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CALENERGY COMPANY, INC.,
as Issuer
to
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
-------------------------
Third Supplemental Indenture
Dated as of November 13, 1998
-------------------------
$100,000,000
of
7.52% Senior Notes due 2008, Series B
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THE THIRD SUPPLEMENTAL INDENTURE, dated as of November 13,
1998 (the "Supplemental Indenture"), between CalEnergy Company, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 302 South
Thirty-Sixth Street, Suite 400, Omaha, Nebraska 68131, and IBJ Schroder Bank &
Trust Company, a New York banking corporation, as trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company entered into an Indenture dated as of October 15,
1997 with the Trustee, as supplemented by the First Supplemental Indenture
dated as of October 28, 1997 and the Second Supplemental Indenture dated as of
September 22, 1998 (the "Indenture"), to provide for the issuance from time to
time of its unsecured senior debt securities (hereinafter called the "Debt
Securities"), to be issued in one or more series as provided in the Indenture.
The Company proposes to issue one new series of Debt
Securities designated its 7.52% Senior Notes due 2008, Series B (the
"Securities").
Sections 201 and 301 of the Indenture provide for the form of
and various other matters with respect to any series of Debt Securities issued
under the Indenture to be established in an indenture supplemental to the
Indenture.
Section 901(8) of the Indenture provides that, without the
consent of any Holders, the Company, when authorized by or pursuant to a Board
Resolution, may, and subject to Section 903 of the Indenture, the Trustee, at
any time and from time to time, shall, enter into one or more indentures
supplemental to the Indenture, in form satisfactory to the Trustee, to
establish the form or terms of Debt Securities of any Series as permitted by
Sections 201 and 301 thereof.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement of the Company in accordance with its terms and for the purposes
herein expressed, have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities provided for herein 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
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Indenture.
This Supplemental Indenture constitutes an integral part of
the Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as
otherwise expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Indenture; and
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture.
"Consolidated Net Tangible Assets" means, as of the date of
any determination thereof, the total amount of all assets of the Company
determined on a consolidated basis in accordance with GAAP as of such date less
the sum of (a) the consolidated current liabilities of the Company determined
in accordance with GAAP and (b) assets properly classified as Intangible
Assets.
"Indebtedness" means any indebtedness for money borrowed
which is incurred, issued, assumed or guaranteed by the Company.
"Intangible Assets" means, as of the date of determination
thereof, all assets of the Company properly classified as intangible assets
determined on a consolidated basis in accordance with GAAP.
"Rating Event Date" means the first date upon which the
Securities are rated Baa3 or better by Moody's Investors Service, Inc., BBB- or
better by Standard & Poor's Corporation and BBB- or better by Duff & Phelps
Credit Rating Co. (or, in any case, if such person ceases to rate the
Securities for reasons outside the control of the Company, the equivalent
investment grade credit rating from any other "nationally recognized
statistical rating organization" (within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a
replacement rating agency).
3
ARTICLE TWO
THE SERIES OF SECURITIES
SECTION 2.1. Title of the Debt Securities.
There shall be one new separate series of Debt Securities
designated its 7.52% Senior Notes due 2008, Series B.
SECTION 2.2. Limitation on Aggregate Principal Amount.
(a) The aggregate principal amount of the new series of the
Debt Securities authorized by this Supplemental Indenture shall be limited to
$100,000,000 and, except as provided in this Section 2.2, the Company shall not
execute and the Trustee shall not authenticate or deliver Securities in excess
of such aggregate principal amount.
(b) Nothing contained in this Section 2.2 or elsewhere in
this Supplemental Indenture, or in the Securities, is intended to or shall
limit execution by the Company or authentication or delivery by the Trustee of
Securities under the circumstances contemplated by Sections 307, 308, 309, 906,
1013, 1015 or 1108 of the Indenture.
SECTION 2.3. Interest and Interest Rate; Interest on Overdue
Amounts.
The Securities will bear interest at the rate of 7.52% per
annum from November 13, 1998 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually in
arrears on March 15 and September 15 in each year, commencing March 15, 1999
(each, an "Interest Payment Date"), to the Persons in whose name the Securities
are registered at the close of business on the Regular Record Date for such
interest, which shall be March 1 or September 1 (whether or not a Business
Day), as the case may be, next preced ing such Interest Payment Date, until the
principal thereof is paid or duly provided for. Interest on the Securities will
be computed on the basis of a 360-day year of twelve 30-day months. The
interest so payable on any Security which is not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease to be payable
to the Holder on the relevant Regular Record Date and such Defaulted Interest,
together with any interest payable on overdue principal, premium or interest,
may either be paid to the Person in whose name such Security 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 on such other specified date determined in accordance with the
Indenture.
4
SECTION 2.4 Maturity Date of Securities.
The Securities will mature on September 15, 2008.
SECTION 2.5. Elimination of Certain Covenants Upon Rating
Event Date.
Following the Rating Event Date (and provided no Event of
Default or Default shall exist on the Rating Event Date), Section 801 and
Sections 1008, 1009, 1010, 1011, 1012, 1014, 1015, 1016, 1018 and 1021 of the
Indenture (collectively, the "Eliminated Covenants") shall be of no further
force and effect and shall cease to apply to the Securities and, in place
thereof, the provisions of Sections 2.6 and 2.7 hereof shall apply to the
Securities. In the event that, subsequent to the Rating Event Date an Event of
Default or a Default shall exist with respect to the Securities or the
Securities shall thereafter be rated less than Baa3 by Moody's Investors
Service, Inc., less than BBB- by Standard & Poor's Corporation and less than
BBB- by Duff & Philips Credit Rating Co. (or such other "nationally recognized
statistical rating organization" (within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by the Company as a
replacement rating agency), in each case the Eliminated Covenants shall not be
reinstated.
SECTION 2.6. Restrictions on Liens
Following the Rating Event Date:
(a) So long as any of the Securities are outstanding, the
Company shall not pledge, mortgage, hypothecate or permit to exist any
mortgage, pledge or other lien upon any property or assets at any time directly
owned by the Company to secure any Indebtedness, without making effective
provisions whereby the Securities shall be equally and ratably secured with any
and all such Indebtedness and with any other Indebtedness similarly entitled to
be equally and ratably secured; provided however, that this Section 2.6(a)
shall not apply to or prevent the creation or existence of: (i) liens existing
on the Rating Event Date; (ii) purchase money liens which do not exceed the
cost or value of the purchased property or assets; (iii) liens not to exceed
10% of Consolidated Net Tangible Assets; and (iv) liens on property or assets
granted in connection with extending, renewing, replacing or refinancing in
whole or in part the Indebtedness (including, without limitation, increasing
the principal amount of such Indebtedness) secured by liens described in the
foregoing clauses (i) through (iii), provided that the liens in connection with
any such extension, renewal, replacement or refinancing will be limited to the
specific property or assets that was subject to the original lien.
5
(b) In the event that the Company shall propose to pledge,
mortgage or hypothecate or permit to exist any pledge, mortgage or other lien
upon any property or assets at any time directly owned by it to secure any
Indebtedness, other than as permitted by clauses (i) through (iv) of subsection
(a) above, the Company shall give prior written notice thereof to the Trustee
and the Company will, prior to or simultaneously with such pledge, mortgage or
hypothecation, effectively secure all the Securities equally and ratably with
such Indebtedness.
(c) The provisions of this Section 2.6 shall not restrict the
ability of the Company's Subsidiaries and Affiliates to pledge, mortgage,
hypothecate or permit to exist any mortgage, pledge or lien upon their property
or assets, in connection with project financings or otherwise.
SECTION 2.7. Consolidation, Merger, Sale of Assets
Following the Rating Event Date:
(a) So long as any of the Securities are outstanding, the
Company shall not consolidate with or merge with or into any other Person, or
convey, transfer or lease its consolidated properties and assets substantially
as an entirety to any Person, or permit any Person to merge into or consolidate
with the Company, unless: (i) the Company is the surviving or continuing
corporation or the surviving or continuing corporation or purchaser or lessee
is a corporation incorporated under the laws of the United States of America,
one of the States thereof or the District of Columbia or Canada and assumes the
Company's obligations under the Securities and under the Indenture and (ii)
immediately before and after such transaction, no Event of Default shall have
occurred and be continuing.
(b) Except for a sale of the consolidated properties and
assets of the Company substantially as an entirety pursuant to subsection (a)
above, and other than properties or assets required to be sold to conform with
laws or governmental regulations, the Company shall not, directly or
indirectly, sell or otherwise dispose of any of its consolidated properties or
assets (other than short-term, readily marketable investments purchased for
cash management purposes with funds not representing the proceeds of other
asset sales) if on a pro forma basis, the aggregate net book value of all such
sales during the most recent 12-month period would exceed 10% of Consolidated
Net Tangible Assets computed as of the end of the most recent quarter preceding
such sale; provided, however, that any such sales shall be disregarded for
purposes of this 10% limitation if the net proceeds are invested in properties
or assets in similar or related lines of business of the Company and its
Subsidiaries and, provided further, that the Company may sell or otherwise
dispose of consolidated properties and assets in excess of such 10% limitation
if the net proceeds from such sales or dispositions, which are not reinvested
as provided above, are retained by the
6
Company as cash or Cash Equivalents or used to retire Indebtedness of the
Company (other than Indebtedness which is subordinated to the Securities) and
its Subsidiaries.
SECTION 2.8. Redemption.
The Securities are not subject to any mandatory sinking fund.
The Securities are subject to optional redemption by the
Company in whole at any time, or in part from time to time, upon notice as
provided in the Section 1105 of the Indenture, at a redemption price equal to
100% of the principal amount of the Securities to be redeemed, plus interest
accrued on such principal amount to the Redemption Date plus a yield
maintenance premium (the "Premium") calculated by the Company with respect to a
particular series of Securities as of the Redemption Date as follows:
(1) the average life of the remaining scheduled payments of
principal in respect of outstanding Securities of such series (the
"Remaining Average Life") shall be calculated as of the Redemption
Date;
(2) the yield to maturity shall be calculated as of the
Business Day immediately preceding the Redemption Date for the United
States Treasury security having an average life equal to the Remaining
Average Life and trading in the secondary market at the price closest
to par (the "Primary Issue"); provided, however, that if no United
States Treasury security has an average life equal to the Remaining
Average Life, the yields (the "Other Yields") for the two maturities
of United States Treasury securities having average lives most closely
corresponding to such Remaining Average Life and trading in the
secondary market at the price closest to par shall be calculated, and
the yield to maturity for the Primary Issue shall be the yield
interpolated or extrapolated from such Other Yields on a straight-line
basis, rounding in each of such relevant periods to the nearest month;
(3) the discounted present value of the then remaining
scheduled payments of principal and interest (but excluding that
portion of any sched uled payment of interest that is actually due and
paid on the Redemption Date) in respect of outstanding Securities of
such series shall be calculated as of the Redemption Date using a
discount factor equal to the sum of (a) the yield to maturity for the
Primary Issue, plus (b) 37.5 basis points; and
(4) the amount of Premium in respect of Securities to be
redeemed shall be an amount equal to (a) the discounted present value
of such Securities to be redeemed determined in accordance with clause
(3) above minus (b) the unpaid principal amount of such Securities;
provided, however, that the Premium shall not be less than zero.
7
The Trustee may conclusively rely on an Officers' Certificate
setting forth the calculation of the Premium, which Officers' Certificate shall
be delivered to the Trustee on or before the Redemption Date.
SECTION 2.9. Global Form.
The Securities shall initially be issued in the form of one
or more Global Securities as provided in Section 201(a) of the Indenture. The
Depositary for the Securities shall be The Depository Trust Company. Except as
otherwise provided in Sections 201, 307 or 309 of the Indenture, owners of
beneficial interests in the Global Security or Securities will not be entitled
to receive physical delivery of Certificated Securities.
SECTION 2.10. Form of Securities.
The Securities shall be substantially in the form attached as
Exhibit A hereto.
SECTION 2.11. Security Registrar and Paying Agent.
The Trustee shall initially serve as Security Registrar and
Paying Agent for the Securities.
SECTION 2.12. Place and Method of Payment.
Payment of the principal of (and premium, if any) and any
interest on the Securities 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
(which initially shall be the Corporate Trust Office of the Trustee), 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) 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 2.13. Defeasance.
The provisions of Sections 1202 and 1203 of the Indenture
relating to defeasance and covenant defeasance shall be applicable to the
Securities. The provisions of Section 1203 of the Indenture shall apply to the
covenants set forth in Sections 2.6 and 2.7 of this Supplemental Indenture and
to those covenants specified in Section 1203 of the Indenture.
8
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture.
Except as expressly modified or amended hereby, the Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.1. Governing Law.
THIS SUPPLEMENTAL INDENTURE AND EACH SECURITY 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 BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL
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 MAN NER PERMITTED BY LAW
OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN
ANY OTHER JURISDICTION.
SECTION 3.2. Trust Indenture Act.
This Supplemental Indenture is subject to the provisions of
the Trust Indenture Act of 1939, as amended, and shall, to the extent
applicable, be governed by such provisions.
9
SECTION 3.3. Counterparts.
This Supplemental Indenture 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.
10
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the day and year first
written above.
CALENERGY COMPANY, INC.
By:
-----------------------------------
Name: Steven A. McArthur
Title: Executive Vice President
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
-----------------------------------
Name:
Title:
EXHIBIT A
FORM OF SECURITY
THIS SECURITY IS ISSUED IN GLOBAL FORM AND REGISTERED IN THE
NAME OF THE DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM IN ACCORDANCE WITH THE
TERMS HEREOF AND OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR ITS
NOMINEE AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR ITS NOMINEE, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.
(FACE OF SECURITY)
CALENERGY COMPANY, INC.
7.52% Senior Notes due 2008, Series B
No. R - $
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CUSIP No. 129466 A N 8
CalEnergy Company, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor or Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of ____________ Dollars on September 15,
2008, and to pay interest thereon from their date of issue and thereafter from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on March 15 and September 15 in each year,
commencing March 15, 1999, at the rate of 7.52% 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
A-1
shall bear interest at the rate of 7.52% 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 March 1 or September 1 (whether
or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date
and, together with any interest payable or overdue principal, premium or
interest, may either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any
interest on this Security shall be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
or at such additional offices or agencies as the Company from time to time may
designate for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, provided that payment of the principal of (and premium, if any,
on) this Security shall be made only upon presentation and surrender hereof at
any such office or agency and, at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
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.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
CALENERGY COMPANY, INC.
By:
--------------------------
Title:
Attest:
- ---------------------------
Title:
A-3
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
----------------------
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
---------------------------------------
Authorized Signatory
A-4
(REVERSE OF SECURITY)
This Security is one of a duly authorized issue of Debt
Securities of the Company designated as its 7.52% Senior Notes due 2008, Series
B (herein called the "Securities"), limited in aggregate principal amount of
$100,000,000 issued and to be issued under an Indenture, dated as of October
15, 1997, as supplemented by the First Supplemental Indenture dated as of
October 28, 1997, by the Second Supplemental Indenture dated as of September
22, 1998 and by the Third Supplemental Indenture dated as of November 13, 1998
(as so supplemented, 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 do not have the benefit of any sinking fund
obligations.
The Securities are subject to optional redemption by the
Company in whole at any time, or in part from time to time, at a redemption
price equal to 100% of the principal amount of the Securities to be redeemed,
plus interest accrued on such principal amount to the Redemption Date plus a
Premium calculated as of the Redemption Date, as provided in the Third
Supplemental Indenture dated as of November 13, 1998.
Upon the occurrence of a Change of Control, the Company shall
be required to make an Offer to Purchase all or a specified portion of the
Securities at a purchase price in cash equal to 101% of the principal amount
thereof on any Purchase Date plus accrued and unpaid interest, if any, to such
Purchase Date. If the Company, any Restricted Subsidiary or any Eligible Joint
Venture consummates an Asset Disposition, under certain circumstances, the
Company shall be required to make an Offer to Purchase up to all or a specified
portion of the Securities at a purchase price in cash equal to 100% of the
principal amount thereof on any Purchase Date, plus accrued and unpaid
interest, if any, to such Purchase Date, in an amount equal to any Net Cash
Proceeds from such an Asset Disposition that are not used to reinvest in the
business of the Company and/or repay in a permanent reduction of Debt of the
Company or Debt of its Restricted Subsidiaries or Eligible Joint Ventures.
Holders of Securities shall receive notice of any such Offer to Purchase from
the Company prior to the related Purchase Date and may elect to have such
Securities purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing on the reverse side of this Security.
A-5
In the event of purchase, pursuant to an Offer to Purchase,
of this Security in part only, a new Security or Securities for the portion
hereof not purchased shall be issued in the name of the Holder hereof upon
surrender of this Security to the Trustee for cancellation thereof.
Following the Rating Event Date (and provided no Event of
Default or Default shall exist on the Rating Event Date), substantially all the
covenants contained in the Indenture (excluding the covenant relating to the
Company's obligation to make an Offer to Purchase Securities upon the
occurrence of a Change of Control) will cease to apply to the Securities. In
their place, certain other covenants regarding restrictions on liens and the
ability of the Company to merge or consolidate with or into any other Person,
or to transfer or lease assets will apply to the Securities.
The Indenture contains provisions for defeasance at any time
of the entire Debt of the Company with respect to this Security or certain
restrictive covenants and Events of Default with respect to this Security,
including, without limitation, covenants relating to Offers to Purchase, in
each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there
may be declared due and payable the Default Amount of the Securities, in the
manner and with the effect provided in the Indenture. The Default Amount in
respect of this Security as of any particular date shall equal 100% of the
principal amount of this Security plus accrued and unpaid interest, if any, to
such date.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in aggregate principal amount of the Securities at
the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities of any series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences in each case with respect to the Securities of such series.
In addition, without the consent of any Holder of a Security, the Indenture and
the Securities may be amended and supplemented to cure any ambiguity or
inconsistency, make other changes that shall not adversely affect the rights of
the Holders or certain other matters specified in the Indenture. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
A-6
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% in
principal amount of the Securities of this series 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 of this series 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 any purchase of this Security required to be made pursuant to an
Offer to Purchase, on or after the Purchase Date).
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place, manner and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York (which initially shall be the Corporate Trust Office of
the Trustee), duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, shall be issued to the designated transferee
or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of
Securities of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
A-7
A director, officer, employee, stockholder or incorporator of
the Company shall not have any liability for any obligations of the Company
under this Security or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Holder by accepting
this Security waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of this Security.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
A-8
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.)
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have all or any portion of the Securities purchased by
the Company pursuant to Section 1013 ("Change of Control Offer") or Section
1015 ("Excess Proceeds Offer") of the Indenture, check the applicable boxes:
[ ] Change of Control Offer: [ ] Excess Proceeds Offer:
in whole [ ] in whole [ ]
in part [ ] in part [ ]
Amount to be Amount to be
purchased: $ purchased: $
---------- ----------
Dated: Signature:
---------------- -------------------------------
(Sign exactly as your name ap-
pears 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.)
Social Security Number or
Taxpayer Identification Number:
---------------------------
A-10