Exhibit 4.1
Execution Copy
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ESI TRACTEBEL ACQUISITION CORP.
Issuer
NORTHEAST ENERGY, LP
Borrower and Guarantor
NORTHEAST ENERGY, LLC
SERIES A AND SERIES B
7.99% SECURED BONDS DUE 2011
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INDENTURE
Dated as of February 19, 1998
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STATE STREET BANK AND TRUST COMPANY
Trustee and Collateral Agent
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CROSS-REFERENCE TABLE*
Trust IndentureAct Section Indenture Section
310 (a)(1).....................................................................................................7.10
310 (a)(2) ....................................................................................................7.10
310 (a)(3).....................................................................................................N.A.
310 (a)(4).....................................................................................................N.A.
310 (a)(5).....................................................................................................7.10
310 (b)........................................................................................................7.03
310 (c)........................................................................................................N.A.
311 (a)........................................................................................................7.11
311 (b)........................................................................................................7.11
311 (c)........................................................................................................N.A.
312 (a)........................................................................................................2.05
312 (b).......................................................................................................13.03
312 (c).......................................................................................................13.03
313 (a)........................................................................................................7.06
313 (b)(1)....................................................................................................11.02
313 (b)(2).....................................................................................................7.06
313 (c)........................................................................................................7.06
.......................................................................................................11.02
313 (d)........................................................................................................7.06
314 (a)........................................................................................................4.03
314 (b)................................................................................................10.02, 11.04
314 (c)(1)....................................................................................................11.04
314 (c)(2)....................................................................................................11.04
314 (c)(3).....................................................................................................7.02
314 (d)..................................................................................10.03, 10.04, 10.05, 11.04
314 (e).......................................................................................................13.05
314 (f)..........................................................................................................NA
315 (a)........................................................................................................7.01
315 (b).................................................................................................7.05, 11.02
315 (c)........................................................................................................7.01
315 (d)........................................................................................................7.01
315 (e)........................................................................................................6.11
316 (a)(last sentence).........................................................................................2.09
316 (a)(1)(A)..................................................................................................6.05
316 (a)(1)(B)..................................................................................................6.04
316 (a)(2).....................................................................................................N.A.
316 (b)........................................................................................................6.07
316 (c)........................................................................................................2.12
317 (a)(1).....................................................................................................6.08
317 (a)(2).....................................................................................................6.09
317 (b)........................................................................................................2.04
318 (a).......................................................................................................11.01
318 (b)........................................................................................................N.A.
318 (c).......................................................................................................11.01
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N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
Section 1.01. Definitions......................................................................................1
Section 1.02. Other Definitions...............................................................................13
Section 1.03. Incorporation by Reference of Trust Indenture Act...............................................13
Section 1.04. Rules of Construction...........................................................................14
ARTICLE 2. THE BONDS.............................................................................................14
Section 2.01. Form and Dating.................................................................................14
Section 2.02. Execution and Authentication....................................................................16
Section 2.03. Registrar and Paying Agent......................................................................16
Section 2.04. Paying Agent to Hold Money in Trust.............................................................17
Section 2.05. Holder Lists....................................................................................17
Section 2.06. Transfer and Exchange...........................................................................17
Section 2.07. Replacement Bonds...............................................................................30
Section 2.08. Outstanding Bonds...............................................................................30
Section 2.09. Treasury Bonds..................................................................................31
Section 2.10. Temporary Bonds.................................................................................31
Section 2.11. Cancellation....................................................................................31
Section 2.12. Defaulted Interest..............................................................................32
ARTICLE 3. REDEMPTION AND PREPAYMENT.............................................................................32
Section 3.01. Notices to Trustee..............................................................................32
Section 3.02. Selection of Bonds to Be Redeemed or Repurchased................................................32
Section 3.03. Notice of Redemption............................................................................33
Section 3.04. Effect of Notice of Redemption..................................................................33
Section 3.05. Deposit of Redemption Price.....................................................................34
Section 3.06. Bonds Redeemed in Part..........................................................................34
Section 3.07. Optional Redemption.............................................................................34
Section 3.08. Mandatory Redemption............................................................................35
Section 3.09. Extraordinary mandatory redemption..............................................................35
ARTICLE 4. COVENANTS.............................................................................................35
Section 4.01. Payment of Bonds................................................................................35
Section 4.02. Maintenance of Office or Agency.................................................................36
Section 4.03. Reports.........................................................................................36
Section 4.04. Compliance Certificate..........................................................................38
Section 4.05. Taxes...........................................................................................38
Section 4.06. Stay, Extension and Usury Laws..................................................................39
Section 4.07. Restricted Payments.............................................................................39
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries..................................40
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock......................................40
Section 4.10. Limitations on Project Indebtedness.............................................................41
Section 4.11. Transactions with Affiliates....................................................................42
Section 4.12. Liens...........................................................................................42
Section 4.13. Business Activities.............................................................................42
Section 4.14. Corporate Existence.............................................................................43
Section 4.15. Offer to Repurchase Upon Change of Control......................................................43
Section 4.16. No Senior Subordinated Debt.....................................................................45
Section 4.17. Amendments to, and assignments of, project documents............................................45
Section 4.18. Compliance......................................................................................45
Section 4.19. Maintaining Rights under Project Documents......................................................46
Section 4.20. Partnership Distributions.......................................................................46
Section 4.21. Limitation on Issuances of Guarantees of and indemnities........................................46
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Section 4.22. Limitations on Loans and Advances...............................................................47
Section 4.23. Payments for Consent............................................................................47
Section 4.24. Additional Bond Guarantees......................................................................47
Section 4.25. regulatory limitations..........................................................................47
Section 4.26. Limitations on Investments......................................................................48
Section 4.27. Auditor.........................................................................................48
Section 4.28. Use of Proceeds.................................................................................48
ARTICLE 5. SUCCESSORS............................................................................................48
Section 5.01. Merger, Consolidation, or Sale of Assets........................................................48
Section 5.02. Successor Corporation Substituted...............................................................49
ARTICLE 6. DEFAULTS AND REMEDIES.................................................................................49
Section 6.01. Events of Default...............................................................................49
Section 6.02. Acceleration....................................................................................51
Section 6.03. Other Remedies..................................................................................52
Section 6.04. Waiver of Past Defaults.........................................................................52
Section 6.05. Control by Majority.............................................................................52
Section 6.06. Limitation on Suits.............................................................................53
Section 6.07. Rights of Holders of Bonds to Receive Payment...................................................53
Section 6.08. Collection Suit by Trustee......................................................................53
Section 6.09. Trustee May File Proofs of Claim................................................................54
Section 6.10. Priorities......................................................................................54
Section 6.11. Undertaking for Costs...........................................................................55
ARTICLE 7. TRUSTEE...............................................................................................55
Section 7.01. Duties of Trustee...............................................................................55
Section 7.02. Rights of Trustee...............................................................................56
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Section 7.03. Individual Rights of Trustee....................................................................57
Section 7.04. Trustee's Disclaimer............................................................................57
Section 7.05. Notice of Defaults..............................................................................58
Section 7.06. Reports by Trustee to Holders of the Bonds......................................................58
Section 7.07. Compensation and Indemnity......................................................................58
Section 7.08. Replacement of Trustee..........................................................................59
Section 7.09. Successor Trustee by Merger, etc................................................................60
Section 7.10. Eligibility; Disqualification...................................................................60
Section 7.11. Preferential Collection of Claims Against Company...............................................60
Section 7.12. rights and indemnities of collateral agent......................................................61
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............................................................61
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance........................................61
Section 8.02. Legal Defeasance and Discharge..................................................................61
Section 8.03. Covenant Defeasance.............................................................................61
Section 8.04. Conditions to Legal or Covenant Defeasance......................................................62
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions...63
Section 8.06. Repayment to Company............................................................................64
Section 8.07. Reinstatement...................................................................................64
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER......................................................................65
Section 9.01. Without Consent of Holders of Bonds.............................................................65
Section 9.02. With Consent of Holders of Bonds................................................................65
Section 9.03. Compliance with Trust Indenture Act.............................................................67
Section 9.04. Revocation and Effect of Consents...............................................................67
Section 9.05. Notation on or Exchange of Bonds................................................................67
Section 9.06. Trustee to Sign Amendments, etc.................................................................68
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ARTICLE 10. ACCOUNTS AND REVENUES................................................................................68
Section 10.01. Establishment Of Accounts......................................................................68
Section 10.02. Revenues Account...............................................................................68
Section 10.03. Acceptable Credit Support......................................................................70
Section 10.04. Initial Deposit of Cash or Acceptable Credit Support...........................................71
Section 10.05. The Accounts As Collateral; Trustee As Collateral Agent........................................71
ARTICLE 11. COLLATERAL AND SECURITY..............................................................................71
Section 11.01. Pledge Agreements..............................................................................71
Section 11.02. Recording and Opinions.........................................................................72
Section 11.03. Release of Collateral..........................................................................73
Section 11.04. Certificates of the Company....................................................................73
Section 11.05. Certificates of the Trustee....................................................................74
Section 11.06. Authorization of Actions to Be Taken by the Trustee Under the Pledge Agreement.................74
Section 11.07. Authorization of Receipt of Funds by the Trustee Under the Pledge Agreements...................74
Section 11.08. Termination of Security Interest...............................................................75
ARTICLE 12. BOND GUARANTY........................................................................................75
Section 12.01. Bond Guaranty..................................................................................75
Section 12.02. Limitation on Guarantor Liability..............................................................76
Section 12.03. Execution and Delivery of Bond Guaranty........................................................76
Section 12.04. Guarantor's merger, consolidation, etc.........................................................77
ARTICLE 13. MISCELLANEOUS........................................................................................77
Section 13.01. Trust Indenture Act Controls...................................................................77
Section 13.02. Notices........................................................................................78
Section 13.03. Communication by Holders of Bonds with Other Holders of Bonds..................................79
Section 13.04. Certificate and Opinion as to Conditions Precedent.............................................79
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Section 13.05. Statements Required in Certificate or Opinion..................................................79
Section 13.06. Rules by Trustee and Agents....................................................................80
Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders.......................80
Section 13.08. Governing Law..................................................................................80
Section 13.09. No Adverse Interpretation of Other Agreements..................................................80
Section 13.10. Successors.....................................................................................80
Section 13.11. Severability...................................................................................81
Section 13.12. Counterpart Originals..........................................................................81
Section 13.13. Table of Contents, Headings, etc...............................................................81
EXHIBITS
Exhibit A FORM OF BOND
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
Exhibit E FORM OF BOND GUARANTY
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G FORM OF PLEDGE AGREEMENTS
Exhibit H FORM OF NOTE
Exhibit I FORM OF FPL GROUP CAPITAL GUARANTEE
Exhibit J AMORTIZATION SCHEDULE
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INDENTURE dated as of February 19, 1998 between ESI TRACTEBEL
ACQUISITION CORP., a Delaware corporation (the "Company"), NORTHEAST ENERGY, LP,
a Delaware limited partnership ("NE LP" or the "Guarantor"), NORTHEAST ENERGY,
LLC, a Delaware limited liability company ("NE LLC"), directly and wholly owned
by NE LP, and STATE STREET BANK AND TRUST COMPANY, as trustee (the "Trustee")
and collateral agent (the "Collateral Agent").
The Company, NE LP, NE LLC and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 7.99% Series A and Series B Secured Bonds due 2011 (the "Bonds"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A Global Bond" means a global bond in the form of Exhibit A-1
hereto bearing the Global Bond Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Bonds sold in reliance on Rule 144A.
"Acceptable Credit Support" means (a) an irrevocable unconditional
letter of credit in form and substance acceptable to the Trustee (which may rely
on advice of its counsel) from an entity whose long term debt is rated A2 or
higher by Moody's and A or higher by S&P and/or (b) a Guarantee by FPL Group
Capital in the form of Exhibit I (or otherwise in form and substance acceptable
to the Trustee which may rely on advice of its counsel) so long as the long-term
debt of FPL Group Capital is rated A2 or higher by Moody's and A or higher by
S&P, provided that a letter of credit in form and substance acceptable to the
Trustee (which may rely on advice of its counsel) from Bank Brussels Lambert
shall be satisfactory as Acceptable Credit Support so long as its long-term debt
is rated A2 or higher by Moody's and its short-term debt is rated A-1 or higher
by S&P.
"Accounts" means the accounts established by Section 10.1 hereof.
"Acquisition" means the acquisitions by NE LP and NE LLC of all of the
partnership interests in each of the Partnerships on January 14, 1998, pursuant
to a Purchase Agreement, dated as of November 21, 1997, by and among the NE LP,
NE LLC, the sellers listed therein, ESI Northeast Energy Funding, Inc. ("ESI
Funding") and Tractebel Power, Inc. and the acquisition by each of ESI Funding
and Tractebel Power, Inc. of a thirty-seven and one-half percent (37.5%)
interest in ESI Tractebel Funding Corp. ("ESI Tractebel Funding"), a Delaware
special purpose corporation formerly known as "IEC Funding Corp.", the issuer of
the Project Securities.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Bond, the rules and procedures of
the Depositary, Euroclear and Cedel that apply to such transfer or exchange.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or NE
LLC, as applicable, or any authorized committee of the Board of Directors, or
the Management Committee of NE LP, or any authorized committee of such
Management Committee.
"Bond Guaranty" means the Guaranty by the Guarantor of the Company's
payment obligations under this Indenture and the Bonds, executed pursuant to the
provisions of this Indenture.
"Bonds" has the meaning assigned to it in the preamble to this
Indenture.
"Bond Loan" means a loan, evidenced by the Note, by the Company to NE
LP of the proceeds received by the Company from the sale of Bonds.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (iii)
certificates of deposit and eurodollar time deposits with maturities of six
2
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any domestic commercial bank having capital and surplus in excess of $500
million and a Thompson Bank Watch Rating of "B" or better, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (ii) and (iii) above entered into with any
financial institution meeting the qualifications specified in clause (iii)
above, (v) commercial paper having the highest rating obtainable from Moody's or
S&P and, in each case, maturing within six months after the date of acquisition
and (vi) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (i) through (v) of this
definition.
"Cedel" means Cedel Bank, SA.
"Change of Control" has the meaning given in Section 4.15.
"Collateral Documents" means the Pledge Agreements and the Indenture.
"Collateral Agent" means the Trustee in such capacity and any and all
successors thereto.
"Company" means ESI Tractebel Acquisition Corp. and any and all
successors thereto.
"Company and Partner Pledge Agreement" means the company and partner
pledge agreement by the Company, NE LP and NE LLC for the benefit of the
Trustee, the Collateral Agent and the Holders of the Bonds, dated as of the date
hereof, and substantially in the form attached as Exhibit F hereto, as such
agreement may be amended, modified or supplemented from time to time.
"Corporate Trust Office of the Trustee" means the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company and the Holders.
"Custodian" means the Trustee, as custodian with respect to the Bonds
in global form, or any successor entity thereto.
"Debt Service Coverage Ratio" means the ratio of (i) the Operating
Revenues actually received directly by NE LP and NE LLC during the 12-month
period preceding the date as of which such ratio is calculated (net of any
operating expenses paid by any of the Company, NE LP and NE LLC during such
period) to (ii) the scheduled debt service payments (including principal,
interest, premia, penalties and fees) on the Bonds and all other indebtedness
(other than any Permitted Indebtedness) of the Company, NE LP and NE LLC during
such 12-month period, (provided that, for purposes of this calculation, the
corresponding payments in respect of the Note and the Bonds shall be deemed to
constitute only one payment).
"Default" means any event that is or that with the passage of time or
the giving of notice or both would be an Event of Default.
3
"Definitive Bond" means a certificated Bond registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof, in the
form of Exhibit A-1 hereto except that such Bond shall not bear the Global Bond
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Bond" attached thereto.
"Depositary" means, with respect to the Bonds issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Bonds, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Bonds mature; provided, however, that any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right
to require the Company to repurchase such Capital Stock upon the occurrence of a
Change of Control shall not constitute Disqualified Stock if the terms of such
Capital Stock provide that the Company may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ESI GP" means ESI Northeast Energy GP, Inc., a Florida corporation, a
general partner of NE LP.
"ESI LP" means Northeast Energy LP, Inc., a Florida corporation, a
limited partner in NE LP.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Bonds" means the Bonds issued in the Exchange Offer pursuant
to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
4
"Financing Agreements" means, collectively, the Indenture, the Bonds,
the Note, the Bond Guaranty, the Registration Right Agreement and the Pledge
Agreements.
"GAAP" means generally accepted accounting principles 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 have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Bonds" means, individually and collectively, each of the
Restricted Global Bonds and the Unrestricted Global Bonds, in the form of
Exhibit A-1 hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"Global Bond Legend" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all Global Bonds issued under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee of any Person (other than by endorsement
of negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness.
"Guarantor" means Northeast Energy, LP, the guarantor under the Bond
Guaranty executed in accordance with the provisions of this Indenture, and its
respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Bond is registered on the
registration books kept by the Registrar.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
5
by a Lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person) and, to the extent not otherwise included but without
duplication, the Guarantee by such Person of any indebtedness of any other
Person. The amount of any Indebtedness outstanding as of any date shall be (i)
the accreted value thereof, in the case of any Indebtedness issued with original
issue discount, and (ii) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Bond through a Participant.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company, NE LP, NE LLC or any Subsidiary thereof sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary such that,
after giving effect to any such sale or disposition, such Person is no longer a
Subsidiary thereof, the Company, NE LP, NE LLC or any Subsidiary thereof shall
be deemed to have made an Investment on the date of any such sale or
disposition.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in The City of New York or The Commonwealth of Massachusetts or at
a place of payment are authorized by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue on such payment for the intervening
period.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Bonds for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
6
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Make Whole Premium" means an amount equal to the excess, if any, of
(i) the present value of all interest and principal payments scheduled to become
due after the date of the Event of Default in respect of the Bonds (such present
value to be determined on the basis of a discount rate equal to the yield to
maturity on U.S. treasury instruments with a maturity as close as practicable to
the remaining average life of the Bonds) over (ii) the outstanding principal
amount of the Bonds.
"Management Costs" has the meaning given in the Project Indenture.
"Moody's" means Moody's Investors Service, Inc.
"NE LLC" means Northeast Energy, LLC and its successors.
"NE LP" means Northeast Energy, LP and its successors.
"Non-Operating Revenues" means the proceeds of any financing undertaken
by NE LP, NE LLC or the Company, distributions made by the Partnerships to NE LP
or NE LLC with the proceeds of any financing or with funds required to be used
for the extraordinary mandatory redemption of the Bonds under Section 3.09
hereof and any other extraordinary revenues (including any buyout or similar
payment made to a Partnership under any Power Purchase Agreement).
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note" means the promissory note evidencing the Bond Loan executed and
delivered to the Company by NE LP (which terms are substantially identical to
the terms of the Bond and which is substantially in the form set forth in
Exhibit H hereto), assigned by the Company to the Trustee as security for the
payment of the Bonds.
"Obligations" means any principal, interest, Registration Default
Damages, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offering" means the sale of the Bonds by the Company.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company, NE LP or NE LLC, as applicable: (i) in the case of the Company, by an
Officer of the Company, (ii) in the case of NE LP, by a member of the Management
7
Committee of NE LP and an Officer of one or both general partners of NE LP, and
(iii) in the case of NE LLC, by a member of the Management Committee of NE LP,
in its capacity as the manager of NE LLC, and an Officer of one or both general
partners of NE LP, as applicable, in each case one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, NE LP or NE LLC, as applicable,
that meets the requirements of Section 13.05 hereof.
"Operating Revenues" means all revenues actually received by NE LP and
NE LLC from any source (other than the Released Cash Collateral, the payment of
Management Costs and the Non-Operating Revenues), including distributions from
NEA and NJEA (other than distributions constituting Non-Operating Revenues), and
any earnings from funds deposited in the Accounts.
"Opinion of Counsel" means an opinion from legal counsel who is not
reasonably objected to by the Trustee, that meets the requirements of Section
13.05 hereof. The counsel may be an employee of or counsel to the Company, NE
LP, NE LLC, any Subsidiary, partner or member thereof or the Trustee.
"Owners of NE LP" means ESI LP, ESI GP, Tractebel LP and Tractebel GP
and any permitted successors and assigns.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Partnerships" means Northeast Energy Associates, A Limited Partnership
("NEA"), and North Jersey Energy Associates, A Limited Partnership ("NJEA"), and
"Partnership" means either of the foregoing.
"Permitted Indebtedness" has the meaning given in Section 4.09.
"Permitted Investments" means Cash Equivalents, the Bond Loan, NE LLC's
Investment in the Partnerships and NE LP's Investment in NE LLC and the
Partnerships.
"Permitted Liens" means: (i) Liens in favor of the Company, NE LP or NE
LLC; (ii) Liens on the property of a Person existing at the time such Person is
merged into or consolidated with the Company, NE LP or NE LLC, provided that
such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Company, NE LP or NE LLC; (iii) Liens on
property existing at the time of acquisition thereof by the Company, NE LP or NE
LLC, provided that such Liens were in existence prior to the contemplation of
such acquisition; (iv) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (v) Liens in favor of the Trustee
8
pursuant to the Collateral Documents; (vi) the first priority pledge of the one
percent general partner interest in each of the Partnerships in favor of the
holders of the Project Indebtedness; and (vii) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Pledge Agreements" means the Partner Pledge Agreement and the Sponsor
Pledge Agreement.
"Pledged Collateral" means all collateral pledged from time to time or
with respect to which a Lien is granted pursuant to the Pledge Agreements or
Article Eleven of this Indenture.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Bonds issued under this Indenture except Exchange
Bonds and except where otherwise permitted by the provisions of this Indenture.
"Project Indenture" means the Trust Indenture dated as of November 15,
1994, entered into by ESI Tractebel Funding, the Partnerships and the Project
Trustee providing for the issuance of the Project Securities, as supplemented by
a First Supplemental Trust Indenture, dated as of November 15, 1994, and as
amended and supplemented by the Second Supplemental Trust Indenture dated as of
January 14, 1998, and any supplements and amendments thereto permitted thereby.
"Project Securities" means, collectively, the 2000 Project Notes, the
2002 Project Notes, the 2007 Project Bonds and the 2010 Project Bonds issued by
ESI Tractebel Funding under the Project Indenture and then outstanding.
"Project Trustee" means State Street Bank and Trust Company, as trustee
under the Project Indenture and any successor trustee.
"Projected Debt Service Coverage Ratio" means the ratio of (i) the
Operating Revenues projected to be received directly by NE LP and NE LLC during
the 12-month period following the date as of which such ratio is calculated (net
of any operating expenses projected to be paid by the Company, NE LP and NE LLC
during such period) to (ii) the scheduled debt service payments (including
principal, interest, premia, penalties and fees) on the Bonds and all other
indebtedness (other than any Permitted Indebtedness) of the Company, NE LP and
NE LLC during such 12-month period, (provided that, for purposes of this
calculation, the corresponding payments in respect of the Note and the Bonds
shall be deemed to constitute only one payment).
9
"Purchaser" means Goldman, Sachs & Co.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registrar" has the meaning given in Section 2.03 hereof.
"Registration Default Damages" means at any time all registration
default damages then owing pursuant to Section 5 of the Registration Rights
Agreement and the Bonds.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of February 19, 1998, by and among the Company, NE LP and
Goldman, Sachs & Co. as such agreement may be amended, modified or supplemented
from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Bond" means a Regulation S Temporary Global Bond
or Regulation S Permanent Global Bond, as appropriate.
"Regulation S Permanent Global Bond" means a permanent global Bond in
the form of Exhibit A-1 hereto bearing the Global Bond Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Bond upon
expiration of the Restricted Period.
"Regulation S Temporary Global Bond" means a temporary global Bond in
the form of Exhibit A-2 hereto bearing the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Bonds initially sold in reliance on Rule 903 of Regulation S.
"Related Party" means, with respect to any Sponsor, (A) any controlling
stockholder thereof or Subsidiary at least 80% of which is owned by such Sponsor
or (B) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Sponsor and/or such other Persons
referred to in the immediately preceding clause (A).
"Released Cash Collateral" means any cash obtained from the
Partnerships by the Sponsors, NE LP or NE LLC at or following the Acquisitions
due to the release of cash collateral and the substitution therefor of
alternative collateral pursuant to the Project Indenture.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee or the
Trustee's New York Affiliate 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.
10
"Restricted Definitive Bond" means a Definitive Bond bearing the
Private Placement Legend.
"Restricted Global Bond" means a Global Bond bearing the Private
Placement Legend.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Payment" has the meaning given in Section 4.07 hereof.
"Revenues" means the Operating Revenues and Non-Operating Revenues.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholders of the Company" means ESI Northeast Energy Acquisition
Funding, Inc., an Affiliate of ESI Energy, Inc., and Tractebel Power, Inc. and
any permitted successor and assign.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Sponsor Affiliates" means the Shareholders of the Company and the
Owners of NE LP.
"Sponsor Pledge Agreement" means the pledge agreement by the Sponsor
Affiliates for the benefit of the Trustee, the Collateral Agent and the Holders
of the Bonds, dated as of the date hereof, and substantially in the form
attached as Exhibit F hereto, as such agreement may be amended, modified or
supplemented from time to time.
"Sponsor Pledged Collateral" means the assets of the Sponsor Affiliates
defined as Pledged Collateral in the Pledge Agreement.
"Sponsors" means ESI Energy, Inc. and Tractebel Power, Inc.
"S&P" means Standard & Poor's Rating Services, a division of the
McGraw-Hill Companies, Inc.
11
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Tractebel GP" means Tractebel Northeast Generation GP, Inc., a
Delaware corporation, a general partner of NE LP.
"Tractebel LP" means Tractebel Northeast Associates LP, Inc., a
Delaware corporation, a limited partner of NE LP.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Global Bond" means a permanent global Bond in the form of
Exhibit A-1 attached hereto that bears the Global Bond Legend and that has the
"Schedule of Exchanges of Interests in the Global Bond" attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Bonds that do not bear the Private
Placement Legend.
"Unrestricted Definitive Bond" means one or more Definitive Bonds that
do not bear and are not required to bear the Private Placement Legend.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
12
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"Affiliate Transaction"..........................................4.11
"Authentication Order"...........................................2.02
"Change of Control Offer"........................................4.15
"Change of Control Payment"......................................4.15
"Change of Control Payment Date" ................................4.15
"Covenant Defeasance"............................................8.03
"Event of Default"...............................................6.01
"incur"..........................................................4.09
"Legal Defeasance" ..............................................8.02
"Paying Agent"...................................................2.03
"Permitted Indebtedness".........................................4.09
"Registrar"......................................................2.03
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Bonds;
"indenture security Holder" means a Holder of a Bond;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Bonds and on the Note and the Bond Guaranty means the
Company and the Bond Guarantor, respectively, and any successor obligor upon the
Bonds or the Note and the Bond Guaranty, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
13
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE BONDS
SECTION 2.01. FORM AND DATING.
(a) General. The Bonds and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Bonds may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Bond shall be dated the date of its authentication. The Bonds shall
be in denominations of $100,000 and integral multiples of $1,000 in excess
thereof.
The terms and provisions contained in the Bonds shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, the Bond
Guarantor, NE LLC and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Bond conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Global Bonds. Bonds issued in global form shall be substantially in
the form of Exhibits A-1 or A-2 attached hereto (including the Global Bond
Legend thereon and the "Schedule of Exchanges of Interests in the Global Bond"
attached thereto). Bonds issued in definitive form shall be substantially in the
form of Exhibit A-1 attached hereto (but without the Global Bond Legend thereon
and without the "Schedule of Exchanges of Interests in the Global Bond" attached
thereto). Each Global Bond shall represent such of the outstanding Bonds as
shall be specified therein and each shall provide that it shall represent the
14
aggregate principal amount of outstanding Bonds from time to time endorsed
thereon and that the aggregate principal amount of outstanding Bonds represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Bond to reflect
the amount of any increase or decrease (other than in connection with any
scheduled payment of principal) in the aggregate principal amount of outstanding
Bonds represented thereby shall be made by the Trustee or the Bond Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Bonds. Bonds offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Bond, which shall be deposited on behalf of the purchasers of the Bonds
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Cedel Bank, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Restricted Period shall be terminated upon
the receipt by the Trustee of (i) a written certificate from the Depositary,
together with copies of certificates from Euroclear and Cedel Bank certifying
that they have received certification of non-United States beneficial ownership
of 100% of the aggregate principal amount of the Regulation S Temporary Global
Bond (except to the extent of any beneficial owners thereof who acquired an
interest therein during the Restricted Period pursuant to another exemption from
registration under the Securities Act and who will take delivery of a beneficial
ownership interest in a 144A Global Bond bearing a Private Placement Legend, all
as contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers'
Certificate from the Company to the effect that such Restricted Period has
ended. Following the termination of the Restricted Period, beneficial interests
in the Regulation S Temporary Global Bond shall be exchanged for beneficial
interests in Regulation S Permanent Global Bonds pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Bonds, the Trustee shall cancel the Regulation S Temporary Global Bond.
The aggregate principal amount of the Regulation S Temporary Global Bond and the
Regulation S Permanent Global Bonds may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable. Provided that neither
the Company nor the Trustee shall be required to take notice of any such
provision, the provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Bond and the Regulation S Permanent Global Bonds that are held by
Participants through Euroclear or Cedel Bank.
15
SECTION 2.02. EXECUTION AND AUTHENTICATION. Two Officers shall sign the Bonds
for the Company by manual or facsimile signature. The Company's seal shall be
reproduced on the Bonds and may be in facsimile form.
If one or both Officers whose signature are on a Bond no longer hold
that office at the time a Bond is authenticated, the Bond shall nevertheless be
valid.
A Bond shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Bond has
been authenticated under this Indenture.
The Trustee shall, upon (i) a written order of the Company signed by
one or both Officers (an "Authentication Order") accompanied by the documents
required pursuant to Section 13.04, (ii) the initial deposit of cash or
Acceptable Credit Support pursuant to Section 10.04, (iii) the execution and
delivery by the parties thereto of the Pledge Agreements and (iv) delivery to
the Trustee of evidence of receipt by the Collateral Agent of the Pledge
Agreements, the Pledged Shares and the Pledged Note, authenticate Bonds for
original issue up to the aggregate principal amount stated in paragraph 4 of the
Bonds. The aggregate principal amount of Bonds outstanding at any time may not
exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Bonds. An authenticating agent may authenticate Bonds
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Company shall maintain or cause to
be maintained an office or agency where Bonds may be presented for registration
of transfer or for exchange ("Registrar") and shall appoint an institution with
trust powers to maintain an office or agency where Bonds may be presented for
payment ("Paying Agent"). The Registrar shall keep a register of the Bonds and
of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or NE LP may act as Registrar but shall
not act as Paying Agent.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Bonds.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Bond Custodian with respect to the Global Bonds.
16
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Registration Default Damages, if any, or interest on the
Bonds, and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent shall have no further liability for the
money.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Bonds and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Bonds. A Global Bond may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Bonds will be exchanged by
the Company for Definitive Bonds if (i) the Company or the Depositary delivers
to the Trustee notice from the Depositary that it is unwilling or unable to
continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is
not appointed by the Company within 90 days after the date of such notice from
the Depositary or (ii) the Company in its sole discretion determines that the
Global Bonds (in whole but not in part) should be exchanged for Definitive Bonds
and delivers a written notice to such effect to the Trustee; provided that in no
event shall the Regulation S Temporary Global Bond be exchanged by the Company
for Definitive Bonds prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the
preceding events described in (i) or (ii) above, Definitive Bonds shall be
issued in such names as the Depositary shall instruct the Trustee. Global Bonds
also may be exchanged or replaced, in whole or in part, as provided in Sections
2.07 and 2.10 hereof. Except as otherwise provided in this Section 2.06(a) every
Bond authenticated and delivered in exchange for, or in lieu of, a Global Bond
or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Bond. A Global Bond may not be exchanged for another Bond other than as
17
provided in this Section 2.06(a); however, beneficial interests in a Global Bond
may be transferred and exchanged as provided in Section 2.06(b),(c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Bonds.
The transfer and exchange of beneficial interests in the Global Bonds shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Bonds shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Bonds also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Bond.
Beneficial interests in any Restricted Global Bond may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Bond in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Temporary Regulation S
Global Bond may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than the Purchaser). Beneficial
interests in any Unrestricted Global Bond may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Bond. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Bonds. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Bond in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Bond in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose
name such Definitive Bond shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall
Definitive Bonds be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Bond prior to (x) the
expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the Company
in accordance with Section 2.06(f) hereof, the requirements of this
18
Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt
by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Bonds. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Bonds
contained in this Indenture and the Bonds or otherwise applicable under
the Securities Act, the Trustee shall adjust the principal amount of
the relevant Global Bond(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Bond. A beneficial interest in any Restricted Global Bond may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Bond if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Bond, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Bond or
the Regulation S Global Bond, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Bond for Beneficial Interests in the Unrestricted
Global Bond. A beneficial interest in any Restricted Global Bond may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Bond or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Bond if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Bonds or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company; or
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
19
(1) if the holder of such beneficial interest in a
Restricted Global Bond proposes to exchange such beneficial interest
for a beneficial interest in an Unrestricted Global Bond, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Bond proposes to transfer such beneficial interest to
a Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Bond, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Bond has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Bonds in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Bond cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Bond.
(c) Transfer or Exchange of Beneficial Interests for Definitive Bonds.
(i) Beneficial Interests in Restricted Global Bonds to
Restricted Definitive Bonds. If any holder of a beneficial interest in
a Restricted Global Bond proposes to exchange such beneficial interest
for a Restricted Definitive Bond or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Bond, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Bond proposes to exchange such beneficial interest for a
Restricted Definitive Bond, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
20
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Bond to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Bond in the appropriate principal amount. Any Definitive
Bond issued in exchange for a beneficial interest in a Restricted
Global Bond pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Bonds
to the Persons in whose names such Bonds are so registered. Any
Definitive Bond issued in exchange for a beneficial interest in a
Restricted Global Bond pursuant to this Section 2.06(c)(i) shall bear
the Private Placement Legend and shall be subject to all restrictions
on transfer contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Bond may not
be exchanged for a Definitive Bond or transferred to a Person who takes
delivery thereof in the form of a Definitive Bond prior to (x) the
expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
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(iii) Beneficial Interests in Restricted Global Bonds to
Unrestricted Definitive Bonds. A holder of a beneficial interest in a
Restricted Global Bond may exchange such beneficial interest for an
Unrestricted Definitive Bond or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Bond only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Bonds or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest
in a Restricted Global Bond proposes to exchange such
beneficial interest for a Definitive Bond that does not bear
the Private Placement Legend, a certificate from such holder
in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest
in a Restricted Global Bond proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Bond that does not bear
the Private Placement Legend, a certificate from such holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Bonds to
Unrestricted Definitive Bonds. If any holder of a beneficial interest
in an Unrestricted Global Bond proposes to exchange such beneficial
22
interest for a Definitive Bond or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Bond, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Bond to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Bond in the appropriate principal amount. Any
Definitive Bond issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iii) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Bonds to the
Persons in whose names such Bonds are so registered. Any Definitive
Bond issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Bonds for Beneficial
Interests.
(i) Restricted Definitive Bonds to Beneficial Interests in
Restricted Global Bonds. If any Holder of a Restricted Definitive Bond
proposes to exchange such Bond for a beneficial interest in a
Restricted Global Bond or to transfer such Restricted Definitive Bonds
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Bond, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Bond proposes
to exchange such Bond for a beneficial interest in a Restricted
Global Bond, a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Bond is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such Restricted Definitive Bond is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Bond is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Bond is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including
23
the certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable;
(F) if such Restricted Definitive Bond is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(b) thereof; or
(G) if such Restricted Definitive Bond is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Bond, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Bond, in the case
of clause (B) above, the 144A Global Bond, in the case of clause (c)
above, the Regulation S Global Bond.
(ii) Restricted Definitive Bonds to Beneficial Interests in
Unrestricted Global Bonds. A Holder of a Restricted Definitive Bond may
exchange such Bond for a beneficial interest in an Unrestricted Global
Bond or transfer such Restricted Definitive Bond to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Bond only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Bonds or
(3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Bonds proposes to
exchange such Bonds for a beneficial interest in the Unrestricted
Global Bond, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Bonds proposes to
transfer such Bonds to a Person who shall take delivery thereof in the
24
form of a beneficial interest in the Unrestricted Global Bond, a
certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Bonds and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Bond.
(iii) Unrestricted Definitive Bonds to Beneficial Interests in
Unrestricted Global Bonds. A Holder of an Unrestricted Definitive Bond
may exchange such Bond for a beneficial interest in an Unrestricted
Global Bond or transfer such Definitive Bonds to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Bond at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Bond and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Bonds.
If any such exchange or transfer from a Definitive Bond to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above
at a time when an Unrestricted Global Bond has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Bonds in an aggregate principal amount equal to the principal amount of
Definitive Bonds so transferred.
(e) Transfer and Exchange of Definitive Bonds for Definitive Bonds.
Upon request by a Holder of Definitive Bonds and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Bonds. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Bonds duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Bonds to Restricted Definitive
Bonds. Any Restricted Definitive Bond may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Bond if the Registrar receives the
following:
25
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Bonds to Unrestricted Definitive
Bonds. Any Restricted Definitive Bond may be exchanged by the Holder
thereof for an Unrestricted Definitive Bond or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Bond if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Bonds or
(3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Bonds
proposes to exchange such Bonds for an Unrestricted Definitive Bond, a
certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Bonds
proposes to transfer such Bonds to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Bond, a certificate
from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
26
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
(iii) Unrestricted Definitive Bonds to Unrestricted Definitive
Bonds. A Holder of Unrestricted Definitive Bonds may transfer such
Bonds to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Bond. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Bonds pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02
(including any certificates and opinions required pursuant to Section 13.04
hereof), the Trustee shall authenticate (i) one or more Unrestricted Global
Bonds in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Bonds tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (x) they are
not broker-dealers, (y) they are not participating in a distribution of the
Exchange Bonds and (z) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (ii) Definitive
Bonds in an aggregate principal amount equal to the aggregate principal amount
of the Restricted Definitive Bonds accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Bonds, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Bonds to be
reduced accordingly and the Definitive Bonds accepted to be cancelled, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Bonds so accepted Definitive
Bonds in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Bonds and Definitive Bonds issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Bond and each Definitive Bond (and all Bonds issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE BONDS EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) BY THE
INITIAL INVESTOR (A) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (B) IN AN OFFSHORE TRANSACTION MEETING THE
27
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (D)
TO THE COMPANY OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (2) BY SUBSEQUENT INVESTORS AS SET FORTH
IN (1) ABOVE AND, IN ADDITION, TO AN INSTITUTIONAL ACCREDITED INVESTOR
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT
PURCHASER FROM IT OF THE BONDS EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN THE PREVIOUS SENTENCE. NO REPRESENTATION CAN
BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144
FOR RESALES OF THE BONDS."
(B) Notwithstanding the foregoing, any Global Bond or
Definitive Bond issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Bonds issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii) Global Bond Legend. Each Global Bond shall bear a legend
in substantially the following form:
"THIS GLOBAL BOND IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS BOND) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF
THE INDENTURE, (II) THIS GLOBAL BOND MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
BOND MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL BOND MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
(iii) Regulation S Temporary Global Bond Legend. The
Regulation S Temporary Global Bond shall bear a legend in substantially
the following form:
28
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL BOND, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
BONDS, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL BOND SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Bonds. At such time as all
beneficial interests in a particular Global Bond have been exchanged for
Definitive Bonds or a particular, Global Bond has been redeemed, repurchased,
exchanged or canceled in whole and not in part, each such Global Bond shall be
returned to or retained and canceled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any beneficial interest
in a Global Bond is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Bond or
for Definitive Bonds, the principal amount of Bonds represented by such Global
Bond shall be reduced accordingly and an endorsement shall be made on such
Global Bond by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Bond, such other Global Bond shall be
increased accordingly and an endorsement shall be made on such Global Bond by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Bonds
and Definitive Bonds upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Bond or to a Holder of a Definitive
Bond for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.15 and 9.05
hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Bond selected for redemption in whole or in
part, except the unredeemed portion of any Bond being redeemed in part.
(iv) All Global Bonds and Definitive Bonds issued upon any
registration of transfer or exchange of Global Bonds or Definitive
Bonds shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Bonds or Definitive Bonds surrendered upon such registration
of transfer or exchange.
29
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Bonds during a period
beginning at the opening of business 15 days before the day of any
selection of Bonds for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Bond so selected for redemption in whole
or in part, except the unredeemed portion of any Bond being redeemed in
part or (c) to register the transfer of or to exchange a Bond between a
record date and the next succeeding Interest Payment Date.
(vi) The Trustee, any Agent and the Company may deem and treat
the Person in whose name any Bond is registered as the absolute owner
of such Bond for the purpose of receiving payment of principal of and
interest on such Bonds and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Global Bonds and
Definitive Bonds in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
SECTION 2.07. REPLACEMENT BONDS
If any mutilated Bond is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Bond, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Bond if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Bond is
replaced. The Company may charge for its expenses in replacing a Bond.
Every replacement Bond is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Bonds duly issued hereunder.
SECTION 2.08. OUTSTANDING BONDS.
The Bonds outstanding at any time are all the Bonds authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Bond effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Bond
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Bond.
30
If a Bond is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Bond is held by a bona fide purchaser.
If the principal amount of any Bond or portion thereof is considered
paid under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Bonds payable on that date, then on and after that date such
Bonds shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09. TREASURY BONDS.
In determining whether the Holders of the required principal amount of
Bonds have concurred in any direction, waiver or consent, Bonds owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Bonds that the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY BONDS
Until certificates representing Bonds are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Bonds. Temporary Bonds shall be substantially in
the form of certificated Bonds but may have variations that the Company
considers appropriate for temporary Bonds and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Bonds in exchange for temporary Bonds.
Holders of temporary Bonds shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Bonds to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Bonds surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Bonds surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Bonds (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Bonds shall be delivered
to the Company. The Company may not issue new Bonds to replace Bonds that it has
paid or that have been delivered to the Trustee for cancellation.
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SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Bonds, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Bonds
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Bond and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Bonds pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 40 days but not more than 70 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Bonds to be redeemed and (iv) the redemption price including
Registration Default Damages, if any.
SECTION 3.02. SELECTION OF BONDS TO BE REDEEMED OR REPURCHASED
Subject to the book entry system described herein, if less than all of
the Bonds are to be redeemed or purchased in an offer to purchase at any time,
the Trustee shall select the Bonds to be redeemed or purchased in compliance
with the requirements of the principal national securities exchange, if any, on
which the Bonds are listed or, if the Bonds are not so listed, on a pro rata
basis or by such other method as the Trustee considers fair and appropriate;
provided that, except in the case of an extraordinary mandatory redemption, no
Bonds will be redeemed in part if the unredeemed portion will be in an
unauthorized denomination. Subject to the book-entry system, in the event of
partial redemption by lot, the particular Bonds to be redeemed shall be
selected, unless otherwise provided herein, not less than 35 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Bonds not
previously called for redemption.
The Trustee shall promptly notify the Registrar and the Paying Agent in
writing of the Bonds selected for redemption and, in the case of any Bond
selected for partial redemption, the principal amount thereof to be redeemed.
Bonds and portions of Bonds selected shall be in amounts of $100,000 or whole
multiples of $1,000 in excess thereof; except that if all of the Bonds of a
Holder are to be redeemed, the entire outstanding amount of Bonds held by such
Holder, even if not a multiple of $100,000 or a multiple of $1,000 in excess
thereof, shall be redeemed. Except as provided in the preceding sentence,
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provisions of this Indenture that apply to Bonds called for redemption also
apply to portions of Bonds called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION
At least 30 days but not more than 60 days before a redemption date,
the Registrar shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Bonds are to be redeemed at its registered
address.
The notice shall identify the Bonds to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price including any Registration Default Damages;
(c) if any Bond is being redeemed in part, the portion of the principal
amount of such Bond to be redeemed and that, after the redemption date upon
surrender of such Bond, a new Bond or Bonds in principal amount equal to the
unredeemed portion shall be issued in the name of the Holder thereof upon
cancellation of the original Bond;
(d) the name and address of the Paying Agent;
(e) that Bonds called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Bonds called for redemption ceases to accrue on and after
the date fixed for redemption;
(g) the paragraph of the Bonds and/or Section of this Indenture
pursuant to which the Bonds called for redemption are being redeemed; and
(h) the CUSIP number and that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Bonds.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Bonds called for redemption become irrevocably due and payable on the
date fixed for redemption at the redemption price. A notice of redemption may
not be conditional.
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SECTION 3.05. DEPOSIT OF REDEMPTION PRICE
No later than one Business Day prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money
sufficient, together with moneys then held by the Trustee, to pay the redemption
price of and accrued interest on all Bonds to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Bonds to be redeemed.
If the Company complies with the provisions of the preceding paragraph,
on and after the date fixed for redemption, interest shall cease to accrue on
the Bonds or the portions of Bonds redeemed. If a Bond is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Bond was registered at the close of business on such record date. If any
Bond called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Bonds and in
Section 4.01 hereof.
SECTION 3.06. BONDS REDEEMED IN PART.
Upon surrender of a Bond that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Bond in a principal amount
equal to the unredeemed portion of the Bond surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) The Bonds shall not be redeemable at the Company's option prior to
June 30, 2008. Thereafter, the Bonds shall be subject to redemption at any time
at the option of the Company at the direction of NE LP, in whole or in part,
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Registration Default Damages, if any, thereon to the
applicable date fixed for redemption, if redeemed during the twelve-month period
beginning on June 30 of the years indicated below:
Year Percentage
---- ----------
2008................................................... 101.844%
2009................................................... 101.229%
2010................................................... 100.615%
2011 and thereafter.................................... 100.000%
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(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Section 3.09 and 4.15 and except for the
payment of the principal of the Bonds in semiannual installments to the Holders
thereof, the Company shall not be required to make mandatory redemption,
mandatory purchases or sinking fund payments with respect to the Bonds.
SECTION 3.09. EXTRAORDINARY MANDATORY REDEMPTION.
(a) The Bonds shall be subject to extraordinary mandatory
redemption by the Company, pro rata, at a redemption price equal to the
outstanding principal amount thereof plus accrued and unpaid interest and any
Registration Default Damages to the date fixed for redemption if (1) (a) an
event occurs which triggers the mandatory redemption or repurchase of any or all
of the Project Securities pursuant to the terms of the Project Indenture and (b)
any funds so required to be applied to such redemption or repurchase remain
after giving effect to such redemption or repurchase of Project Securities, and
such excess funds equal at least $2 million and are distributed to NE LP or NE
LLC or (2) a buyout or similar payment is made to a Partnership under any Power
Purchase Agreement and any such funds are distributed to NE LP or NE LLC in
accordance with the terms of the Project Indenture and terms of the Indenture,
provided that, in each such case, only such funds so distributed must be applied
to the extraordinary mandatory redemption.
(b) Any redemption pursuant to this Section 3.09 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF BONDS.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest and Registration Default Damages, if any, on the Bonds on the
dates and in the manner provided in the Bonds. Principal, premium, if any, and
interest and Registration Default Damages, if any, shall be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due. The Company shall pay
all Registration Default Damages, if any, in the same manner on the dates and in
the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
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1% per annum in excess of the then applicable interest rate on the Bonds to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Registration Default Damages, if any, without regard to any applicable grace
period at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall appoint a Registrar to maintain or cause to be
maintained in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Bonds may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Bonds and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain or cause to be maintained any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Bonds may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to appoint the Registrar to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Registrar in accordance with Section 2.03.
SECTION 4.03. REPORTS.
(a) Whether or not required by the rules and regulations of the
SEC, so long as any Bonds are outstanding, the Company shall furnish to the
Holders of Bonds and to any beneficial owner of the Bonds who so requests the
Company in writing (i) all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to
file such reports, in each case, within the time periods specified in the SEC's
rules and regulations. In addition, following the consummation of the Exchange
Offer, whether or not required by the rules and regulations of the SEC, the
Company shall file a copy of all such information and reports with the SEC for
public availability within the time periods specified in the SEC's rules and
regulations (unless the SEC will not accept such a filing) and make such
36
information available to securities analysts and prospective investors upon
request. The Company shall at all times comply with TIA ss. 314(a).
(b) For so long as any Bonds remain outstanding, the Company shall
furnish to the Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act. In addition, and whether or not the Company
is subject to the reporting requirements of Section 13 or Section 15(d) of the
Exchange Act, the Company shall file with the SEC and provide to the Trustee and
the Holders of the Bonds, and (upon request) to broker-dealers and prospective
investors, all information, documents and reports specified in Section 13 and
Section 15(d) of the Exchange Act.
(c) NE LP shall provide to the Trustee, the Holders of the Bonds
and any beneficial owner of Bonds who so requests the Company in writing (i) all
notices, financial statements and other information required to be given by ESI
Tractebel Funding Corp., NEA or NJEA to the Project Trustee under the Project
Indenture, (ii) calculations of the Debt Service Coverage Ratio and the
Projected Debt Service Coverage Ratio, together with the information required to
substantiate such calculations, on each semi-annual payment date in respect of
the Bonds, at the time any amounts are to be transferred into the Distribution
Account and at any other time such ratios are required to be provided by the
terms of the Indenture and (iii) calculations of the Debt Service Coverage Ratio
and the Substitute Debt Service Coverage Ratio for the Rolling Prior Year (each
as defined in the Project Indenture as in effect on the date of the Indenture),
together with the information required to substantiate such calculations and a
copy of the certificate of the management committee of NE LP on behalf of the
Partnerships delivered pursuant to the Project Indenture certifying that it has
no knowledge of any event or circumstances that could reasonably be expected to
result in the Debt Service Coverage Ratio for the period of two fiscal quarters
commencing on the expiration date of the Rolling Prior Year, treated as a single
period, being less than 1.25:1, on each semi-annual payment date in respect of
the Bonds, at the time any amounts are to be transferred into the General
Subfund of the Partnership Distribution Fund (as defined in the Project
Indenture as in effect on the date of the Indenture) and at any other time such
ratios are required to be provided by the terms of the Project Indenture.
Finally, each of the Company, NE LP and NE LLC shall advise the Trustee promptly
in writing of (i) the occurrence of any Event of Default of which it has
knowledge and the occurrence of any "Event of Default" as defined in the Project
Indenture as in effect on the date of the Indenture and (ii) any material
litigation or claim against or concerning any of the Company, NE LP, NE LLC or
any of its property or assets.
Except that it shall examine the information, documents and reports
filed with it pursuant to TIA Sections 314(a)(2) and 314(a)(4), the Trustee
shall not be required to examine any of the documents required to be filed with
it pursuant to Section 4.03(a) and (b) and the first sentence of Section 4.03(c)
to ascertain whether there has been compliance with the covenants herein.
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SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company and NE LP (to the extent that NE LP is so required
under the TIA) shall deliver to the Trustee, within 90 days after the end of
each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries, if any, and NE LP during the
preceding fiscal year has been made under the supervision of the signing Officer
with a view to determining whether the Company and NE LP has kept, observed,
performed and fulfilled their obligations under this Indenture and the Company
and Partner Pledge Agreement, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
and NE LP has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and the Company and Partner Pledge Agreement and are
not in default in the performance or observance of any of the terms, provisions
and conditions of this Indenture and the Company and Partner Pledge Agreement
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company and/or NE LP are taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Bonds is prohibited or if such event has occurred, a
description of the event and what action the Company and/or NE LP are taking or
propose to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established international reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) Each of the Company, NE LP and NE LLC shall, so long as any of
the Bonds are outstanding, deliver to the Trustee, forthwith upon any Officer's
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company, NE LP
or NE LLC is taking or proposes to take with respect thereto.
SECTION 4.05. TAXES.
Each of the Company, NE LP and NE LLC shall pay prior to delinquency,
all taxes, assessments and other governmental charges, except such as are
contested in good faith and by appropriate proceedings and adequate reserves in
conformity with GAAP are being maintained.
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SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company, NE LP and NE LLC each covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company, NE
LP and NE LLC each (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company, NE LP and NE LLC shall make Restricted Payments only from,
and to the extent of, amounts on deposit in the Distribution Account from time
to time. "Restricted Payments" means the direct or indirect: (i) declaration or
payment of any dividend or any other payment or distribution on account of the
Company's, NE LP's or NE LLC's Equity Interests (including, without limitation,
any payment in connection with any merger or consolidation involving the
Company, NE LP or NE LLC) or to the direct or indirect holders of the Company's,
NE LP's or NE LLC's Equity Interests in any capacity (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company, NE LP or NE LLC or to the Company, NE LP or NE LLC); (ii) repayment of
any Indebtedness owed by NE LP or NE LLC to the Sponsors or their Affiliates,
including, without limitation, any reimbursement obligations with respect to any
letters of credit or guarantees provided by the Sponsors or their Affiliates as
Acceptable Credit Support; (iii) purchase, redemption or other acquisition or
retirement for value (including, without limitation, in connection with any
merger or consolidation involving the Company, NE LP or NE LLC) of any Equity
Interests of the Company, NE LP or NE LLC or any direct or indirect parent of
the Company, NE LP or NE LLC; or (iv) payment on or with respect to, or
purchase, redemption, defeasance or other acquisition or retirement for value of
any Indebtedness that is pari passu with or subordinated to the Bonds (other
than the Bonds), except a scheduled payment of interest or principal.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company, NE LP or NE LLC,
pursuant to the Restricted Payment. The fair market value of any non-cash
Restricted Payment shall be determined by the Board of Directors whose
resolution with respect thereto shall be delivered to the Trustee, such
determination to be based upon, and accompanied by, an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if such fair market value exceeds $5.0 million. Not later than the date
of making any Restricted Payment, the Company shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section
4.07 were computed, together with a copy of any fairness opinion or appraisal
required by this Indenture.
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SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company, NE LP and NE LLC shall not, and shall not permit any of
its or their Subsidiaries (including NEA and NJEA), directly or indirectly, to
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any Subsidiary thereof to (i) (a) pay dividends
or make any other distributions to the Company, NE LP and NE LLC or any of its
or their Subsidiaries (1) on its Capital Stock or (2) with respect to any other
interest or participation in, or measured by, its profits, or (b) pay any
indebtedness owed to the Company, NE LP and NE LLC or any of its or their
Subsidiaries, (ii) make loans or advances to the Company, NE LP or NE LLC or any
of its or their Subsidiaries or (iii) transfer any of its properties or assets
to the Company, NE LP or NE LLC or any of its or their Subsidiaries. However,
the foregoing restrictions will not apply to encumbrances or restrictions under
or by reason of (a) the Project Indenture and the other Transaction Documents
(as defined in the Project Indenture as in effect on the date of the Indenture)
and, in each case, as in effect on the date of the Indenture, (b) the Indenture
and the Bonds, (c) applicable law, (d) customary non-assignment provisions in
leases entered into in the ordinary course of business and consistent with past
practices and (e) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature described in
clause (iii) above on the property so acquired.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company, NE LP and NE LLC shall not, directly or indirectly,
create, incur, issue, assume, guarantee, otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness, other than Permitted Indebtedness, and shall not issue any
Disqualified Stock, unless (a) such Indebtedness will be pari passu with or
subordinated to the Note and the Bonds, (b) the proceeds of such incurrence or
issuance are used to make equity contributions to either or both of NEA or NJEA,
(c) the proceeds of such incurrence or issuance are used to finance the
completion of Required Improvements or capital expenditures for the Projects
other than Required Improvements, (d) if the proceeds of such Indebtedness are
used to finance the completion of Required Improvements (as defined in the
Project Indenture as in effect on the date of the Indenture), (i) the Projected
Debt Service Coverage Ratio (determined on a pro forma basis giving effect to
the incurrence and the application of the net proceeds therefrom and the
construction of the Required Improvements) measured on each remaining
semi-annual payment date in respect of the Bonds is at least 1.2 to 1 and (ii)
an independent engineer acceptable to the Trustee (which may, absent any
conflict or the objection of the Trustee, be the Independent Engineer with
respect to the Project Securities) certifies that the Improvements are Required
Improvements (as defined in the Project Indenture as in effect on the date of
the Indenture) and that there will be sufficient funds available to construct
the Required Improvements after the incurrence and (e) if the proceeds of such
Indebtedness are used to finance capital expenditures for the Projects other
than Required Improvements, (i) the Projected Debt Service Coverage Ratio
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(determined on a pro forma basis giving effect to the incurrence and the
application of the net proceeds therefrom and the proposed capital expenditures)
measured on each remaining semi-annual payment date of the Bonds is at least 2
to 1 and the average of such Projected Debt Service Coverage Ratios is at least
3 to 1 and (ii) Moody's and S&P confirm that the then current ratings of the
Bonds will not be lowered as a result of such incurrence. "Permitted
Indebtedness" means subordinated loans or reimbursement obligations owing to a
Sponsor or any Affiliate thereof (i) which can only be repaid to the extent
Restricted Payments can be made, (ii) in respect of which remedies cannot be
exercised by such Sponsor or Affiliate so long as the Bonds are outstanding,
(iii) incurred at a time when the minimum Projected Debt Service Coverage Ratio
(assuming, for purposes of such calculation, that scheduled debt service
payments in respect of Permitted Indebtedness that is subordinate in right of
payment to the Bonds, the Note and the Bond Guaranty is included in clause (ii)
of the definition of "Projected Debt Service Coverage Ratio") on each
semi-annual payment date of the Bonds is at least 1.5 to 1 (provided that the
incurrence of reimbursement obligations subordinated to the Bonds of NE LP to
the issuers of Acceptable Credit Support under the Indenture and in respect of
Guarantees issued by FPL Group Capital and/or Backup Letters of Credit and
Substitute Letters of Credit (as defined in the Project Indenture) pursuant to
the Project Indenture shall not be subject to such Projected Debt Service
Coverage Ratio test) or Moody's and S&P confirm that the then current ratings of
the Bonds will not be lowered as a result of such incurrence and (iv) the
proceeds of which are used to make equity contributions to either NEA or NJEA.
For purposes of determining compliance with this Section 4.09, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (i) through (iv) above
or is entitled to be incurred pursuant to the first paragraph of this Section
4.09, the Company, NE LP and NE LLC shall each, in its sole discretion, classify
such item of Indebtedness in any manner that complies with this Section 4.09.
Accrual of interest shall not be deemed to be an incurrence of Indebtedness for
purposes of this Section 4.09.
SECTION 4.10. LIMITATIONS ON PROJECT INDEBTEDNESS
Notwithstanding the terms of the Project Indenture, NE LP and NE LLC
shall not permit ESI Tractebel Funding Corp. or the Partnerships to create,
issue, incur, assume, guarantee, otherwise become liable for or suffer to exist
any Debt (as defined in the Project Indenture as in effect on the date of the
Indenture) to finance the construction of Required Improvements unless, after
giving effect to the incurrence of such Debt and the application of the proceeds
thereof, the Projected Debt Service Coverage Ratio for the 12-month period
beginning on the date of such incurrence and for each succeeding 12-month period
thereafter through the final maturity of the Bonds is at least 1.2 to 1.
In addition, notwithstanding the terms of the Project Indenture, NE LP
and NE LLC shall not permit ESI Tractebel Funding Corp. or the Partnerships to
create, issue, incur, assume, guarantee, otherwise become liable for or suffer
to exist any Debt (as defined in the Project Indenture as in effect on the date
of the Indenture), other than Debt to finance the construction of Required
Improvements, unless after giving effect to the incurrence of such Debt and the
application of the proceeds thereof, (i) the Projected Debt Service Coverage
41
Ratio measured on each remaining semi-annual payment date of the Bonds is at
least 2 to 1 and (ii) the average of such Projected Debt Service Coverage Ratios
is at least 3 to 1.
Finally, NE LP and NE LLC shall not permit ESI Tractebel Funding Corp.
or the Partnerships to create, incur, assume, guarantee, otherwise become liable
for or suffer to exist any Indebtedness, Guarantees or indemnity obligations
following the repayment, prepayment or defeasance of all of the Project
Securities or the termination or expiration of the Project Indenture, other than
in accordance with one of the two preceding paragraphs.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company, NE LP and NE LLC shall not make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or Guarantee
with, or for the benefit of, any Affiliate thereof (each of the foregoing, an
"Affiliate Transaction"), unless such Affiliate Transaction is on terms that are
no less favorable to the Company, NE LP or NE LLC (as the case may be) than
those that would have been obtained in a comparable transaction by the Company,
NE LP or NE LLC with an unrelated Person. Notwithstanding the foregoing, the
following shall not be deemed to be Affiliate Transactions: (i) transactions
between or among the Company, NE LP, NE LLC or any of their Affiliates
contemplated by any agreement entered into prior to the date of the Indenture;
(ii) payments of reasonable directors' fees to Persons who are not otherwise
Affiliates of the Company, NE LP or NE LLC; and (iii) Restricted Payments that
are permitted under Section 4.07 hereof.
SECTION 4.12. LIENS.
The Company, NE LP and NE LLC shall not, directly or indirectly create,
incur, assume or otherwise cause or suffer to exist or become effective any Lien
on any of their assets or properties now owned or hereafter acquired, or any
income or profits therefrom, or assign or convey any right to receive income
therefrom, except for Permitted Liens.
SECTION 4.13. BUSINESS ACTIVITIES.
(a) The Company shall not engage in any business other than the
issuance of the Bonds and the incurrence of the other Indebtedness permitted by
the Indenture to be incurred by the Company and (b) NE LP and NE LLC shall not
engage in any business other than holding, directly or indirectly, the partner
interests of NEA and NJEA, and, with respect to NE LP, acting as general partner
of NEA and NJEA, and the issuance of the Note and the Bond Guaranty and the
incurrence of the other Indebtedness permitted by the Indenture to be incurred
by NE LP and NE LLC.
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SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company, NE LP and NE LLC shall each
do or cause to be done all things necessary to preserve and keep in full force
and effect (i) its corporate or partnership existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Company, NE LP and NE LLC or any such Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and their
Subsidiaries; provided, however, that the Company, NE LP and NE LLC shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company, NE LP and NE LLC and their
respective Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Bonds.
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control (which shall not
occur if Moody's and S&P confirm that the then existing ratings of the Bonds
will not be lowered as a result of any of the events that, in the absence of
such confirmed rating, would constitute a Change of Control), the Company shall
offer to each Holder to repurchase all or any part (equal to $100,000 or an
integral multiple of $1,000 in excess thereof) of such Holder's Bonds pursuant
to the offer described below (the "Change of Control Offer") at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Registration Default Damages thereon, if any, to the date of
purchase (the "Change of Control Payment"). Within ten days following any Change
of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Bonds on the date specified in such notice, which date shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date"), pursuant to the procedures
required by the Indenture and described in such notice. The Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Bonds as a
result of a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (1) accept for payment all Bonds or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Bonds
or portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Bonds so accepted together with an Officer's Certificate stating the
aggregate principal amount of Bonds or portions thereof purchased by the
Company. The Paying Agent shall promptly pay to each Holder that has so tendered
Bonds the Change of Control Payment for such Bonds, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Bond equal in principal amount to any unpurchased portion of
the Bonds surrendered, if any; provided that each such new Bond shall be in a
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principal amount of $100,000 or an integral multiple of $1,000 in excess
thereof. The Company shall announce publicly the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
(c) Notwithstanding anything to the contrary in this Section 4.15,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.15 hereof, and purchases all Bonds validly tendered and not
withdrawn under such Change of Control Offer.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of NE LP, NE LLC, NEA or NJEA to any "person" or
"group" (as each such term is used in Section 13(d)(3) and 14(d)(2) of the
Exchange Act) other than the Sponsors or their Related Parties; (ii) the
adoption of a plan relating to the liquidation or dissolution of NE LP, NE LLC,
NEA or NJEA (other than as permitted by the Indenture); (iii) the consummation
of any transaction or series of related transactions (including, without
limitation, any merger or consolidation) the result of which is that any person
or group (as defined above), other than the Sponsors and their Related Parties,
becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and Rule
13d-5 under the Exchange Act, except that a person or group shall be deemed to
have "beneficial ownership" of all securities that such person or group has the
right to acquire, whether such right is currently exercisable or is exercisable
only upon the occurrence of a subsequent condition), directly or indirectly, of
more than 50% of the voting power of any general partner of NE LP, NEA or NJEA
or of the voting power of the managing member of NE LLC by way of merger or
consolidation or otherwise other than a transaction involving an acquisition of
FPL Group or Tractebel S.A., (iv) the consummation of any transaction or series
of related transactions the result of which is that any person or group (as
defined above) owns, directly or indirectly, more of the economic and voting
interest of the Sponsors, NE LP, NE LLC, NEA or NJEA or of the voting power of
the managing member of NE LLC than do FPL Group and Tractebel S.A.; or (v) the
consummation of any transaction or series of related transactions the result of
which is that any person or group (as defined above) other than the Sponsors and
the Related Parties owns, directly or indirectly, more of the voting power of
any general partner of NE LP, NEA or NJEA than do the Sponsors and their Related
Parties; provided that, notwithstanding the foregoing, a Change of Control shall
not occur if Moody's and S&P confirm that the then existing ratings of the Bonds
will not be lowered as a result of any of the foregoing events.
If any of the events described in clauses (i) through (v) of the
definition of "Change of Control" occurs, but the Company is not required to
offer to purchase the Bonds because Moody's and S&P confirm that the then
existing rating of the Bonds will not be lowered as a result of such event, then
immediately after such event, the definitions of "Sponsor" and "Related Parties"
set forth above shall be amended by supplemental indenture (without the consent
of the Holders of the Bonds) to mean the entity or entities that Moody's and S&P
relied upon, if any, in confirming the then existing ratings of the Bonds.
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SECTION 4.16. NO SENIOR SUBORDINATED DEBT.
Notwithstanding the provisions of Section 4.09 hereof, none of the
Company, NE LP or NE LLC shall, nor shall any such party permit any of its
Subsidiaries or Affiliates to, create, issue, incur, assume, guarantee,
otherwise become liable for or suffer to exist any Indebtedness that is
subordinated or junior in right of payment to the Project Indebtedness and
senior in any respect in right of payment to the Bonds, the Note or the Bond
Guaranty (other than Indebtedness expressly permitted to be incurred by the
Project Indenture and the Indenture).
SECTION 4.17. AMENDMENTS TO, AND ASSIGNMENTS OF, PROJECT DOCUMENTS.
The Company, NE LP and NE LLC shall not permit or suffer NEA or NJEA
(a) to waive a right under, or modify, terminate or amend, any material
governmental consent, any material term of any Project Document (as defined in
the Project Indenture as in effect on the date of the Indenture), other than any
Power Purchase Agreement, or any material term of the Project Indenture unless
such waiver, modification, termination or amendment could not reasonably be
expected to have a material adverse effect on the Company, NE LP, NE LLC or the
Holders of the Bonds or (b) to assign any of its rights under any of the Project
Documents (as defined in the Project Indenture as in effect on the date of the
Indenture) other than as permitted by the Indenture or the Project Indenture.
The Company, NE LP and NE LLC shall not permit or suffer NEA or NJEA to waive a
right under, or modify, terminate or amend, any material term of any Power
Purchase Agreement unless (i) NE LP delivers to the Trustee a certificate, in
form and substance reasonably satisfactory to the Trustee, of an independent
engineer acceptable to the Trustee (which may, absent any conflict or the
objection of the Trustee, be the Independent Engineer with respect to the
Project Securities), certifying that such waiver, modification, termination or
amendment could not reasonably be expected to have a material adverse effect on
the Company, NE LP, NE LLC or the Holders of the Bonds and (ii) Moody's and S&P
confirm that the then existing ratings of the Bonds will not be lowered as a
result of such waiver, modification, termination or amendment.
SECTION 4.18. COMPLIANCE.
Each of the Company, NE LP and NE LLC shall at all times obtain,
maintain and comply in all material respects with all material governmental
consents and all applicable laws. NE LP shall at all times, in its capacity as
general partner of NEA and NJEA, cause NEA and NJEA to comply with all material
terms and provisions of the Project Indenture (as in effect as of the date of
the Indenture), unless the failure to comply could not reasonably be expected to
have a material adverse effect on the Company, NE LP, NE LLC or the Holders of
the Bonds. Notwithstanding the expiration or termination of the Project
Indenture (whether at the stated maturity of the last to mature of the Project
Securities or otherwise) or the exercise by holders of the Project Securities of
their rights with respect to satisfaction and discharge of the Project
Indenture, legal or covenant defeasance or any other prepayment of the Project
45
Securities permitted or required by the Project Indenture, NE LP shall, in its
capacity as general partner of NEA and NJEA, cause NEA and NJEA to comply with
the covenants and provisions contained in Sections 7.2, 7.3, 7.4, 7.5, 7.12,
7.13, 7.14, 7.16, 7.20, 7.21 and 7.25 of the Project Indenture, as if such
covenants and provisions were still in full force and effect (which covenants
and provisions relate to such matters as the maintenance of existence of the
Partnerships, the maintenance of rights necessary to conduct the business of the
Partnerships, the operation and maintenance of the Projects, compliance with the
formation documents of the Partnerships, the maintenance of governmental
approvals, compliance with laws, the maintenance of insurance, the payment of
taxes, the incurrence of liens and guaranties, the prohibition on certain
dispositions of assets, the nature of business conducted by the partnerships,
employee benefit plans, certain transactions with affiliates, the making of
investments and the maintenance of QF status by the Partnerships.)
SECTION 4.19. MAINTAINING RIGHTS UNDER PROJECT DOCUMENTS.
Subject to Sections 4.17 and 4.18 hereof, the Company, NE LP and NE LLC
shall take all actions necessary to cause NEA and NJEA to maintain and preserve
the material rights granted to NEA and NJEA pursuant to the Project Documents
and to comply therewith unless the failure to maintain and preserve such rights
could not reasonably be expected to have a material adverse effect on the
Company, NE LP, NE LLC or the Holders of the Bonds.
SECTION 4.20. PARTNERSHIP DISTRIBUTIONS.
NE LP shall, in its capacity as general partner of NEA and NJEA, cause
NEA and NJEA to distribute to NE LP and NE LLC all amounts released to NEA and
NJEA or permitted to be withdrawn by NEA or NJEA from the Partnership
Distribution Fund (as defined in the Project Indenture as in effect on the date
of the Indenture) or any subfund thereof in accordance with the Project
Indenture, and; following the expiration or termination of the Project
Indenture, shall in its capacity as general partner of NEA and NJEA, cause NEA
and NJEA to distribute to NE LP and NE LLC all amounts available for
distribution in accordance with the Project Indenture.
SECTION 4.21. LIMITATION ON ISSUANCES OF GUARANTEES AND INDEMNITIES.
The Company, NE LP and NE LLC shall not directly or indirectly, incur
or have outstanding any Guarantees or indemnities or assume any other suretyship
obligations, except, (a) the Bond Guaranty, (b) Guarantees arising in the
ordinary course of business not to exceed $250,000 in the aggregate at any one
time outstanding and (c) indemnities or reimbursement obligations with respect
to any Acceptable Credit Support or otherwise, so long as such indemnities or
reimbursement obligations are payable only to the extent Restricted Payments can
be made and the party in respect of whom such indemnities or reimbursement
obligations run in favor waives its rights to exercise remedies in respect
thereof so long as the Bonds are outstanding.
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SECTION 4.22. LIMITATIONS ON LOANS AND ADVANCES.
The Company, NE LP and NE LLC shall not, directly or indirectly, make
any loans or advances to, or acquire any stock, obligations or securities of,
any Person, except in connection with the incurrence of Permitted Indebtedness.
SECTION 4.23. PAYMENTS FOR CONSENT.
The Company, NE LP and NE LLC shall not, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder of any Bonds for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of the Indenture or the
Bonds unless such consideration is offered to be paid or is paid to all Holders
of the Bonds that consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or agreement.
SECTION 4.24. ADDITIONAL BOND GUARANTEES.
If the Company, NE LP, NE LLC or any of their respective Subsidiaries
shall acquire or create another Subsidiary after the date of this Indenture,
then such newly acquired or created Subsidiary shall become a Guarantor by
executing a Supplemental Indenture in the form attached hereto as Exhibit F and
deliver an Opinion of Counsel to the Trustee to the effect that such
Supplemental Indenture has been duly authorized, executed and delivered by such
Subsidiary and constitutes a valid and binding obligation of such Subsidiary,
enforceable against such Subsidiary in accordance with its terms (subject to
customary exceptions).
SECTION 4.25. REGULATORY LIMITATIONS.
Neither the Company nor NE LP shall, nor shall NE LP permit either
Partnership to, take or omit to take any action, or permit any person to take or
omit to take any action, which action or omission could foreseeably result in:
(i) either of the Projects ceasing to be a Qualifying Facility; except as
permitted by the Project Indemnity, (ii) the Company, NE LP or the Partnerships
becoming: (A) subject to regulation under Part II or the Federal Power Act,
except for Sections 202(c), 210, 211, 212, 213, 214 and 305(c) of the Federal
Power Act and the enforcement provisions of Part III of the Federal Power Act
relating thereto, (B) an "electric utility company" for purposes of the Holding
Company Act, (C) subject to state laws or regulations respecting the rates of
electric utilities or state laws or regulations respecting the financial and
organizational regulation of electric utilities (except for state laws or
regulations implementing Subpart C of 18 C.F.R. Part 292) or (D) subject to
state regulation as a provider of thermal energy under applicable state laws
and/or regulations; or (iii) any Holder of the Bonds, the Trustee or the
Collateral Agent becoming (A) "primarily engaged in the generation or sale of
electric power (other than electric power solely from cogeneration facilities or
small power production facilities)", pursuant to FERC's PURPA regulations, (B)
an "electric utility" or an "electric utility holding company" or a wholly or
partially-owned, direct or indirect, subsidiary of an "electric utility" or
47
"electric utility holding company" pursuant to the Holding Company Act, or (C)
subject to regulation under applicable state laws and/or regulations as
state-regulated provider of utility services.
In addition, NE LP shall not permit any Partnership to sell any
electricity generated by the Project to any retail end-user (i.e., industrial,
commercial or residential electric customers) unless applicable law permits such
sales without jeopardizing either Project's Exempt Wholesale Generator status;
provided that any failure to maintain Exempt Wholesale Generator status presents
a material risk to either Project.
SECTION 4.26. LIMITATIONS ON INVESTMENTS.
The Company, NE LP and NE LLC may not make any investment other than
Permitted Investments.
SECTION 4.27. AUDITOR.
The Company and NE LP shall appoint and maintain an internationally
recognized auditor.
SECTION 4.28. USE OF PROCEEDS.
The Company, NE LP and NE LLC shall use the net proceeds of the
Offering (and the net proceeds of the Bond Loan), after deducting fees and
expenses, to reimburse certain of the Sponsors' subsidiaries for a portion of
the original $533 million equity contribution that was used to finance the cost
of the Acquisitions.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
None of the Company, NE LP, NE LLC, NEA or NJEA shall consolidate or
merge with or into (whether or not such entity is the surviving entity) or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets or all or any of the partner interests of NEA or
NJEA in on or more related transactions to any Person unless (a) such
consolidation, merger, sale, assignment, lease, conveyance or other disposition
(i) does not constitute a change of control or (ii) constitutes a Change of
Control and a Change of Control Offer is made pursuant to Section 4.15 hereof,
(b)(i) the Company, NE LP or NE LLC (as the case may be) is the surviving entity
or the Person formed by or surviving any such consolidation or merger (if other
than the Company, NE LP or NE LLC as the case may be) or the entity to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made (1) is a corporation or a partnership organized or existing under
the laws of the United States, any state thereof or the District of Columbia and
(2) assumes all of the Obligations of the Company, NE LP or NE LLC (as the case
may be) under the Note, the Bonds, the Indenture, the Bond Guaranty, the Company
and Partner Pledge Agreement and the Registration Rights Agreement, (c)
immediately after giving effect to such transaction, no Default or Event of
48
Default exists, (d) Moody's and S&P confirm that the then current ratings of the
Bonds will not be lowered as a result thereof and (e) the Company, NE LP and NE
LLC would be permitted under Section 4.09 to incur one dollar of Indebtedness
the proceeds of which would be used to finance capital expenditures other than
Required improvements for NEA and/or NJEA.
The Company, NE LP and NE LLC, as the case may be, shall deliver to the
Trustee an Officer's Certificate (attaching the arithmetic computations to
demonstrate compliance with clause (e) above) and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such supplemental
indenture complies with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with;
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company, NE LP or NE LLC in accordance with Section 5.01 hereof, the
successor entity formed by such consolidation or into or with which the Company,
NE LP or NE LLC is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted for
(so that from and after the date of such entity, merger, sale, lease, conveyance
or other disposition, the provisions of this Indenture referring to the
"Company," "NE LP" or "NE LLC", as the case may be, shall refer instead to the
successor entity and not to the Company, NE LP or NE LLC, as the case may be,
and may exercise every right and power of the Company, NE LP or NE LLC, as the
case may be, under this Indenture with the same effect as if such successor
Person had been named as the Company, NE LP or NE LLC, as the case may be,
herein; provided, however, that the predecessor Company shall not be relieved
from the obligation to pay the principal of and interest on the Bonds except in
the case of a sale of all of the Company's assets that meets the requirements of
Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(a) the Company or NE LP, as applicable, defaults in the payment
of principal of or premium, if any, on the Bonds or the Note when the same
becomes due and payable at maturity, upon redemption (including in connection
with an offer to purchase) or otherwise and such default continues for a period
of 15 days;
(b) the Company or NE LP, as applicable, defaults in the payment
when due of interest on or Registration Default Damages, if any, with respect to
the Bonds or the Note and such default continues for a period of 15 days;
49
(c) the Company, NE LP or NE LLC fails to comply with any of the
provisions of Section 4.07, 4.09, 4.15 or 5.01 hereof;
(d) the Company, NE LP or NE LLC fails to observe or perform any other
covenant, representation, warranty or other agreement in this Indenture, the
Bonds or any of the Collateral Documents to which it is a party for 60 days
after notice to the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Bonds then outstanding voting as a single
class;
(e) the Company, NE LP or NE LLC defaults in the payment when due
(after giving effect to any applicable grace periods) of any principal of or
premium, if any, or interest on any Indebtedness (other than the Bonds or the
Note) the principal amount of which exceeds $3 million in the aggregate;
(f) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the Company,
NE LP or NE LLC and such judgment or judgments remain unpaid or undischarged for
a period (during which execution shall not be effectively stayed) of 60 days,
provided that the aggregate of all such undischarged judgments exceeds $3
million;
(g) Any of the material provisions of the Collateral Documents
shall be held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any lien granted thereby
or the priority thereof ceases or fails for any reason to be in full force and
effect (and such unenforceable provisions or cessation or failure of a lien is
not cured within 10 days after the Company, NE LP or NE LLC has obtained
knowledge thereof);
(h) the Company, NE LP or NE LLC pursuant to or within the meaning
of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company, NE LP or NE LLC in an
involuntary case;
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(ii) appoints a custodian of the Company, NE LP or NE LLC or for
all or substantially all of the property of the Company, NE LP or NE
LLC; or
(iii) orders the liquidation of the Company, NE LP or NE LLC;
and the order or decree remains unstayed and in effect for 60
consecutive days;
(j) Any limited partnership or limited liability company agreement
of NE LP or NE LLC as amended from time to time ceases to be valid and binding
and in full force and effect in all material respects;
(k) Any default by a counterparty under any of the Material
Project Agreements occurs (as defined in the Project Indenture as in effect on
the date of the Indenture) that would likely have a material adverse effect on
the Company, NE LP or NE LLC or the Holders of the Bonds and such default is not
cured within 180 days (or 360 days if the applicable Partnership has promptly
commenced and is diligently using its best efforts to cure such default);
(l) An "Event of Default" (as defined in the Project Indenture as
in effect on the date of the Indenture) occurs other than as a result of the
breach of an immaterial covenant; and
(m) the maturity date of the Project Securities are accelerated.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clause (h) or (i) of Section 6.01 hereof with respect to the Company NE LP or NE
LLC), occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Bonds may declare by written
notice to the Company the principal amount of all the Bonds then outstanding to
be due and payable immediately. Upon any such declaration, the Bonds shall
become due and payable immediately. Notwithstanding the foregoing, if an Event
of Default specified in clause (h) or (i) of Section 6.01 hereof occurs with
respect to the Company, NE LP or NE LLC, the principal amount of all outstanding
Bonds shall be due and payable immediately without further action or notice. The
Holders of the Bonds may not enforce the Indenture or the Bonds except as
provided in the Indenture. Subject to Section 6.05 and 7.02(f), Holders of a
majority in principal amount of the then outstanding Bonds may direct the
Trustee in its exercise of any trust or power. The Holders of not less than a
majority in aggregate principal amount of the then outstanding Bonds by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences under the Indenture if the recission would not
conflict with any judgment or decree and if all existing Events of Default
(except a continuing Default or Event of Default in the payment of principal,
interest or premium, if any, on the Bonds that has become due solely because of
the acceleration) have been cured or waived.
If an Event of Default occurs on or after June 30, 2008 by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
51
would have had to pay if the Company then had elected to redeem the Bonds
pursuant to Section 3.07 hereof, then, upon acceleration of the Bonds, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Bonds to the
contrary notwithstanding. If an Event of Default occurs prior to June 30, 2008
by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on optional
redemption of the Bonds prior to such date, then, upon acceleration of the
Bonds, the Make Whole Premium shall also become and be immediately due and
payable to the extent permitted by law.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Bonds, the Note and the Bond Guaranty or to enforce the
performance of any provision of the Bonds or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Bonds or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Bond in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Bonds by written notice to the Trustee may on behalf of all
of the Holders waive an existing Default or Event of Default and its
consequences under the Indenture, except a continuing Default or Event of
Default in the payment of the principal of, premium and Registration Default
Damages, if any, or interest on, the Bonds (including in connection with an
offer to purchase); provided, however, that the Holders of not less than a
majority in aggregate principal amount of the then outstanding Bonds by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences under the Indenture, including any related
payment default that resulted from such acceleration. 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 subsequent or other Default or impair any right
consequent thereon or affect any rights of the Trustee to collect amounts due to
it pursuant to Section 7.07 hereof.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in aggregate principal amount of the then
outstanding Bonds may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
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determines may be unduly prejudicial to the rights of other Holders of Bonds or
that may involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Bond may pursue a remedy with respect to this Indenture
or the Bonds only if:
(a) the Holder of a Bond gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Bonds make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Bond or Holders of Bonds offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Bonds do not give the Trustee a direction
inconsistent with the request.
A Holder of a Bond may not use this Indenture to prejudice the rights
of another Holder of a Bond or to obtain a preference or priority over another
Holder of a Bond.
SECTION 6.07. RIGHTS OF HOLDERS OF BONDS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Bond to receive payment of principal, premium and Registration
Default Damages, if any, and interest on the Bond, on or after the respective
due dates expressed in the Bond (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium and Registration Default Damages, if any, and interest
remaining unpaid on the Bonds and the Note and interest on overdue principal
and, to the extent lawful, interest and 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.
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SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents and take such other actions as it may deem necessary or advisable
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders of the Bonds allowed in any judicial proceedings
relative to the Company, NE LP or NE LLC (or any other obligor upon the Bonds),
its creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims, and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 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
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Bonds or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Bonds for amounts due and unpaid on the Bonds for
principal, premium and Registration Default Damages, if any, and interest,
ratably (based on the principal amount of Bonds deemed hereunder to be
outstanding at the time of distribution), without preference or priority of any
kind, according to the amounts due and payable on the Bonds for principal,
premium and Registration Default Damages, if any and interest, respectively;
Third: to the ratable payment of all other Obligations under this
Indenture, until all Obligations shall have been paid in full; and
Fourth: to or at the direction of NE LP or to such party as a court of
competent jurisdiction shall direct.
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The Trustee may fix a record date and payment date for any payment to
Holders of Bonds pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Bond pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Bonds.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs provided that the Trustee shall be entitled to presume conclusively
that no premium or Make Whole Premium is due pursuant to the last paragraph of
Section 6.02 unless it receives evidence which in its reasonable opinion, it
believes establishes that such additional amount is due.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
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(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
provided that the Trustee shall not be deemed to know of any Default or any fact
or occurrence upon the happening of which it might be required to take action
unless one of its Responsible Officers has actual knowledge thereof or it has
received written notice thereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both or a
certificate or opinion of an independent engineer recognized as an expert in its
field or of internationally recognized independent accountant. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel or such certificate or
opinion of an independent engineer or of independent accountant. With respect to
the amount of Registration Default Damages owed at any time, the Trustee may
rely upon written notification from the Purchaser. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it thereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
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(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) 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 investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(h) any permissive right or power available to the Trustee under this
Indenture or any supplement hereto shall not be construed to be a mandatory duty
or obligation;
(i) the Trustee shall have no liability for any inaccuracy in the
books or records of, or for any actions or omissions of, DTC, Euroclear or CEDEL
or any other Depository or Participant.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledge of Bonds and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that, after the occurrence of an Event of
Default, the Trustee has or acquires any conflicting interest as determined in
Section 310(b) of the TIA it must eliminate such conflict within 90 days, apply
to the SEC for permission to continue as trustee or resign. Any Agent may do the
same with like rights and duties. The Trustee is also subject to Sections 7.10
and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Bonds, it shall not be
accountable for the Company's use of the proceeds from the Bonds or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Bonds or
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any other document in connection with the sale of the Bonds or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Bonds a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Bond, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Bonds.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE BONDS.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Bonds remain outstanding, the
Trustee shall mail to the Holders of the Bonds a brief report dated as of such
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Bonds shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Bonds are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Bonds are listed on any stock
exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
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Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Bonds on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Bonds. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Bonds of a
majority in principal amount of the then outstanding Bonds may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Bonds may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Bonds of at least 10% in principal amount of the then outstanding
Bonds may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Bond who has
been a Holder of a Bond for at least six months, fails to comply with Section
7.10, such Holder of a Bond may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Bonds. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
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SECTION 7.12. RIGHTS AND INDEMNITIES OF COLLATERAL AGENT.
The rights, protections and indemnities provided to the Trustee herein
shall also be provided, and apply, to State Street Bank and Trust Company, as
Collateral Agent.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Bonds upon
compliance with the conditions set forth below in this Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Bonds on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Bonds, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Bonds and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Bonds to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest on and Registration Default
Damages, if any, with respect to such Bonds when such payments are due, (b) the
Company's obligations with respect to such Bonds under Article 2 and Section
4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
this Article Eight. Subject to compliance with this Article Eight, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.10, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23,
4.24, 4.25, 4.26, 4.27, and 4.28 hereof with respect to the outstanding Bonds on
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and after the date the conditions set forth in Section 8.04 are satisfied
(hereinafter, "Covenant Defeasance"), and the Bonds shall thereafter be deemed
not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Bonds shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Bonds, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Bonds shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(c) through
6.01(f) hereof shall not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Bonds:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium and Registration Default Damages,
if any, and interest on the outstanding Bonds on the stated maturity date for
payment thereof or on the applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Bonds will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Bonds will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to federal
62
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Bonds pursuant to this Article Eight
concurrently with such incurrence) or insofar as Sections 6.01(h) or 6.01(i)
hereof is concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be subject to customary exceptions) to the effect that on the
91st day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Bonds
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Bonds and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Bonds of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law or by Section 2.04 and Article X hereof.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
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interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Bonds.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Bond and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its written request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Bond shall
thereafter, as a secured creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Bonds
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Bond following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Bonds to receive such payment from the money held by the
Trustee or Paying Agent.
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF BONDS.
Notwithstanding Section 9.02 of this Indenture, the Company, NE LP, NE
LLC and the Trustee may amend or supplement this Indenture and the other
Financing Agreements (other than the Pledge Agreements, which may be amended by
the parties thereto for the purposes that follow) or the Bonds without the
consent of any Holder of a Bond:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Bonds in addition to or in place
of certificated Bonds or to alter the provisions of Article 2 hereof (including
the related definitions) in a manner that does not materially adversely affect
any Holder;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Bonds by a successor to the Company pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Bonds or that does not adversely affect the legal
rights hereunder of any Holder of the Bond; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company, NE LP and NE LLC in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF BONDS.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture (including Section 4.15 hereof),
and the other Financing Agreements and the Bonds may be amended or supplemented,
and with the consent of the Holders of at least a majority in principal amount
of the Bonds then outstanding voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Bonds), and, subject to Sections 6.04 and 6.07 hereof, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on or Registration
Default Damages with respect to the Bonds, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision
of this Indenture, the other Financing Agreements or the Bonds may be waived
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with the consent of the Holders of a majority in principal amount of the then
outstanding Bonds voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Bonds).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Bonds as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Bonds under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Bonds affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Bonds then outstanding voting as a
single class may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Bonds. However, without the consent of
each Holder affected, an amendment or waiver under this Section 9.02 may not
(with respect to any Bonds held by a non-consenting Holder):
(a) reduce the principal amount of Bonds whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Bond or
alter or waive any of the provisions with respect to extraordinary or optional
redemption of the Bonds except as provided above with respect to Sections 4.15
hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Bond;
(d) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest or Registration Default Damages, if any, on the
Bonds (except a rescission of acceleration of the Bonds by the Holders of at
least a majority in aggregate principal amount of the then outstanding Bonds and
a waiver of the payment default that resulted from such acceleration);
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(e) make any Bond payable in money other than that stated in the Bonds;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Bonds to receive payments
of principal of or premium, if any, or interest or Registration Default Damages,
if any or Registration Default Damages, if any, on the Bonds;
(g) waive a redemption payment with respect to any Bond (other than a
payment required by Section 4.15 hereof;
(h) make a change in or waive the security provisions of any of the
Financing Agreements;
(i) make change in or waive the applicability of the Bond Guaranty; and
(j) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Bonds shall be
set forth in a amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Bond is a continuing consent by the Holder of a Bond and
every subsequent Holder of a Bond or portion of a Bond that evidences the same
debt as the consenting Holder's Bond, even if notation of the consent is not
made on any Bond. However, any such Holder of a Bond or subsequent Holder of a
Bond may revoke the consent as to its Bond if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF BONDS.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Bond thereafter authenticated. The Company in
exchange for all Bonds may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Bonds that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Bond shall not
affect the validity and effect of such amendment, supplement or waiver.
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
13.04 hereof, an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10.
ACCOUNTS AND REVENUES
SECTION 10.01. ESTABLISHMENT OF ACCOUNTS.
(a) The following Accounts are hereby established and created on behalf
of NE LP and NE LLC with the Trustee in the name of the Trustee and the
Collateral Agent:
(i) Revenues Account;
(ii) Debt Service Account;
(iii) Debt Service Reserve Account; and
(iv) Distribution Account.
(b) All Accounts are hereby pledged to the Trustee for its benefit, the
benefit of the Collateral Agent and the ratable benefit of the Holders of the
Bonds and shall be under the exclusive dominion and control of the Trustee and,
except as expressly provided herein, none of the Company, NE LP or NE LLC shall
have any right to withdraw funds from any Account. Each of NE LP and NE LLC
hereby irrevocably authorizes the Trustee to receive and deposit all Revenues
into an account designated the "Revenues Account" and to withdraw and transfer
funds from the Revenues Account on a monthly basis on the first Business Day of
each month (the "Transfer Date") in the order of priority set forth in Sections
10.02 hereof, in accordance with the terms of this Indenture.
SECTION 10.02. REVENUES ACCOUNT.
(a) Without limitation of any other amounts required under this
Indenture to be deposited in the Revenues Account, NE LP and NE LLC shall
deposit and/or cause to be deposited all Revenues with the Trustee in the
Revenues Account and in furtherance thereof NE LP, NE LLC and, if applicable,
the Company, shall instruct each Person from whom it receives or is entitled to
receive Revenues to pay such Revenues (identifying them as such) directly to the
Trustee for deposit in the Revenues Account, and the Trustee shall be entitled
to receive directly all Revenues from the Persons owing the same but except in
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its capacity as trustee under the Project Indenture shall have no obligation
otherwise with respect to the collection thereof. In the event that any Revenues
are remitted directly to, or otherwise received by, any of NE LP, NE LLC or the
Company, as the case may be, such Person shall hold such Revenues in trust for
the Trustee and shall promptly remit such Revenues, in the form received (with
any necessary endorsement) to the Trustee for deposit in the Revenues Account.
(b) On each Transfer Date, the Trustee shall make the following
transfers from funds then on deposit in the Revenues Account (after giving
effect to all transfers to be made to the Revenues Account on such date) in the
respective amounts, and in the order of priority, set forth below:
(i) first, to an account designated the "Debt Service
Account", into which shall be deposited an amount equal to the
difference between (i) the amount then on deposit therein and (ii) the
aggregate amount of principal, premium, if any, interest on and
Registration Default Damages, if any, scheduled to be paid in respect
of the Bonds on the next semi-annual payment date and any trustee,
registration or other administrative expenses, as certified by the
Company to the Trustee and not exceeding $10,000 in any semi-annual
period, due during the next six months. The Trustee shall apply the
funds on deposit in the Debt Service Account to make payments on the
Bonds when due and to pay up to $10,000 of trustee, registration or
other administrative expenses with respect to the Bonds when due.
(ii) second, to an account designated the "Debt Service
Reserve Account," into which shall be deposited an amount equal to the
difference between (i) the sum of the amount then on deposit therein
and the undrawn amount of any Acceptable Credit Support credited
thereto and (ii) the aggregate principal, premium, if any, interest on
and Registration Default Damages, if any, scheduled to be paid with
respect of the Bonds on the next semi-annual payment date (the
"Required DSRA Balance"). The Trustee shall apply the funds on deposit
in the Debt Service Reserve Account (including any amounts available to
be drawn under Acceptable Credit Support credited thereto after cash
then on deposit therein has been exhausted) to pay amounts due and
payable in respect of the Bonds to the extent that on a semi annual
payment date there are insufficient funds in the Debt Service Account
to do so; and
(iii) finally, any amount remaining in the Revenues Account
will be transferred to an account designated the "Distribution Account"
if and only if, at the time of and after giving effect to such transfer
and the deemed removal of funds from the Distribution Account pursuant
to Section 4.07:
(x) the Debt Service Account and Debt Service Reserve
Account are funded to their then required levels;
(y) no Default or Event of Default under the
Indenture has occurred and is continuing or would occur as a
consequence thereof; and
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(z) the Debt Service Coverage Ratio and the Projected
Debt Service Coverage Ratio equal or exceed 1.4 to 1, provided
that, in calculating the Debt Service Coverage Ratio for
purposes of this clause (c) at any time prior to December 30,
1998, the Operating Revenues received and scheduled debt
service payment referred to in clauses (i) and (ii) of the
definition thereof shall be measured for the period of months
that has elapsed from the date of the Acquisitions to the date
of such calculations.
Notwithstanding the foregoing, no funds shall be permitted to be
transferred to the Distribution Account prior to June 30, 1998. Thereafter, on
any Transfer Date, promptly upon receipt by the Trustee of an Officer
Certificate and other documents required pursuant to Section 4.07, the Trustee
shall be authorized and directed to release moneys in the Distribution Account
to or at the direction of NE LP.
SECTION 10.03. ACCEPTABLE CREDIT SUPPORT.
(a) Provided that no Default or Event of Default has occurred and
is continuing and subject to clauses (b) and (c) below, the Company may in
writing, accompanied by the documents required by Section 13.04, request payment
to it of all or a portion of the cash deposited or required to be deposited in
the Debt Service Reserve Account upon the deposit of Acceptable Credit Support
in an equal amount. Upon such Deposit of Acceptable Credit Support and receipt
by the Trustee of such written request, the Trustee shall be authorized and
directed to release such replaced cash to or at the direction of NE LP.
(b) The Trustee shall be the beneficiary under any letter of
credit and under any Guarantee constituting Acceptable Credit Support, and any
Acceptable Credit Support shall allow drawings by the Trustee and the Trustee
shall draw upon such Acceptable Credit Support if it is not renewed at least 30
days prior to its expiration date or if the ratings of any guarantor or letter
of credit issuer fall below the required levels and alternative Acceptable
Credit Support or cash is not provided to the Trustee within 15 days thereafter.
If at any semi-annual interest payment date, the funds then on deposit in the
Debt Service Account are insufficient to cover the payments set forth in Section
10.02(b)(i) hereof, the Trustee shall apply the funds then on deposit in the
Revenues Account and, if still insufficient, the funds then on deposit in the
Debt Service Reserve Account as provided in Section 10.02(b)(ii) hereof and/or
if on any semi-annual interest payment date, the funds then on deposit in the
Debt Service Reserve Account are insufficient to cover the Required DSRA Balance
pursuant to Section 10.02(b)(ii) hereof, the Trustee is hereby authorized to
transfer the funds on deposit in the Revenues Account and, if still
insufficient, to draw upon such Acceptable Credit Support pro rata (if more than
one) or otherwise in accordance with the terms of such Acceptable Credit Support
(after cash then on deposit therein has been exhausted).
(c) The issuer of or account party to any letter of credit or
Guarantee shall have rights of subrogation against the Company, NE LP or NE LLC
so long as (a) the Obligations of the Company, NE LP and NE LLC in respect
thereof are subordinated to the repayment of the Bond Loan and the Bonds and are
payable only to the extent Restricted Payments can be made and (b) such issuer
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or account party waives its rights to exercise remedies in respect of such
Obligations so long as the Bonds are outstanding.
SECTION 10.04. INITIAL DEPOSIT OF CASH OR ACCEPTABLE CREDIT SUPPORT.
Prior to or at the date hereof and as a condition precedent to the
consummation of the transactions contemplated herein and in the other Financing
Agreements, cash or Acceptable Credit Support in an aggregate amount equal to
the first Required DSRA Balance shall be deposited in accordance with this
Article 10 into the Debt Service Reserve Account.
SECTION 10.05. THE ACCOUNTS AS COLLATERAL; TRUSTEE AS COLLATERAL AGENT.
(a) NE LP and NE LLC each hereby pledges and grants to the Trustee
as Collateral Agent for its benefit (as Trustee and Collateral Agent) and for
the ratable benefit of the Holders of Bonds, a continuing first priority
security interest in all of its right, title and interest in the Accounts and in
all funds deposited therein and all Permitted Investments credited thereto. The
foregoing security interest secures prompt and complete payment and performance
when due (whether at stated maturity, by acceleration or otherwise) of all
Obligations of (i) the Company under the Indenture and the Bonds, (ii) NE LP and
NE LLC under the Indenture and (iii) NE LP under the Note and the Bond Guaranty.
The Trustee is hereby authorized to invest the funds on deposit in the Accounts
in the Permitted Investments at the written request of and as directed by NE LP.
(b) If an Event of Default shall have occurred and be continuing,
then in addition to the remedies provided in Article Six hereof, the Collateral
Agent may (but shall be under no obligation to) exercise any and all rights and
remedies granted to a "secured party" under the Uniform Commercial Code of the
State of New York.
ARTICLE 11.
COLLATERAL AND SECURITY
SECTION 11.01. PLEDGE AGREEMENTS.
The due and punctual payment of the principal of and interest and
Registration Default Damages, if any, on the Bonds when and as the same shall be
due and payable, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of and interest and Registration Default Damages (to the extent
permitted by law), if any, on the Note and the Bonds and performance of all
other Obligations of the Company, NE LP and NE LLC to the Holders of Bonds or
the Trustee under this Indenture, the Note, the Bond Guaranty and the Bonds, as
applicable, according to the terms hereunder or thereunder, shall be secured as
provided in the Company and Partner Pledge Agreement which the Company, NE LP
and NE LLC have entered into and in the Sponsor Pledge Agreement which the
Sponsor Affiliates entered into simultaneously with the execution of this
Indenture and forms of which are attached as Exhibit G hereto. The Company and
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Partner Pledge Agreement and the Sponsor Pledge Agreement are collectively
referred to as the "Pledge Agreements" and each individually as a "Pledge
Agreement." Each Holder of Bonds, by its acceptance thereof, consents and agrees
to the terms of the Pledge Agreements (including, without limitation, the
provisions providing for foreclosure and release of Pledged Collateral) as the
same may be in effect or may be amended from time to time in accordance with
their terms and authorizes and directs the Collateral Agent to enter into the
Pledge Agreements and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Company, NE LP and NE LLC shall deliver
to the Trustee copies of all documents delivered to the Collateral Agent
pursuant to the Company and Partner Pledge Agreement and the Sponsor Pledge
Agreement, and shall do or cause to be done all such acts and things as may be
necessary or proper, or as may be reasonably required by the provisions of the
Company and Partner Pledge Agreement, or as may be reasonably requested by the
Trustee or Collateral Agent, to assure and confirm to the Trustee and the
Collateral Agent the security interest in the Pledged Collateral contemplated
hereby, by the Company and Partner Pledge Agreement, so as to render the same
available for the security and benefit of this Indenture, the Note, the Bond
Guaranty and of the Bonds secured hereby, according to the intent and purposes
herein expressed and to create and maintain, as security for the Obligations of
the Company, NE LP and NE LLC hereunder and under the Note, the Bond Guaranty
and the Bonds, as applicable, a valid and enforceable perfected first priority
(or, with respect to NE LP's one percent general partner interest in each
Partnership, second priority) Lien in and on all the Pledged Collateral in favor
of the Collateral Agent for its benefit, the benefit of the Trustee and the
ratable benefit of the Holders of the Bonds, superior to and prior to the rights
of all third Persons and subject to no other Liens than Permitted Liens.
SECTION 11.02. RECORDING AND OPINIONS.
(a) The Company, NE LP and NE LLC shall furnish to the Trustee
simultaneously with the execution and delivery of this Indenture an Opinion of
Counsel either (i) stating that in the opinion of such counsel all action has
been taken with respect to the recording, registering and filing of this
Indenture, financing statements or other instruments necessary to make effective
the Lien intended to be created by the Company and Partner Pledge Agreement and
the Sponsor Pledge Agreement, and reciting with respect to the security
interests in the Pledged Collateral, the details of such action, or (ii) stating
that, in the opinion of such counsel, no such action is necessary to make such
Lien effective.
(b) The Company, NE LP and NE LLC shall furnish to the Collateral
Agent and the Trustee on December 31 in each year beginning with December 31,
1998, an Opinion of Counsel, dated as of such date, either (i) (A) stating that,
in the opinion of such counsel, action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien of the
Company and Partner Pledge Agreement and the Sponsor Pledge Agreement and
reciting with respect to the security interests in the Pledged Collateral the
details of such action or referring to prior Opinions of Counsel in which such
details are given, (B) stating that, based on relevant laws as in effect on the
date of such Opinion of Counsel, all financing statements and continuation
statements have been executed and filed that are necessary as of such date and
during the succeeding 12 months fully to preserve and protect, to the extent
such protection and preservation are possible by filing, the rights of the
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Holders of Bonds and the Collateral Agent and the Trustee hereunder and under
the Company and Partner Pledge Agreement and the Sponsor Pledge Agreement with
respect to the security interests in the Pledged Collateral, or (ii) stating
that, in the opinion of such counsel, no such action is necessary to maintain
such Lien and assignment.
(c) The Company shall otherwise comply with the provisions of TIA
ss.314(b).
SECTION 11.03. RELEASE OF COLLATERAL.
(a) No Pledged Collateral shall be released from the Lien and security
interest created by the Pledge Agreements and pursuant to the provisions of each
such Pledge Agreement unless there shall have been delivered to the Trustee and
the Collateral Agent the certificate required by Section 11.04.
(b) At any time when a Default or Event of Default shall have
occurred and be continuing and the maturity of the Bonds shall have been
accelerated (whether by declaration or otherwise) and the Trustee shall have
delivered a notice of acceleration to the Collateral Agent, no release of
Pledged Collateral pursuant to the provisions of any Pledge Agreement shall be
effective as against the Holders of Bonds.
(c) The release of any Pledged Collateral from the terms of this
Indenture; the Company and Partner Pledge Agreement and the Sponsor Pledge
Agreement shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Pledged
Collateral is released pursuant to the terms of the Company and Partner Pledge
Agreement, the Sponsor Pledge Agreement and this Indenture. To the extent
applicable, the Company shall cause TIA ss. 313(b), relating to reports, and TIA
ss. 314(d), relating to the release of property or securities from the Lien and
security interest of the Company and Partner Pledge Agreement, the Sponsor
Pledge Agreement and this Indenture and relating to the substitution therefor of
any property or securities to be subjected to the Lien and security interest of
the Company and Partner Pledge Agreement, the Sponsor Pledge Agreement and this
Indenture, to be complied with. Any certificate or opinion required by TIA ss.
314(d) may be made by an Officer of the Company except in cases where TIA ss.
314(d) requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser, accountant or
other expert selected or approved by the Trustee and the Collateral Agent in the
exercise of reasonable care.
SECTION 11.04. CERTIFICATES OF THE COMPANY.
The Company, NE LP and NE LLC shall furnish to the Trustee and the
Collateral Agent, prior to each proposed release of the Pledged Collateral
pursuant to the Company and Partner Pledge Agreement or the Sponsor Pledge
Agreement, (i) all documents required by TIA ss. 314(d) and each such Pledge
Agreement and (ii) an Opinion of Counsel, which may be rendered by internal
counsel to the Company, NE LP and NE LLC, to the effect that such accompanying
documents constitute all documents required by TIA ss. 314(d). The Trustee may,
to the extent permitted by Sections 7.01 and 7.02 hereof, accept as conclusive
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evidence of compliance with the foregoing provisions the appropriate statements
contained in such documents and such Opinion of Counsel.
SECTION 11.05. CERTIFICATES OF THE TRUSTEE.
In the event that the Company wishes to release Pledged Collateral in
accordance with the Company and Partner Pledge Agreement and/or the Sponsor
Pledge Agreement and has delivered the certificates and documents required by
the Company and Partner Pledge Agreement and/or the Sponsor Pledge Agreement and
Sections 11.03 and 11.04 hereof, the Trustee shall determine whether it has
received all documentation required by TIA ss. 314(d) in connection with such
release and, based on such determination and the Opinion of Counsel delivered
pursuant to Section 11.04(b), shall deliver a certificate to the Collateral
Agent setting forth such determination.
SECTION 11.06. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
PLEDGE AGREEMENTS.
Subject to the provisions of Section 7.01 and 7.02 hereof, the Trustee
may in the case of an Event of Default, in its sole discretion and without the
consent of the Holders of Bonds (subject to Section 6.05), direct, on behalf of
the Holders of Bonds, the Collateral Agent to, take all actions it deems
necessary or appropriate in order to (a) enforce any of the terms of the Pledge
Agreements and (b) collect and receive any and all amounts payable in respect of
the Obligations of the Company, NE LP and NE LLC hereunder. The Trustee shall
have power to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Pledged Collateral by any acts that
may be unlawful or in violation of the Pledge Agreements or this Indenture, and
such suits and proceedings as the Trustee may deem expedient to preserve or
protect its interests and the interests of the Holders of Bonds in the Pledged
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of the Holders of Bonds or of the Trustee).
SECTION 11.07. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE PLEDGE
AGREEMENTS.
The Trustee is authorized and required to receive for the benefit of
the Holders of Bonds any funds distributed under the Pledge Agreements, and
shall deposit such funds in the Revenues Account to be administered as set forth
in Section 10.02 and make further distributions of such funds to the Holders of
Bonds according to the provisions of this Indenture.
74
SECTION 11.08. TERMINATION OF SECURITY INTEREST.
Upon the payment in full of all Obligations of (i) the Company under
this Indenture and the Bonds, (ii) of NE LP LLC under the Indenture and (iii) NE
LP under the Note and the Bond Guaranty, or upon Legal Defeasance, the Trustee
shall, at the request of the Company, deliver a certificate to the Collateral
Agent stating that such Obligations have been paid in full, and instruct the
Collateral Agent to release the Liens pursuant to this Indenture and the Pledge
Agreements.
ARTICLE 12.
BOND GUARANTY
SECTION 12.01. BOND GUARANTY.
Subject to this Article 12, NE LP hereby unconditionally guarantees to
each Holder of a Bond authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Bonds or the obligations of the Company
hereunder or thereunder, that: (a) the principal of, premium, if any, and
interest on and Registration Default Damages, if any, with respect to the Bonds
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Bonds, if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Bonds or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, NE LP shall
be obligated to pay the same immediately. NE LP agrees that this is a guarantee
of payment and not a guarantee of collection.
NE LP hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Bonds or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Bonds with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. NE LP hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Bond Guaranty shall not be discharged except by complete
performance of the obligations contained in the Bonds and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, NE LP, NE LLC or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company, NE LP or NE
75
LLC, any amount paid by either to the Trustee or such Holder, this Bond
Guaranty, to the extent theretofore discharged, shall be reinstated in full
force and effect.
NE LP agrees that it shall not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. NE LP further agrees that,
as between NE LP, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 hereof for the purposes of this Bond Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by NE LP for the purpose of this Bond Guaranty.
SECTION 12.02. LIMITATION ON GUARANTOR LIABILITY.
NE LP, and by its acceptance of Bonds, each Holder, hereby confirms
that it is the intention of all such parties that the Bond Guaranty of NE LP not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any Bond Guaranty.
To effectuate the foregoing intention, the Trustee, the Holders and NE LP hereby
irrevocably agree that the obligations of NE LP under its Bond Guaranty and this
Article 12 shall be limited to the maximum amount as will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of NE LP
that are relevant under such laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any other Guarantor, if any, in respect of the obligations of such other
Guarantor, if any, under this Article 12, result in the obligations of NE LP
under its Bond Guaranty not constituting a fraudulent transfer or conveyance.
SECTION 12.03. EXECUTION AND DELIVERY OF BOND GUARANTY.
To evidence its Bond Guaranty set forth in Section 12.01, NE LP hereby
agrees that a notation of such Bond Guaranty substantially in the form included
in Exhibit E shall be endorsed by an Officer of NE LP on each Bond authenticated
and delivered by the Trustee and that this Indenture shall be executed on behalf
of NE LP by its President or one of its Vice Presidents.
NE LP hereby agrees that its Bond Guaranty set forth in Section 12.01
shall remain in full force and effect notwithstanding any failure to endorse on
each Bond a notation of such Bond Guaranty.
If an Officer whose signature is on this Indenture or on the Bond
Guaranty no longer holds that office at the time the Trustee authenticates the
Bond on which a Bond Guaranty is endorsed, the Bond Guaranty shall be valid
nevertheless.
76
The delivery of any Bond by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Bond Guaranty set forth
in this Indenture on behalf of the NE LP.
In the event that the Company, NE LP or NE LLC creates or acquires any
new Subsidiaries subsequent to the date of this Indenture, if required by
Section 4.24 hereof, the Company, NE LP and NE LLC shall cause such Subsidiaries
to execute supplemental indentures to this Indenture and Bond Guaranty in
accordance with Section 4.24 hereof and this Article 12, to the extent
applicable.
SECTION 12.04. GUARANTOR'S MERGER, CONSOLIDATION, ETC.
NE LP may not, nor may any other future Guarantor, if any, consolidate
with or merge with or into (whether or not NE LP or such Guarantor is the
surviving Person) another Person whether or not affiliated with such Guarantor
except as expressly permitted under and subject to conditions set forth in
Section 5.01 hereof.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Bond
Guaranty endorsed upon the Bonds and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by NE LP and any
other future Guarantor, if any, such successor Person shall succeed to and be
substituted for NE LP and any other future Guarantor, if any, the with the same
effect as if it had been named herein as a Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Bond Guarantees to be
endorsed upon all of the Bonds issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Bond
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Bond Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Bond
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, nothing contained in
this Indenture or in any of the Bonds shall prevent any consolidation or merger
of NE LP or any other future Guarantor, if any, with or into the Company or NE
LP or any other future Guarantor, if any, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss. 318(c), the imposed duties shall control.
77
SECTION 13.02. NOTICES.
Any notice or communication by the Company, NE LP, NE LLC, the Trustee
or the Collateral Agent to the others is duly given if in writing and delivered
in Person or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others' address
If to the Company, NE LP and NE LLC:
ESI Tractebel Acquisition Corp.
Northeast Energy, LP
Northeast Energy, LLC
c/o ESI Energy, Inc.
11760 US Highway One
North Palm Beach, FL 33408
Telecopier No.: (561) 691-3615
Attention: Glenn E. Smith
With a copy to:
Orrick, Herrington & Sutcliffe LLP
666 Fifth Avenue
New York, NY 10103
Telecopier No.: (212) 506-5151
Attention: Daniel A. Mathews
If to the Trustee and the Collateral Agent:
State Street Bank and Trust Company
225 Franklin Street
Boston, MA 02110
Telecopier No.: (617) 664-5371
Attention: Corporate Trust Department - ESI Tractebel
The Company, NE LP, NE LLC, or the Trustee or the Collateral Agent, by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
78
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 13.03. COMMUNICATION BY HOLDERS OF BONDS WITH OTHER HOLDERS OF BONDS.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Bonds. The Company, NE
LP, NE LLC the Trustee, the Collateral Agent the Registrar and anyone else shall
have the protection of TIA ss. 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
79
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 13.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar; Paying Agent or the Collateral Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator, partner, member or
stockholder of the Company, NE LP or NE LLC as such shall have any liability for
any Obligations of the Company under the Bonds or the Indenture or NE LP under
the Note or the Bond Guaranty for any claim based on, in respect of, or by
reason of, such Obligations or their creation. Each Holder by accepting a Bond
waives and releases all such liability The waiver and release are part of the
consideration for issuance of the Bonds. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
SECTION 13.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTE, THE BONDS AND THE BOND GUARANTY WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company, NE LP or NE LLC or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10. SUCCESSORS.
All agreements of the Company, NE LP and NE LLC in this Indenture the
Bonds and the Bond Guaranty shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
80
SECTION 13.11. SEVERABILITY.
In case any provision in this Indenture, the Note, the Bonds, Pledge
Agreements or the Bond Guaranty shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 13.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
81
SIGNATURES
Dated as of February 19, 1998
ESI TRACTEBEL ACQUISITION CORP.
By: /s/ Glenn E. Smith
----------------------------
Name: Glenn E. Smith
Title: Vice President
Attest:
- -------------------------
Name:
Title:
NORTHEAST ENERGY, LP,
By: ESI NORTHEAST ENERGY GP, INC.,
as a general partner
By: /s/ Glenn E. Smith
-------------------------
Name: Glenn E. Smith
Title: Vice President
By: TRACTEBEL NORTHEAST
GENERATION GP, INC.,
as a general partner
By: /s/ James E. Hammelman
-------------------------
Name: James E. Hammelman
Title: Vice President &
Treasurer
NORTHEAST ENERGY, LLC,
By: NORTHEAST ENERGY, LP, as its sole member
By: ESI NORTHEAST ENERGY GP, INC.,
as a general partner
By: /s/ Glenn E. Smith
----------------------------
Name: Glenn E. Smith
Title: Vice President
By: TRACTEBEL NORTHEAST
GENERATION GP, INC.,
as a general partner
By: /s/ James E. Hammelman
----------------------------
Name: James E. Hammelman
Title: Vice President &
Treasurer
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Chi C. Ma
----------------------------
Name: Chi C. Ma
Title: Assistant Vice President
Attest:
/s/ Traci Hopkins
- -------------------------
Authorized Signatory
Date: February 18, 1998
EXHIBIT A-1
(Face of Bond)
===============================================================================
(a) CUSIP ............
7.99% Secured Bonds due 2011
No. $
----- -------------
ESI TRACTEBEL ACQUISITION CORP.
promises to pay to CEDE & CO.
or registered assigns,
the principal sum of
--------------------------------------------
Dollars on December 30, 2011.
Interest Payment Dates: semi-annually on each June 30 and December 30
Record Dates: June 15 and December 15
DATED: February 19, 1998
ESI TRACTEBEL ACQUISITION CORP.
BY:
---------------------------
Name:
Title:
(SEAL)
Certificate of Authentication
- -----------------------------
This is one of the Global Bonds
referred to in the
within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
---------------------------------
(Authorized Officer)
===============================================================================
(Back of Bond)
7.99% Secured Bonds due 2011
"THIS GLOBAL BOND IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS BOND) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF
THE INDENTURE, (II) THIS GLOBAL BOND MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
BOND MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL BOND MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
"THE BONDS EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) BY THE
INITIAL INVESTOR (A) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (B) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (D)
TO THE COMPANY OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (2) BY SUBSEQUENT INVESTORS AS SET FORTH
IN (1) ABOVE AND, IN ADDITION, TO AN INSTITUTIONAL ACCREDITED INVESTOR
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT
PURCHASER FROM IT OF THE BONDS EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN THE PREVIOUS SENTENCE. NO REPRESENTATION CAN
BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144
FOR RESALES OF THE BONDS."
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
A1-2
1. INTEREST. ESI Tractebel Acquisition Corp., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Bond
at 7.99% per annum from the date of issuance until maturity and shall pay the
Registration Default Damages, if any, payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Company will pay interest
and Registration Default Damages semi-annually on June 30 and December 30 of
each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Bonds will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Bond is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
June 30, 1998. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Registration Default Damages (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Bonds
(except defaulted interest) and Registration Default Damages to the Persons who
are registered Holders of Bonds at the close of business on the June 15 or
December 15 next preceding the Interest Payment Date, even if such Bonds are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Bonds will be payable as to principal, premium and Registration
Default Damages, if any, and interest at the office or agency of the Paying
Agent maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, payment of interest and Registration
Default Damages may be made by check mailed to the Holders at their addresses
set forth in the register of Holders, and provided that payment by wire transfer
of immediately available funds will be required with respect to principal of and
interest, premium and Registration Default Damages on, all Global Bonds and all
other Bonds the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or NE LP may act as Registrar but shall not act as
Paying Agent.
4. INDENTURE AND PLEDGE AGREEMENTS. The Company issued the Bonds under
an Indenture dated as of February 19, 1998 ("Indenture") among the Company, NE
LP and NE LLC and the Trustee. The terms of the Bonds include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Bonds
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this Bond
conflicts with the express provisions of the Indenture, the provisions of the
A1-3
Indenture shall govern and be controlling. The Bonds are secured obligations of
the Company limited to $220 million in aggregate principal amount, plus amounts,
if any, issued to pay Registration Default Damages on outstanding Bonds as set
forth in Paragraph 2 hereof. The Bonds are secured by a pledge of (a) the
perfected, first priority pledge by NE LP to the Trustee, for the benefit of the
Trustee and the Holders of the Bonds, (i) NE LP's 100% member interest in NE LLC
and (ii) NE LP's 98% limited partner interest in each of NEA and NJEA; (b) the
second priority pledge by NE LP to the Trustee, for the benefit of the Trustee
and the Holders of the Bond, of NE LP's one percent general partner interest in
each of NEA and NJEA; (c) the perfected, first priority pledge by NE LLC to the
Trustee, for the benefit of the Trustee and the Holders of the Bond, of NE LLC's
one percent limited partner interest in each of NEA and NJEA; (d) the perfected,
first priority pledge by the Company to the Trustee, for the benefit of the
Trustee and the Holders of the Bonds, of the Note evidencing the Bond Loan. In
addition, the Bonds are secured by a perfected, first priority lien on the
Accounts and all funds deposited therein and all Permitted Investments credited
thereto granted to the Trustee and the Collateral Agent, for the benefit of the
Trustee, the Collateral Agent and the Holders of the Bonds, by NE LP and NE LLC
pursuant to the Indenture. The Bonds are also secured by (a) the perfected,
first priority pledge by each of ESI Northeast Energy GP, Inc., ESI Northeast
Energy LP, Inc., Tractebel Associates Northeast LP, Inc. and Tractebel Northeast
Generation GP, Inc. (collectively, the "Sponsor Affiliates") to the Trustee, as
collateral agent (in such capacity, the Collateral Agent") for the benefit of
the Collateral Agent, the Trustee and the Holders of the Bonds, of all of such
Sponsor Affiliate's partner interests in NE LP and (b) a perfected, first
priority pledge by each owner of the Company to the Collateral Agent, for the
benefit of the Collateral Agent, the Trustee and the Holders of the Bonds, of
all of the outstanding Capital Stock of the Company pursuant to the Sponsor
Pledge Agreement referred to in the Indenture (together with the Company and
Partner Pledge Agreement, the "Pledge Agreement"). The Pledge Agreements will
secure the payment and performance when due of all of the Obligations of the
Company under the Indenture and the Bonds, and of NE LP's obligations under the
Note and the Bond Guaranty, as provided in the Indenture and the Pledge
Agreements.
5 OPTIONAL REDEMPTION.
(a) The Company shall not have the option to redeem the Bonds
prior to June 30, 2008. Thereafter, the Company at the direction of NE LP shall
have the option to redeem the Bonds, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Registration Default Damages thereon to the date fixed for
redemption, if redeemed during the twelve-month period beginning on June 30 of
the years indicated below:
A1-4
Year Percentage
- ---- ----------
2008........................................................ 101.844%
2009........................................................ 101.229%
2010........................................................ 100.615%
2011 and thereafter......................................... 100.000%
6. MANDATORY REDEMPTION; EXTRAORDINARY MANDATORY REDEMPTION
Except as set forth in this paragraph and in paragraph 7 below and
except for the payment of the principal of the Bonds in semiannual installments
to the Holders thereof, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Bonds. The Company shall
be required to redeem the Bonds, pro rata, at a redemption price equal to the
outstanding principal amount thereof plus accrued and unpaid interest and any
Registration Default Damages to the date fixed for redemption if (1) (a) an
event occurs which triggers the mandatory redemption or repurchase of any or all
of the Project Securities pursuant to the terms of the Project Indenture and (b)
any funds so required to be applied to such redemption or repurchase remain
after giving effect to such redemption or repurchase of Project Securities, and
such excess funds equal at least $2 million and are distributed to NE LP or NE
LLC or (2) a buyout or similar payment is made to a Partnership under any Power
Purchase Agreement and any such funds are distributed to NE LP or NE LLC in
accordance with the terms of the Project Indenture and terms of the Indenture,
provided that, in each such case, only such funds so distributed must be applied
to the extraordinary mandatory redemption.
7. REPURCHASE AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control (which shall not occur if
Moody's and S&P confirm that the then existing ratings of the Bonds will not be
lowered as a result of any of the events that, in the absence of such confirmed
rating, would constitute a Change of Control), the Company shall offer to each
Holder to repurchase all or any part (equal to $100,000 or an integral multiple
of $1,000 in excess thereof) of such Holder's Bonds pursuant to the offer
described below (the "Change of Control Offer") at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Registration Default Damages thereon, if any, to the date of
purchase (the "Change of Control Payment"). Within ten days following any Change
of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Bonds on the date specified in such notice, which date shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date"), pursuant to the procedures
required by the Indenture and described in such notice. The Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Bonds as a
result of a Change of Control.
A1-5
8. NOTICE OF REDEMPTION. Subject to the book entry system
described in the Indenture, if less than all of the Bonds are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the
Bonds to be redeemed or purchased among the Holders of the Bonds in compliance
with the requirements of the principal national securities exchange, if any, on
which the Bonds are listed or, if the Bonds are not so listed, on a pro rata
basis, by lot or in accordance with any other method the Trustee considers fair
and appropriate; provided that, except in the case of an extraordinary mandatory
redemption, no Bonds will be redeemed or purchased in part if the unredeemed
portion will be in an unauthorized denomination. In the event of partial
redemption by lot, the particular Bonds to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Bonds not previously called
for redemption.
The Trustee shall promptly notify the Company in writing of the Bonds
selected for redemption and, in the case of any Bond selected for partial
redemption, the principal amount thereof to be redeemed. Bonds and portions of
Bonds selected shall be in amounts of $100,000 or whole multiples of $1,000 in
excess thereof; except that if all of the Bonds of a Holder are to be redeemed,
the entire outstanding amount of Bonds held by such Holder, even if not a
multiple of $100,000 or a multiple of $1,000 in excess thereof, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Bonds called for redemption also apply to portions of
Bonds called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Bonds are in registered
form without coupons in denominations of $100,000 and integral multiples of
$1,000 in excess thereof. The transfer of Bonds may be registered and Bonds may
be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Bond or portion of a Bond selected for
redemption, except for the unredeemed portion of any Bond being redeemed in
part. Also, the Company need not exchange or register the transfer of any Bonds
for a period of 15 days before a selection of Bonds to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Bond may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture, the Bond Guaranty, the other Financing Agreements or the Bonds
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Bonds voting as a single
class, and any existing default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on or Registration
Default Damages with respect to the Bonds, except a payment default resulting
from acceleration that has been rescinded) or compliance with any provision of
the Indenture, the Bond Guaranty, the other Financing Agreements or the Bonds
may be waived with the consent of the Holders of a majority in principal amount
of the then outstanding Bonds voting as a single class. Without the consent of
any Holder of a Bond, the Indenture, the Bond Guaranty, the other Financing
A1-6
Agreements or the Bonds may be amended or supplemented to cure any ambiguity,
defect or inconsistency; to provide for uncertificated Bonds in addition to or
in place of certificated Bonds or to alter the provisions of Article 2 of the
Indenture (including the related definitions) in a manner that does not
materially adversely affect any Holder; to provide for the assumption of the
Company's obligations to Holders of the Bonds in case of a merger or
consolidation; to make any change that would provide any additional rights or
benefits to the Holders of the Bonds or that does not adversely affect the legal
rights under the Indenture of any such Holder; or to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default shall occur, if among
other things: (i) the Company or NE LP, as applicable, defaults in the payment
when due of principal of or premium, if any, on the Bonds or the Note when the
same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise and such default continues
for a period of 15 days; (ii) the Company or NE LP, as applicable, defaults in
the payment when due of interest on or Registration Default Damages, if any,
with respect to the Bonds or the Note and such default continues for a period of
15 days; (iii) the Company, NE LP or NE LLC fails to comply with any of the
provisions of Section 4.07, 4.09, 4.15 or 5.01 hereof; (iv) the Company, NE LP
or NE LLC fails to observe or perform any other covenant, representation,
warranty or other agreement in this Indenture, the Bonds or any of the
Collateral Documents to which it is a party for 60 days after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Bonds then outstanding voting as a single class; (v) the Company,
NE LP or NE LLC defaults in the payment when due (after giving effect to any
applicable grace periods) of any principal of or premium, if any, or interest on
any Indebtedness (other than the Bonds or the Note) the principal amount of
which exceeds $3 million in the aggregate; (vi) a final judgment or final
judgments for the payment of money are entered by a court or courts of competent
jurisdiction against the Company, NE LP or NE LLC and such judgment or judgments
remain unpaid or, undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $3 million; (vii) Any of the material provisions
of the Collateral Documents shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any lien granted thereby or the priority thereof ceases or fails for
any reason to be in full force and effect (and such unenforceable provisions or
cessation or failure of a lien is not cured within 10 days after the Company, NE
LP or NE LLC has obtained knowledge thereof); (viii) certain events of
bankruptcy or insolvency with respect to the Company, NE LP or NE LLC occurs;
(ix) any limited partnership or limited liability company agreement of NE LP or
NE LLC as amended from time to time ceases to be valid and binding and in full
force and effect in all material respects; (x) any default by a counterparty
under any of the Material Project Agreements occurs (as defined in the Project
Indenture as in effect on the date of the Indenture) that would likely have a
material adverse effect on the Company, NE LP or NE LLC or the Holders of the
Bonds and such default is not cured within 180 days (or 360 days if the
applicable partnership has promptly commenced and is diligently using its best
efforts to cure such default); (xi) an "Event of Default" occurs defined in the
Project Indenture as in effect on the date of the Indenture) other than as a
result of the breach of an immaterial covenant; and (xii) Project Securities are
accelerated. If any Event of Default (other than bankruptcy or insolvency events
A1-7
at default) occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Bonds may declare by written notice
all the Bonds to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Bonds
will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Bonds except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Bonds may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of the Bonds notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest. The Holders of a majority in aggregate principal amount of
the Bonds then outstanding by written notice to the Trustee may on behalf of the
Holders of all of the Bonds waive any existing Default or Event of Default and
its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Bonds. The
Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator, partner, member or stockholder of the Company, NE LP or NE LLC as
such shall have any liability for any Obligations of the Company under the Bonds
or the indenture or NE LP under the Note or the Bond Guaranty for any claim
based on, in respect of, or by reason of, such Obligations or their creation.
Each Holder by accepting a Bond waives and releases all such liability The
waiver and release are part of the consideration for issuance of the Bonds.
15. AUTHENTICATION. This Bond shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL BONDS AND
RESTRICTED DEFINITIVE BONDS. In addition to the rights provided to Holders of
Bonds under the Indenture, Holders of Restricted Global Bonds and Restricted
Definitive Bonds shall have all the rights set forth in the A/B Exchange
Registration Rights Agreement dated as of the date of the Indenture, between the
Company and the parties named on the signature pages thereof (the "Registration
Rights Agreement").
A1-8
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Bonds and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Bonds or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
A1-9
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
ESI Tractebel Acquisition Corp.
11760 US Highway One
North Palm Beach, FL 33408
Attention: Secretary
A1-10
ASSIGNMENT FORM
To assign this Bond, fill in the form below: (I) or (we) assign and transfer
this Bond to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Bond on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Date: __________________
Your Signature: ______________________
(Sign exactly as your name appears on
the face of this Bond)
Signature Guarantee.
A1-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Bond purchased by the Company
pursuant to Section 4.15 of the Indenture, check the box below:
|_| Section 4.15
If you want to elect to have only part of the Bond purchased by the
Company pursuant to Section 4.15 of the Indenture, state the amount you elect to
have purchased: $________
Date: ______________ Your Signature: ______________________
(Sign exactly as your name appears
on the Bond)
Tax Identification No: _______________
Signature Guarantee.
A1-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL BOND
The following exchanges of a part of this Global Bond for an interest
in another Global Bond or for a Definitive Bond, or exchanges of a part of
another Global Bond or Definitive Bond for an interest in this Global Bond, have
been made:
Principal Amount
Amount of Amount of of this
decrease in increase in Global Bond Signature of
Principal Amount Principal Amount following authorized officer
Date of of of such decrease of Trustee or
Exchange this Global Bond this Global Bond (or increase) Bond Custodian
- -------- ---------------- ---------------- ---------------- ------------------
A1-13
[EXHIBIT A-2]
(Face of Regulation S Temporary Global Bond)
================================================================================
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL BOND, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
BONDS, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL BOND SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
CUSIP/CINS _____________
7.99% Secured Bonds due 2011
No. ____ $_______________
ESI TRACTEBEL ACQUISITION CORP.
promises to pay to CEDE & CO.
or registered assigns,
the principal sum of ___________________________________________
Dollars on December 30, 2011
Interest Payment Dates: June 30 and December 30
Record Dates: June 15 and December 15
Dated: February 19, 1998
ESI TRACTEBEL ACQUISITION CORP.
By:
-------------------------------
Name:
Title:
[(SEAL)]
Certificate of Authentication
- -----------------------------
This is one of the Global
Bonds referred to in the
within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
---------------------------------
================================================================================
A2-1
(Back of Regulation S Temporary Global Bond)
7.99% Secured Bonds due 2011
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL BOND, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED BONDS, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL BOND SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR BONDS IN DEFINITIVE
FORM, THIS BOND 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 DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE BOND (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE BOND
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE BOND EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT. THE
HOLDER OF THE BOND EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH BOND MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN OF RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THE BOND EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (1) ABOVE.
A2-2
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. ESI Tractebel Acquisition Corp., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Bond
at 7.99% per annum from the date of issuance until maturity and shall pay the
Registration Default Damages, if any, payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Company will pay interest
and Registration Default Damages semi-annually on June 30 and December 30 of
each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Bonds will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Bond is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
June 30, 1998. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Registration Default Damages (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Bond is exchanged for one or
more Regulation S Permanent Global Bonds, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Bond shall in all other respects be entitled
to the same benefits as other Bonds under the Indenture.
2. METHOD OF PAYMENT. The Company will pay interest on the Bonds
(except defaulted interest) and Registration Default Damages to the Persons who
are registered Holders of Bonds at the close of business on the June 15 or
December 15 next preceding the Interest Payment Date, even if such Bonds are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Bonds will be payable as to principal, premium and Registration
Default Damages, if any, and interest at the office or agency of the Paying
Agent maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, payment of interest and Registration
Default Damages may be made by check mailed to the Holders at their addresses
set forth in the register of Holders, and provided that payment by wire transfer
of immediately available funds will be required with respect to principal of and
interest, premium and Registration Default Damages on, all Global Bonds and all
other Bonds the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
A2-3
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or NE LP may act as Registrar but shall not act as
Paying Agent.
4. INDENTURE AND PLEDGE AGREEMENTS. The Company issued the Bonds under
an Indenture dated as of February 19, 1998 ("Indenture") among the Company, NE
LP and NE LLC and the Trustee. The terms of the Bonds include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Bonds
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this Bond
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Bonds are secured obligations of
the Company limited to $220 million in aggregate principal amount, plus amounts,
if any, issued to pay Registration Default Damages on outstanding Bonds as set
forth in Paragraph 2 hereof. The Bonds are secured by a pledge of (a) the
perfected, first priority pledge by NE LP to the Trustee, for the benefit of the
Trustee and the Holders of the Bonds, (i) NE LP's 100% member interest in NE LLC
and (ii) NE LP's 98% limited partner interest in each of NEA and NJEA; (b) the
second priority pledge by NE LP to the Trustee, for the benefit of the Trustee
and the Holders of the Bond, of NE LP's one percent general partner interest in
each of NEA and NJEA; (c) the perfected, first priority pledge by NE LLC to the
Trustee, for the benefit of the Trustee and the Holders of the Bond, of NE LLC's
one percent limited partner interest in each of NEA and NJEA; (d) the perfected,
first priority pledge by the Company to the Trustee, for the benefit of the
Trustee and the Holders of the Bonds, of the Note evidencing the Bond Loan; and
(e) a perfected, first priority lien on the Accounts and all funds deposited
therein and all Permitted Investments credited thereto granted to the Collateral
Agent, for the benefit of the Collateral Agent, the Trustee and the Holders of
the Bonds, by NE LP and NE LLC pursuant to the Indenture. The Bonds are also
secured by (a) the perfected, first priority pledge by each of ESI Northeast
Energy GP, Inc., ESI Northeast Energy LP, Inc., Tractebel Associates Northeast
LP, Inc. and Tractebel Northeast Generation GP, Inc. (collectively, the "Sponsor
Affiliates") to the Trustee, as collateral agent (in such capacity, the
Collateral Agent") for the benefit of the Collateral Agent, the Trustee and the
Holders of the Bonds, of all of such Sponsor Affiliate's partner interests in NE
LP and (b) a perfected, first priority pledge by each owner of the Company to
the Collateral Agent, for the benefit of the Collateral Agent, the Trustee and
the Holders of the Bonds, of all of the outstanding Capital Stock of the Company
pursuant to the Sponsor Pledge Agreement referred to in the Indenture (together
with the Company and Partner Pledge Agreement, the "Pledge Agreement"). The
Pledge Agreements will secure the payment and performance when due of all of the
Obligations of the Company under the Indenture and the Bonds, and of NE LP's
obligations under the Note and the Bond Guaranty, as provided in the Indenture
and the Pledge Agreements.
A2-4
5. OPTIONAL REDEMPTION.
The Company shall not have the option to redeem the Bonds prior to June
30, 2008. Thereafter, the Company at the direction of NE LP shall have the
option to redeem the Bonds, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Registration Default Damages thereon to the date fixed for redemption, if
redeemed during the twelve-month period beginning on June 30 of the years
indicated below:
Year Percentage
---- ----------
2008................................................ 101.844%
2009................................................ 101.229%
2010................................................ 100.615%
2011 and thereafter................................. 100.000%
6. MANDATORY REDEMPTION; EXTRAORDINARY MANDATORY REDEMPTION
Except as set forth in this paragraph and in paragraph 7 below and
except for the payment of the principal of the Bonds in semiannual installments
to the Holders thereof, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Bonds. The Company shall
be required to redeem the Bonds, pro rata, at a redemption price equal to the
outstanding principal amount thereof plus accrued and unpaid interest and any
Registration Default Damages to the date fixed for redemption if (1) (a) an
event occurs which triggers the mandatory redemption or repurchase of any or all
of the Project Securities pursuant to the terms of the Project Indenture and (b)
any funds so required to be applied to such redemption or repurchase remain
after giving effect to such redemption or repurchase of Project Securities, and
such excess funds equal at least $2 million and are distributed to NE LP or NE
LLC or (2) a buyout or similar payment is made to a Partnership under any Power
Purchase Agreement and any such funds are distributed to NE LP or NE LLC in
accordance with the terms of the Project Indenture and terms of the Indenture,
provided that, in each such case, only such funds so distributed must be applied
to the extraordinary mandatory redemption.
7. REPURCHASE AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control (which shall not occur if
Moody's and S&P confirm that the then existing ratings of the Bonds will not be
lowered as a result of any of the events that, in the absence of such confirmed
rating, would constitute a Change of Control), the Company shall offer to each
Holder to repurchase all or any part (equal to $100,000 or an integral multiple
of $1,000 in excess thereof) of such Holder's Bonds pursuant to the offer
described below (the "Change of Control Offer") at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Registration Default Damages thereon, if any, to the date of
purchase (the "Change of Control Payment"). Within ten days following any Change
of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Bonds on the date specified in such notice, which date shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date"), pursuant to the procedures
required by the Indenture and described in such notice. The Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Bonds as a
result of a Change of Control.
A2-5
8. NOTICE OF REDEMPTION. Subject to the book entry system described in
the Indenture, if less than all of the Bonds are to be redeemed or purchased in
an offer to purchase at any time, the Trustee shall select the Bonds to be
redeemed or purchased among the Holders of the Bonds in compliance with the
requirements of the principal national securities exchange, if any, on which the
Bonds are listed or, if the Bonds are not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee considers fair and
appropriate; provided that, except in the case of an extraordinary mandatory
redemption, no Bonds will be redeemed or purchased in part if the unredeemed
portion will be in an unauthorized denomination. In the event of partial
redemption by lot, the particular Bonds to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Bonds not previously called
for redemption.
The Trustee shall promptly notify the Company in writing of the Bonds
selected for redemption and, in the case of any Bond selected for partial
redemption, the principal amount thereof to be redeemed. Bonds and portions of
Bonds selected shall be in amounts of $100,000 or whole multiples of $1,000 in
excess thereof; except that if all of the Bonds of a Holder are to be redeemed,
the entire outstanding amount of Bonds held by such Holder, even if not a
multiple of $100,000 or a multiple of $1,000 in excess thereof, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Bonds called for redemption also apply to portions of
Bonds called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Bonds are in registered form
without coupons in denominations of $100,000 and integral multiples of $1,000 in
excess thereof. The transfer of Bonds may be registered and Bonds may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Bond or portion of a Bond selected for
redemption, except for the unredeemed portion of any Bond being redeemed in
part. Also, the Company need not exchange or register the transfer of any Bonds
for a period of 15 days before a selection of Bonds to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
This Regulation S Temporary Global Bond is exchangeable in whole or in
part for one or more Global Bonds only (i) on or after the termination of the
40-day restricted period (as defined in Regulation S) and (ii) upon presentation
of certificates (accompanied by an Opinion of Counsel, if applicable) required
by Article 2 of the Indenture. Upon exchange of this Regulation S Temporary
Global Bond for one or more Global Bonds, the Trustee shall cancel this
Regulation S Temporary Global Bond.
A2-6
10. PERSONS DEEMED OWNERS. The registered Holder of a Bond may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture, the Bond Guaranty, the other Financing Agreements or the Bonds
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Bonds voting as a single
class, and any existing default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on or Registration
Default Damages with respect to the Bonds, except a payment default resulting
from acceleration that has been rescinded) or compliance with any provision of
the Indenture, the Bond Guaranty, the other Financing Agreements or the Bonds
may be waived with the consent of the Holders of a majority in principal amount
of the then outstanding Bonds voting as a single class. Without the consent of
any Holder of a Bond, the Indenture, the Bond Guaranty, the other Financing
Agreements or the Bonds may be amended or supplemented to cure any ambiguity,
defect or inconsistency; to provide for uncertificated Bonds in addition to or
in place of certificated Bonds or to alter the provisions of Article 2 of the
Indenture (including the related definitions) in a manner that does not
materially adversely affect any Holder; to provide for the assumption of the
Company's obligations to Holders of the Bonds in case of a merger or
consolidation; to make any change that would provide any additional rights or
benefits to the Holders of the Bonds or that does not adversely affect the legal
rights under the Indenture of any such Holder; or to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default shall occur, if among
other things: (i) the Company or NE LP as applicable, defaults in the payment
when due of principal of or premium, if any, on the Bonds or the Note when the
same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise and such default continues
for a period of 15 days; (ii) the Company or NE LP as applicable, defaults in
the payment when due of interest on or Registration Default Damages, if any,
with respect to the Bonds or the Note and such default continues for a period of
15 days; (iii) the Company, NE LP or NE LLC fails to comply with any of the
provisions of Section 4.07, 4.09, 4.15 or 5.01 hereof; (iv) the Company, NE LP
or NE LLC fails to observe or perform any other covenant, representation,
warranty or other agreement in this Indenture, the Bonds or any of the
Collateral Documents to which it is a party for 60 days after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Bonds then outstanding voting as a single class; (v) the Company,
NE LP or NE LLC defaults in the payment when due (after giving effect to any
applicable grace periods) of any principal of or premium, if any, or interest on
any Indebtedness (other than the Bonds or the Note) the principal amount of
which exceeds $3 million in the aggregate; (vi) a final judgment or final
judgments for the payment of money are entered by a court or courts of competent
jurisdiction against the Company, NE LP or NE LLC and such judgment or judgments
remain unpaid or, undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $3 million; (vii) Any of the material provisions
A2-7
of the Collateral Documents shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any lien granted thereby or the priority thereof ceases or fails for
any reason to be in full force and effect (and such unenforceable provisions or
cessation or failure of a lien is not cured within 10 days after the Company, NE
LP or NE LLC has obtained knowledge thereof); (viii) certain events of
bankruptcy or insolvency with respect to the Company, NE LP or NE LLC occurs;
(ix) any limited partnership or limited liability company agreement of NE LP or
NE LLC as amended from time to time ceases to be valid and binding and in full
force and effect in all material respects; (x) any default by a counterparty
under any of the Material Project Agreements occurs (as defined in the Project
Indenture as in effect on the date of the Indenture) that would likely have a
material adverse effect on the Company, NE LP or NE LLC or the Holders of the
Bonds and such default is not cured within 180 days (or 360 days if the
applicable partnership has promptly commenced and is diligently using its best
efforts to cure such default); (xi) an "Event of Default" occurs defined in the
Project Indenture as in effect on the date of the Indenture) other than as a
result of the breach of an immaterial covenant; and (xii) Project Securities are
accelerated.. If any Event of Default (other than bankruptcy or insolvency
events at default) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Bonds may declare by
written notice all the Bonds to be due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Bonds will become due and payable
without further action or notice. Holders may not enforce the Indenture or the
Bonds except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Bonds may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Bonds notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Bonds
then outstanding by written notice to the Trustee may on behalf of the Holders
of all of the Bonds waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest on, or the principal of, the Bonds. The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator, partner, member or stockholder of the Company, NE LP or NE LLC as
such shall have any liability for any Obligations of the Company under the Bonds
or the indenture or NE LP under the Note or the Bond Guaranty for any claim
based on, in respect of, or by reason of, such Obligations or their creation.
Each Holder by accepting a Bond waives and releases all such liability The
waiver and release are part of the consideration for issuance of the Bonds.
A2-8
15. AUTHENTICATION. This Bond shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL BONDS AND
RESTRICTED DEFINITIVE BONDS. In addition to the rights provided to Holders of
Bonds under the Indenture, Holders of Restricted Global Bonds and Restricted
Definitive Bonds shall have all the rights set forth in the A/B Exchange
Registration Rights Agreement dated as of the date of the Indenture between the
Company and the parties named on the signature pages thereof (the "Registration
Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Bonds and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Bonds or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
ESI Tractebel Acquisition Corp.
11760 US Highway One
North Palm Beach, FL 33408
Attention: Secretary
A2-9
ASSIGNMENT FORM
To assign this Bond, fill in the form below: (I) or (we) assign and transfer
this Bond to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
- --------------------------------------------------------------------------------
to transfer this Bond on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Date: _________________
Your Signature: ____________________________
(Sign exactly as your name appears on the face of this Bond)
Signature Guarantee.
A2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Bond purchased by the Company
pursuant to Section 4.15 of the Indenture, check the appropriate box below:
|_| Section 4.15
If you want to elect to have only part of the Bond purchased by the
Company pursuant to Section 4.15 of the Indenture, state the amount you elect to
have purchased: $___________
- --------------------------------------------------------------------------------
Date: ____________________ Your Signature: _________________________
(Sign exactly as your name appears on the
Bond)
Tax Identification No.: _________________
Signature Guarantee.
A2-11
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL BOND
The following exchanges of a part of this Regulation S Temporary Global
Bond for an interest in another Global Bond, or of other Restricted Global Bonds
for an interest in this Regulation S Temporary Global Bond, have been made:
Principal Amount
of this
Amount of decrease in Amount of increase in Global Bond Signature of
Principal Amount Principal Amount following authorized officer of
of of such decrease Trustee or Bond
Date of Exchange this Global Bond this Global Bond (or increase) Custodian
---------------- ---------------- ---------------- ------------ ---------
A2-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
ESI Tractebel Acquisition Corp.
11760 US Highway One
North Palm Beach, FL 33408
[Registrar address block]
Re: ESI Tractebel Acquisition Corp. 7.99% Secured Bonds Due 2011
Reference is hereby made to the Indenture, dated as of February 19,
1998 (the "Indenture"), among ESI Tractebel Acquisition Corp., as issuer (the
"Company"), Northeast Energy, LP as guarantor, Northeast Energy, LLC and State
Street Bank and Trust Company, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Bond[s] or interest in such Bond[s] specified in Annex A hereto, in the
principal amount of $___________ in such Bond[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. |_| Check if Transferee will take delivery of a beneficial interest in the
144A Global Bond or a Definitive Bond Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Bond is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Bond for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Bond
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Bond and/or the Definitive Bond and
in the Indenture and the Securities Act.
B-1
2. |_| Check if Transferee will take delivery of a beneficial interest in the
Temporary Regulation S Global Bond, the Regulation S Global Bond or a Definitive
Bond pursuant to Regulation S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act; (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Bond will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Bond, the
Temporary Regulation S Global Bond and/or the Definitive Bond and in the
Indenture and the Securities Act.
3. |_| Check and complete if Transferee will take delivery of a beneficial
interest in a Definitive Bond pursuant to any provision of the Securities Act
other than Rule 144A or Regulation S. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests in
Restricted Global Bonds and Restricted Definitive Bonds and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws
of any state of the United States, and accordingly the Transferor hereby further
certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) |_| such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) |_| such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
B-2
or
(d) |_| such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Bond or Restricted Definitive Bonds and the requirements of
the exemption claimed, which certification is supported by a certificate
executed by the Transferee in the form of Exhibit D to the Indenture and an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Bond will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Definitive
Bonds and in the Indenture and the Securities Act.
4. |_| Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Bond or of an Unrestricted Definitive Bond.
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Bond will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Bonds, on Restricted
Definitive Bonds and in the Indenture.
(b) |_| Check if Transfer is Pursuant to Regulation S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Bond will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Bonds, on Restricted Definitive Bonds and in the Indenture.
(c) |_| Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Bond will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Bonds or Restricted Definitive Bonds and in the Indenture.
B-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
---------------------------------------
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated: ______________, ______
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Bond (CUSIP ________), or
(ii) |_| Regulation S Global Bond (CUSIP ________); or
(b) |_| a Restricted Definitive Bond.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Bond (CUSIP ________), or
(ii) |_| Regulation S Global Bond (CUSIP __________), or
(iii) |_| Unrestricted Global Bond (CUSIP __________); or
(b) |_| a Restricted Definitive Bond; or
(c) |_| an Unrestricted Definitive Bond,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
ESI Tractebel Acquisition Corp.
11760 US Highway One
North Palm Beach, FL 33408
[Registrar address block]
Re: ESI Tractebel Acquisition Corp. 7.99% Secured Bonds Due 2011
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of February 19,
1998 (the "Indenture"), among ESI Tractebel Acquisition Corp., as issuer (the
"Company"), Northeast Energy, LP as guarantor, Northeast Energy, LLC and State
Street Bank and Trust Company, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Bond[s]
or interest in such Bond[s] specified herein, in the principal amount of
$____________ in such Bond[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Bonds or Beneficial Interests in a
Restricted Global Bond for Unrestricted Definitive Bonds or Beneficial Interests
in an Unrestricted Global Bond
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Bond to beneficial interest in an Unrestricted Global Bond. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Bond
for a beneficial interest in an Unrestricted Global Bond in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Bonds and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Bond is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) |_| Check if Exchange is from beneficial interest in a Restricted
Global Bond to Unrestricted Definitive Bond. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Bond for an Unrestricted
Definitive Bond, the Owner hereby certifies (i) the Definitive Bond is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Bonds and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Bond is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
C-1
(c) |_| Check if Exchange is from Restricted Definitive Bond to
beneficial interest in an Unrestricted Global Bond. In connection with the
Owner's Exchange of a Restricted Definitive Bond for a beneficial interest in an
Unrestricted Global Bond, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Bonds and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) |_| Check if Exchange is from Restricted Definitive Bond to
Unrestricted Definitive Bond. In connection with the Owner's Exchange of a
Restricted Definitive Bond for an Unrestricted Definitive Bond, the Owner hereby
certifies (i) the Unrestricted Definitive Bond is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Bonds and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Bond is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Bonds or Beneficial Interests in Restricted
Global Bonds for Restricted Definitive Bonds or Beneficial Interests in
Restricted Global Bonds
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Bond to Restricted Definitive Bond. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Bond for a Restricted
Definitive Bond with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Bond is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Bond issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Bond and in the Indenture
and the Securities Act.
C-2
(b) |_| Check if Exchange is from Restricted Definitive Bond to
beneficial interest in a Restricted Global Bond. In connection with the Exchange
of the Owner's Restricted Definitive Bond for a beneficial interest in the
[CHECK ONE] 144A Global Bond, Regulation S Global Bond with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Bonds and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Bond and in the Indenture and the
Securities Act.
C-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
-----------------------------------
[Insert Name of Owner]
By: _______________________________
Name:
Title:
Dated: ________________, ____
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
ESI Tractebel Acquisition Corp.
11760 US Highway One
North Palm Beach, FL 33408
[Registrar address block]
Re: ESI Tractebel Acquisition Corp. 7.99% Secured Bonds Due 2011
Reference is hereby made to the Indenture, dated as of February 19,
1998 (the "Indenture"), among ESI Tractebel Acquisition Corp., as issuer (the
"Company"), Northeast Energy, LP as guarantor, Northeast Energy, LLC and State
Street Bank and Trust Company, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) |_| a beneficial interest in a Global Bond, or
(b) |_| a Definitive Bond,
we confirm that:
1. We understand that any subsequent transfer of the Bonds or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Bonds or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Bonds have not been
registered under the Securities Act, and that the Bonds and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Bonds or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (c) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Bond or beneficial interest
in a Global Bond from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Bonds or
beneficial interest therein, we shall furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Bonds purchased by us will bear a
legend to the foregoing effect. We further understand that any subsequent
transfer by us of the Bonds or beneficial interest therein acquired by us must
be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Bonds, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Bonds or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_______________________________________
[Insert Name of Accredited Investor]
By: ___________________________________
Name:
Title:
Dated: __________________, ____
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EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, Northeast Energy, LP, a Delaware limited
partnership, as Guarantor (the "Guarantor") (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of February 19, 1998 (the "Indenture")
among ESI Tractebel Acquisition Corp. (the "Company"), the Guarantor, Northeast
Energy, LLC and State Street Bank and Trust Company as trustee (the "Trustee"),
(a) the due and punctual payment of the principal of, premium, if any, and
interest on and Registration Default Damages, if any, with respect to the Bonds
(as defined in the Indenture), whether at maturity, by acceleration, redemption
or otherwise, the due and punctual payment of interest on overdue principal,
premium and Registration Default Damages, and, to the extent permitted by law,
interest, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms of the
Indenture and (b) in case of any extension of time of payment or renewal of any
Bonds or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. The
obligations of the Guarantor to the Holders of Bonds and to the Trustee pursuant
to the Bond Guaranty and the Indenture are expressly set forth in Article 12 of
the Indenture and reference is hereby made to the Indenture for the precise
terms of the Bond Guaranty. Each Holder of a Bond, by accepting the same, (a)
agrees to and shall be bound by such provisions and (b) appoints the Trustee
attorney-in-fact of such Holder for such purpose.
NORTHEAST ENERGY, LLC
By: NORTHEAST ENERGY, LLC
By: ESI NORTHEAST ENERGY GP
INC.,
as a general partner
By:___________________________
Name:
Title:
By: TRACTEBEL NORTHEAST
GENERATION GP INC.,
as a general partner
By:___________________________
Name:
Title:
E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, among __________________ (the "Guaranteeing Entity" and
together with the Bond Guarantor, the "Guarantors"), ESI Tractebel Acquisition
Corp. (or its permitted successor), a Delaware corporation (the "Company"), the
Company, the Bond Guarantor and NE LLC (as defined in the Indenture referred to
herein) and State Street Bank and Trust Company, as trustee under the indenture
referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of February 19, 1998 providing
for the issuance of an aggregate principal amount of up to $220,000,000 of 7.99%
Bonds due 2011 (the "Bonds");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Entity shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Entity shall unconditionally
guarantee all of the Company's Obligations under the Bonds and the Indenture on
the terms and conditions set forth herein (the "Bond Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Entity and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Bonds as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Entity hereby agrees as
follows:
(a) Along with the Bond Guarantor named in the Indenture, to jointly
and severally Guarantee to each Holder of a Bond authenticated
and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Bonds or the obligations of
the Company hereunder or thereunder, that:
(i) the principal of and interest on the Bonds will be promptly
paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Bonds, if any, if
lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and
F-1
(ii) in case of any extension of time of payment or renewal of
any Bonds or any of such other obligations, that same will
be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay
the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the Bonds or
the Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Bonds with respect to
any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence presentment, demand of
payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all
demands whatsoever.
(d) This Bond Guaranty shall not be discharged except by complete
performance of the obligations contained in the Bonds and the
Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting
in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Bond
Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Guaranteeing Entity shall not be entitled to any right of
subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in
Article 6 of the Indenture for the purposes of this Bond
Guaranty, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in
Article 6 of the Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Bond Guaranty.
F-2
(h) The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as
the exercise of such right does not impair the rights
of the Holders under the Guarantee.
(i) Pursuant to Section 12.02 of the Indenture, after
giving effect to any maximum amount and any other
contingent and fixed liabilities that are relevant
under any applicable Bankruptcy or fraudulent
conveyance laws, and after giving effect to any
collections from, rights to receive contribution from
or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other
Guarantor under Article 12 of the Indenture shall
result in the obligations of such Guarantor under its
Bond Guaranty not constituting a fraudulent transfer
or conveyance.
3. EXECUTION AND DELIVERY. Each Guaranteeing Entity agrees that the
Bond Guaranty shall remain in full force and effect notwithstanding any failure
to endorse on each Bond a notation of such Bond Guaranty.
4. Guaranteeing Entity May Consolidate, Etc. on Certain Terms.
(a) The Guaranteeing Entity may not consolidate with or merge with
or into (whether or not such Guarantor is the surviving Person)
another corporation, Person or entity whether or not affiliated
with such Guarantor unless:
(i) subject to Section 12.05 of the Indenture, the Person
formed by or surviving any such consolidation or merger
(if other than a Guarantor or the Company) unconditionally
assumes all the obligations of such Guarantor, pursuant to
a supplemental indenture in form and substance reasonably
satisfactory to the Trustee, under the Bonds, the
Indenture and the Bond Guaranty on the terms set forth
herein or therein; and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the Bond Guaranty
endorsed upon the Bonds and the due and punctual performance of
all of the covenants and conditions of the Indenture to be
performed by the Guarantor, such successor corporation shall
succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. Such
successor corporation thereupon may cause to be signed any or
all of the Bond Guarantees to be endorsed upon all of the Bonds
issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee. All the Bond
Guarantees so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Bond Guarantees
theretofore and thereafter issued in accordance with the terms
of the Indenture as though all of such Bond Guarantees had been
issued at the date of the execution hereof.
F-3
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in
the Indenture or in any of the Bonds shall prevent any
consolidation or merger of a Guarantor with or into the Company
or another Guarantor, or shall prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially
as an entirety to the Company or another Guarantor.
5. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Entity, as such, shall have any liability for any obligations of the Company or
any Guaranteeing Entity under the Bonds, any Bond Guarantees, the Indenture or
this Supplemental Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of the Bonds by
accepting a Bond waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Bonds. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the Commission that such a waiver is against public policy.
6. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
7. COUNTERPARTS The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
9. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Entity and the Company.
F-4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, ____
[Guaranteeing Entity]
By: _________________________________
Name:
Title:
[COMPANY]
By: _________________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _________________________________
Name:
Title
[TRUSTEE]
as Trustee
By: ________________________________
Name:
Title:
F-5
Schedule I
SCHEDULE OF GUARANTORS
The following schedule lists each Guarantor under the Indenture as of
the Issue Date:
1. Northeast Energy, LP
F-6
EXHIBIT G
FORM OF PLEDGE AGREEMENTS
G-1
EXHIBIT H
FORM OF PROMISSORY NOTE
EVIDENCING BOND LOAN
February 19, 1998
New York, New York
NOTE
FOR VALUE RECEIVED, Northeast Energy, LP, a Delaware limited
partnership (the "NE LP"), promises to pay to ESI Tractebel Acquisition Corp., a
Delaware corporation (the "Company"), or its order, the amount of $220,000,000,
together with interest on the unpaid principal amount at a rate per annum equal
to 7.99% from the date of advance to the date of payment (computed on the basis
of 360-day year of twelve 30-day months). All principal and accrued interest
under this Note shall be due and payable in accordance with the amortization
schedule attached hereto.
If the principal of, premium (if any) and accrued interest on and
Registration Default Damages, if any, with respect to the Bonds is declared or
shall become immediately due and payable pursuant to the Indenture, the
principal of and accrued interest on and Registration Default Damages, if any,
respectively, of this Note shall immediately become due and payable without any
declaration or other action of the holder hereof. If acceleration of the Bonds
is rescinded in accordance with the Indenture, the acceleration of this Note
also shall be rescinded without any act of the holder hereof.
This Note is the promissory note referred to as the promissory note
evidencing the "Bond Loan" in the indenture (the "Indenture"), dated as of
February 19, 1998, among the Company, NE LP, Northeast Energy, LLC and State
Street Bank and Trust Company, as trustee and collateral agent (the "Collateral
Agent") providing for the issuance of the Company's 7.99% Secured Bonds Due 2011
(the "Bonds").
The right to plead any and all statutes of limitations as a defense to
demand hereunder is hereby waived to the extent permitted by law. NE LP, for
itself and its successors and assigns, waives presentment, demand, protest and
notice thereof or of dishonor, and waives the right to be released by reason of
any extension of time or change in the terms of payment or any change,
alteration or release of any security given for the payment hereof. NE LP hereby
acknowledges that this Note may be pledged by the Company to the Collateral
Agent named below.
Except for the security interest in favor of the Collateral Agent
created by the Indenture and the Company and Partner Pledge Agreement (as
defined in the Indenture), so long as any Bonds are outstanding, this Note may
not be pledged, sold, transferred, assigned, participated, conveyed or otherwise
disposed of, and any attempted pledge, sale, transfer, assignment,
participation, conveyance or other disposition shall be null and void, nor may
any Lien (as defined in the Indenture), except the Lien created by the Company
and Partner Pledge Agreement, be created in respect hereof; provided, however,
that nothing herein shall prevent any consolidation, merger, conveyance, lease
or transfer pursuant to Article 5 of the Indenture.
The agreements contained in this Note are intended to be and are for
the benefit of the Company, the Trustee, the Collateral Agent, and the Holders
(as such terms are defined in the Indenture) of the Bonds. For so long as the
Indenture remains in effect, none of the terms hereof may be amended, modified,
waived, extended or renewed without the consent of the Trustee.
H-1
The principal hereof may not be prepaid in whole or in part; provided,
however, that the outstanding principal amount of this Note automatically shall
be reduced, and automatically shall be deemed repaid, concurrently with, and in
an amount equal to the amount of, each and every payment or prepayment of
principal made or deemed made by the Company on or with respect to the Bonds
(even though NE LP shall not have actually made any payment or prepayment on or
with respect to this Note).
Any and all payments of principal and interest hereunder shall be made
by NE LP to the Company in U.S. dollars.
This Note may be executed in two or more counterparts. Each signed copy
shall be an original, but all of them together represent one and the same
agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
NORTHEAST ENERGY, LP,
By: TRACTEBEL NORTHEAST
GENERATION GP, INC.,
as a general partner
By:______________________________
Name:
Title:
By: ESI NORTHEAST ENERGY GP, INC.,
as a general partner
By:______________________________
Name:
Title:
H-2
- ---------------------------------
Pay to the Order of:
State Street, as Collateral Agent
ESI TRACTEBEL ACQUISITION CORP.
By: ____________________________
Title: Vice President
H-3
EXHIBIT I
FORM OF FPL GROUP CAPITAL GUARANTEE
I-1