to Business.
-------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
--------
such corporation shall be otherwise qualified and eligible under this Article
Six, without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection
-----------------------
of Claims Against Company.
-------------------------
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If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may from time to time appoint an Authenticating Agent or Agents
that shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or partial redemption or partial purchase or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 614, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section 614, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section 614.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent. In case any
Securities shall have been authenticated, but not delivered, by the
Authenticating Agent then in office, any successor by merger, conversion or
consolidation to such authenticating Authenticating Agent may adopt such
authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trustee may appoint a successor
Authenticating Agent that shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 106, to all Holders
as their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 614.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
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If an appointment is made pursuant to this Section 614, the Securities may
have endorsed thereon, in lieu of the Trustee's certificate of authentication,
an alternative certificate of authentication in the following form:
This is one of the Securities described in the within-mentioned Indenture.
Dated: IBJ SCHRODER BANK & TRUST
COMPANY
as Trustee
By ,
-------------------------
As Authenticating Agent
By ,
-------------------------
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
--------------------------
Names and Addresses of Holders.
------------------------------
The Company shall furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing with the May
15 following the Issue Date, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company shall notify the Trustee in writing when the Securities are listed on
any stock exchange.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information,
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documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
--------
required to be filed with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act shall be filed with the Trustee within 15 days after the same
is so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc. Only on Certain Terms.
---------------------------------------------------
The Company shall not, in any transaction or series of transactions,
consolidate with or merge into any other Person, or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the Property
and assets of the Company to any other Person, unless:
(i) either (a) the Company shall be the continuing corporation
or (b) the corporation (if other than the Company) formed by such consolidation
or into which the Company is merged, or the Person that acquires, by sale,
assignment, conveyance, transfer, lease or disposition, all or substantially all
of the Property and assets of the Company (such corporation or Person, the
"Surviving Entity"), shall be a corporation organized and validly existing
under the laws of the United States of America, any political subdivision
thereof or any state thereof or the District of Columbia, and shall expressly
assume, by a supplemental indenture, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities and the
performance of the Company's covenants and obligations under this Indenture;
(ii) immediately before and immediately after giving effect to
such transaction or series of transactions on a pro forma basis (including,
--- -----
without limitation, any Debt Incurred or anticipated to be Incurred in
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connection with or in respect of such transaction or series of transactions),
no Default or Event of Default shall have occurred and be continuing or would
result therefrom;
(iii) immediately after giving effect to any such transaction or
series of transactions on a pro forma basis (including, without limitation, any
--- -----
Debt Incurred or anticipated to be Incurred in connection with or in respect of
such transaction or series of transactions) as if such transaction or series of
transactions had occurred on the first day of the determination period, the
Company (or the Surviving Entity if the Company is not continuing) would be
permitted to Incur $1.00 of additional Debt pursuant to Section 1008(a); and
(iv) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any Debt
--- -----
Incurred or anticipated to be Incurred in connection with or in respect of
such transaction or series of transactions)(without giving effect to the fees
and expenses incurred in respect of such transaction),the Company (or the
Surviving Entity if the Company is not continuing) shall have a Net Worth
equal to or greater than the Net Worth of the Company immediately prior to
such transaction.
In connection with any consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition contemplated by the foregoing
provisions of this Section 801, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, conveyance, assignment, transfer, lease or
other disposition and the indenture supplemental hereto in respect thereof (to
the extent required under clause (i) of this Section 801) comply with the
requirements of this Indenture. Each such Officers' Certificate shall set forth
the ability to Incur Debt in accordance with clause (iii) of Section 801.
None of the Company, any of its Restricted Subsidiaries or any
Eligible Joint Ventures may merge with or into, or be consolidated with, an
Unrestricted Subsidiary of the Company, except to the extent that such
Unrestricted Subsidiary has been designated a Restricted Subsidiary as provided
in this Indenture in advance of or in connection with such merger.
For all purposes of this Indenture and the Securities (including this
Section 801 and Sections 1008, 1009 and 1012), Subsidiaries of any Surviving
Entity shall,
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upon such transaction or series of transactions, become Restricted
Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture
and all Debt, and all Liens on Property or assets, of the Surviving Entity and
its Subsidiaries that was not Debt, or were not Liens on Property or assets, of
the Company and its Subsidiaries immediately prior to such transaction or series
of transactions shall be deemed to have been Incurred upon such transaction or
series of transactions.
Section 802. Successor Substituted.
---------------------
Upon any transaction or series of transactions that are of the type
described in, and are effected in accordance with, Section 801, the Surviving
Entity shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
Surviving Entity had been named as the Company herein; and when a Surviving
Person duly assumes all of the obligations and covenants of the Company pursuant
to this Indenture and the Securities, except in the case of a lease, the
predecessor Person shall be relieved of all such obligations.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, may, and subject to Section 903, the Trustee, at any time and
from time to time, shall, enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
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(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to add additional Events of Default; or
(4) to provide for uncertificated Securities in addition to or
in place of the certificated Securities; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
--------
only when there is not Outstanding any Security created prior to the execution
of such supplemental indenture that is entitled to the benefit of such
provision; or
(6) to evidence and provide for the acceptance of appointment
under this Indenture by a successor Trustee; or
(7) to secure the Securities pursuant to the requirements of
Section 1012 or otherwise; or
(8) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture (8), provided that such actions pursuant to this
--------
clause shall not adversely affect the interests of the Holders; or
(9) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the Trust
Indenture Act.
Section 902. Supplemental Indentures with Consent of Holders.
------------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, may, and (subject to Section 903) the Trustee shall, enter
into an indenture or indentures
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supplemental hereto, in form satisfactory to the Trustee, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided that no such supplemental indenture
--------
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of or any
installment of interest on, any Security, or reduce the principal amount thereof
at or the rate of interest thereon or any premium payable thereon, reduce the
rate or extend the time of accretion of original issue discount thereon beyond
July 15, 1997 or the time of payment of any cash interest thereon, reduce any
amount payable on redemption or purchase thereof, or reduce the Default Amount
that would be due and payable on acceleration of the Stated Maturity thereof
pursuant to Section 502, or change the place of payment where, or the coin or
currency in which, any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof, or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify the obligations of the Company to make Offers to
Purchase from the Excess Proceeds of Asset Sales or to modify the related
definitions, or
(4) subordinate a right of payment, or otherwise subordinate,
the Securities to any other indebtedness, or
(5) modify any provisions of this Indenture relating to the
calculation of Accreted Value, or
(6) modify any of the provisions of this Section 902, Section
513 or Section 1020, except to in-
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crease any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
After a supplemental indenture under this Section becomes effective,
the Company shall mail to the Holders affected thereby a notice briefly
describing the supplemental indenture. Any failure of the Company to mail such
notice, or any default therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
In connection with any supplemental indenture or waiver under this
Article Nine, the Company may, but shall not be obligated to, offer to any
Holder who consents to such supplemental indenture, or to all Holders,
consideration for such Holder's consent to such supplemental indenture.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
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Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby, unless it makes a change described in any of
clauses (1) through (6) of Section 902, in which case, the supplemental
indenture shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same Debt as the consenting Holder's Security; provided that any such waiver
--------
shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and payable, or to bring suit for the
enforcement of any such payment on or after such respective dates.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities. Any failure to make the appropriate
notation on a new Security shall not affect the validity of such Security.
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ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company shall duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands. In the event any such notice or demands are
so made or served on the Trustee, the Trustee shall promptly forward copies
thereof to the Company.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that no
--------
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any
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change in the location of any such other office or agency. The Company hereby
initially designates the Corporate Trust Office of the Trustee as such office
of the Company.
Section 1003. Money for Security Payments to be Held in Trust.
-----------------------------------------------
If the Company shall at any time act as its own Paying Agent, it
shall, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and shall promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it shall,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of its action or failure
so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 1003,
that such Paying Agent shall (i) comply with the provisions of the Trust
Indenture Act applicable to it as Paying Agent, (ii) give the Trustee notice of
any default by the Company (or other obligor upon the Securities) in the making
of any payment of principal of (and premium, if any) or interest in respect of
the Securities and (iii) during the continuance of any default by the Company
(or any other obligor upon the Securities) in the making of any payment in
respect of the Securities, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent as such.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided that the Trustee or
--------
such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, or mail to such Holder, or
both, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining shall be
repaid to the Company.
Section 1004. Existence.
---------
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and material franchises; provided
--------
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors in good faith shall determine that the preservation
thereof is no longer desirable in the conduct of the
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business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.
Section 1005. Maintenance of Properties.
-------------------------
The Company shall cause all material properties used or useful in the
conduct of its business or the business of any Restricted Subsidiary and any
Eligible Joint Venture to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and shall cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided that nothing in this Section 1005 shall prevent
--------
the Company from discontinuing the operation or maintenance of any of such
material or properties or, subject to the provisions of Section 1015, disposing
of any of them if such discontinuance or disposal is, as determined by the Board
of Directors in good faith, desirable in the conduct of its business or the
business of any Restricted Subsidiary and not disadvantageous in any material
respect to the Holders, provided that the Restricted Subsidiaries and the
--------
Eligible Joint Ventures of the Company shall not be required to comply with the
foregoing provisions of this Section 1005 if they are prevented or restricted in
doing so by the terms of any loan or financing agreement, any charter document
or any other agreement or instrument.
Section 1006. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its Restricted
Subsidiaries or upon the income, profits or property of the Company or any of
its Restricted Subsidiaries, and (2) all lawful claims for labor, materials and
supplies that, if unpaid, might by law become a Lien upon the property of the
Company or any of its Restricted Subsidiaries; provided that the Company shall
--------
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which disputed
amounts adequate reserves have been accrued to the extent required by GAAP.
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Section 1007. Maintenance of Insurance.
------------------------
The Company shall, and shall cause its Restricted Subsidiaries and the
Eligible Joint Ventures to, keep at all times all of their Properties that are
of an insurable nature insured against loss or damage with insurers believed by
the Company to be responsible to the extent that Property of similar character
is usually so insured by Persons similarly situated and owning like Properties
in accordance with good business practice. The Company shall, and shall cause
its Restricted Subsidiaries and the Eligible Joint Ventures to, use the proceeds
from any such insurance policy to repair, replace or otherwise restore all
material Properties to which such proceeds relate, provided that the Company
--------
shall not be required to repair, replace or otherwise restore any such material
Property if the Board of Directors in good faith determines that such inaction
is desirable in the conduct of the business of the Company or any Restricted
Subsidiary and not disadvantageous in any material respect to the Holders, and
provided further that the Restricted Subsidiaries and the Eligible Joint
- -------- -------
Ventures of the Company shall not be required to apply insurance proceeds to
repair, replace or restore any material Property if they are prevented or
restricted in doing so by the terms of any loan or financing agreement, any
charter document or any other agreement or instrument.
The Company may adopt such other plan or method of protection, in lieu
of or supplemental to insurance with insurers, whether by the establishment of
an insurance fund or reserve to be held and applied to make good losses from
casualties, or otherwise, conforming to the system of self-insurance maintained
by corporations similarly situated and owning like Properties and not
disadvantageous to the Holders in any material respect, as may be determined by
the Board of Directors in good faith.
Section 1008. Limitation on Debt.
------------------
(a) The Company shall not Incur any Debt, including Acquisition Debt,
unless, after giving effect to the Incurrence of such Debt and the receipt and
application
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of the proceeds therefrom, the Fixed Charge Ratio of the Company
would be equal to or greater than 2.0 to 1.
(b) Notwithstanding the provisions of Section 1008(a), the Company
may Incur each and all of the following: (i) Company Refinancing Debt, (ii) Debt
of the Company to any of its Restricted Subsidiaries or any Eligible Joint
Venture that is expressly subordinated in right of payment to the Securities,
provided that any transfer of such Debt by a Restricted Subsidiary or an
- --------
Eligible Joint Venture (other than to another Restricted Subsidiary or another
Eligible Joint Venture), or any transfer of the Company's ownership interest, or
a portion thereof, in such Restricted Subsidiary or such Eligible Joint Venture
or the interest, or a portion thereof, of Kiewit in a Permitted Joint Venture
or an Eligible Joint Venture (which transfer has the effect of causing such
Restricted Subsidiary or such Eligible Joint Venture to cease to be a Restricted
Subsidiary or an Eligible Joint Venture, as the case may be), shall be deemed
to be an Incurrence of Debt that is subject to the provisions of this Section
1008 other than this clause (ii), (iii) Debt in an aggregate principal amount
not to exceed $50 million outstanding at any one time may be issued under or
in respect of Permitted Working Capital Facilities, (iv) Non-Recourse Debt
Incurred in respect of a Permitted Facility in which the Company has a direct
interest, (v) Debt in respect of Currency Protection Agreements or Interest
Rate Protection Agreements, (vi) Purchase Money Debt, provided that the amount
--------
of such Debt (net of any original issue discount) does not exceed 90% of the
fair market value of the Property acquired, (vii) the Securities and other
Debt outstanding as of the Issue Date of the Securities (other than Debt to
the extent that it is extinguished, retired, defeased or repaid in connection
with the original issuance of the Securities), including Debt that is
Incurred in respect of interest or discount on such Debt (or Redeemable Stock
issued as dividends in respect of Redeemable Stock) pursuant to the terms of
the agreement or instrument that governs such Debt (or such Redeemable Stock)
as in effect on the Issue Date of the Securities and (viii) Debt in an
aggregate principal amount not to exceed $50 million outstanding at any one
time.
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Section 1009. Limitation on Subsidiary Debt.
-----------------------------
(a) The Company shall not permit any of its Restricted Subsidiaries
or any Eligible Joint Venture, to Incur any Debt.
(b) Notwithstanding the provisions of Section 1009(a), each and
all of the following Debt may be Incurred by a Restricted Subsidiary or an
Eligible Joint Venture: (i) Debt outstanding as of the Issue Date of the
Securities, (ii) Debt owed by a Restricted Subsidiary or an Eligible Joint
Venture to the Company or another Restricted Subsidiary of the Company or
another Eligible Joint Venture that either directly or indirectly owns all or
a portion of the Company's interest in, or directly or indirectly is owned
by, such Restricted Subsidiary or such Eligible Joint Venture, as the case
may be, and that does not own any Permitted Facility or a direct or indirect
interest therein, other than the Permitted Facility or any other Permitted
Facility that is located on the same localized geothermal reservoir or a
direct or indirect interest therein owned by such Restricted Subsidiary or
Eligible Joint Venture, (iii) Non-Recourse Debt Incurred in respect of a
Permitted Facility in which such Restricted Subsidiary or such Eligible Joint
Venture has a direct or indirect interest (which may include Construction
Financing provided by the Company to the extent permitted under Section 1010
as a "Permitted Investment"), (iv) Subsidiary Refinancing Debt, (v) Acquired
Debt, (vi) Debt in respect of Currency Protection Agreements or Interest Rate
Protection Agreements and (vii) Permitted Funding Company Loans.
Section 1010. Limitation on Restricted Payments.
---------------------------------
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries or any Eligible Joint Venture to, directly or
indirectly, make any Restricted Payment unless at the time of such Restricted
Payment and after giving effect thereto (a) no Event of Default and no event
that, after the giving of notice or lapse of time or both, would become an
Event of Default, has occurred and is continuing, (b) the Company could Incur
at least $1 of Debt under Section 1008(a) and (c) the aggregate amount of all
Restricted Payments made by the
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Company, its Restricted Subsidiaries and the Eligible Joint Ventures
(the amount so made, if other than in cash, to be determined in good faith by
the Chief Financial Officer, as evidenced by an Officers' Certificate, or, if
more than $15 million, by the Board of Directors, as evidenced by a Board
resolution) after the Issue Date of the Securities, is less than the sum
(without duplication) of (i) 50% of the Adjusted Consolidated Net Income of the
Company for the period (taken as one accounting period) beginning on the first
day of the first fiscal quarter that begins after the Issue Date of the
Securities and ending on the last day of the fiscal quarter immediately prior to
the date of such calculation, provided that if throughout any fiscal
--------
quarter within such period the Ratings Categories applicable to the Securities
are rated Investment Grade by S&P and Moody's (or if both do not make a rating
of the Securities publicly available, an equivalent Rating Category is made
publicly available by another Rating Agency), then 75% (instead of 50%) of the
Adjusted Consolidated Net Income (if more than zero) with respect to such fiscal
quarter shall be included pursuant to this clause (i), and provided further that
-------- -------
if Adjusted Consolidated Net Income for such period is less than zero, then
minus 100% of the amount of such net loss, plus (ii) 100% of the aggregate net
- ----- ----
cash proceeds received by the Company from and after the Issue Date of the
Securities from (A) the issuance and sale (other than to a Restricted Subsidiary
or an Eligible Joint Venture) of its Capital Stock (excluding Redeemable Stock,
but including Capital Stock other than Redeemable Stock issued upon conversion
of, or in exchange for Redeemable Stock or securities other than its Capital
Stock), (B) the issuance and sale or the exercise of warrants, options and
rights to purchase its Capital Stock (other than Redeemable Stock) and (C) the
issuance and sale of convertible Debt upon the conversion of such convertible
Debt into Capital Stock (other than Redeemable Stock), but excluding the net
proceeds from the issuance, sale, exchange, conversion or other disposition of
its Capital Stock (I) that is convertible (whether at the option of the Company
or the holder thereof or upon the happening of any event) into (x) any security
other than its Capital Stock or (y) its Redeemable Stock or (II) that is Capital
Stock referred to in clauses (ii) and (iii) of the definition of "Permitted
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Payment", plus (iii) the net reduction in Investments of the types specified in
----
clauses (iv) and (v) of the definition of "Restricted Payment" that result from
payments of interest on Debt, dividends, or repayment of loans or advances, the
proceeds of the sale or disposition of the Investment or other return of the
amount of the original Investment to the Company, the Restricted Subsidiary or
the Eligible Joint Venture that made the original Investment from the Person in
which such Investment was made, provided that (x) the aggregate amount of such
--------
payments shall not exceed the amount of the original Investment by the Company
or such Restricted Subsidiary that reduced the amount available pursuant
to this clause (c) for making Restricted Payments and (y) such payments may be
added pursuant to this clause (iii) only to the extent such payments are not
included in the calculation of Adjusted Consolidated Net Income, provided
--------
further that if Investments of the types specified in clauses (iv) and (v) of
- -------
the Definition of "Restricted Payment" have been made in any Person and such
Person thereafter becomes a Restricted Subsidiary or an Eligible Joint Venture,
then the aggregate amount of such Investment (to the extent that they have
reduced the amount available pursuant to this clause (c) for making Restricted
Payments), net of the amounts previously added pursuant to this clause (iii),
may be added to the amount available for making Restricted Payments. The
foregoing clause (c) shall not prevent the payment of any dividend within 60
days after the date of its declaration if such dividend could have been made on
the date of its declaration without violation of the provisions of this Section
1010(a).
(b) None of the Company, any of its Restricted Subsidiaries or any
Eligible Joint Venture shall be deemed to have made an Investment at the time
that a Person that is a Restricted Subsidiary of the Company or an Eligible
Joint Venture ceases to be a Restricted Subsidiary or an Eligible Joint Venture
(other than as a result of a Restricted Subsidiary being designated as an
Unrestricted Subsidiary), although any subsequent Investment made by the
Company, its Restricted Subsidiaries and Eligible Joint Ventures in such Person
shall be Investments that shall be subject to the foregoing paragraph unless and
until such time as such Person becomes a Restricted
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Subsidiary or an Eligible Joint Venture. Notwithstanding the foregoing, (i)
the designation of a Restricted Subsidiary as an Unrestricted Subsidiary, in
the manner provided in the definition of "Unrestricted Subsidiary," shall be
an Investment that shall be subject to the foregoing paragraph and (ii) the
transfer of the Company's interest (or portion thereof) in an entity that has
been deemed to be an Eligible Joint Venture directly or indirectly to an
Unrestricted Subsidiary shall be an Investment (to the extent of the interest
transferred) that shall be subject to the foregoing paragraph.
Section 1011. Limitation on Transactions with Affiliates.
------------------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries or any Eligible Joint Venture to, directly or indirectly, conduct
any business or enter into or permit to exist any transaction or series of
related transactions (including, but not limited to, the purchase, sale or
exchange of Property, the making of any Investment, the giving of any Guarantee
or the rendering of any service) with any Affiliate of the Company, such
Restricted Subsidiary or such Eligible Joint Venture, as the case may be, unless
(i) such business, transaction or series of related transactions is in the best
interest of the Company, such Restricted Subsidiary or such Eligible Joint
Venture, (ii) such business, transaction or series of related transactions is on
terms no less favorable to the Company, such Restricted Subsidiary or such
Eligible Joint Venture than those that could be obtained in a comparable arm's
length transaction with a Person that is not such an Affiliate and (iii) (a)
with respect to such business, transaction or series of related transactions
that has a fair market value or involves aggregate payments equal to, or in
excess of, $10 million but less than $25 million, the Company delivers to the
Trustee an Officers' Certificate certifying that, in good faith, it is such
officer's belief that such business, transaction or series of related
transactions complies with clauses (i) and (ii) above, and (b) with respect to
such business, transaction or series of related transactions that has a fair
market value or involves aggregate payments equal to, or in excess of, $25
million such business, transaction or series of transactions is approved
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by a majority of the Board of Directors (including a majority of the
Disinterested Directors), which approval is set forth in a Board Resolution
delivered to the Trustee certifying that, in good faith, the Board of
Directors believes that such business, transaction or series of transactions
complies with clauses (i) and (ii) above.
Section 1012. Limitation on Liens.
--------------------
The Company may not Incur any Debt that is secured, directly or
indirectly, with, and the Company shall not, and shall not permit any of its
Restricted Subsidiaries or any Eligible Joint Venture to, grant a Lien on the
Property of the Company, its Restricted Subsidiaries or any Eligible Joint
Venture now owned or hereafter acquired unless contemporaneous therewith or
prior thereto the Securities are equally and ratably secured except for (i) any
such Debt secured by Liens existing on the Property of any entity at the time
such Property is acquired by the Company, any of its Restricted Subsidiaries or
any Eligible Joint Venture, whether by merger, consolidation, purchase of such
Property or otherwise, provided that such Liens (x) are not created, incurred or
--------
assumed in contemplation of such Property being acquired by the Company, any of
its Restricted Subsidiaries or any Eligible Joint Venture and (y) do not extend
to any other Property of the Company, any of its Restricted Subsidiaries or any
Eligible Joint Venture, (ii) any other Debt that is required by the terms
thereof to be equally and ratably secured as a result of the Incurrence of Debt
that is permitted to be secured pursuant to another clause of this Section 1012,
(iii) Liens that are granted in good faith to secure Debt (A) contemplated by
clause (iv) of Section 1008(b) or (B) contemplated by clauses (ii), (iii) and
(vi) of Section 1009(b), provided that, in the case of Debt owed to a Person
--------
other than the Company or a Restricted Subsidiary, the President or Chief
Financial Officer of the Company determines in good faith, as evidenced by an
Officers' Certificate, that such Liens are required in order to effect such
financing and are not materially more restrictive, taken as a whole, than Liens,
taken as a whole, customarily accepted (or in the absence of industry custom,
reasonably acceptable) in comparable financings or comparable transactions
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in the applicable jurisdiction, (iv) Liens existing on the Issue Date of the
Securities, (v) Liens incurred to secure Debt incurred by the Company as
permitted by clause (vi) of Section 1008(b), provided that such Liens may not
--------
cover any Property other than that being purchased, (vi) Liens on any Property
of the Company securing Permitted Working Capital Facilities, Guarantees
thereof and any Interest Rate Protection Agreements or Currency Protection
Agreements, provided that such Liens may not extend to the Capital Stock owned
--------
by the Company in any Subsidiary of the Company or any Joint Venture, (vii)
Liens in respect of extensions, renewals, refundings or refinancings of any
Debt secured by the Liens referred to in the foregoing clauses, provided that
--------
the Liens in connection with such renewal, extension, refunding or refinancing
shall be limited to all or part of the specific property that was subject to
the original Lien, (viii) Liens incurred to secure obligations in respect of
letters of credit, bankers' acceptances, surety, bid, operating and
performance bonds, performance guarantees or other similar instruments or
obligations (or reimbursement obligations with respect thereto)(in each case,
to the extent incurred in the ordinary course of business), (ix) any Lien
arising by reason of (A) any judgment, decree or order of any court, so long
as such Lien is being contested in good faith and is appropriately bonded, and
any appropriate legal proceedings that may have been duly initiated for the
review of such judgment, decree or order have not been finally terminated or
the period within which such proceedings may be initiated has not expired, (B)
taxes, duties, assessments, imposts or other governmental charges that are not
yet delinquent or are being contested in good faith, (C) security for payment
of worker's compensation or other insurance, (D) security for the performance
of tenders, contracts (other than contracts for the payment of money) or
leases, (E) deposits to secure public or statutory obligations, or to secure
permitted contracts for the purchase or sale of any currency entered into in
the ordinary course of business, (F) the operation of law in favor of
carriers, warehousemen, landlords, mechanics, materialmen, laborers, employees
or suppliers, incurred in the ordinary course of business for sums that are
not yet delinquent or are being contested in good faith by negotiations or by
appropriate proceedings that suspend
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the collection thereof, (G) easements, rights-of-way, zoning and similar
covenants and restrictions and other similar encumbrances or title defects
that do not in the aggregate materially interfere with the ordinary conduct of
the business of the Company, any of its Restricted Subsidiaries or any
Eligible Joint Venture or (H) leases and subleases of real property that do
not interfere with the ordinary conduct of the business of the Company, any of
its Restricted Subsidiaries or any Eligible Joint Venture and that are made on
customary and usual terms applicable to similar properties, or (x) Liens, in
addition to the foregoing, that secure obligations not in excess of $5 million
in the aggregate.
Section 1013. Purchase of Securities Upon a Change of Control.
-------------------------------------------------
(a) Upon the occurrence of a Change of Control , each Holder of the
Securities shall have the right to require that the Company repurchase such
Holder's Securities at a purchase price in cash equal to 101% of the Accreted
Value thereof on the date of purchase plus accrued interest, if any, to the
date of purchase.
(b) Within 30 days following a Change of Control, the Company shall
mail a notice to each Holder, with a copy to the Trustee, stating (1) that a
Change of Control has occurred and that such Holder has the right to require the
Company to purchase such Holder's Securities at the purchase price described
in Section 1013(a) (the "Change of Control Offer"), (2) the circumstances and
relevant facts regarding such Change of Control (including information with
respect to pro forma historical income, cash flow and capitalization after
--- -----
giving effect to such Change of Control), (3) the purchase date (which shall be
not earlier than 30 days nor later than 60 days from the date such notice is
mailed) (the "Change of Control Purchase Date"), (4) that original issue
discount on any Security not tendered or purchased shall continue to accrete
until January 15, 1997, and thereafter interest on any such Security shall
continue to accrue, (5) any Security properly tendered pursuant to the Change
of Control Offer shall cease to accrete original issue discount or accrue
interest, as
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the case may be, after the Change of Control Purchase Date (assuming
sufficient moneys for the purchase thereof are deposited with the Trustee),
(6) that Holders electing to have a Security purchased pursuant to a Change of
Control Offer shall be required to surrender the Security, with the form
entitled "Option of Holder To Elect Purchase" on the reverse of the Security
completed, to the paying agent at the address specified in the notice prior to
the close of business on the fifth Business Day prior to the Change of Control
Purchase Date, (7) that a Holder shall be entitled to withdraw such Holder's
election if the Paying Agent receives, not later than the close of business on
the third Business Day (or such shorter periods as may be required by
applicable law) preceding the Change of Control Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Securities the Holder delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Securities
purchased and (8) that Holders that elect to have their Securities purchased
only in part shall be issued new Securities having a principal amount equal to
the portion of the Securities that were surrendered but not tendered and
purchased.
On the Change of Control Purchase Date, the Company shall (i) accept
for payment all Securities or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Trustee money sufficient to pay the
purchase price of all Securities or portions thereof so tendered for purchase
and (iii) deliver or cause to be delivered to the Trustee the Securities
properly tendered together with an Officers' Certificate identifying the
Securities or portions thereof tendered to the Company for purchase. The
Trustee shall promptly mail, to the Holders of the Securities properly
tendered and purchased, payment in an amount equal to the purchase price, and
promptly authenticate and mail to each Holder a new Security having a
principal amount equal to any portion of such Holder's Securities that were
surrendered but not tendered and purchased. The Company shall publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Purchase Date.
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If the Company is prohibited by applicable law from making the Change
of Control Offer or purchasing Securities thereunder, the Company need not make
a Change of Control Offer pursuant to this Section 1013 for so long as such
prohibition is in effect.
The Company shall comply with all applicable tender offer rules,
including, without limitation, Rule 14e-1 under the Exchange Act, in connection
with a Change of Control Offer.
Section 1014. Limitation on Dividends and Other Payment Restrictions Affecting
----------------------------------------------------------------
Subsidiaries.
------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries or any Eligible Joint Venture to, create or cause to become, or
as a result of the acquisition of any Person or Property, or upon any Person
becoming a Restricted Subsidiary or an Eligible Joint Venture, remain subject
to, any consensual encumbrance or consensual restriction of any kind on the
ability of any Restricted Subsidiary or any Eligible Joint Venture to (a) pay
dividends or make any other distributions permitted by applicable law on any
Capital Stock of such Restricted Subsidiary or such Eligible Joint Venture
owned by the Company, any other Restricted Subsidiary or any other Eligible
Joint Venture, (b) make payments in respect of any Debt owed to the Company,
any other Restricted Subsidiary of the Company or any Eligible Joint Venture,
(c) make loans or advances to the Company or to any other Restricted
Subsidiary of the Company or any other Eligible Joint Venture that is directly
or indirectly owned by such Restricted Subsidiary or such Eligible Joint
Venture or (d) transfer any of its Property to the Company or to any other
Restricted Subsidiary or any other Eligible Joint Venture that directly or
indirectly owns or is owned by such Restricted Subsidiary or such Eligible
Joint Venture, other than those encumbrances and restrictions created or
existing (i) on the Issue Date of the Securities, (ii) pursuant to this
Indenture, (iii) in connection with the Incurrence of any Debt permitted under
the provisions described in clause (iii) of Section 1009(b), provided that,
--------
in the case of Debt owed to Persons other than the
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Company, its Restricted Subsidiaries and any Eligible Joint Venture, the
President or the Chief Financial Officer of the Company determines in good
faith, as evidenced by an Officers' Certificate, that such encumbrances or
restrictions are required to effect such financing and are not materially more
restrictive, taken as a whole, on the ability of the applicable Restricted
Subsidiary or the applicable Eligible Joint Venture to make the payments,
distributions, loans, advances or transfers referred to in clauses (a) through
(d) of this Section 1014 than encumbrances and restrictions, taken as a whole,
customarily accepted (or, in the absence of any industry custom, reasonably
acceptable) in comparable financings or comparable transactions in the
applicable jurisdiction, (iv) in connection with the execution and delivery
of an electric power or thermal energy purchase contract, or other contract
related to the output or product of, or services rendered by a Permitted
Facility, to which such Restricted Subsidiary or such Eligible Joint Venture
is the supplying party or other contracts with customers, suppliers and
contractors to which such Restricted Subsidiary or such Eligible Joint Venture
is a party and where such Restricted Subsidiary or such Eligible Joint Venture
is engaged, directly or indirectly, in the development, design, engineering,
procurement, construction, acquisition, ownership, management or operation of
such Permitted Facility, provided that the President or the Chief Financial
--------
Officer of the Company determines in good faith, as evidenced by an Officers'
Certificate, that such encumbrances or restrictions are required to effect
such contracts and are not materially more restrictive, taken as a whole, on
the ability of the applicable Restricted Subsidiary or the applicable Eligible
Joint Venture to make the payments, distributions, loans, advances or
transfers referred to in clauses (a) through (d) of this Section 1014 than
encumbrances and restrictions, taken as a whole, customarily accepted (or, in
the absence of any industry custom, reasonably acceptable) in comparable
financings or comparable transactions in the applicable jurisdiction, (v) in
connection with any Acquired Debt, provided that such encumbrance or
--------
restriction was not incurred in contemplation of such Person becoming a
Restricted Subsidiary or an Eligible Joint Venture and provided further that
-------- -------
such encumbrance or restriction does not extend to any other Property of
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such Person at the time it became a Restricted Subsidiary or an Eligible Joint
Venture, (vi) in connection with the Incurrence of any Debt permitted under
clause (iv) of Section 1009(b), provided that, in the case of Debt owed to
--------
Persons other than the Company and its Restricted Subsidiaries, the President or
the Chief Financial Officer of the Company determines in good faith, as
evidenced by an Officers' Certificate, that such encumbrances or restrictions
taken as a whole are not materially more restrictive than the encumbrances and
restrictions applicable to the Debt and/or equity being exchanged or refinanced,
(vii) customary non-assignment provisions in leases or other contracts entered
into in the ordinary course of business of the Company, any Restricted
Subsidiary or any Eligible Joint Venture, (viii) any restrictions imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all of the Capital Stock or Property of any Restricted Subsidiary
or Joint Venture that apply pending the closing of such sale or disposition,
(ix) in connection with Liens on the Property of such Restricted Subsidiary or
such Eligible Joint Venture that are permitted by Section 1012 but only with
respect to transfers referred to in clause (d) of this Section 1014 or (x) in
connection with the Incurrence of any Debt permitted under clause (ii) of
Section 1009(b).
Section 1015. Limitation on Dispositions.
---------------------------
(a) Subject to the provisions of Article Eight, the Company shall
not make and shall not permit any of its Restricted Subsidiaries or any
Eligible Joint Venture to make, any Asset Disposition unless (i) the Company,
the Restricted Subsidiary or the Eligible Joint Venture, as the case may be,
receives consideration at the time of each such Asset Disposition at least
equal to the fair market value of the Property or securities sold or otherwise
disposed of (to be determined in good faith by the Chief Financial Officer, as
evidenced by an Officers' Certificate, or, if more than $15 million, by the
Board of Directors, as evidenced by a Board resolution), (ii) at least 85% of
such consideration is received in cash or Cash Equivalents or, if less than
85%, the remainder of such consideration consists of Property related to the
business of the Company as described in the first sen-
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tence of Section 1022, and (iii) unless otherwise required under the terms of
Senior Debt, at the Company's election, the Net Cash Proceeds are either (A)
invested in the business of the Company, any of its Restricted Subsidiaries or
any Eligible Joint Venture or (B) applied to the payment of any Debt of the
Company or of any of its Restricted Subsidiaries or any Eligible Joint Venture
(or as otherwise required under the terms of such Debt), provided that, no
--------
such payment of Debt (x) under Permitted Working Capital Facilities or any
other revolving credit agreement shall count for this purpose unless the
related loan commitment, standby facility or the like shall be permanently
reduced by an amount equal to the principal amount so repaid and (y) owed to
the Company, a Restricted Subsidiary thereof or an Eligible Joint Venture
shall count for this purpose, provided further that such investment or
-------- -------
such payment, as the case may be, must be made within 365 days from the later of
the date of such Asset Disposition or the receipt by the Company, such
Restricted Subsidiary or such Eligible Joint Venture of the Net Cash Proceeds
related thereto. Any Net Cash Proceeds from Asset Dispositions that are not
applied as provided in clause (A) or (B) of the preceding sentence shall
constitute "Excess Proceeds." Excess Proceeds shall be applied, as described
below, to make an offer (an "Excess Proceeds Offer") to purchase Securities at a
purchase price equal to 100% of Accreted Value thereof, plus accrued interest,
if any, to the date of purchase.
(b) Notwithstanding the provisions of Section 1015(a), the Company,
its Restricted Subsidiaries and the Eligible Joint Ventures may exchange
with other Persons (i) Property that constitutes a Restricted Subsidiary or an
Eligible Joint Venture for Property that constitutes a Restricted Subsidiary
or an Eligible Joint Venture, (ii) Property that constitutes a Restricted
Subsidiary or an Eligible Joint Venture for Property that does not constitute
a Restricted Subsidiary or an Eligible Joint Venture, (iii) Property that does
not constitute a Restricted Subsidiary or an Eligible Joint Venture for
Property that does not constitute a Restricted Subsidiary or an Eligible Joint
Venture and (iv) Property that does not constitute a Restricted Subsidiary or
an Eligible Joint Venture for Property that constitutes a
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Restricted Subsidiary or an Eligible Joint Venture, provided that in each case
--------
the fair market value of the Property received is at least equal to the fair
market value of the Property exchanged as determined in good faith by the Chief
Financial Officer, as evidenced by an Officers' Certificate, or, if more than
$25 million, by the Board of Directors, as evidenced by a Board resolution,
provided that the Investment in the Property received in the exchanges
- --------
described in clauses (ii) and (iii) of the prior sentence shall be subject to
Section 1010. Notwithstanding anything in the foregoing to the contrary, the
Company may not, and shall not permit any of its Restricted Subsidiaries or any
Eligible Joint Venture to, make an Asset Disposition of any of their interest
in, or Property of, any of the three geothermal facilities located together at
the Naval Weapons Center at China Lake, California, sometimes referred to as the
"Coso Project," other than for consideration consisting solely of cash.
(c) To the extent that any or all of the Net Cash Proceeds of any
Foreign Asset Disposition are prohibited from (or delayed in) being
repatriated to the United States by applicable local law, the portion of such
Net Cash Proceeds so affected shall not be required to be applied at the time
provided above but may be retained by any Restricted Subsidiary or any
Eligible Joint Venture so long, but only so long, as the applicable local law
does not permit (or delays) repatriation to the United States. If such Net
Cash Proceeds are transferred by the Restricted Subsidiary or Eligible Joint
Venture that conducted the Foreign Asset Disposition to another Restricted
Subsidiary or Eligible Joint Venture, the Restricted Subsidiary or Eligible
Joint Venture receiving such Net Cash Proceeds must not be directly or
indirectly obligated on any Debt owed to any Person other than the Company.
The Company shall take or cause such Restricted Subsidiary or such Eligible
Joint Venture to take all actions required by the applicable local law to
permit such repatriation promptly. Once repatriation of any of such Net Cash
Proceeds is permitted under the applicable local law, repatriation shall be
effected immediately and the repatriated Net Cash Proceeds shall be applied in
the manner set forth in this Section 1015(c) as if such Asset Disposition had
occurred on the
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date of such repatriation. In addition, if the Chief Financial Officer
determines, in good faith, as evidenced by an Officers' Certificate, that
repatriation of any or all of the Net Cash Proceeds of any Foreign Asset
Disposition would have a material adverse tax consequence to the Company, the
Net Cash Proceeds so affected may be retained outside of the United States by
the applicable Restricted Subsidiary or the applicable Eligible Joint Venture
for so long as such material adverse tax consequence would continue.
Notwithstanding the foregoing provisions of this paragraph to the contrary, if
applicable local law prohibits (or delays) the repatriation of Net Cash
Proceeds of a Foreign Asset Disposition but such local law does not prohibit
the application of such Net Cash Proceeds pursuant to the first sentence of
this Section 1015(a), the Company may apply such Net Cash Proceeds pursuant
to such provision.
(d) If the Securities tendered pursuant to an Excess Proceeds Offer
have an aggregate purchase price that is less than the Excess Proceeds available
for the purchase of the Securities, the Company may use the remaining Excess
Proceeds for general corporate purposes without regard to the provisions of
this Section 1015(d). The Company shall not be required to make an Excess
Proceeds Offer pursuant to this Section 1015 if the Excess Proceeds available
therefor are less than $10 million, provided that the lesser amounts of such
--------
Excess Proceeds shall be carried forward and cumulated for each
36 consecutive month period for purposes of determining whether an Excess
Proceeds Offer is required with respect to any Excess Proceeds of any subsequent
Asset Dispositions. Any such lesser amounts so carried forward and cumulated
need not be segregated or reserved and may be used for general corporate
purposes, provided that such use shall not reduce the amount of cumulated Excess
--------
Proceeds or relieve the Company of its obligation hereunder to make an Excess
Proceeds Offer with respect thereto.
(e) The Company shall make an Excess Proceeds Offer by mailing to
each Holder, with a copy to the Trustee, within 30 days after the receipt of
Excess Proceeds that cause the cumulated Excess Proceeds to exceed $10 million,
a written notice that shall specify the
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purchase date, which shall not be less than 30 days nor more than 60 days
after the date of such notice (the "Excess Proceeds Purchase Date"), that
shall contain certain information concerning the business of the Company that
the Company believes in good faith shall enable the Holders to make an
informed decision and that shall contain information concerning the procedures
applicable to the Excess Proceeds Offer (including, without limitation, the
right of withdrawal) and the effect of such offer on the Securities tendered.
Holders that elect to have their Securities purchased shall be required to
surrender such Notes at least one Business Day prior to the Excess Proceeds
Purchase Date. If at the expiration of the Excess Proceeds Offer period the
aggregate purchase price of the Securities properly tendered by Holders
pursuant to the Excess Proceeds Offer exceeds the amount of such Excess
Proceeds, the Securities or portions of Securities to be accepted for purchase
shall be selected by the Trustee in such manner as the Trustee deems to be
fair and appropriate in the circumstances.
On the Excess Proceeds Purchase Date, the Company shall (i) accept
for payment on a pro rata basis Securities or portions thereof tendered pursuant
--- ----
to the Excess Proceeds Offer, (ii) deposit with the Paying Agent money in
immediately available funds sufficient to pay the aggregate purchase price of
all the Securities or portions thereof so accepted and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof tendered to the Company. The Paying Agent
shall promptly mail to the Holders of each Security so accepted payment in an
amount equal to the aggregate purchase price, and the Trustee shall promptly
authenticate and mail to the Holders of each Security so accepted payment in
an amount equal to the purchase price thereof, and the Trustee shall promptly
authenticate and mail to such Holders new Securities equal in principal amount
to any portion of the Security surrendered that was not purchased. The Company
shall make a public announcement of the results of the Excess Proceeds Offer
as soon as practicable after the Excess Proceeds Purchase Date. For the
purposes of this Section 1015, the Trustee shall act as the Paying Agent.
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If the Company is prohibited by applicable law from making the Excess
Proceeds Offer or purchasing Securities thereunder, the Company need not make an
Excess Proceeds Offer pursuant to this Section 1015 for so long as such
prohibition is in effect.
The Company shall comply with all applicable tender offer rules,
including, without limitation, Rule 14e-1 under the Exchange Act, in connection
with an Excess Proceeds Offer.
Section 1016. Limitation on Certain Sale-Leasebacks.
--------------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries or any Eligible Joint Venture to, Incur or otherwise become
obligated with respect to any sale-leaseback (other than a sale-leaseback with
respect to a Permitted Facility that is Non-Recourse) unless, (i) (a) if
effected by the Company, the Company would be permitted to Incur such
obligation under Section 1008 or, (b) if effected by a Restricted Subsidiary
or an Eligible Joint Venture, such Restricted Subsidiary or such Eligible
Joint Venture would be permitted to Incur such obligation under Section
1009(b), assuming for the purpose of this Section 1016 and Section 1008 and
1009 that (x) the obligation created by such sale-leaseback is a Capitalized
Lease and (y) the Capitalized Lease Obligation with respect thereto is the
Attributable Value thereof, (ii) the Company, such Restricted Subsidiary or
such Eligible Joint Venture is permitted to grant a Lien with respect to the
property that is the subject of such sale-leaseback under Section 1012 of this
Indenture, (iii) the proceeds of such sale-leaseback are at least equal to the
fair market value of the property sold (determined in good faith as evidenced
by an Officers' Certificate delivered to the Trustee in respect of a
transaction involving less than $25 million, or, if equal to or in excess of
$25 million, by the Board of Directors, as evidenced by a Board Resolution)
and (iv) the Net Cash Proceeds of the sale-leaseback are applied pursuant to
Section 1015.
Section 1017. Provision of Financial Information.
----------------------------------
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Whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act, or any successor provision thereto, the Company shall file
with the Commission the annual reports, quarterly reports and other documents
that the Company would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if the
Company were subject thereto, such documents to be filed with the Commission
on or prior to the respective dates by which the Company would have been
required to file them. The Company shall also in any event (a) within 15 days
of each such date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) file with the Trustee copies of the annual reports, quarterly reports and
other documents (without exhibits) which the Company would have been required
to file with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act or any successor provisions thereto if the Company were subject thereto
and (b) if filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request, supply copies
of such documents (without exhibits) to any prospective Holder.
Section 1018. Limitation on Sale of Subsidiary Preferred Stock.
-------------------------------------------------
The Company shall not permit any of its Restricted Subsidiaries or
any Eligible Joint Venture to create, assume or otherwise cause or suffer to
exist any Preferred Stock except: (i) Preferred Stock outstanding on the date
of this Indenture, including Preferred Stock issued as dividends in respect of
such Preferred Stock pursuant to the terms of the agreement or instrument that
governs such Preferred Stock as in effect on the Issue Date of the Securities,
(ii) Preferred Stock held by the Company, a Restricted Subsidiary of the
Company or an Eligible Joint Venture, (iii) Preferred Stock issued by a Person
prior to the time (a) such Person becomes a Restricted Subsidiary or an
Eligible Joint Venture, (b) such Person merges with or into another Restricted
Subsidiary or another Eligible Joint Venture or (c) a Restricted Subsidiary or
an Eligible Joint Venture merges with or into such Person (in a transaction in
which such
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Person becomes a Restricted Subsidiary or an Eligible Joint Venture), provided
--------
that such Preferred Stock was not issued in anticipation of such Person
becoming a Restricted Subsidiary or an Eligible Joint Venture or of such
merger and (iv) Preferred Stock issued or agreed to be issued by a Restricted
Subsidiary or an Eligible Joint Venture in connection with the financing of
the construction, design, engineering, procurement, equipping, developing,
operation, ownership, management, servicing or acquisition of a Permitted
Facility or the retirement of Debt or Preferred Stock secured by such
Permitted Facility or in order to enhance the repatriation of equity, advances
or income or the increase of after-tax funds available for distribution to the
owners of such Permitted Facility, (v) Preferred Stock issued or agreed to be
issued by a Restricted Subsidiary or an Eligible Joint Venture in satisfaction
of legal requirements applicable to a Permitted Facility or to maintain the
ordinary course of conduct of such Restricted Subsidiary's or such Eligible
Joint Venture's business in the applicable jurisdiction and (vi) Preferred
Stock that is exchanged for, or the proceeds of which are used to refinance,
any Preferred Stock permitted to be outstanding pursuant to clauses (i)
through (v) hereof (or any extension, renewal or refinancing thereof), having
a liquidation preference not to exceed the liquidation preference of the
Preferred Stock so exchanged or refinanced and having a redemption period no
shorter than the redemption period of the Preferred Stock so exchanged or
refinanced.
Section 1019. Statement by Officers as to Default; Compliance Certificates.
------------------------------------------------------------
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company, its Restricted Subsidiaries and the
Eligible Joint Ventures (signed by a signatory prescribed under the Trust
Indenture Act) during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture and whether the Restricted Subsidiaries and the Eligible Joint
Ventures are in compliance with all covenants of this Indenture appli-
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cable to them and further stating, as to each such Officer signing such
certificate, that to the best of his knowledge each has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture
and is not in default in the performance or observance of any of the terms,
provisions, and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he
may have knowledge and what action each is taking or proposes to take with
respect thereto).
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of (i) any Default or Event of Default or (ii) any event of default under any
other mortgage, indenture or instrument referred to in Section 501(6), an
Officers' Certificate specifying such Default, Event of Default or other event
of default and what action the Company is taking or proposes to take with
respect thereto.
Section 1020. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801, provided pursuant to Section
901(2) and set forth in Sections 1004 to 1012, inclusive, Section 1014 and
Sections 1016 through 1018, inclusive, and Section 1022 if before the time for
such compliance the Holders of at least a majority in principal amount at Stated
Maturity of the Outstanding Securities shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
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Section 1021. Company to Supply Information Concerning Original Issue
--------------------------------------------------------
Discount.
- --------
The Company shall provide to the Trustee on a timely basis such
information as the Trustee requires to enable the Trustee to prepare and file
any form required to be filed with the Internal Revenue Service or to the
Holders of the Securities relating to original issue discount, including
without limitation, Form 1099-OID or any successor form.
Section 1022. Limitation on Business.
----------------------
The Company shall, and shall cause its Restricted Subsidiaries and
the Eligible Joint Ventures to, engage only in (i) the ownership, design,
engineering, procurement, construction, development, acquisition, operation,
servicing, management or disposition of Permitted Facilities, (ii) the
ownership, creation, development, acquisition, servicing, management or
disposition of Restricted Subsidiaries and Joint Ventures that own, construct,
develop, design, engineer, procure, acquire, operate, service, manage or
dispose of Permitted Facilities, (iii) obtaining, arranging or providing
financing incident to any of the foregoing and (iv) other related activities
incident to any of the foregoing. The Company shall not, and shall not permit
any of its Restricted Subsidiaries or any Eligible Joint Venture to, make any
Investment or otherwise acquire any Property that is not directly related to
the business of the Company as described in the preceding sentence
(collectively, the "Ineligible Investments") other than as a part of an
Investment or an acquisition of Property that is predominantly and directly
related to the business of the Company as described above, and if the
aggregate fair market value of such Ineligible Investments in the aggregate
exceeds 10% (the "10% Limit") of the total assets of the Company and its
consolidated Restricted Subsidiaries (as determined in accordance with GAAP)
as determined in good faith by the Chief Financial Officer, as evidenced by an
Officers' Certificate, the Company, its Restricted Subsidiaries and the
Eligible Joint Ventures must cease acquiring any additional Ineligible
Investments and, within 18 months of the acquisition that caused the
Ineligible Assets to exceed the 10% Limit, must return to compliance with
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the 10% Limit by disposing of Ineligible Assets or otherwise, provided that
--------
such 18-month period may be extended up to an additional six months if,
despite the Company's active efforts during such 18-month period to dispose of
such Ineligible Investments or to otherwise come into compliance with such 10%
Limit, the Company is unable to do so because of regulatory restrictions or
delays or adverse market conditions.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Right of Redemption.
-------------------
The Securities may be redeemed at the election of the Company, in the
amounts, at any time on or after January 15, 1999, at the Redemption Prices
specified in the form of Security hereinbefore set forth (together with any
applicable accrued and unpaid interest to the Redemption Date) and subject to
the conditions specified in the form of Security hereinbefore set forth.
Section 1102. Applicability of Article.
------------------------
Redemption of Securities at the election of the Company, as permitted
by this Indenture and the provisions of the Securities, shall be made in
accordance with such provisions and this Article Eleven.
Section 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company pursuant to Section 1101 of less than
all the Securities, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities to be redeemed.
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Section 1104. Selection by Trustee of Securities to Be Redeemed.
--------------------------------------------------
If less than all the outstanding Securities are to be redeemed, the
Securities or portions of Securities to be redeemed or accepted shall be
selected by the Trustee pro rata or otherwise in such manner as the Trustee
deems to be fair and appropriate in the circumstances, provided that the
--------
Trustee shall redeem Securities only in denominations of $1,000 principal
amount and integral multiples thereof.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture and or the Securities, unless the
context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such Securities
that has been or is to be redeemed.
Section 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given as provided in Section 106 not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed, including
CUSIP Numbers,
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(4) that on the Redemption Date the Redemption Price shall
become due and payable upon each such security to be redeemed and that, unless
the Company shall default in the payment of the Redemption Price and any
applicable accrued interest, (i) in the case of a Redemption Date on or after
January 15, 1999, interest thereon shall cease to accrue on and after said
Redemption Date and (ii) in the case of a Redemption Date prior to January 15,
1999, the Accreted Value thereof shall not increase after said Redemption Date,
and
(5) the name of the Paying Agent or Agents and the place or
places where such Securities are to be surrendered for payment of the
Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any applicable accrued and unpaid
interest on, all the Securities that are to be redeemed on that date.
Section 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and any applicable
accrued and unpaid interest) such Securities shall not bear interest and the
Accreted Value of such Securities shall thereupon and thereafter conclusively be
deemed to be their Accreted Value determined on and as of such Redemption Date
and
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shall not increase. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with any applicable accrued and unpaid interest to
the Redemption Date; provided that installments of interest whose Stated
--------
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption in accordance with the election
of the Company made pursuant to Section 1101 shall not be so paid upon surrender
thereof for redemption, the unpaid Redemption Price thereof shall, until paid,
bear interest or accrete from the Redemption Date at the rate or manner provided
by the Security.
Section 1108. Securities Redeemed in Part.
---------------------------
Any Security that is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal amount of the Security so surrendered.
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ARTICLE TWELVE
Defeasance and Covenant Defeasance
Section 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
-------------------------------------------------------------
The Company may elect, at its option at any time, to have Section 1202
or Section 1203 applied to the Outstanding Securities (as a whole and not in
part) upon compliance with the conditions set forth below in this Article
Twelve. Any such election shall be evidenced by a Board Resolution.
Section 1202. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section 1202
applied to the Outstanding Securities (as a whole and not in part), the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section 1202 on and after the
123rd day after the conditions set forth in Section 1204 are satisfied
(hereinafter called "Defeasance") (or immediately if an Opinion of Counsel is
delivered to the effect described in clause (C)(y) of paragraph (2) of Section
1204). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section
1204 and as more fully set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities when payments are
due, (2) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002, 1003 and 1004 (only with respect to the
corporate existence and rights of the Company), (3) the rights, powers,
trusts, duties and immunities of the Trustee under this Indenture, (4) Article
Eleven and (5) this
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Article Twelve. Subject to compliance with this Article Twelve, the Company
may exercise its option to have this Section 1202 applied to the Outstanding
Securities (as a whole and not in part) notwithstanding the prior exercise of
its option to have Section 1203 applied to such Securities.
Section 1203. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option to have this Section applied
to the Outstanding Securities (as a whole and not in part), (i) the Company, its
Restricted Subsidiaries and its Eligible Joint Ventures shall be released from
its obligations under Section 801(iii), Sections 1005 through 1018, inclusive,
Section 1022, and any covenant provided pursuant to Section 901(2) and (ii) the
occurrence of any event specified in Section 501(1) (solely with respect to
Offers to Purchase), Section 501(3), Section 501(4) (with respect to any of
Section 801(iii) and Sections 1005 through 1018, inclusive, Section 1022, and
any such covenants provided pursuant to Section 901(2)), Section 501(5) or
Section 501(6) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1204 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Sections 501(1) and 501(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document; but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
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The following shall be the conditions to the application of Section
1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations that through the scheduled payment
of principal and interest in respect thereof in accordance with their terms
shall provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of, premium if any and
any installment of accrued interest on such Securities on the respective
Stated Maturities thereof or, if the Company makes arrangements satisfactory
to the Trustee for the redemption of the Securities prior to their Stated
Maturity, on any earlier Redemption Date, in accordance with the terms of this
Indenture and such Securities.
(2) In the event of an election to have Section 1202 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee (A)
either (X) an Opinion of Counsel to the effect that Holders shall not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and shall be subject to federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred
and the Company had paid or redeemed such Securities on the applicable dates,
which Opinion of Counsel must be based upon a ruling of the Internal Revenue
Service to the same effect or a change in applicable
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federal income tax law or related Treasury regulations after the date of the
Indenture or (y) a ruling directed to the Trustee or the Company received from
the Internal Revenue Service to the same effect as the aforementioned Opinion
of Counsel, (B) an Opinion of Counsel to the effect that the creation of the
defeasance trust does not violate the Investment Company Act of 1940 and (C)
an Opinion of Counsel to the effect that either (x) after the passage of 123
days following the deposit, the trust fund shall not be subject to the effect
of Section 547 or 548 of the U.S. Bankruptcy Code or Section 15 of the New
York Debtor and Creditor Law or (y) based upon existing precedents, if the
manner were properly briefed, a court should hold that the deposit of moneys
and/or U.S. Government Obligations as provided in Section 1204(1) would not
constitute a preference voidable under Section 547 or 548 of the U.S.
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law.
(3) In the event of an election to have Section 1203 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee (i) an
Opinion of Counsel to the effect that the Holders of such Outstanding
Securities shall not recognize income, gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to be effected
with respect to such Securities and shall be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance were not to occur and the Company had
paid or redeemed such Securities on the applicable dates, (ii) an Opinion of
Counsel to the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and (iii) an Opinion of Counsel to
the effect that either (x) after the passage of 123 days following the
deposit, the trust fund shall not be subject to the effect of Section 547 or
548 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law or (y) based upon existing precedents, if the manner were
properly briefed, a court should hold that the deposit of moneys and/or U.S.
Government Obligations as provided in Section 1204(1) would not constitute a
preference voidable under Section 547 or 548 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law.
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(4) Immediately after giving effect to such deposit on a pro forma
--- -----
basis, no Default or Event of Default or event that after the giving of notice
or lapse of time or both would become an Event of Default, with respect to the
Outstanding Securities shall have occurred and be continuing at the time of such
deposit or (unless an Opinion of Counsel is delivered to the effect described in
Section 1204(2)(C)(y) or 1204(3)(iii)(y)) during the period ending on the 123rd
day after the date of such deposit.
(5) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(9) If the Securities are listed on a national securities exchange,
the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Securities shall not be delisted as a result of such deposit,
defeasance and discharge.
Section 1205. Deposited Money and U.S. Government Obligations to Be Held in
-------------------------------------------------------------
Trust; Miscellaneous Provisions.
-------------------------------
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Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section 1205 and Section 1206, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1204 or
otherwise in respect of the Outstanding Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any such Paying
Agent (other than the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 that, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to the Outstanding Securities.
Section 1206. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Twelve with respect to any Securities by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such applica-
-138-
tion, then the obligations under this Indenture and such Securities from which
the Company has been discharged or released pursuant to Section 1202 or 1203
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Twelve with respect to such Securities, until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 1205 with respect to such Securities in accordance with this
Article Twelve; provided that if the Company makes any payment of principal
--------
of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the
rights (if any) of the Holders of such Securities to receive such payment from
the money so held in trust.
----------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CALIFORNIA ENERGY COMPANY,
INC.
By:
---------------------------
Attest: Name:
Title:
- -------------------------
IBJ SCHRODER BANK & TRUST
COMPANY
By:
---------------------------
Attest: Name:
Title:
- -------------------------
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the __th day of _____, 1994, before me personally came __________, to
me known, who, being by me duly sworn, did depose and say that he is __________
of California Energy Company, Inc., one of the corporations described in and
that executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
------------------------------
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the ____ day of _________, 19__, before me personally came
__________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is ________________________ of IBJ Schroder Bank
& Trust Company, one of the corporations described in and that executed the
foregoing instrument; that [he -- she] knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that [he
- -- she] signed [his -- her] name thereto by like authority.
------------------------------
-141-
EXHIBIT A
---------
PROMISSORY NOTE
---------------
Date of Issue: as of ____________
FOR VALUE RECEIVED, the undersigned, [Borrower], a ______________________
corporation ("Borrower"), hereby promises to pay to the order of [Lender], a
___________ corporation ("Lender"), $ __________ (the "Principal") and any
interest accrued thereon, upon demand by the Lender at any time six months
subsequent to the date on which the __% Senior Discount Notes due 2004 (the
"Senior Notes") of California Energy Company, Inc. that were issued pursuant to
an Indenture dated as of ______, 1994 between California Energy Company, Inc.
and IBJ Schroeder Bank and Trust Company shall have been repaid in full or such
earlier date as may be permitted under the terms of such Indenture.
Section 1 Accrual and Payment of Interest
-------------------------------
under this Promissory Note
--------------------------
(a) The Principal shall accrue interest from the date hereof at an annual
rate (computed on the basis of a 360 day year) of ___% which, to the extent
permitted by applicable law, shall be compounded semi-annually on each _____ and
______ and added to the Principal hereof.
Section 2 Subordination
-------------
Payment of Principal of and interest on this Promissory Note shall be
subordinated to the fullest extent permitted by applicable law to the prior
payment in full of the principal of, premium, if any, and interest on any other
indebtedness for money borrowed of the Borrower, to the extent that the same is
thus due and owing whether at its stated maturity, upon acceleration or
otherwise.
Section 3 Notices
-------
All notices required or permitted hereunder shall be given by telex where
appropriate and confirmed in writing
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or by prepaid registered mail to the addresses of the parties set forth in
this Section 3 or to such other address as either party shall duly specify by
written notice to the other.
If to Borrower to:
-----------------------
-----------------------
-----------------------
-----------------------
If to Lender, to the trustee:
-----------------------
-----------------------
-----------------------
-----------------------
-----------------------
Section 4 No Waiver
---------
No failure or delay of either party hereto exercise any power under this
Promissory Note or to insist upon strict compliance by either party hereto of
any obligations hereunder shall constitute a waiver of either party's rights to
demand exact compliance with the terms hereof.
Section 5 Governing Law
-------------
This Promissory Note is made under and in accordance with the laws of the
________________, and the rights of the parties in the construction and effect
of each and every provision hereof shall be subject to the exclusive
jurisdiction of and shall be construed and regulated according to the laws of
_____________________.
[Borrower]
By
-----------------------
Name:
Title:
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